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M/s Bharat Coking Coal Ltd Vs. M/s C.K. Ahuja & Another | is required to be filed before this Court. Consequently, the objection if any to the award is also required to be filed before this Court. He has also submitted that at no point of time, any objection was raised by M/s Bharat Coking Coal Ltd. about the alleged impropriety in filing the award before this Court even though the notice of the counsel was drawn about filing of the award in April, 1994. Even in the petition of objection filed before this Court, no objection has been taken by M/s Bharat Coking Coal Ltd. that the award should not have been filed before this Court. Accordingly, such contention should not be allowed to be raised at the hearing of these applications. Mr.Bhandare has also contended that when the award has been filed in the Court and the attention of the learned counsel of the parties drawn by the Registry of this Court about the filing of the award, the period of limitation for filing objection to such award will run from the date of the notice. Although on the prayer of the learned counsel for the objector, a fresh notice was issued later on, the limitation for filing objection to the award cannot be counted from the date of such notice issued subsequently by this Court at the instance of the learned counsel for M/s Bharat Coking Coal Ltd. In support of this contention Mr. Bhandare has referred to a decision of this Court in Food Corporation of India and others v. E.Kuttappan (JT 1993 (4) SC 90 ). In the said decision reference was made to an earlier decision of this Court in Nilkantha Shidramappa Ninoashetti v.Kashinath Somanna Ninoashetti and others 1962 (2) SCR 551 ) and Indian Rayon Corporation Ltd. v. Raunod and Company Pvt. Ltd. 1988 (4) SCC 31. It has been held in the decision of 0000Food Corporation of Indias case (supra) that the obligation of filing the award in Court is a legal imperative on the arbitrator and when the award was filed in Court and the parties were aware of such filing of the award in Court, the limitation to file objection would run from the date of filing the award being made known to the parties, and not from any subsequent date when a notice of filing of such award was subsequently issued to the parties concerned.5. Mr. Bhandare has contended that in the instant case the Registry of this Court specifically drew the attention of the counsel in April, 1994 about the filing of the award but despite such knowledge, the appellant, M/s Bharat Coking Coal Ltd. did not choose to file any objection to the said award. Even after taking inspection of the award on October 3, 1994, the objection has not been filed within a period of thirty days from such inspection but the objection has been filed only on November 20, 1994. Accordingly, the objection to the award should not be considered as the same is hopelessly barred by limitation. 6. In our view, the contention raised by Mr. Bhandare in wholly justified. The Registry of this Court gave notice to the learned counsel for the parties about the filing of the award in April, 1994. It is nobodys case that counsel had an authority to take such notice on behalf of either of the party. It was also open to the counsel to take inspection of the award. As a matter of fact, such inspection was also taken on October 3, 1994 but no objection was filed within thirty days either from the notice given by the Registry in April, 1994 or from the date of inspection of the award on October 3, 1994. It has been held by this Court in State of Madhya Pradesh v. M/s Saith and Skelton (P) Ltd. (1972 (1) SCC 702 ) that where the Arbitrator was appointed by the Supreme Court by consent of parties and no further directions were given in the said order which would indicate that the Supreme Court had not divested itself of its jurisdiction to deal with the award or matters arising out of award, the forum for taking further action is the Supreme Court. It has also been held in the said decision that in the absence of any other court having been invested with such jurisdiction, the only conclusion that is possible is that further orders must be passed only by the Court that passed the order, namely, the Supreme Court. Mr. Bhandare has relied on a later decision of this Court in Punjab State Electricity Board v. Ludhiana Steels Private Ltd. 1993(1) RRR 678(SC) : (1993 (1) SCC 205 ) in support of his contention that when reference to arbitration was made by this Court, the award is to be filed in this Court only. We may only indicate that the said decision has a distinguishing feature inasmuch as in that case after making reference to arbitration, this Court specifically directed that the award would be sent to Registry of this Court. In any event, even if it is assumed that the award should be filed in other Court when the notice of filing of the award was given by the Registry of this Court, objection as to the award including objection as to forum ought to have been raised before this Court and it will not be open to the parties to altogether ignore the notice of filing the award given by the Registry of this Court. We may also indicate here that in the petition of objection it has not been urged that there has been any impropriety in filing the award in this Court. Accordingly, such objection should not be permitted to be raised at this stage as the objection to the award has been filed long after the period of limitation, the same should be dismissed. We may also indicate here that even on merit, we do not think that any interference is called for against the award. 7. | 1[ds]6. In our view, the contention raised by Mr. Bhandare in wholly justified. The Registry of this Court gave notice to the learned counsel for the parties about the filing of the award in April, 1994. It is nobodys case that counsel had an authority to take such notice on behalf of either of the party. It was also open to the counsel to take inspection of the award. As a matter of fact, such inspection was also taken on October 3, 1994 but no objection was filed within thirty days either from the notice given by the Registry in April, 1994 or from the date of inspection of the award on October 3, 1994. It has been held by this Court in State of Madhya Pradesh v. M/s Saith and Skelton (P) Ltd. (1972 (1) SCC 702 ) that where the Arbitrator was appointed by the Supreme Court by consent of parties and no further directions were given in the said order which would indicate that the Supreme Court had not divested itself of its jurisdiction to deal with the award or matters arising out of award, the forum for taking further action is the Supreme Court. It has also been held in the said decision that in the absence of any other court having been invested with such jurisdiction, the only conclusion that is possible is that further orders must be passed only by the Court that passed the order, namely, the Supreme Court. Mr. Bhandare has relied on a later decision of this Court in Punjab State Electricity Board v. Ludhiana Steels Private Ltd. 1993(1) RRR 678(SC) : (1993 (1) SCC 205 ) in support of his contention that when reference to arbitration was made by this Court, the award is to be filed in this Court only. We may only indicate that the said decision has a distinguishing feature inasmuch as in that case after making reference to arbitration, this Court specifically directed that the award would be sent to Registry of this Court. In any event, even if it is assumed that the award should be filed in other Court when the notice of filing of the award was given by the Registry of this Court, objection as to the award including objection as to forum ought to have been raised before this Court and it will not be open to the parties to altogether ignore the notice of filing the award given by the Registry of this Court. We may also indicate here that in the petition of objection it has not been urged that there has been any impropriety in filing the award in this Court. Accordingly, such objection should not be permitted to be raised at this stage as the objection to the award has been filed long after the period of limitation, the same should be dismissed. We may also indicate here that even on merit, we do not think that any interference is called for against the award. | 1 | 1,858 | 547 | ### Instruction:
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is required to be filed before this Court. Consequently, the objection if any to the award is also required to be filed before this Court. He has also submitted that at no point of time, any objection was raised by M/s Bharat Coking Coal Ltd. about the alleged impropriety in filing the award before this Court even though the notice of the counsel was drawn about filing of the award in April, 1994. Even in the petition of objection filed before this Court, no objection has been taken by M/s Bharat Coking Coal Ltd. that the award should not have been filed before this Court. Accordingly, such contention should not be allowed to be raised at the hearing of these applications. Mr.Bhandare has also contended that when the award has been filed in the Court and the attention of the learned counsel of the parties drawn by the Registry of this Court about the filing of the award, the period of limitation for filing objection to such award will run from the date of the notice. Although on the prayer of the learned counsel for the objector, a fresh notice was issued later on, the limitation for filing objection to the award cannot be counted from the date of such notice issued subsequently by this Court at the instance of the learned counsel for M/s Bharat Coking Coal Ltd. In support of this contention Mr. Bhandare has referred to a decision of this Court in Food Corporation of India and others v. E.Kuttappan (JT 1993 (4) SC 90 ). In the said decision reference was made to an earlier decision of this Court in Nilkantha Shidramappa Ninoashetti v.Kashinath Somanna Ninoashetti and others 1962 (2) SCR 551 ) and Indian Rayon Corporation Ltd. v. Raunod and Company Pvt. Ltd. 1988 (4) SCC 31. It has been held in the decision of 0000Food Corporation of Indias case (supra) that the obligation of filing the award in Court is a legal imperative on the arbitrator and when the award was filed in Court and the parties were aware of such filing of the award in Court, the limitation to file objection would run from the date of filing the award being made known to the parties, and not from any subsequent date when a notice of filing of such award was subsequently issued to the parties concerned.5. Mr. Bhandare has contended that in the instant case the Registry of this Court specifically drew the attention of the counsel in April, 1994 about the filing of the award but despite such knowledge, the appellant, M/s Bharat Coking Coal Ltd. did not choose to file any objection to the said award. Even after taking inspection of the award on October 3, 1994, the objection has not been filed within a period of thirty days from such inspection but the objection has been filed only on November 20, 1994. Accordingly, the objection to the award should not be considered as the same is hopelessly barred by limitation. 6. In our view, the contention raised by Mr. Bhandare in wholly justified. The Registry of this Court gave notice to the learned counsel for the parties about the filing of the award in April, 1994. It is nobodys case that counsel had an authority to take such notice on behalf of either of the party. It was also open to the counsel to take inspection of the award. As a matter of fact, such inspection was also taken on October 3, 1994 but no objection was filed within thirty days either from the notice given by the Registry in April, 1994 or from the date of inspection of the award on October 3, 1994. It has been held by this Court in State of Madhya Pradesh v. M/s Saith and Skelton (P) Ltd. (1972 (1) SCC 702 ) that where the Arbitrator was appointed by the Supreme Court by consent of parties and no further directions were given in the said order which would indicate that the Supreme Court had not divested itself of its jurisdiction to deal with the award or matters arising out of award, the forum for taking further action is the Supreme Court. It has also been held in the said decision that in the absence of any other court having been invested with such jurisdiction, the only conclusion that is possible is that further orders must be passed only by the Court that passed the order, namely, the Supreme Court. Mr. Bhandare has relied on a later decision of this Court in Punjab State Electricity Board v. Ludhiana Steels Private Ltd. 1993(1) RRR 678(SC) : (1993 (1) SCC 205 ) in support of his contention that when reference to arbitration was made by this Court, the award is to be filed in this Court only. We may only indicate that the said decision has a distinguishing feature inasmuch as in that case after making reference to arbitration, this Court specifically directed that the award would be sent to Registry of this Court. In any event, even if it is assumed that the award should be filed in other Court when the notice of filing of the award was given by the Registry of this Court, objection as to the award including objection as to forum ought to have been raised before this Court and it will not be open to the parties to altogether ignore the notice of filing the award given by the Registry of this Court. We may also indicate here that in the petition of objection it has not been urged that there has been any impropriety in filing the award in this Court. Accordingly, such objection should not be permitted to be raised at this stage as the objection to the award has been filed long after the period of limitation, the same should be dismissed. We may also indicate here that even on merit, we do not think that any interference is called for against the award. 7.
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6. In our view, the contention raised by Mr. Bhandare in wholly justified. The Registry of this Court gave notice to the learned counsel for the parties about the filing of the award in April, 1994. It is nobodys case that counsel had an authority to take such notice on behalf of either of the party. It was also open to the counsel to take inspection of the award. As a matter of fact, such inspection was also taken on October 3, 1994 but no objection was filed within thirty days either from the notice given by the Registry in April, 1994 or from the date of inspection of the award on October 3, 1994. It has been held by this Court in State of Madhya Pradesh v. M/s Saith and Skelton (P) Ltd. (1972 (1) SCC 702 ) that where the Arbitrator was appointed by the Supreme Court by consent of parties and no further directions were given in the said order which would indicate that the Supreme Court had not divested itself of its jurisdiction to deal with the award or matters arising out of award, the forum for taking further action is the Supreme Court. It has also been held in the said decision that in the absence of any other court having been invested with such jurisdiction, the only conclusion that is possible is that further orders must be passed only by the Court that passed the order, namely, the Supreme Court. Mr. Bhandare has relied on a later decision of this Court in Punjab State Electricity Board v. Ludhiana Steels Private Ltd. 1993(1) RRR 678(SC) : (1993 (1) SCC 205 ) in support of his contention that when reference to arbitration was made by this Court, the award is to be filed in this Court only. We may only indicate that the said decision has a distinguishing feature inasmuch as in that case after making reference to arbitration, this Court specifically directed that the award would be sent to Registry of this Court. In any event, even if it is assumed that the award should be filed in other Court when the notice of filing of the award was given by the Registry of this Court, objection as to the award including objection as to forum ought to have been raised before this Court and it will not be open to the parties to altogether ignore the notice of filing the award given by the Registry of this Court. We may also indicate here that in the petition of objection it has not been urged that there has been any impropriety in filing the award in this Court. Accordingly, such objection should not be permitted to be raised at this stage as the objection to the award has been filed long after the period of limitation, the same should be dismissed. We may also indicate here that even on merit, we do not think that any interference is called for against the award.
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Bajaj Auto Ltd. Vs. Director General (I and R) and Ors. | application of Section 33(1)(b) are lacking inasmuch as the said letter dated 11.5.1994 neither obliges nor compels the dealer to purchase all the goods as a condition of purchase of other goods nor does it oblige the dealer as a condition of purchaser of any of them to purchase any other goods. The said letter only sets targets, requesting the dealer to gear up for their achievement and answering their expectation and, therefore, the jurisdictional facts for application of Section 33(1)(b) of the MRTP Act are lacking and both the notice and the application are not maintainable in this behalf. 20. The appellant submitted that the jurisdictional facts for applicability of Section 33(1)(f) are lacking inasmuch as the letter dated 7.9.1994 cannot be read in isolation but has to be read with the appointment letter. The relevant portion of Clause `Q of the Dealership Agreement reads as under: You shall not sell our vehicles at higher than our recommended retail prices. You will, however, be free to sell at lower than the recommended retail prices. Taxes and Octroi whenever applicable, may be charged extra. (emphasis supplied) 21. The appellant, Bajaj Auto Ltd. on its own initiative for a fair and wide geographical distribution of Bajaj products and availability of adequate after-sales-service appointed dealers for its products all over the country so as to ensure that Bajaj products and adequate after-sales-service are available throughout the country. It is submitted on behalf of the appellant that there is no territorial restriction or restraint on allocation of geographical area to the dealer. The appointment of dealer at a specific geographical location is to ensure that their services are made available to the consumers. 22. It was also submitted on behalf of the appellant that if the dealer is not appointed at a specific geographical location, the dealer would not be obliged to have in that geographical area the showroom, workshop, service facility and stock of spares. The absence of such facilities etc. would not be and is not in public interest. Appointing a dealer at a geographical location in no way restricts, prevents or distorts competition in any manner, as a customer has a choice of buying any makes he likes or going to any person he likes for servicing or repair of his vehicle. Such appointment also ensures that the dealer who is selling the Bajaj products in a particular geographical location is responsible for adequate after-sales-services to the customers of the vehicle sold by it and to keep them running and in good condition. 23. The appellant also submitted before the Commission that to motivate the dealers for increasing sales, the appellant fixes sales target for the year. Fixing of sales targets do not and cannot mean that the dealer is required or compelled to buy one or the other Bajaj products. The appellant submitted that the setting of target as outlined in the said letter dated 11.5.1994 is not a process of performance appraisal, but is a condition imposed in the agreement, the gateway laid down in Clause h of Section 33(1) of the MRTP Act is squarely applicable as the condition does not directly or indirectly restrict or discourage competition in the two and three wheeler market to any extent at all. 24. It is submitted that, by no stretch of imagination, the appellant has indulged in restrictive trade practice and the provisions of Clauses (b), (f) and (g) of Section 33(1) of the MRTP Act are not attracted. 25. The appellant company placed reliance on the case of Mahindra and Mahindra Ltd. v. Union of India [1979]2SCR1038 , wherein it was held that it is only where a trade practice has the effect, actual or probable, or restricting, lessening or destroying competition that it is liable to be regarded as a restrictive trade practice and in order to arrive at a decision that a trade practice is a restrictive trade practice, the same cannot be decided on any theoretical or a prior reasoning, but by inquiring whether the trade practice has or may have the effect of preventing, distorting or restricting competition. 26. Reliance has also been placed on the case of Paras Brothers (1994) 4 Comp. Law Journal 395, wherein it was held that a restrictive trade practice must have the following elements: i. It should be a trade practice defined in Section 2(o) of the Act. ii. it should have an actual or probable effect of preventing, distorting or restricting competition in some manner. iii. the competition necessarily envisages the same or a similar situation. iv. there should be manipulation of prices. v. there should be unjustified costs or restriction as a result of such manipulation. 27. Reliance has also been placed on the case of L.C. Malhotra v. Rahul Bajaj (1995) 1 Comp. Law Journal 421, in which it was held that even isolated acts should be viewed in the context of the practice of the respondent in relation to the question as to whether the respondent had manipulated the conditions of delivery. 28. In the instant case, neither the notice nor the application even allege that the appellant has ever indulged in or that the alleged trade practice has or may have the effect of preventing, distorting or restricting competition in any manner and in particular it, inter-alia, tends to obstruct the flow of capital or resource into the stream of production or tends to bring about manipulation of prices or conditions of delivery or to affect flow of supplies into the market in such a manner so as to impose unjustified costs and/or restrictions on the consumers of goods in question and therefore ex facie neither notice nor the application are maintainable. 29. Before parting with this case, we deem it appropriate to observe that the Commission must be extremely careful before issuing notices to the parties because it has serious consequences on the reputation and credibility to the activities of those parties. Frivolous notices breed long drawn avoidable litigation before various forums. | 1[ds]28. In the instant case, neither the notice nor the application even allege that the appellant has ever indulged in or that the alleged trade practice has or may have the effect of preventing, distorting or restricting competition in any manner and in particular it, inter-alia, tends to obstruct the flow of capital or resource into the stream of production or tends to bring about manipulation of prices or conditions of delivery or to affect flow of supplies into the market in such a manner so as to impose unjustified costs and/or restrictions on the consumers of goods in question and therefore ex facie neither notice nor the application are maintainable.29. Before parting with this case, we deem it appropriate to observe that the Commission must be extremely careful before issuing notices to the parties because it has serious consequences on the reputation and credibility to the activities of those parties. Frivolous notices breed long drawn avoidable litigation before various forums. | 1 | 3,315 | 174 | ### Instruction:
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application of Section 33(1)(b) are lacking inasmuch as the said letter dated 11.5.1994 neither obliges nor compels the dealer to purchase all the goods as a condition of purchase of other goods nor does it oblige the dealer as a condition of purchaser of any of them to purchase any other goods. The said letter only sets targets, requesting the dealer to gear up for their achievement and answering their expectation and, therefore, the jurisdictional facts for application of Section 33(1)(b) of the MRTP Act are lacking and both the notice and the application are not maintainable in this behalf. 20. The appellant submitted that the jurisdictional facts for applicability of Section 33(1)(f) are lacking inasmuch as the letter dated 7.9.1994 cannot be read in isolation but has to be read with the appointment letter. The relevant portion of Clause `Q of the Dealership Agreement reads as under: You shall not sell our vehicles at higher than our recommended retail prices. You will, however, be free to sell at lower than the recommended retail prices. Taxes and Octroi whenever applicable, may be charged extra. (emphasis supplied) 21. The appellant, Bajaj Auto Ltd. on its own initiative for a fair and wide geographical distribution of Bajaj products and availability of adequate after-sales-service appointed dealers for its products all over the country so as to ensure that Bajaj products and adequate after-sales-service are available throughout the country. It is submitted on behalf of the appellant that there is no territorial restriction or restraint on allocation of geographical area to the dealer. The appointment of dealer at a specific geographical location is to ensure that their services are made available to the consumers. 22. It was also submitted on behalf of the appellant that if the dealer is not appointed at a specific geographical location, the dealer would not be obliged to have in that geographical area the showroom, workshop, service facility and stock of spares. The absence of such facilities etc. would not be and is not in public interest. Appointing a dealer at a geographical location in no way restricts, prevents or distorts competition in any manner, as a customer has a choice of buying any makes he likes or going to any person he likes for servicing or repair of his vehicle. Such appointment also ensures that the dealer who is selling the Bajaj products in a particular geographical location is responsible for adequate after-sales-services to the customers of the vehicle sold by it and to keep them running and in good condition. 23. The appellant also submitted before the Commission that to motivate the dealers for increasing sales, the appellant fixes sales target for the year. Fixing of sales targets do not and cannot mean that the dealer is required or compelled to buy one or the other Bajaj products. The appellant submitted that the setting of target as outlined in the said letter dated 11.5.1994 is not a process of performance appraisal, but is a condition imposed in the agreement, the gateway laid down in Clause h of Section 33(1) of the MRTP Act is squarely applicable as the condition does not directly or indirectly restrict or discourage competition in the two and three wheeler market to any extent at all. 24. It is submitted that, by no stretch of imagination, the appellant has indulged in restrictive trade practice and the provisions of Clauses (b), (f) and (g) of Section 33(1) of the MRTP Act are not attracted. 25. The appellant company placed reliance on the case of Mahindra and Mahindra Ltd. v. Union of India [1979]2SCR1038 , wherein it was held that it is only where a trade practice has the effect, actual or probable, or restricting, lessening or destroying competition that it is liable to be regarded as a restrictive trade practice and in order to arrive at a decision that a trade practice is a restrictive trade practice, the same cannot be decided on any theoretical or a prior reasoning, but by inquiring whether the trade practice has or may have the effect of preventing, distorting or restricting competition. 26. Reliance has also been placed on the case of Paras Brothers (1994) 4 Comp. Law Journal 395, wherein it was held that a restrictive trade practice must have the following elements: i. It should be a trade practice defined in Section 2(o) of the Act. ii. it should have an actual or probable effect of preventing, distorting or restricting competition in some manner. iii. the competition necessarily envisages the same or a similar situation. iv. there should be manipulation of prices. v. there should be unjustified costs or restriction as a result of such manipulation. 27. Reliance has also been placed on the case of L.C. Malhotra v. Rahul Bajaj (1995) 1 Comp. Law Journal 421, in which it was held that even isolated acts should be viewed in the context of the practice of the respondent in relation to the question as to whether the respondent had manipulated the conditions of delivery. 28. In the instant case, neither the notice nor the application even allege that the appellant has ever indulged in or that the alleged trade practice has or may have the effect of preventing, distorting or restricting competition in any manner and in particular it, inter-alia, tends to obstruct the flow of capital or resource into the stream of production or tends to bring about manipulation of prices or conditions of delivery or to affect flow of supplies into the market in such a manner so as to impose unjustified costs and/or restrictions on the consumers of goods in question and therefore ex facie neither notice nor the application are maintainable. 29. Before parting with this case, we deem it appropriate to observe that the Commission must be extremely careful before issuing notices to the parties because it has serious consequences on the reputation and credibility to the activities of those parties. Frivolous notices breed long drawn avoidable litigation before various forums.
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28. In the instant case, neither the notice nor the application even allege that the appellant has ever indulged in or that the alleged trade practice has or may have the effect of preventing, distorting or restricting competition in any manner and in particular it, inter-alia, tends to obstruct the flow of capital or resource into the stream of production or tends to bring about manipulation of prices or conditions of delivery or to affect flow of supplies into the market in such a manner so as to impose unjustified costs and/or restrictions on the consumers of goods in question and therefore ex facie neither notice nor the application are maintainable.29. Before parting with this case, we deem it appropriate to observe that the Commission must be extremely careful before issuing notices to the parties because it has serious consequences on the reputation and credibility to the activities of those parties. Frivolous notices breed long drawn avoidable litigation before various forums.
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Bishan Paul Vs. Mothu Ram | In this case the tenant was told to attorn from October 3, 1956 because nothing remained to be done except the ministerial acts of issuing the certificate and getting it registered. Therefore, so far as title was concerned, it must be deemed to have passed and the certificate must relate back to the date when the sale became absolute. The tenant himself paid rent for 2 days to the Custodian and deposited rent for the use of the new landlord from October 3, 1956. His defence originally was that he had tendered the rent from October 3, 1956 and even sent it by money order but the landlord refused to receive it, He thus acknowledged the new landlord and attorned to him from October 3, 1956. It was only when the decision in the Bombay Salt and Chemical Industries case, AIR 1958 SC 289 , was given that he changed his stand. That case, however, did not decide the precise point on which he rested his new defence. The rulings on which he relies also erroneously accepted the decision of this Court in the Bombay Salt and Chemical Industries case, AIR 1958 SC 289 , to have decided the point when title commences. As has been rightly pointed out in Jaimals case, 66 Pun LR 99 (AIR 1964 Punj 99), the point was at large. In our judgment, the landlord in the present case could maintain the proceedings for ejectment. We agree generally with the observations of Tekchand, J. in Roshanlal Goswami v. Gobind Ram, 65 Pun LR 852 : (AIR 1963 Punj 532), that the landlords right to bring a suit for ejectment need not necessarily depend on the issuance of the certificate. In this case the landlord had paid the full price, his bid was approved and he had received a certificate mentioning the date of confirmation. In our judgment, he obtained title on the date of confirmation of the sale and could demind rent from that date as indeed he was informed and he himself understood to be the true state of affairs. 17. It remains to consider whether there ought to have been relief from forfeiture in this case. Here the difficulty in the way of the appellant is insuperable. Section 13 of the East Punjab Urban Rent Restriction Act provides inter alia : "13. Eviction of tenants. (1) * * * * (2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant, is satisfied. (i) that the tenant has not paid or tendered the rent due by him in respect of the building or rented land within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable : Provided that if the tenant on the first hearing of the application for ejectment after due service pays or tenders the arrears of rent and interest at six per cent per annum on such arrears together with the cost of application assessed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid. (ii) * * * * (iii) * * * * the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the application. Provided that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building or rented land and may extend such time so as not to exceed three months in aggregate. (underlined (here in ) by us) * * * * * * * * 18. It is contended that the section confers a discretion on the Controller which is indicated by the word "may" and by way of contrast the word "shall" used in the latter part of the same section is referred to. There is much force in this contention but the question is not res integra. This section was interpreted by this Court in Waryam Singh v. Amarnath, 1954 SCR 565 : (AIR 1954 SC 215 ). In that case the tenant had admittedly not paid rent as required by S. 13(2) of the East Punjab Urban Rent Restriction Act as applied to Himachal Pradesh. The Rent Controller and the District Judge, on appeal, did not order eviction. The Judicial Commissioner was moved under Arts. 226 and 227 of the Constitution and he held that "in view of the admitted failure to pay rent as provided by the rent deed or at the first hearing of the Court under the proviso to S.13 (2) (i) the Courts below had acted arbitrarily in refusing to make an order for ejectment against the tenants". The Judicial Commissioner, therefore, set aside the orders of the Courts below and ordered ejectment. This Court observed : "As rightly pointed out by the Judicial Commissioner in the case before us the lower Courts in refusing to make an order for ejectment facted arbitrarily. The lower Courts realised the legal position but in effect declined to do what was by S. 13 (2) (i) incumbent on them to do and thereby refused to exercise jurisdiction vested in them by law. It was, therefore, a case which called for an interference by the Court of the Judicial Commissioner and it acted quite properly in doing so." The decision is binding us and as pointed out by Kapur, J. (as he then was) in 56 Pun LR 284: (AIR 1954 Punj 231), the ruling of this Court makes it incumbent on the Rent Controller to order eviction. In this view of the matter there is no relief possible to the appellant. | 0[ds]5. It may be stated at once that there is no proof on record that the standard rent was tendered by money order by the appellant. The only money order receipts are Exs. R. 27 and R. 28 but they show tender of rent respectively for two months from January 24, 1957 and for four months from April to July, 1959. These receipts neither cover the period from October 3, 1956 nor from December 4, 1956Unfortunately, the Rules do not indicate clearly the point of time from which the title of the auction purchaser is to commence as is done by S. 65 of the Code of Civil Procedure. Neither side claims to apply the provisions of the Transfer of Property Act and the case was argued on the basis of the Rules to determine the time from which title can be said to commence11. This fiction cannot apply here for the simple reason that no such provision is made in the rules8. The rules which we have earlier reproduced show that the auction is held on a date fixed and is subject to a reserve price which is confidential. The officer conducting the sale declares at the fall of hammer who is the highest bidder. The highest bid is subject to the approval of the Settlement Commissioner or an officer appointed by him. A period of seven days must elapse before the bid is approved and there is also a limitation of seven days from the acceptance of the bid for making an application to set aside the sale. If the bid is approved and if no application meanwhile for setting aside the sale is made, the highest bidder is recognised as the auction purchaser and he is required to produce a treasury challan in respect of the balance of the purchase money within a period of fifteen days (which period may be extended without limit of time) before the Settlement Commissioner or the Officer appointed by him. When the full purchase price is paid a Certificate issues in Form No. XXII and is sent to ther for registration. If the balance of the price is not paid, the amount of advance in deposit is forfeited and the auction purchaser has no claim to the property16. It seems to us that the matter must be considered on general principles. In this case the highest bid was of the respondent and he paid the full price before the sale in his favour was confirmed. The sale certificate, though issued later, mentioned the date of the confirmation of the sale in his favour. The tenant was asked to attorn to the purchaser from the date of confirmation of sale and thus possession was also delivered on that day. Title, therefore, was not in abeyance till the certificate was issued but passed on the confirmation of sale. The intention behind the rules appears to be that title shall pass when the full price is realised and this is now clear from the new form of the certificate reproduced in Jaimals case, 66 Pun LR 99 : (AIR 1964 Punj 99). No doubt till the price is paid in full there is no claim to the property, but it seems somewhat strange that a person who has paid the price in full and in whose favour the sale is also confirmed and who is placed in possession should only acquire title to the property from the date on which a certificate is issued to him. There may conceivably be a great deal of time spent before the certificate is granted. In this case the tenant was told to attorn from October 3, 1956 because nothing remained to be done except the ministerial acts of issuing the certificate and getting it registered. Therefore, so far as title was concerned, it must be deemed to have passed and the certificate must relate back to the date when the sale became absolute. The tenant himself paid rent for 2 days to the Custodian and deposited rent for the use of the new landlord from October 3, 1956. His defence originally was that he had tendered the rent from October 3, 1956 and even sent it by money order but the landlord refused to receive it, He thus acknowledged the new landlord and attorned to him from October 3, 1956. It was only when the decision in the Bombay Salt and Chemical Industries case, AIR 1958 SC 289 , was given that he changed his stand. That case, however, did not decide the precise point on which he rested his new defence. The rulings on which he relies also erroneously accepted the decision of this Court in the Bombay Salt and Chemical Industries case, AIR 1958 SC 289 , to have decided the point when title commences. As has been rightly pointed out in Jaimals case, 66 Pun LR 99 (AIR 1964 Punj 99), the point was at large. In our judgment, the landlord in the present case could maintain the proceedings for ejectment. We agree generally with the observations of Tekchand, J. in Roshanlal Goswami v. Gobind Ram, 65 Pun LR 852 : (AIR 1963 Punj 532), that the landlords right to bring a suit for ejectment need not necessarily depend on the issuance of the certificate. In this case the landlord had paid the full price, his bid was approved and he had received a certificate mentioning the date of confirmation. In our judgment, he obtained title on the date of confirmation of the sale and could demind rent from that date as indeed he was informed and he himself understood to be the true state of affairsThere is much force in this contention but the question is not res integra. This section was interpreted by this Court in Waryam Singh v. Amarnath, 1954 SCR 565 : (AIR 1954 SC 215 ). In that case the tenant had admittedly not paid rent as required by S. 13(2) of the East Punjab Urban Rent Restriction Act as applied to Himachal Pradesh. The Rent Controller and the District Judge, on appeal, did not order eviction. The Judicial Commissioner was moved under Arts. 226 and 227 of the Constitution and he held that "in view of the admitted failure to pay rent as provided by the rent deed or at the first hearing of the Court under the proviso to S.13 (2) (i) the Courts below had acted arbitrarily in refusing to make an order for ejectment against the tenants"The decision is binding us and as pointed out by Kapur, J. (as he then was) in 56 Pun LR 284: (AIR 1954 Punj 231), the ruling of this Court makes it incumbent on the Rent Controller to order eviction. In this view of the matter there is no relief possible to the appellant. | 0 | 5,523 | 1,243 | ### 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:
In this case the tenant was told to attorn from October 3, 1956 because nothing remained to be done except the ministerial acts of issuing the certificate and getting it registered. Therefore, so far as title was concerned, it must be deemed to have passed and the certificate must relate back to the date when the sale became absolute. The tenant himself paid rent for 2 days to the Custodian and deposited rent for the use of the new landlord from October 3, 1956. His defence originally was that he had tendered the rent from October 3, 1956 and even sent it by money order but the landlord refused to receive it, He thus acknowledged the new landlord and attorned to him from October 3, 1956. It was only when the decision in the Bombay Salt and Chemical Industries case, AIR 1958 SC 289 , was given that he changed his stand. That case, however, did not decide the precise point on which he rested his new defence. The rulings on which he relies also erroneously accepted the decision of this Court in the Bombay Salt and Chemical Industries case, AIR 1958 SC 289 , to have decided the point when title commences. As has been rightly pointed out in Jaimals case, 66 Pun LR 99 (AIR 1964 Punj 99), the point was at large. In our judgment, the landlord in the present case could maintain the proceedings for ejectment. We agree generally with the observations of Tekchand, J. in Roshanlal Goswami v. Gobind Ram, 65 Pun LR 852 : (AIR 1963 Punj 532), that the landlords right to bring a suit for ejectment need not necessarily depend on the issuance of the certificate. In this case the landlord had paid the full price, his bid was approved and he had received a certificate mentioning the date of confirmation. In our judgment, he obtained title on the date of confirmation of the sale and could demind rent from that date as indeed he was informed and he himself understood to be the true state of affairs. 17. It remains to consider whether there ought to have been relief from forfeiture in this case. Here the difficulty in the way of the appellant is insuperable. Section 13 of the East Punjab Urban Rent Restriction Act provides inter alia : "13. Eviction of tenants. (1) * * * * (2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant, is satisfied. (i) that the tenant has not paid or tendered the rent due by him in respect of the building or rented land within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable : Provided that if the tenant on the first hearing of the application for ejectment after due service pays or tenders the arrears of rent and interest at six per cent per annum on such arrears together with the cost of application assessed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid. (ii) * * * * (iii) * * * * the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the application. Provided that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building or rented land and may extend such time so as not to exceed three months in aggregate. (underlined (here in ) by us) * * * * * * * * 18. It is contended that the section confers a discretion on the Controller which is indicated by the word "may" and by way of contrast the word "shall" used in the latter part of the same section is referred to. There is much force in this contention but the question is not res integra. This section was interpreted by this Court in Waryam Singh v. Amarnath, 1954 SCR 565 : (AIR 1954 SC 215 ). In that case the tenant had admittedly not paid rent as required by S. 13(2) of the East Punjab Urban Rent Restriction Act as applied to Himachal Pradesh. The Rent Controller and the District Judge, on appeal, did not order eviction. The Judicial Commissioner was moved under Arts. 226 and 227 of the Constitution and he held that "in view of the admitted failure to pay rent as provided by the rent deed or at the first hearing of the Court under the proviso to S.13 (2) (i) the Courts below had acted arbitrarily in refusing to make an order for ejectment against the tenants". The Judicial Commissioner, therefore, set aside the orders of the Courts below and ordered ejectment. This Court observed : "As rightly pointed out by the Judicial Commissioner in the case before us the lower Courts in refusing to make an order for ejectment facted arbitrarily. The lower Courts realised the legal position but in effect declined to do what was by S. 13 (2) (i) incumbent on them to do and thereby refused to exercise jurisdiction vested in them by law. It was, therefore, a case which called for an interference by the Court of the Judicial Commissioner and it acted quite properly in doing so." The decision is binding us and as pointed out by Kapur, J. (as he then was) in 56 Pun LR 284: (AIR 1954 Punj 231), the ruling of this Court makes it incumbent on the Rent Controller to order eviction. In this view of the matter there is no relief possible to the appellant.
### Response:
0
### Explanation:
can be said to commence11. This fiction cannot apply here for the simple reason that no such provision is made in the rules8. The rules which we have earlier reproduced show that the auction is held on a date fixed and is subject to a reserve price which is confidential. The officer conducting the sale declares at the fall of hammer who is the highest bidder. The highest bid is subject to the approval of the Settlement Commissioner or an officer appointed by him. A period of seven days must elapse before the bid is approved and there is also a limitation of seven days from the acceptance of the bid for making an application to set aside the sale. If the bid is approved and if no application meanwhile for setting aside the sale is made, the highest bidder is recognised as the auction purchaser and he is required to produce a treasury challan in respect of the balance of the purchase money within a period of fifteen days (which period may be extended without limit of time) before the Settlement Commissioner or the Officer appointed by him. When the full purchase price is paid a Certificate issues in Form No. XXII and is sent to ther for registration. If the balance of the price is not paid, the amount of advance in deposit is forfeited and the auction purchaser has no claim to the property16. It seems to us that the matter must be considered on general principles. In this case the highest bid was of the respondent and he paid the full price before the sale in his favour was confirmed. The sale certificate, though issued later, mentioned the date of the confirmation of the sale in his favour. The tenant was asked to attorn to the purchaser from the date of confirmation of sale and thus possession was also delivered on that day. Title, therefore, was not in abeyance till the certificate was issued but passed on the confirmation of sale. The intention behind the rules appears to be that title shall pass when the full price is realised and this is now clear from the new form of the certificate reproduced in Jaimals case, 66 Pun LR 99 : (AIR 1964 Punj 99). No doubt till the price is paid in full there is no claim to the property, but it seems somewhat strange that a person who has paid the price in full and in whose favour the sale is also confirmed and who is placed in possession should only acquire title to the property from the date on which a certificate is issued to him. There may conceivably be a great deal of time spent before the certificate is granted. In this case the tenant was told to attorn from October 3, 1956 because nothing remained to be done except the ministerial acts of issuing the certificate and getting it registered. Therefore, so far as title was concerned, it must be deemed to have passed and the certificate must relate back to the date when the sale became absolute. The tenant himself paid rent for 2 days to the Custodian and deposited rent for the use of the new landlord from October 3, 1956. His defence originally was that he had tendered the rent from October 3, 1956 and even sent it by money order but the landlord refused to receive it, He thus acknowledged the new landlord and attorned to him from October 3, 1956. It was only when the decision in the Bombay Salt and Chemical Industries case, AIR 1958 SC 289 , was given that he changed his stand. That case, however, did not decide the precise point on which he rested his new defence. The rulings on which he relies also erroneously accepted the decision of this Court in the Bombay Salt and Chemical Industries case, AIR 1958 SC 289 , to have decided the point when title commences. As has been rightly pointed out in Jaimals case, 66 Pun LR 99 (AIR 1964 Punj 99), the point was at large. In our judgment, the landlord in the present case could maintain the proceedings for ejectment. We agree generally with the observations of Tekchand, J. in Roshanlal Goswami v. Gobind Ram, 65 Pun LR 852 : (AIR 1963 Punj 532), that the landlords right to bring a suit for ejectment need not necessarily depend on the issuance of the certificate. In this case the landlord had paid the full price, his bid was approved and he had received a certificate mentioning the date of confirmation. In our judgment, he obtained title on the date of confirmation of the sale and could demind rent from that date as indeed he was informed and he himself understood to be the true state of affairsThere is much force in this contention but the question is not res integra. This section was interpreted by this Court in Waryam Singh v. Amarnath, 1954 SCR 565 : (AIR 1954 SC 215 ). In that case the tenant had admittedly not paid rent as required by S. 13(2) of the East Punjab Urban Rent Restriction Act as applied to Himachal Pradesh. The Rent Controller and the District Judge, on appeal, did not order eviction. The Judicial Commissioner was moved under Arts. 226 and 227 of the Constitution and he held that "in view of the admitted failure to pay rent as provided by the rent deed or at the first hearing of the Court under the proviso to S.13 (2) (i) the Courts below had acted arbitrarily in refusing to make an order for ejectment against the tenants"The decision is binding us and as pointed out by Kapur, J. (as he then was) in 56 Pun LR 284: (AIR 1954 Punj 231), the ruling of this Court makes it incumbent on the Rent Controller to order eviction. In this view of the matter there is no relief possible to the appellant.
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M/s. Raghunandan Prasad Mohanlal Vs. State of Uttar Pradesh & Others | imposing single point tax on Atta, Maida and Sooji with effect from October 1, 1956. That notification was purported to have been issued under sec. 3-A of the U.P. Sales Act, 1948. On January 5, 1957 the Central Act No. 52 of 1952 was replaced by Central Sales Tax Act. U.P. Act 19 of 1956 referred to earlier was decleared ultra vires the Constitution by the High Court of Allahabad on May 9, 1957. That Act and the notifications issued on March 31, 1956 were attempted to be validated by U.P. Sales Tax (Validation) Amendment Act, 1957 (Act No. 24 of 1957) which was published in the U.P. Gazette on September 3, 1957 after obtaining the assent of the President on August 31, 1957. That Act again was decleared ultra vires the Constitution by the Allahabad High Court. Thereafter the U.P. Sales Tax (Validation) Act, 1958 (U.P. Act 15 of 1958) was enacted. It received the assent of the President on May 3, 1958. It was published in the U.P. Gazette on May 6, 1958. It was given retrospective effect as from March 31, 1956. The validity of Act 15 of 1958 has been upheld both by the Allahabad High Court as well as by this Court. This in short is the History of the legislations with which we are concerned in this case.4. In this Court Mr. S. V. Gupte, learned counsel for the appellant challenged the validity of Notification No. 909/X dated March 31, 1956. That Notification reads :"In exercise of the powers conferred by the second proviso to sub-sec. (1) of sec. 3 of the U.P. Sales Tax Act, 1948, as amended from time to time and in supersession of all previous notifications on the subject, the Governor U.P. is hereby pleased to order that with effect from April 1, 1956, the rate of tax on the turnover in respect of the goods specified in the List below shall be six pies per rupee at all points of sale.LIST1. Foodgrains including cereals and pulses.2. Atta, Maida and Sooji."5. As mentioned earlier this notification has been validated by sec. 3(1) of U.P. Act 15 of 1958.6. Section 3(1) of that Act reads :"Notwithstanding any judgement, decree or order of any Court, the notifications specified in Part A, Part B and Part C of the Schedule shall be deemed to have been issued in exercise of the powers conferred respectively by Sec. 3, Sec. 3A and Sec. 4 of the U.P. Sales Tax Act, 1948, as if the said sections were in force on the date on which the notifications were issued in the form in which they were in force immediately before the commencement of this Act and all the said notifications shall be valid and shall de deemed always to have been valid and shall continue in force until amended, varied or rescinded by any notification issued under any of the said sections."7. Item I of Part A of the Schedule mentions Notification No. F.D. (A&ST) Notification No. ST-909/X, dated March 31, 1956. It is clear from Sec. 3(1) quoted above that this notification was received and was given retrospective effect and that section further says that the same shall be in force "until amended, varied or rescinded by any notification issued under any of said sections". But curiously enough Item I of Part A of the Schedule reads :"F.D. (A&ST) Notification No. ST-909/X, dated March 31, 1956 subject to its supersession by F.D. (A&ST) Notification No. ST-909/X - 1097-56 dated September 30, 1956 and No. ST-6069/X 1097-56 dated September 30, 1956."8. One cannot understand how a notification can be revived subject to its supersession by some other notification. Obviously reference to supersession of the Notification No. ST-909/X dated March 31, 1956 is wholly inconsistent with the language of Section 3(1) of the U.P. Act 15 of 1958. It appears to be an error that has crept into the Act. As the intention of the Legislature is clear from the language of the provisions referred to earlier we must hold that Notification No. ST-909/X dated March 31, 1956 is revived with retrospective effect. Further, as seen earlier, Notification No. ST-6069/X-1097-57 has already been struck down by the High Court as invalid. The same has not been revived by the Validation Act. Hence it does not exist in law.9. For the reasons mentioned above we are in agreement with the High Court that Notification No. ST-909/X dated March 31, 1956 is in force.10. The next contention taken by Mr. Gupte was that Notification No. ST-6068/X-1097-56 dated September 30, 1956 imposes excise duty and not sales tax and therefore the same is invalid. This question does not appear to have been argued before the High Court. Hence it is not advisable for us to go into that question though from a reading of the Notification it is not possible to acced to the contention of Mr. Gupta that the levy in question is an excise duty and not sales tax.11. The only other contention advanced on behalf of the appellant is that sales tax has been levied on some permit sales and the same was impermissible in law. He tried to base his argument on this part of the case on the decision of this Court in M/s New India Sugar Mills Ltd. vs. Commr. of Sales Tax, Bihar. The contention that a portion of the turnover related to sales of controlled articles to have been taken before the High Court at a late stage; yet the High Court permitted the appellant to place material before it to satisfy the Court that the relevant transactions cannot be considered as sales. From the affidavit filed by the assessee, it is not possible to conclude that the transactions in question are not "sales". The affidavit does not speak of any control over the sales. It merely refers to certain controls over purchases. On the material before us it is not possible to hold that any of those transactions are not "sales". | 0[ds]8. One cannot understand how a notification can be revived subject to its supersession by some other notification. Obviously reference to supersession of the Notification No.dated March 31, 1956 is wholly inconsistent with the language of Section 3(1) of the U.P. Act 15 of 1958. It appears to be an error that has crept into the Act. As the intention of the Legislature is clear from the language of the provisions referred to earlier we must hold that Notification No.dated March 31, 1956 is revived with retrospective effect. Further, as seen earlier, Notification No.has already been struck down by the High Court as invalid. The same has not been revived by the Validation Act. Hence it does not exist in law.9. For the reasons mentioned above we are in agreement with the High Court that Notification No.dated March 31, 1956 is inquestion does not appear to have been argued before the High Court. Hence it is not advisable for us to go into that question though from a reading of the Notification it is not possible to acced to the contention of Mr. Gupta that the levy in question is an excise duty and not sales tax.11. The only other contention advanced on behalf of the appellant is that sales tax has been levied on some permit sales and the same was impermissible in law. He tried to base his argument on this part of the case on the decision of this Court in M/s New India Sugar Mills Ltd. vs. Commr. of Sales Tax, Bihar. The contention that a portion of the turnover related to sales of controlled articles to have been taken before the High Court at a late stage; yet the High Court permitted the appellant to place material before it to satisfy the Court that the relevant transactions cannot be considered as sales. From the affidavit filed by the assessee, it is not possible to conclude that the transactions in question are not "sales". The affidavit does not speak of any control over the sales. It merely refers to certain controls over purchases. On the material before us it is not possible to hold that any of those transactions are not "sales". | 0 | 1,788 | 406 | ### 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:
imposing single point tax on Atta, Maida and Sooji with effect from October 1, 1956. That notification was purported to have been issued under sec. 3-A of the U.P. Sales Act, 1948. On January 5, 1957 the Central Act No. 52 of 1952 was replaced by Central Sales Tax Act. U.P. Act 19 of 1956 referred to earlier was decleared ultra vires the Constitution by the High Court of Allahabad on May 9, 1957. That Act and the notifications issued on March 31, 1956 were attempted to be validated by U.P. Sales Tax (Validation) Amendment Act, 1957 (Act No. 24 of 1957) which was published in the U.P. Gazette on September 3, 1957 after obtaining the assent of the President on August 31, 1957. That Act again was decleared ultra vires the Constitution by the Allahabad High Court. Thereafter the U.P. Sales Tax (Validation) Act, 1958 (U.P. Act 15 of 1958) was enacted. It received the assent of the President on May 3, 1958. It was published in the U.P. Gazette on May 6, 1958. It was given retrospective effect as from March 31, 1956. The validity of Act 15 of 1958 has been upheld both by the Allahabad High Court as well as by this Court. This in short is the History of the legislations with which we are concerned in this case.4. In this Court Mr. S. V. Gupte, learned counsel for the appellant challenged the validity of Notification No. 909/X dated March 31, 1956. That Notification reads :"In exercise of the powers conferred by the second proviso to sub-sec. (1) of sec. 3 of the U.P. Sales Tax Act, 1948, as amended from time to time and in supersession of all previous notifications on the subject, the Governor U.P. is hereby pleased to order that with effect from April 1, 1956, the rate of tax on the turnover in respect of the goods specified in the List below shall be six pies per rupee at all points of sale.LIST1. Foodgrains including cereals and pulses.2. Atta, Maida and Sooji."5. As mentioned earlier this notification has been validated by sec. 3(1) of U.P. Act 15 of 1958.6. Section 3(1) of that Act reads :"Notwithstanding any judgement, decree or order of any Court, the notifications specified in Part A, Part B and Part C of the Schedule shall be deemed to have been issued in exercise of the powers conferred respectively by Sec. 3, Sec. 3A and Sec. 4 of the U.P. Sales Tax Act, 1948, as if the said sections were in force on the date on which the notifications were issued in the form in which they were in force immediately before the commencement of this Act and all the said notifications shall be valid and shall de deemed always to have been valid and shall continue in force until amended, varied or rescinded by any notification issued under any of the said sections."7. Item I of Part A of the Schedule mentions Notification No. F.D. (A&ST) Notification No. ST-909/X, dated March 31, 1956. It is clear from Sec. 3(1) quoted above that this notification was received and was given retrospective effect and that section further says that the same shall be in force "until amended, varied or rescinded by any notification issued under any of said sections". But curiously enough Item I of Part A of the Schedule reads :"F.D. (A&ST) Notification No. ST-909/X, dated March 31, 1956 subject to its supersession by F.D. (A&ST) Notification No. ST-909/X - 1097-56 dated September 30, 1956 and No. ST-6069/X 1097-56 dated September 30, 1956."8. One cannot understand how a notification can be revived subject to its supersession by some other notification. Obviously reference to supersession of the Notification No. ST-909/X dated March 31, 1956 is wholly inconsistent with the language of Section 3(1) of the U.P. Act 15 of 1958. It appears to be an error that has crept into the Act. As the intention of the Legislature is clear from the language of the provisions referred to earlier we must hold that Notification No. ST-909/X dated March 31, 1956 is revived with retrospective effect. Further, as seen earlier, Notification No. ST-6069/X-1097-57 has already been struck down by the High Court as invalid. The same has not been revived by the Validation Act. Hence it does not exist in law.9. For the reasons mentioned above we are in agreement with the High Court that Notification No. ST-909/X dated March 31, 1956 is in force.10. The next contention taken by Mr. Gupte was that Notification No. ST-6068/X-1097-56 dated September 30, 1956 imposes excise duty and not sales tax and therefore the same is invalid. This question does not appear to have been argued before the High Court. Hence it is not advisable for us to go into that question though from a reading of the Notification it is not possible to acced to the contention of Mr. Gupta that the levy in question is an excise duty and not sales tax.11. The only other contention advanced on behalf of the appellant is that sales tax has been levied on some permit sales and the same was impermissible in law. He tried to base his argument on this part of the case on the decision of this Court in M/s New India Sugar Mills Ltd. vs. Commr. of Sales Tax, Bihar. The contention that a portion of the turnover related to sales of controlled articles to have been taken before the High Court at a late stage; yet the High Court permitted the appellant to place material before it to satisfy the Court that the relevant transactions cannot be considered as sales. From the affidavit filed by the assessee, it is not possible to conclude that the transactions in question are not "sales". The affidavit does not speak of any control over the sales. It merely refers to certain controls over purchases. On the material before us it is not possible to hold that any of those transactions are not "sales".
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0
### Explanation:
8. One cannot understand how a notification can be revived subject to its supersession by some other notification. Obviously reference to supersession of the Notification No.dated March 31, 1956 is wholly inconsistent with the language of Section 3(1) of the U.P. Act 15 of 1958. It appears to be an error that has crept into the Act. As the intention of the Legislature is clear from the language of the provisions referred to earlier we must hold that Notification No.dated March 31, 1956 is revived with retrospective effect. Further, as seen earlier, Notification No.has already been struck down by the High Court as invalid. The same has not been revived by the Validation Act. Hence it does not exist in law.9. For the reasons mentioned above we are in agreement with the High Court that Notification No.dated March 31, 1956 is inquestion does not appear to have been argued before the High Court. Hence it is not advisable for us to go into that question though from a reading of the Notification it is not possible to acced to the contention of Mr. Gupta that the levy in question is an excise duty and not sales tax.11. The only other contention advanced on behalf of the appellant is that sales tax has been levied on some permit sales and the same was impermissible in law. He tried to base his argument on this part of the case on the decision of this Court in M/s New India Sugar Mills Ltd. vs. Commr. of Sales Tax, Bihar. The contention that a portion of the turnover related to sales of controlled articles to have been taken before the High Court at a late stage; yet the High Court permitted the appellant to place material before it to satisfy the Court that the relevant transactions cannot be considered as sales. From the affidavit filed by the assessee, it is not possible to conclude that the transactions in question are not "sales". The affidavit does not speak of any control over the sales. It merely refers to certain controls over purchases. On the material before us it is not possible to hold that any of those transactions are not "sales".
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The Cotton Agents Ltd., Bombay Vs. Commissioner Of Income-Tax,Bombay | by side, the conclusion at which we have arrived is that in their true scope and effect Cl. (3) determines the time of accrual of the managing agency remuneration and Cl. (2) determines the rate at which the remuneration is to be calculated; and as to the time of payment, that is determined by the second part of Cl. (3) 7. This view of the managing agency agreement of March 15, 1925, concludes the appeal. If the remuneration accrued at the end of the financial year, then undoubtedly it accrued in the hands of the assessee Company. It remains now to refer briefly to some of the decisions cited at the Bar.8. As to the decision in Sassoons case (1955) 1 SCR 313 : (AIR 1954 SC 470 ) it is pointed out that the commission there payable by way of remuneration was a percentage on the net profits and this, it is argued for the assessee Company, distinguishes that decision from the present case. Indeed, it is true that in Sassoons case (1955) 1 SCR 313 : (AIR 1954 SC 470 ) the remuneration was fixed at a percentage on the net profits, but the real point of the decision was as to when the remuneration accrued. On this point the majority of learned Judges said:"It is clear therefore that income may accrue to an assessee without the actual receipt of the same. If the assessee acquires a right to receive the income, the income, can be said to have accrued to him though it may be received later on its being ascertained. The basic conception is that he must have acquired a right to receive the income. There must be a debt owed to him by somebody. There must be as is otherwise expressed debitum in presenti, solvendum in futuro; see W. S. Try Ltd. v. Johnson, (1946) 1 All ER 532 at p. 539 and Webb v. Stenion, (1883) 11 QBD 518 at pp. 522 and 52 7. Unless and until there is created in favour of the assessee a debt due by somebody it cannot be said that he has acquired a right to receive the income or that income has accrued to him". It has been argued before us that the decision requires reconsideration because it failed to make a further distinction, a distinction which it is stated arises in law, between the right to receive payment and the creation of a debt. We consider it unnecessary to consider such a distinction, if any such exists, in the present case.On our view of the managing agency agreement, the commission of the managing agents became due at the end of the financial year and that is when it accrued; and there were neither any debt created nor any right to receive payment when each transaction of sale took place. We were also addressed at some length on the further question whether managing agency is service and if so, whether it must be for one full year or whether apportionment is permissible.These questions do not fall for decision in the present case and we express no opinion thereon.We have proceeded in this case on the footing that the managing agency work of the assessee Company constituted business within the rule of the decision in Lakshminarayan Ram Gopal and Son Ltd. v. Govt. of Hyderabad, (1955) 1 SCR 393 : (AIR 1954 SC 364 ) and on that footing we have decided the question of accrual.In Commissioners of Inland Revenue v. Gardner Mountain and D Ambrumenil Ltd., (1949) 29 Tax Cas 69 on which learned Counsel for the appellant placed reliance, the facts were quite different and on a true construction of the agreements there, it was held that the commission payable under certain underwriters agreements arose in the year in which the policies were underwritten. That decision proceeded on a construction of the agreements there considered; and it is no authority for construing other agreements of a different character.Learned Counsel for the appellant relied on Turner Morrison and Co. Ltd. v. Commissioner of Income-tax, West Bengal, (1953) 23 ITR 152 : (AIR 1953 SC 140 ) for his contention that in the sale proceeds of each transaction of sale were embedded the income, profits or gains to be earned by the managing agents and, therefore, the accrual took place on each transaction of sale.The observations at p. 160 of the report (ITR): (at p. 143 of AIR) on which reliance was placed were made in a different context, namely, in the context of the place of receipt of income in relation to the provisions of S. 4 (1) (a) of the Income-tax Act. 9. Learned Counsel for the respondent has pointed out to us that the observations of Lord Justice Fry in Colquhoun v. Brooks, (1888) 21 QBD 52 at p. 59 were not very accurately reproduced in Rogers Pratt Shellac Co. v. Secretary of State for India 1 ITC 363 at p. 371: (AIR 1925 Cal 34 at p. 41). He submitted that Lord Justice Fry did not say that the words "accrual" or "arising" represented a stage anterior to the point of time when the income becomes receivable and connote a character of the income which is more or less inchoate. He has argued that there is nothing inchoate about the income when it arises or accrues. We consider it unnecessary to embark on a discussion as to how far the aforesaid observations required consideration by us. 10. It is enough to say that on the view which we have taken of the relevant clauses of the managing agency agreement, no income arose or accrued on the sale proceeds at the time of each transaction of sale; the income accrued at the end of the financial year at the rate of 3 1/2 per cent. on the gross proceeds of all sales of yarn, cloth, waste etc. earned in any one year. In that view of the matter, the High Court correctly answered the question. | 0[ds]We are not considering in this case the validity or otherwise of what are known as protective or precautionary assessments, and nothing said in this judgment has any bearing on that question6. We do not think that this reading of the two clauses is correct. In our view,) is the accrual clause; it shows that the commission became due at the end of each financial year or other period for which the accounts of the Mills Company were to be laid before the General Meeting. Significantly enough, the clause consists of two parts: one part says when the commission becomes due and the other says when it is to be payable and paid.In very clear terms, the clause says that the commission becomes due normally at the end of the financial year, but is payable after the accounts have been passed by the General Meeting. Let us contrast Cl. (3) with Cl. (2). Clause (2) states how the remuneration has to be calculated. It says in effect that the remuneration has to be calculated at the rate of 3 1/2 per cent. on the gross proceeds of all sales etc. earned in any year or other period for which the accounts of the Mills Company are made up.Putting the two clauses side by side, the conclusion at which we have arrived is that in their true scope and effect Cl. (3) determines the time of accrual of the managing agency remuneration and Cl. (2) determines the rate at which the remuneration is to be calculated; and as to the time of payment, that is determined by the second part of Cl. (3)7. This view of the managing agency agreement of March 15, 1925, concludes the appeal. If the remuneration accrued at the end of the financial year, then undoubtedly it accrued in the hands of the assessee Company. It remains now to refer briefly to some of the decisions cited at the Bar.Indeed, it is true that in Sassoons case (1955) 1 SCR 313 : (AIR 1954 SC 470 ) the remuneration was fixed at a percentage on the net profits, but the real point of the decision was as to when the remuneration accruedWe consider it unnecessary to consider such a distinction, if any such exists, in the present case.On our view of the managing agency agreement, the commission of the managing agents became due at the end of the financial year and that is when it accrued; and there were neither any debt created nor any right to receive payment when each transaction of sale took place. We were also addressed at some length on the further question whether managing agency is service and if so, whether it must be for one full year or whether apportionment is permissible.These questions do not fall for decision in the present case and we express no opinion thereon.We have proceeded in this case on the footing that the managing agency work of the assessee Company constituted business within the rule of the decision in Lakshminarayan Ram Gopal and Son Ltd. v. Govt. of Hyderabad, (1955) 1 SCR 393 : (AIR 1954 SC 364 ) and on that footing we have decided the question of accrual.In Commissioners of Inland Revenue v. Gardner Mountain and D Ambrumenil Ltd., (1949) 29 Tax Cas 69 on which learned Counsel for the appellant placed reliance, the facts were quite different and on a true construction of the agreements there, it was held that the commission payable under certain underwriters agreements arose in the year in which the policies were underwritten. That decision proceeded on a construction of the agreements there considered; and it is no authority for construing other agreements of a different characterWe consider it unnecessary to embark on a discussion as to how far the aforesaid observations required consideration by us10. It is enough to say that on the view which we have taken of the relevant clauses of the managing agency agreement, no income arose or accrued on the sale proceeds at the time of each transaction of sale; the income accrued at the end of the financial year at the rate of 3 1/2 per cent. on the gross proceeds of all sales of yarn, cloth, waste etc. earned in any one year. In that view of the matter, the High Court correctly answered the question. | 0 | 3,168 | 804 | ### 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:
by side, the conclusion at which we have arrived is that in their true scope and effect Cl. (3) determines the time of accrual of the managing agency remuneration and Cl. (2) determines the rate at which the remuneration is to be calculated; and as to the time of payment, that is determined by the second part of Cl. (3) 7. This view of the managing agency agreement of March 15, 1925, concludes the appeal. If the remuneration accrued at the end of the financial year, then undoubtedly it accrued in the hands of the assessee Company. It remains now to refer briefly to some of the decisions cited at the Bar.8. As to the decision in Sassoons case (1955) 1 SCR 313 : (AIR 1954 SC 470 ) it is pointed out that the commission there payable by way of remuneration was a percentage on the net profits and this, it is argued for the assessee Company, distinguishes that decision from the present case. Indeed, it is true that in Sassoons case (1955) 1 SCR 313 : (AIR 1954 SC 470 ) the remuneration was fixed at a percentage on the net profits, but the real point of the decision was as to when the remuneration accrued. On this point the majority of learned Judges said:"It is clear therefore that income may accrue to an assessee without the actual receipt of the same. If the assessee acquires a right to receive the income, the income, can be said to have accrued to him though it may be received later on its being ascertained. The basic conception is that he must have acquired a right to receive the income. There must be a debt owed to him by somebody. There must be as is otherwise expressed debitum in presenti, solvendum in futuro; see W. S. Try Ltd. v. Johnson, (1946) 1 All ER 532 at p. 539 and Webb v. Stenion, (1883) 11 QBD 518 at pp. 522 and 52 7. Unless and until there is created in favour of the assessee a debt due by somebody it cannot be said that he has acquired a right to receive the income or that income has accrued to him". It has been argued before us that the decision requires reconsideration because it failed to make a further distinction, a distinction which it is stated arises in law, between the right to receive payment and the creation of a debt. We consider it unnecessary to consider such a distinction, if any such exists, in the present case.On our view of the managing agency agreement, the commission of the managing agents became due at the end of the financial year and that is when it accrued; and there were neither any debt created nor any right to receive payment when each transaction of sale took place. We were also addressed at some length on the further question whether managing agency is service and if so, whether it must be for one full year or whether apportionment is permissible.These questions do not fall for decision in the present case and we express no opinion thereon.We have proceeded in this case on the footing that the managing agency work of the assessee Company constituted business within the rule of the decision in Lakshminarayan Ram Gopal and Son Ltd. v. Govt. of Hyderabad, (1955) 1 SCR 393 : (AIR 1954 SC 364 ) and on that footing we have decided the question of accrual.In Commissioners of Inland Revenue v. Gardner Mountain and D Ambrumenil Ltd., (1949) 29 Tax Cas 69 on which learned Counsel for the appellant placed reliance, the facts were quite different and on a true construction of the agreements there, it was held that the commission payable under certain underwriters agreements arose in the year in which the policies were underwritten. That decision proceeded on a construction of the agreements there considered; and it is no authority for construing other agreements of a different character.Learned Counsel for the appellant relied on Turner Morrison and Co. Ltd. v. Commissioner of Income-tax, West Bengal, (1953) 23 ITR 152 : (AIR 1953 SC 140 ) for his contention that in the sale proceeds of each transaction of sale were embedded the income, profits or gains to be earned by the managing agents and, therefore, the accrual took place on each transaction of sale.The observations at p. 160 of the report (ITR): (at p. 143 of AIR) on which reliance was placed were made in a different context, namely, in the context of the place of receipt of income in relation to the provisions of S. 4 (1) (a) of the Income-tax Act. 9. Learned Counsel for the respondent has pointed out to us that the observations of Lord Justice Fry in Colquhoun v. Brooks, (1888) 21 QBD 52 at p. 59 were not very accurately reproduced in Rogers Pratt Shellac Co. v. Secretary of State for India 1 ITC 363 at p. 371: (AIR 1925 Cal 34 at p. 41). He submitted that Lord Justice Fry did not say that the words "accrual" or "arising" represented a stage anterior to the point of time when the income becomes receivable and connote a character of the income which is more or less inchoate. He has argued that there is nothing inchoate about the income when it arises or accrues. We consider it unnecessary to embark on a discussion as to how far the aforesaid observations required consideration by us. 10. It is enough to say that on the view which we have taken of the relevant clauses of the managing agency agreement, no income arose or accrued on the sale proceeds at the time of each transaction of sale; the income accrued at the end of the financial year at the rate of 3 1/2 per cent. on the gross proceeds of all sales of yarn, cloth, waste etc. earned in any one year. In that view of the matter, the High Court correctly answered the question.
### Response:
0
### Explanation:
We are not considering in this case the validity or otherwise of what are known as protective or precautionary assessments, and nothing said in this judgment has any bearing on that question6. We do not think that this reading of the two clauses is correct. In our view,) is the accrual clause; it shows that the commission became due at the end of each financial year or other period for which the accounts of the Mills Company were to be laid before the General Meeting. Significantly enough, the clause consists of two parts: one part says when the commission becomes due and the other says when it is to be payable and paid.In very clear terms, the clause says that the commission becomes due normally at the end of the financial year, but is payable after the accounts have been passed by the General Meeting. Let us contrast Cl. (3) with Cl. (2). Clause (2) states how the remuneration has to be calculated. It says in effect that the remuneration has to be calculated at the rate of 3 1/2 per cent. on the gross proceeds of all sales etc. earned in any year or other period for which the accounts of the Mills Company are made up.Putting the two clauses side by side, the conclusion at which we have arrived is that in their true scope and effect Cl. (3) determines the time of accrual of the managing agency remuneration and Cl. (2) determines the rate at which the remuneration is to be calculated; and as to the time of payment, that is determined by the second part of Cl. (3)7. This view of the managing agency agreement of March 15, 1925, concludes the appeal. If the remuneration accrued at the end of the financial year, then undoubtedly it accrued in the hands of the assessee Company. It remains now to refer briefly to some of the decisions cited at the Bar.Indeed, it is true that in Sassoons case (1955) 1 SCR 313 : (AIR 1954 SC 470 ) the remuneration was fixed at a percentage on the net profits, but the real point of the decision was as to when the remuneration accruedWe consider it unnecessary to consider such a distinction, if any such exists, in the present case.On our view of the managing agency agreement, the commission of the managing agents became due at the end of the financial year and that is when it accrued; and there were neither any debt created nor any right to receive payment when each transaction of sale took place. We were also addressed at some length on the further question whether managing agency is service and if so, whether it must be for one full year or whether apportionment is permissible.These questions do not fall for decision in the present case and we express no opinion thereon.We have proceeded in this case on the footing that the managing agency work of the assessee Company constituted business within the rule of the decision in Lakshminarayan Ram Gopal and Son Ltd. v. Govt. of Hyderabad, (1955) 1 SCR 393 : (AIR 1954 SC 364 ) and on that footing we have decided the question of accrual.In Commissioners of Inland Revenue v. Gardner Mountain and D Ambrumenil Ltd., (1949) 29 Tax Cas 69 on which learned Counsel for the appellant placed reliance, the facts were quite different and on a true construction of the agreements there, it was held that the commission payable under certain underwriters agreements arose in the year in which the policies were underwritten. That decision proceeded on a construction of the agreements there considered; and it is no authority for construing other agreements of a different characterWe consider it unnecessary to embark on a discussion as to how far the aforesaid observations required consideration by us10. It is enough to say that on the view which we have taken of the relevant clauses of the managing agency agreement, no income arose or accrued on the sale proceeds at the time of each transaction of sale; the income accrued at the end of the financial year at the rate of 3 1/2 per cent. on the gross proceeds of all sales of yarn, cloth, waste etc. earned in any one year. In that view of the matter, the High Court correctly answered the question.
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COMMISSIONER OF CENTRAL EXCISE, MUMBAI Vs. UNIVERSAL LUGGAGE MANUFACTURING CO. LTD | Arun Kumar, J. 1. The Commissioner of Central Excise, Mumbai II, the appellant in these appeals, aggrieved against the orders of the Customs, Excise and Gold (Control) Appellate Tribunal, Mumbai (for short the Tribunal) upholding the orders passed by the authorities below, has filed the present appeals. The assessee, namely, M/s Universal Luggage Manufacturing Co. Ltd., Mumbai (for short the assessee) is the respondent in these appeals. 2. According to the appellant, the assessee is engaged in the manufacturing of moulded luggage falling under Chapter Sub-Heading 4201.00. The assessee floated a 100 per cent subsidiary company of its own under the name and style of M/s Aristocrat Marketing Ltd. (for short AML) and started routing the bulk of their sale to its dealers through the subsidiary company i.e. AML, thereby reducing the assessable value of its products w.e.f. 1-6-1987. Investigations revealed that the assessee had floated AML and shifted some of the advertising expenses which is to be included in the assessable value to AML with a deliberate intention of reducing the assessable value and thereby evading excise duty. 3. The Collector of Central Excise, Bombay II (for short the Collector) issued a show-cause notice to the assessee on 29-6-1990 to show cause as to why (i) the prices (after the permissible deductions) at which the goods were sold by AML to their dealers should not be taken as the assessable value for the purpose of charging Central excise duty; (ii) the differential duty should not be recovered from the assessee under Section 11-A (1) of the Central Excises and Salt Act, 1944 read with Rule 9 (2); (iii) penalty should not be imposed upon the assessee under Rule 173-Q of the Central Excise Rules, 1944; and (iv) the plant, building, land, machinery, etc. should not be confiscated under the provisions of Rule 173-O. 4. The respondent contested the notice. It was admitted that AML is a related person to the assessee. The notice was discharged by the Collector holding that there was no evasion of the excise duty by the assessee and that the assessee had cleared the excisable goods to AML at the factory gate at the same price at which it had been cleared to the dealers including the Canteen Stores Department (CSD). Since the assessee had sold the goods at the factory gate to AML on the same price at which it had been sold to other dealers and CSD, AML although a related person, was not shown any favour or that the sale made to AML was not done to evade the excise duty. The Collector in his order recorded two significant findings, which are as under: (i) On close perusal of records, I find that the assessee had filed price lists i.e. pro forma I with effect from 1-6-1987 as stated in the show-cause notice. The assessee had cleared excisable goods to the tune of Rs 46,63,80,823.64 during the period June 1987 to May 1988, at their declared prices. During the relevant period, sales to M/s AML were Rs 29,88,30,105.00, sales to dealers were Rs 3,21,08,308.00, sales to Canteen Stores Department were Rs 13,31,39,043.49 and sales to others i.e. Export and DGS&D were Rs 23,03,367.15. (ii) From the sales pattern of M/s ULM, it can be observed that M/s ULM had effected total sales of Rs 29,88,30,105.00 to M/s AML and to others total sales of Rs 16,75,50,718.64 (i.e. to dealers, CSD, DGS&D and Exports) during the period June 1987 to May 1988. Similarly the sales effected during the period June 1988 to March 1989 were Rs 1841.86 lakhs to M/s AML and to others were Rs 1369.39 lakhs (i.e. to dealers, CSD). All the sales had been effected at the price filed by the assessee in pro forma I. It is, thus, evident that no special consideration had been extended to M/s AML, which is a subsidiary concern of M/s ULM; further the sales effected to CSD, Exports, DGS&D are covered within the meaning of Section 4 (1)(a) as discussed hereinbefore. 5. The aforesaid findings of the Collector have been upheld by the Tribunal by observing thus: It was, and is the stand of the respondent, and not disputed by the Department, that the price at which the goods are sold to different classes of buyers is the same price at which it sold the goods to AML. 6. Counsel for the parties have been heard. 7. It is not disputed that the sales made to the persons other than the related person, were of significant quantity viz. for the period from 1-6-1987 to March 1988 the sales to persons other than the related person were to the tune of nearly 36% and for the period from June 1988 to March 1989 the same was to the tune of nearly 43%. Thus, in our view, the price at which the goods were sold to the persons other than the related person could form the basis for determining the value of the goods for the purposes of levying duty thereon. Since the assessee had cleared the goods by way of sale in favour of a related person at the same price at which it had been sold to other buyers, we are inclined to accept the view taken by the Tribunal as well as that of the Collector. | 0[ds]6. Counsel for the parties have been heard.7. It is not disputed that the sales made to the persons other than the related person, were of significant quantity viz. for the period from 1-6-1987 to March 1988 the sales to persons other than the related person were to the tune of nearly 36% and for the period from June 1988 to March 1989 the same was to the tune of nearly 43%. Thus, in our view, the price at which the goods were sold to the persons other than the related person could form the basis for determining the value of the goods for the purposes of levying duty thereon. Since the assessee had cleared the goods by way of sale in favour of a related person at the same price at which it had been sold to other buyers, we are inclined to accept the view taken by the Tribunal as well as that of the Collector. | 0 | 1,018 | 174 | ### 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:
Arun Kumar, J. 1. The Commissioner of Central Excise, Mumbai II, the appellant in these appeals, aggrieved against the orders of the Customs, Excise and Gold (Control) Appellate Tribunal, Mumbai (for short the Tribunal) upholding the orders passed by the authorities below, has filed the present appeals. The assessee, namely, M/s Universal Luggage Manufacturing Co. Ltd., Mumbai (for short the assessee) is the respondent in these appeals. 2. According to the appellant, the assessee is engaged in the manufacturing of moulded luggage falling under Chapter Sub-Heading 4201.00. The assessee floated a 100 per cent subsidiary company of its own under the name and style of M/s Aristocrat Marketing Ltd. (for short AML) and started routing the bulk of their sale to its dealers through the subsidiary company i.e. AML, thereby reducing the assessable value of its products w.e.f. 1-6-1987. Investigations revealed that the assessee had floated AML and shifted some of the advertising expenses which is to be included in the assessable value to AML with a deliberate intention of reducing the assessable value and thereby evading excise duty. 3. The Collector of Central Excise, Bombay II (for short the Collector) issued a show-cause notice to the assessee on 29-6-1990 to show cause as to why (i) the prices (after the permissible deductions) at which the goods were sold by AML to their dealers should not be taken as the assessable value for the purpose of charging Central excise duty; (ii) the differential duty should not be recovered from the assessee under Section 11-A (1) of the Central Excises and Salt Act, 1944 read with Rule 9 (2); (iii) penalty should not be imposed upon the assessee under Rule 173-Q of the Central Excise Rules, 1944; and (iv) the plant, building, land, machinery, etc. should not be confiscated under the provisions of Rule 173-O. 4. The respondent contested the notice. It was admitted that AML is a related person to the assessee. The notice was discharged by the Collector holding that there was no evasion of the excise duty by the assessee and that the assessee had cleared the excisable goods to AML at the factory gate at the same price at which it had been cleared to the dealers including the Canteen Stores Department (CSD). Since the assessee had sold the goods at the factory gate to AML on the same price at which it had been sold to other dealers and CSD, AML although a related person, was not shown any favour or that the sale made to AML was not done to evade the excise duty. The Collector in his order recorded two significant findings, which are as under: (i) On close perusal of records, I find that the assessee had filed price lists i.e. pro forma I with effect from 1-6-1987 as stated in the show-cause notice. The assessee had cleared excisable goods to the tune of Rs 46,63,80,823.64 during the period June 1987 to May 1988, at their declared prices. During the relevant period, sales to M/s AML were Rs 29,88,30,105.00, sales to dealers were Rs 3,21,08,308.00, sales to Canteen Stores Department were Rs 13,31,39,043.49 and sales to others i.e. Export and DGS&D were Rs 23,03,367.15. (ii) From the sales pattern of M/s ULM, it can be observed that M/s ULM had effected total sales of Rs 29,88,30,105.00 to M/s AML and to others total sales of Rs 16,75,50,718.64 (i.e. to dealers, CSD, DGS&D and Exports) during the period June 1987 to May 1988. Similarly the sales effected during the period June 1988 to March 1989 were Rs 1841.86 lakhs to M/s AML and to others were Rs 1369.39 lakhs (i.e. to dealers, CSD). All the sales had been effected at the price filed by the assessee in pro forma I. It is, thus, evident that no special consideration had been extended to M/s AML, which is a subsidiary concern of M/s ULM; further the sales effected to CSD, Exports, DGS&D are covered within the meaning of Section 4 (1)(a) as discussed hereinbefore. 5. The aforesaid findings of the Collector have been upheld by the Tribunal by observing thus: It was, and is the stand of the respondent, and not disputed by the Department, that the price at which the goods are sold to different classes of buyers is the same price at which it sold the goods to AML. 6. Counsel for the parties have been heard. 7. It is not disputed that the sales made to the persons other than the related person, were of significant quantity viz. for the period from 1-6-1987 to March 1988 the sales to persons other than the related person were to the tune of nearly 36% and for the period from June 1988 to March 1989 the same was to the tune of nearly 43%. Thus, in our view, the price at which the goods were sold to the persons other than the related person could form the basis for determining the value of the goods for the purposes of levying duty thereon. Since the assessee had cleared the goods by way of sale in favour of a related person at the same price at which it had been sold to other buyers, we are inclined to accept the view taken by the Tribunal as well as that of the Collector.
### Response:
0
### Explanation:
6. Counsel for the parties have been heard.7. It is not disputed that the sales made to the persons other than the related person, were of significant quantity viz. for the period from 1-6-1987 to March 1988 the sales to persons other than the related person were to the tune of nearly 36% and for the period from June 1988 to March 1989 the same was to the tune of nearly 43%. Thus, in our view, the price at which the goods were sold to the persons other than the related person could form the basis for determining the value of the goods for the purposes of levying duty thereon. Since the assessee had cleared the goods by way of sale in favour of a related person at the same price at which it had been sold to other buyers, we are inclined to accept the view taken by the Tribunal as well as that of the Collector.
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Commissioner of Income Tax, Bombay Vs. Onkarmal Meghraj | other eight persons are concerned, they did not have anything further to do after the Income-tax Officer in spite of their filing returns as individuals made an order of No Assessment. They were not before the Appellate Assistant Commissioner or the Tribunal, They were not assessees nor were they intimately connected with the assessee that is the HUF as there was no HUF. Therefore, the second proviso to Section 34 (3) is not applicable in their cases. The right of the Income-tax Officer to assess these persons can be upheld only if the notice under the substantive part of Section 34 can be said to be a valid notice. The assessment year being 1944-45 the notice under Section 34 issued in April 1954 was beyond the period of 4 years under S. 34 (1) (b) which we have held applies to them. For the reasons just set forth the second proviso to Section 54 (3) does not apply to them. 12. That raises the question whether that proviso could be applied without reference to any period of limitation. It is a well settled principle that no action can be commenced where the period within which it can be commenced has expired. It is unnecessary to cite authorities in support of this position. Does the fact that the second proviso says that there is no period of limitation make a difference? The first thing to be, noticed is that that provision was given retrospective effect only from 1. 4. 52 though the Income-tax (Amendment) Act came into effect from 24-5-1953. Where it is intended that the retrospective effect should be without any limit it is usual and proper to provide that the amendment would have effect and would be deemed always to have had effect as if it had been part of the Act from its inception. That that was not done shows that the intention was only to give limited retrospective effect, that is to say, there would be no bar of limitation if it had not expired before 1- 4-1952. 13. We will now refer to some of the decisions which were relied upon. In S. C. Prashar v. Vasantsen Dwarkadas 11956) 29 ITR 857 = (AIR 1956 Bom 530 ) the effects of the amendment made to Section 34 were considered by the Bombay High Court. A Bench of that High Court consisting of Chagla, C. J. and Tendolkar, J. held that where the period mentioned in the substantive part of Section 34 had expired before the amendment in 1953 i. e. before 1st April 1952 no action can be taken under that section. The court also took the view that second proviso to Section 34 (3) offended Article 14 of the Constitution in so far as it affected third parties. That question has now been set at rest by the decision of this Court in (1964) 52 ITR 335 2 (AIR 1965 SC 342 ) (supra) as already noticed. In this Court out of the five Judges who heard the appeal in S. C. Prashar v. Vasantsen Dwarkadas (1963) 49 ITR (SC) 1 = (AIR 1963 SC 1356 ) two of the Judges, Das, J. and Kapur, J. held that Section 31 of the Income-tax (Amendment) Act 1953 did not operate as regards assessment years for which assessment or reassessment was barred before April 1, 1952, in accordance with Section 34 before it was amended in 1948. Hidayatullah J. and Raghubar Dayal, J. took the contrary view. Sarkar, J. expressed no opinion on the point. In J. P. Jani v. Induprasad Devshanker Bhatt (l969) 72 ITR 595 = (AIR 1969 SC 773) this Court held that the Income-tax Officer cannot issue a notice under Section 148 of the Income-tax Act, 1961 in order to reopen the assessment of an assessee in a case where the right to reopen the assessment was barred under the l922 Act at the date when the new Act came into force. It was held that Section 297 (2) (d) (ii) of 1961 Act was applicable only to those cases where the right of the Income-tax Officer to reopen an assessment was not barred under the repealed Act. This decision is broadly in line with the opinion of Das and Kapur, JJ. in Prashars case.. The decision of this Court relied upon by the appellant, in Income-tax Officer v. T. S. Devinatha Nadar, (1968) 68 ITR 252 = (AIR 1968 SC 623 ) which was a case under Section 35 (5), which was introduced into the Income-tax Act by the 1953 amendment at the same time as the amendment to Section 34 does not really affect this position. This Court observed:"As we have already said, sub-section (5) becomes operative as soon as it is found on the assessment or reassessment of the firm or on any reduction or enhancement made in the income of the firm that the share of the partners in the profit or loss of the firm had not been included in the assessment of the partner or if included was not correct. The completion of the assessment of the partner as an individual need not happen after April 1, 1952. The completed assessment of the partner is the subject matter of rectification and this may have preceded the above-mentioned date. Such completion does not control the operation of the sub-section. In the result we find ourselves unable to concur in the decision or the reasoning in Atmala Nagarajs case (1962) 46 ITR 609 (SC)." The position can, therefore be said to have been satisfactorily established that the effect of the amendment of Section 34 in 1953 is not to enable the Income-tax Officer to take action under that section where the period mentioned therein had expired before 1-4-1952. That would apply in these cases to persons other than Narayandas Pokarmal, Meghraj Pokarmal and Hanumandas Sewakram. In their cases the second proviso to Section 34 (3) would apply, whether it is the old proviso or the proviso introduced in 1953. | 1[ds]8. It appears to us that the conclusion reached by the High Court in respect of the question whether cl. (a) or cl. (b) of Section 34 (1) applies is correct. Neither the proposal submitted by the Income-tax Officer to the Commissioner for taking action under Sec. 34 nor the sanction of the Commissioner, nor the notices issued in these cases nor the returns filed by the parties, nor even the assessment orders of the Income-tax Officer point to the conclusion that action was either contemplated or taken under clause (a). It has to be kept in mind that all the eleven persons had filed their returns in their status as individuals. The fact that seven of them filed as smaller HUFs, makes no difference to this fact. The larger HUF of Narayandas, Meghraj and Hanumandas was neither in existence nor did it file a return as such. Indeed from the year 1930 it never existed. The assessment for 1939-40 to 1941-42 of the three HUFs was only by agreement between the parties and the Department and was not questioned The assessment for 1942-43 was somehow not taken up on appeal. The direction given by the Tribunal on 31-7-1953 was in respect of the assessment for 1943-44. The Income-tax Officer had even before that date assessed the three units as HUF for 1944-45 and passed an order of No Assessment" in respect of the individuals. For that year also all of them had filed their returns as individuals. Clearly, therefore, there was no question of omission or failure to make a return or to disclose fully and truly all material facts necessary for their assessment and the escapement of assessment was not due to any such fact but due to the action of the Income-tax Officer assessing non-existent HUFs and passing an order of No Assessment in respect of individuals. Section 34 (1) (a) cannot, therefore, apply and only Section 34 (1) (b) can apply9. The second proviso to Section 34 (3) does not apply to eight of the 11 respondents in the appeals regarding the assessment year 1944-45 as they were not parties to the proceedings in which the direction of the Tribunal was given, and the same consideration applies to the respondent Onkarmal Meghraj for the assessment year 1943-44It appears to us that it could be so availed of in respect of persons in whose cases reassessments are made under Section 27 or in pursuance of an order under Sections 31, 33-A, 33-B, 66 or 66A, that is Narayandas Pokarmal, Meghraj Pokarmal and Hanumandas Sewakram. There is no difficulty in holding that the second proviso applies to them. They had filed their returns as individuals and been assessed as HUFs It is open to persons in that situation to contend, as indeed they did, that they should be assessed as individuals and not as HUFs. And when the Appellate Assistant Commissioner and the Tribunal make an order that they should not be assessed as HUFs but as individuals they are only giving effect to the contention of the parties. Their cases come directly under the principle of the decision in (1964) 52 ITR 335 = (AIR 1965 SC 342 ) (supra). Even if they are not assessees, they are intimately connected with the assessee, that is the HUF. The earlier order of No Assessment made by the Income-tax Officer in their case does not affect this situation11. But as far as the other eight persons are concerned, they did not have anything further to do after the Income-tax Officer in spite of their filing returns as individuals made an order of No Assessment. They were not before the Appellate Assistant Commissioner or the Tribunal, They were not assessees nor were they intimately connected with the assessee that is the HUF as there was no HUF. Therefore, the second proviso to Section 34 (3) is not applicable in their cases. The right of the Income-tax Officer to assess these persons can be upheld only if the notice under the substantive part of Section 34 can be said to be a valid notice. The assessment year being 1944-45 the notice under Section 34 issued in April 1954 was beyond the period of 4 years under S. 34 (1) (b) which we have held applies to them. For the reasons just set forth the second proviso to Section 54 (3) does not apply to themIt is a well settled principle that no action can be commenced where the period within which it can be commenced has expired. It is unnecessary to cite authorities in support of this positionThe position can, therefore be said to have been satisfactorily established that the effect of the amendment of Section 34 in 1953 is not to enable the Income-tax Officer to take action under that section where the period mentioned therein had expired before 1-4-1952. That would apply in these cases to persons other than Narayandas Pokarmal, Meghraj Pokarmal and Hanumandas Sewakram. In their cases the second proviso to Section 34 (3) would apply, whether it is the old proviso or the proviso introduced in 1953. | 1 | 3,787 | 946 | ### 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:
other eight persons are concerned, they did not have anything further to do after the Income-tax Officer in spite of their filing returns as individuals made an order of No Assessment. They were not before the Appellate Assistant Commissioner or the Tribunal, They were not assessees nor were they intimately connected with the assessee that is the HUF as there was no HUF. Therefore, the second proviso to Section 34 (3) is not applicable in their cases. The right of the Income-tax Officer to assess these persons can be upheld only if the notice under the substantive part of Section 34 can be said to be a valid notice. The assessment year being 1944-45 the notice under Section 34 issued in April 1954 was beyond the period of 4 years under S. 34 (1) (b) which we have held applies to them. For the reasons just set forth the second proviso to Section 54 (3) does not apply to them. 12. That raises the question whether that proviso could be applied without reference to any period of limitation. It is a well settled principle that no action can be commenced where the period within which it can be commenced has expired. It is unnecessary to cite authorities in support of this position. Does the fact that the second proviso says that there is no period of limitation make a difference? The first thing to be, noticed is that that provision was given retrospective effect only from 1. 4. 52 though the Income-tax (Amendment) Act came into effect from 24-5-1953. Where it is intended that the retrospective effect should be without any limit it is usual and proper to provide that the amendment would have effect and would be deemed always to have had effect as if it had been part of the Act from its inception. That that was not done shows that the intention was only to give limited retrospective effect, that is to say, there would be no bar of limitation if it had not expired before 1- 4-1952. 13. We will now refer to some of the decisions which were relied upon. In S. C. Prashar v. Vasantsen Dwarkadas 11956) 29 ITR 857 = (AIR 1956 Bom 530 ) the effects of the amendment made to Section 34 were considered by the Bombay High Court. A Bench of that High Court consisting of Chagla, C. J. and Tendolkar, J. held that where the period mentioned in the substantive part of Section 34 had expired before the amendment in 1953 i. e. before 1st April 1952 no action can be taken under that section. The court also took the view that second proviso to Section 34 (3) offended Article 14 of the Constitution in so far as it affected third parties. That question has now been set at rest by the decision of this Court in (1964) 52 ITR 335 2 (AIR 1965 SC 342 ) (supra) as already noticed. In this Court out of the five Judges who heard the appeal in S. C. Prashar v. Vasantsen Dwarkadas (1963) 49 ITR (SC) 1 = (AIR 1963 SC 1356 ) two of the Judges, Das, J. and Kapur, J. held that Section 31 of the Income-tax (Amendment) Act 1953 did not operate as regards assessment years for which assessment or reassessment was barred before April 1, 1952, in accordance with Section 34 before it was amended in 1948. Hidayatullah J. and Raghubar Dayal, J. took the contrary view. Sarkar, J. expressed no opinion on the point. In J. P. Jani v. Induprasad Devshanker Bhatt (l969) 72 ITR 595 = (AIR 1969 SC 773) this Court held that the Income-tax Officer cannot issue a notice under Section 148 of the Income-tax Act, 1961 in order to reopen the assessment of an assessee in a case where the right to reopen the assessment was barred under the l922 Act at the date when the new Act came into force. It was held that Section 297 (2) (d) (ii) of 1961 Act was applicable only to those cases where the right of the Income-tax Officer to reopen an assessment was not barred under the repealed Act. This decision is broadly in line with the opinion of Das and Kapur, JJ. in Prashars case.. The decision of this Court relied upon by the appellant, in Income-tax Officer v. T. S. Devinatha Nadar, (1968) 68 ITR 252 = (AIR 1968 SC 623 ) which was a case under Section 35 (5), which was introduced into the Income-tax Act by the 1953 amendment at the same time as the amendment to Section 34 does not really affect this position. This Court observed:"As we have already said, sub-section (5) becomes operative as soon as it is found on the assessment or reassessment of the firm or on any reduction or enhancement made in the income of the firm that the share of the partners in the profit or loss of the firm had not been included in the assessment of the partner or if included was not correct. The completion of the assessment of the partner as an individual need not happen after April 1, 1952. The completed assessment of the partner is the subject matter of rectification and this may have preceded the above-mentioned date. Such completion does not control the operation of the sub-section. In the result we find ourselves unable to concur in the decision or the reasoning in Atmala Nagarajs case (1962) 46 ITR 609 (SC)." The position can, therefore be said to have been satisfactorily established that the effect of the amendment of Section 34 in 1953 is not to enable the Income-tax Officer to take action under that section where the period mentioned therein had expired before 1-4-1952. That would apply in these cases to persons other than Narayandas Pokarmal, Meghraj Pokarmal and Hanumandas Sewakram. In their cases the second proviso to Section 34 (3) would apply, whether it is the old proviso or the proviso introduced in 1953.
### Response:
1
### Explanation:
8. It appears to us that the conclusion reached by the High Court in respect of the question whether cl. (a) or cl. (b) of Section 34 (1) applies is correct. Neither the proposal submitted by the Income-tax Officer to the Commissioner for taking action under Sec. 34 nor the sanction of the Commissioner, nor the notices issued in these cases nor the returns filed by the parties, nor even the assessment orders of the Income-tax Officer point to the conclusion that action was either contemplated or taken under clause (a). It has to be kept in mind that all the eleven persons had filed their returns in their status as individuals. The fact that seven of them filed as smaller HUFs, makes no difference to this fact. The larger HUF of Narayandas, Meghraj and Hanumandas was neither in existence nor did it file a return as such. Indeed from the year 1930 it never existed. The assessment for 1939-40 to 1941-42 of the three HUFs was only by agreement between the parties and the Department and was not questioned The assessment for 1942-43 was somehow not taken up on appeal. The direction given by the Tribunal on 31-7-1953 was in respect of the assessment for 1943-44. The Income-tax Officer had even before that date assessed the three units as HUF for 1944-45 and passed an order of No Assessment" in respect of the individuals. For that year also all of them had filed their returns as individuals. Clearly, therefore, there was no question of omission or failure to make a return or to disclose fully and truly all material facts necessary for their assessment and the escapement of assessment was not due to any such fact but due to the action of the Income-tax Officer assessing non-existent HUFs and passing an order of No Assessment in respect of individuals. Section 34 (1) (a) cannot, therefore, apply and only Section 34 (1) (b) can apply9. The second proviso to Section 34 (3) does not apply to eight of the 11 respondents in the appeals regarding the assessment year 1944-45 as they were not parties to the proceedings in which the direction of the Tribunal was given, and the same consideration applies to the respondent Onkarmal Meghraj for the assessment year 1943-44It appears to us that it could be so availed of in respect of persons in whose cases reassessments are made under Section 27 or in pursuance of an order under Sections 31, 33-A, 33-B, 66 or 66A, that is Narayandas Pokarmal, Meghraj Pokarmal and Hanumandas Sewakram. There is no difficulty in holding that the second proviso applies to them. They had filed their returns as individuals and been assessed as HUFs It is open to persons in that situation to contend, as indeed they did, that they should be assessed as individuals and not as HUFs. And when the Appellate Assistant Commissioner and the Tribunal make an order that they should not be assessed as HUFs but as individuals they are only giving effect to the contention of the parties. Their cases come directly under the principle of the decision in (1964) 52 ITR 335 = (AIR 1965 SC 342 ) (supra). Even if they are not assessees, they are intimately connected with the assessee, that is the HUF. The earlier order of No Assessment made by the Income-tax Officer in their case does not affect this situation11. But as far as the other eight persons are concerned, they did not have anything further to do after the Income-tax Officer in spite of their filing returns as individuals made an order of No Assessment. They were not before the Appellate Assistant Commissioner or the Tribunal, They were not assessees nor were they intimately connected with the assessee that is the HUF as there was no HUF. Therefore, the second proviso to Section 34 (3) is not applicable in their cases. The right of the Income-tax Officer to assess these persons can be upheld only if the notice under the substantive part of Section 34 can be said to be a valid notice. The assessment year being 1944-45 the notice under Section 34 issued in April 1954 was beyond the period of 4 years under S. 34 (1) (b) which we have held applies to them. For the reasons just set forth the second proviso to Section 54 (3) does not apply to themIt is a well settled principle that no action can be commenced where the period within which it can be commenced has expired. It is unnecessary to cite authorities in support of this positionThe position can, therefore be said to have been satisfactorily established that the effect of the amendment of Section 34 in 1953 is not to enable the Income-tax Officer to take action under that section where the period mentioned therein had expired before 1-4-1952. That would apply in these cases to persons other than Narayandas Pokarmal, Meghraj Pokarmal and Hanumandas Sewakram. In their cases the second proviso to Section 34 (3) would apply, whether it is the old proviso or the proviso introduced in 1953.
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M/s. Hooghly Jute Mills Vs. Their Employees | as a Turbine Fitter. He continued in the said employ as a Turbine Fitter until July 1951 when the appellant mills were electrified. On such electrification some employees were discharged by the appellant as redundant. Nanilal Mukherjee would also have been similarly discharged, but he was retained in its employ by the appellant as he was a senior Ministry and the appellant intended to absorb him, if Possible, in the new set up of mistries in the electrified mills. He was accordingly given a trial in the new set up for a sufficiently long time. One Collins who was the Overseer in the Mills, however, made a report on 4-9-52 to the Manager of the Mills stating that Nanilal Mukherjee had been working as a general Vice Ministry after the turbine closed down, but it was found after observation that he had no. aptitude for this type of work and should therefore the treated as redundant. Acting upon this report the Manager of the Mills on 15-9-52 gave notice to Nanilal Mukherjee dispensing with his services as from 30-9-52. He was paid : - (1) Gratuity for 4 1/2 years at the rate of half a months average basic wages, (2) his own and Employers contributions in full to his Provident Fund and (3) earned leave with wages, which he accepted.3. It appears that the National Union of Jute Workers, Calcutta, the respondent herein, of which Nanilal Mukherjee was a member, espoused his cause and the dispute arising out of his discharge by the appellant was inter alia referred by the Government of West Bengal for adjudication to the First Industrial Tribunal Calcutta. Evidence was led on behalf of the appellant and the respondent; Nanilal Mukherjee and James Collins were examined before the Tribunal and the Tribunal after considering the rival contentions of the parties and the evidence led before it came to the conclusion that Nanilal Mukherjee was discharged by the appellant by way of retrenchment owing to the fact that he could not be gainfully employed after the dismantling of the Turbine and that his discharge was not effected by way of victimisation or unfair labour practice. The Tribunal therefore held that he was not entitled to reinstatement.4. An appeal was taken by the respondent to the Labour Appellate Tribunal, Calcutta, against this award of the Industrial Tribunal. The Labour Appellate Tribunal overruled the objection of the appellant to the effect that the appeal did not involve any substantial question of law and therefore could not be maintain. It held that it could not possibly believe the story that Nanilal Mukherjee was in the circumstances of the case continued in service month after month. It proceeded to observe : -"When one is dismissed in the absence of any reasonable evidence, the finding of the lower Tribunal must be set aside as not being on sufficient material but also on the ground that such a conclusion could not have been drawn in the facts and circumstances of this case, when indications are to the contrary."It accordingly allowed the appeal to this extent and ordered that Nanilal Mukherjee should be reinstated with full pay and emoluments and with continuity in service without a break.5. The appellant applied for and obtained from this Court special leave to appeal against that decision of the Labour Appellate Tribunal, Calcutta and this appeal has come up for hearing and final disposal before us.6. It must be observed that the award of the Industrial Tribunal, Calcutta was based on the evidence which had been led before it by the parties, which evidence consisted of that of Nanilal Mukherjee on the one hand and James Collins on the other. Nanilal Mukherjee admitted that he was discharged with effect from 1-10-52, and that he was served with a notice to the effect that his services were no. longer required from that date. He also admitted that he was discharged on the ground that he was no. more required as a Turbine Fitter. No. case of a dismissal by way of punishment or of the victimisation or unfair labour practice by reason of his having been a member of a respondent Union and having actively participated in Union activities was made out in the evidence. It was clearly a case of his discharge from the employ of the appellant by reason of his being redundant owing to the Turbine having closed down because of the electrification of the mills. There was, therefore, on the record evidence which, if believed, was sufficient to enable the industrial Tribunal to come to the conclusion which it did.7. Under these circumstances, it could not be stated that there was any question of law- much less a substantial question of law- involved in the appeal filed by the respondent before the Labour Appellant Tribunal. The labour Appellate Tribunal would have jurisdiction to entertain the appeal only if a substantial question of law was involved. The insufficiency or otherwise of evidence in order to enable the fact finding Tribunal to come to a conclusion on question of fact was clearly a matter within its exclusive jurisdiction. The finding of fact reached by the Industrial Tribunal could only be set aside if either there was no. evidence at all on which such a finding could be based or the finding reached by it was perverse or such as no. reasonable body of men could have arrived at. The evidence which had been led before the Industrial Tribunal was, in our opinion, sufficient, if believed, to enable the Industrial Tribunal to come to the conclusion in favour of the appellant and no. question of law at all was involved in the appeal filed by the respondent against that finding. If no. question of law- much less a substantial question of law - was involved in the appeal thus filed by the respondent, the Labour Appellate Tribunal had certainly no. juridiction to entertain the appeal and reverse the finding recorded by the Industrial Tribunal against Nanilal Mukherjee. | 1[ds]Nanilal Mukherjee admitted that he was discharged with effect fromand that he was served with a notice to the effect that his services were no. longer required from that date. He also admitted that he was discharged on the ground that he was no. more required as a Turbine Fitter. No. case of a dismissal by way of punishment or of the victimisation or unfair labour practice by reason of his having been a member of a respondent Union and having actively participated in Union activities was made out in the evidence. It was clearly a case of his discharge from the employ of the appellant by reason of his being redundant owing to the Turbine having closed down because of the electrification of the mills. There was, therefore, on the record evidence which, if believed, was sufficient to enable the industrial Tribunal to come to the conclusion which it did.7. Under these circumstances, it could not be stated that there was any question of lawmuch less a substantial question of lawinvolved in the appeal filed by the respondent before the Labour Appellant Tribunal. The labour Appellate Tribunal would have jurisdiction to entertain the appeal only if a substantial question of law was involved. The insufficiency or otherwise of evidence in order to enable the fact finding Tribunal to come to a conclusion on question of fact was clearly a matter within its exclusive jurisdiction. The finding of fact reached by the Industrial Tribunal could only be set aside if either there was no. evidence at all on which such a finding could be based or the finding reached by it was perverse or such as no. reasonable body of men could have arrived at. The evidence which had been led before the Industrial Tribunal was, in our opinion, sufficient, if believed, to enable the Industrial Tribunal to come to the conclusion in favour of the appellant and no. question of law at all was involved in the appeal filed by the respondent against that finding. If no. question of lawmuch less a substantial question of lawwas involved in the appeal thus filed by the respondent, the Labour Appellate Tribunal had certainly no. juridiction to entertain the appeal and reverse the finding recorded by the Industrial Tribunal against Nanilal Mukherjee. | 1 | 1,158 | 413 | ### 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:
as a Turbine Fitter. He continued in the said employ as a Turbine Fitter until July 1951 when the appellant mills were electrified. On such electrification some employees were discharged by the appellant as redundant. Nanilal Mukherjee would also have been similarly discharged, but he was retained in its employ by the appellant as he was a senior Ministry and the appellant intended to absorb him, if Possible, in the new set up of mistries in the electrified mills. He was accordingly given a trial in the new set up for a sufficiently long time. One Collins who was the Overseer in the Mills, however, made a report on 4-9-52 to the Manager of the Mills stating that Nanilal Mukherjee had been working as a general Vice Ministry after the turbine closed down, but it was found after observation that he had no. aptitude for this type of work and should therefore the treated as redundant. Acting upon this report the Manager of the Mills on 15-9-52 gave notice to Nanilal Mukherjee dispensing with his services as from 30-9-52. He was paid : - (1) Gratuity for 4 1/2 years at the rate of half a months average basic wages, (2) his own and Employers contributions in full to his Provident Fund and (3) earned leave with wages, which he accepted.3. It appears that the National Union of Jute Workers, Calcutta, the respondent herein, of which Nanilal Mukherjee was a member, espoused his cause and the dispute arising out of his discharge by the appellant was inter alia referred by the Government of West Bengal for adjudication to the First Industrial Tribunal Calcutta. Evidence was led on behalf of the appellant and the respondent; Nanilal Mukherjee and James Collins were examined before the Tribunal and the Tribunal after considering the rival contentions of the parties and the evidence led before it came to the conclusion that Nanilal Mukherjee was discharged by the appellant by way of retrenchment owing to the fact that he could not be gainfully employed after the dismantling of the Turbine and that his discharge was not effected by way of victimisation or unfair labour practice. The Tribunal therefore held that he was not entitled to reinstatement.4. An appeal was taken by the respondent to the Labour Appellate Tribunal, Calcutta, against this award of the Industrial Tribunal. The Labour Appellate Tribunal overruled the objection of the appellant to the effect that the appeal did not involve any substantial question of law and therefore could not be maintain. It held that it could not possibly believe the story that Nanilal Mukherjee was in the circumstances of the case continued in service month after month. It proceeded to observe : -"When one is dismissed in the absence of any reasonable evidence, the finding of the lower Tribunal must be set aside as not being on sufficient material but also on the ground that such a conclusion could not have been drawn in the facts and circumstances of this case, when indications are to the contrary."It accordingly allowed the appeal to this extent and ordered that Nanilal Mukherjee should be reinstated with full pay and emoluments and with continuity in service without a break.5. The appellant applied for and obtained from this Court special leave to appeal against that decision of the Labour Appellate Tribunal, Calcutta and this appeal has come up for hearing and final disposal before us.6. It must be observed that the award of the Industrial Tribunal, Calcutta was based on the evidence which had been led before it by the parties, which evidence consisted of that of Nanilal Mukherjee on the one hand and James Collins on the other. Nanilal Mukherjee admitted that he was discharged with effect from 1-10-52, and that he was served with a notice to the effect that his services were no. longer required from that date. He also admitted that he was discharged on the ground that he was no. more required as a Turbine Fitter. No. case of a dismissal by way of punishment or of the victimisation or unfair labour practice by reason of his having been a member of a respondent Union and having actively participated in Union activities was made out in the evidence. It was clearly a case of his discharge from the employ of the appellant by reason of his being redundant owing to the Turbine having closed down because of the electrification of the mills. There was, therefore, on the record evidence which, if believed, was sufficient to enable the industrial Tribunal to come to the conclusion which it did.7. Under these circumstances, it could not be stated that there was any question of law- much less a substantial question of law- involved in the appeal filed by the respondent before the Labour Appellant Tribunal. The labour Appellate Tribunal would have jurisdiction to entertain the appeal only if a substantial question of law was involved. The insufficiency or otherwise of evidence in order to enable the fact finding Tribunal to come to a conclusion on question of fact was clearly a matter within its exclusive jurisdiction. The finding of fact reached by the Industrial Tribunal could only be set aside if either there was no. evidence at all on which such a finding could be based or the finding reached by it was perverse or such as no. reasonable body of men could have arrived at. The evidence which had been led before the Industrial Tribunal was, in our opinion, sufficient, if believed, to enable the Industrial Tribunal to come to the conclusion in favour of the appellant and no. question of law at all was involved in the appeal filed by the respondent against that finding. If no. question of law- much less a substantial question of law - was involved in the appeal thus filed by the respondent, the Labour Appellate Tribunal had certainly no. juridiction to entertain the appeal and reverse the finding recorded by the Industrial Tribunal against Nanilal Mukherjee.
### Response:
1
### Explanation:
Nanilal Mukherjee admitted that he was discharged with effect fromand that he was served with a notice to the effect that his services were no. longer required from that date. He also admitted that he was discharged on the ground that he was no. more required as a Turbine Fitter. No. case of a dismissal by way of punishment or of the victimisation or unfair labour practice by reason of his having been a member of a respondent Union and having actively participated in Union activities was made out in the evidence. It was clearly a case of his discharge from the employ of the appellant by reason of his being redundant owing to the Turbine having closed down because of the electrification of the mills. There was, therefore, on the record evidence which, if believed, was sufficient to enable the industrial Tribunal to come to the conclusion which it did.7. Under these circumstances, it could not be stated that there was any question of lawmuch less a substantial question of lawinvolved in the appeal filed by the respondent before the Labour Appellant Tribunal. The labour Appellate Tribunal would have jurisdiction to entertain the appeal only if a substantial question of law was involved. The insufficiency or otherwise of evidence in order to enable the fact finding Tribunal to come to a conclusion on question of fact was clearly a matter within its exclusive jurisdiction. The finding of fact reached by the Industrial Tribunal could only be set aside if either there was no. evidence at all on which such a finding could be based or the finding reached by it was perverse or such as no. reasonable body of men could have arrived at. The evidence which had been led before the Industrial Tribunal was, in our opinion, sufficient, if believed, to enable the Industrial Tribunal to come to the conclusion in favour of the appellant and no. question of law at all was involved in the appeal filed by the respondent against that finding. If no. question of lawmuch less a substantial question of lawwas involved in the appeal thus filed by the respondent, the Labour Appellate Tribunal had certainly no. juridiction to entertain the appeal and reverse the finding recorded by the Industrial Tribunal against Nanilal Mukherjee.
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KAIKHOSROU(CHICK) KAVASJI FRAMJI AND ANR Vs. UNION OF INDIA AND ANR | be, by filing civil suit in the Civil Court. The respondents cannot now be permitted to go back from their statement and take recourse to a remedy of summary procedure under the PP Act, which is otherwise not available to them. 69. Fourth, this Court while granting special leave to appeal on 03.08.2009 had also granted liberty to respondent No.1 (Union of India) to file civil suit against the appellants, if they are so advised. It was, however, not resorted to. 70. Fifth, the effect of quashing the resumption notice dated 21.01.1971 issued by the respondents by the High Court vide order dated 05.02.1979/06.02.1979 in relation to the suit property was that respondent No.1 (Union of India) was not entitled to resort to any kind of summary remedy to evict the appellants from the suit property not only under the Bombay Land Requisition Act, 1948 but also under the PP Act because the PP Act also provides similar summary remedy of eviction. 71. Sixth, the Civil Court alone could try and decide the question of declaration of ownership of any immovable property between the parties and such disputes could not be decided in summary proceedings under the PP Act. 72. This takes us to examine another question raised by the respondents as to whether judgment rendered by the Bombay High Court dated 06.02.1979 stood merged in the order of this Court dated 04.08.1998. In our view, it does not merge. 73. In our view, the principle of merger is fairly well settled. For merger to operate, the superior court must go into the merits of the issues decided by the subordinate court and record finding/s one way or other on its merits. If this is not done by the superior court, a plea of merger has no application in such a case and the order of subordinate court would continue to hold the field (see Shanmugaval Nadar vs. State of Tamil Nadu [1989 (4) SCC 187 ]. 74. In our view, this court while disposing of the appeals by its order dated 04.08.1998, did not go into the merits of the various contentions which were decided by the High Court in its order dated 06.02.1979 and disposed of the appeal on the statement made by the respondents through the Solicitor General that respondent No.1 (Union of India) would take recourse to the remedy of the civil court by filing a civil suit. 75. Indeed, in the light of such statement made by the respondents (who were appellants in the appeal), which resulted in disposal of their appeal, the respondents themselves did not call upon this Court to examine the merits of the issues raised by them in their appeals. In such a situation, there was no occasion for this Court to apply the mind to the merits much less to record any finding on any of the issues arising in the appeal. In this view of the matter, the principle of merger could not operate. 76. Now coming to another argument, the learned counsel for the respondents contended that there lies a distinction between the two types of Tribunals -one which exercises powers only when it is shown that certain state of facts exist and other which has jurisdiction to determine whether the preliminary state of facts exists as well as it has the jurisdiction to proceed further to do something more as explained in the case reported in Chaube Jagdish Prasad vs. Ganga Prasad Chaturvedi 1959 (supp) 1 SCR 733 pages 743-744. 77. It is on the basis of this submission, learned counsel contended that the Estate Officer has jurisdiction to examine the facts of this case in Section 4 proceedings under the Act. 78. We do not agree. In our opinion, once the Constitution Bench in the case of Kaiser-I Hind (supra) after examining the provisions of the PP Act has laid down the law as to how the PP Act operates and needs to be applied, all the issues arising under the PP Act has to be examined in the light of the law which deals with the PP Act. 79. The law laid down in Chaube Jagdish Prasad (supra) relied on by the learned counsel for the respondents was entirely on different context and has no application for deciding the issue involved in this appeal. 80. Yet, last submission of the learned counsel for the respondents that the writ petition was not maintainable to challenge the notice issued under Section 4 of the PP Act has no merit and deserves rejection. Suffice it to say, firstly, the High Court having entertained the writ petition and dismissing it on merits, this objection does not survive for consideration and second, in the light of long line of decisions on this question, a writ petition to question the legality and correctness of the notice issued under any Act is no bar in entertaining the writ petition in appropriate case. The case at hand was regarded as an appropriate case for entertaining the writ petition [see -Siemens Ltd. vs. State of Maharashtra 2006 (12) SCC 33 and Whirlpool Corporation vs. Registrar of Trade Marks (1998) 8 SCC 1 ]. 81. Before parting, we consider it apposite to mention that we have set out the facts of the case only for the purpose of appreciating and deciding the legal issue arising in the appeal namely - the validity of issuance of notice under Section 4 of the PP Act and not beyond it. We have not examined the rival claims of the parties over the property in question on merits and nor have recorded any finding on the rival claims. 82. In this view of the matter, whenever the question of ownership of the rights of the parties will be gone into by the concerned court, it shall decide the said question/s strictly on the basis of pleadings and the evidence adduced by the parties in accordance with law uninfluenced by any observations made by the High Court and this Court. | 1[ds]44. Having heard the learned counsel for the parties and on perusal of the record of the case including the written submissions, we find force in the submissions urged by the learned counsel for the appellants (writ petitioners)47. Though, in Express Newspaper case (supra) several other issues relating to Fundamental Rights conferred on the citizens under Article 19 (1) (a) and (g) of the Constitution and its violation qua State fell for consideration and were decided, this Court was also called upon to decide the legality and correctness of the notice issued by the Government of India through their officers in their capacity as the lessors of the land in question demanding therein a right of re-entry under the terms of the lease deed on the demised land from the lessee (writ petitioner of the case)48. It is this issue, which was extensively dealt in the context of civil law as also the special laws, which provides for taking recourse to the summary remedy by the State to take possession of the State land from its occupants.50. At this stage, it is necessary to deal with one objection raised by learned Additional Solicitor General on the aforementioned statement of law laid down in Express Newspaper case (supra)51. The objection of learned counsel for the respondent was that the view expressed by A.P. Sen J. in Paras 86-87 could at best be regarded as his own view but not the view of the Court by majority because other two learned Judges (E.S. Venkataramiah J. and R.B. Mishra J.) did not express any opinion on this question. It is for this reason the learned counsel submits that this Court should not place any reliance on the statement of law laid down in Paras 86-8756. Keeping in view the reasoning of Lord Esher M.R., when we examine the statement of law laid down in Express Newspaper decision (supra), we are of the considered view that the reasoning of A.P. Sen J. contained in Paraa 86-87 is the law laid down on behalf of all the three Judges. It is a law by majority and is thus a law laid down by the Court under Article 141 of the Constitution57. It is for the reason that first, though the lead judgment was authored by A.P. Sen J., the other two Judges concurred with the view and the reasoning of A.P. Sen J. Second, both the concurring Judges also expressed their individual views on the question on the same lines on which A.P. Sen J. expressed his view and the Third, there is no dissent inter se Lordships on any issue much less on the issue with which we are concerned in this appeal58. It is for these reasons, we are of the considered view that law laid down in the lead judgment in Express Newspaper (supra) is the law by three Honble Judges who constituted the Bench and thus binds all the Courts in the country under Article 141 of the Constitution. It satisfies the test laid down by Lord Esher M.R. in the case of The Guardian (supra)59. The question involved in Express Newspaper case (supra) in relation to remedy of the State qua person in possession of the land was again considered by a Bench consisted of three Judges in a case reported in State of Rajasthan vs. Padavati Devi [supra]60. In that case also, the question arose as to whether the State Government can take recourse to a summary remedy of eviction of a person under the State Revenue Laws from the land when such person raises a bona fide dispute about his right to remain in occupation over such land. Their Lordship held that in such a situation, the summary remedy to evict such person under the Act couldnt be resorted to64. Keeping in view the statement of law laid down by this Court in cited decisions supra, when we examine the facts of the case in hand, we have no hesitation in holding that the appellants have raised a bona fide dispute on the question of ownership of the suit property qua respondent No.1 (Union of India)65. A fortiori, in such case, respondent No. 2 has no jurisdiction to invoke the powers under section 4 of the PP Act by resorting to a summary procedure prescribed in the PP Act by sending a notice under Section 4 of the PP Act for appellants eviction from the suit property. This we say for the following six reasons66. First, the facts set out above and the documents filed in their support, in no uncertain terms, establish that there exists a bona fide long standing dispute as to who is the owner of the suit property -the appellants or Respondent No.1 (Union of India)67. Second, respondent No.1 itself admitted that there exists a bona fide dispute between the appellants and respondent No.1 (Union of India) over the suit property involving disputed questions of facts (see Paras 7, 8 & 18 of the Review Petition filed by Respondent No.1 in Civil Appeal Nos.608-612 against the appellants in respect of suit property in this Court)68. Third, respondent No.1 (Union of India) itself stated in this Court in earlier round of litigation while disposing of their Civil Appeal Nos.609, 611-613, 614 and 621 of 1980 that they would seek dispossession of the appellants from the property in question in accordance with law and, if need be, by filing civil suit in the Civil Court. The respondents cannot now be permitted to go back from their statement and take recourse to a remedy of summary procedure under the PP Act, which is otherwise not available to them69. Fourth, this Court while granting special leave to appeal on 03.08.2009 had also granted liberty to respondent No.1 (Union of India) to file civil suit against the appellants, if they are so advised. It was, however, not resorted to70. Fifth, the effect of quashing the resumption notice dated 21.01.1971 issued by the respondents by the High Court vide order dated 05.02.1979/06.02.1979 in relation to the suit property was that respondent No.1 (Union of India) was not entitled to resort to any kind of summary remedy to evict the appellants from the suit property not only under the Bombay Land Requisition Act, 1948 but also under the PP Act because the PP Act also provides similar summary remedy of eviction71. Sixth, the Civil Court alone could try and decide the question of declaration of ownership of any immovable property between the parties and such disputes could not be decided in summary proceedings under the PP Act73. In our view, the principle of merger is fairly well settled. For merger to operate, the superior court must go into the merits of the issues decided by the subordinate court and record finding/s one way or other on its merits. If this is not done by the superior court, a plea of merger has no application in such a case and the order of subordinate court would continue to hold the field (see Shanmugaval Nadar vs. State of Tamil Nadu [1989 (4) SCC 187 ]74. In our view, this court while disposing of the appeals by its order dated 04.08.1998, did not go into the merits of the various contentions which were decided by the High Court in its order dated 06.02.1979 and disposed of the appeal on the statement made by the respondents through the Solicitor General that respondent No.1 (Union of India) would take recourse to the remedy of the civil court by filing a civil suit75. Indeed, in the light of such statement made by the respondents (who were appellants in the appeal), which resulted in disposal of their appeal, the respondents themselves did not call upon this Court to examine the merits of the issues raised by them in their appeals. In such a situation, there was no occasion for this Court to apply the mind to the merits much less to record any finding on any of the issues arising in the appeal. In this view of the matter, the principle of merger could not operate76. Now coming to another argument, the learned counsel for the respondents contended that there lies a distinction between the two types of Tribunals -one which exercises powers only when it is shown that certain state of facts exist and other which has jurisdiction to determine whether the preliminary state of facts exists as well as it has the jurisdiction to proceed further to do something more as explained in the case reported in Chaube Jagdish Prasad vs. Ganga Prasad Chaturvedi 1959 (supp) 1 SCR 733 pages 743-74477. It is on the basis of this submission, learned counsel contended that the Estate Officer has jurisdiction to examine the facts of this case in Section 4 proceedings under the Act78. We do not agree. In our opinion, once the Constitution Bench in the case of Kaiser-I Hind (supra) after examining the provisions of the PP Act has laid down the law as to how the PP Act operates and needs to be applied, all the issues arising under the PP Act has to be examined in the light of the law which deals with the PP Act.79. The law laid down in Chaube Jagdish Prasad (supra) relied on by the learned counsel for the respondents was entirely on different context and has no application for deciding the issue involved in this appeal80. Yet, last submission of the learned counsel for the respondents that the writ petition was not maintainable to challenge the notice issued under Section 4 of the PP Act has no merit and deserves rejection. Suffice it to say, firstly, the High Court having entertained the writ petition and dismissing it on merits, this objection does not survive for consideration and second, in the light of long line of decisions on this question, a writ petition to question the legality and correctness of the notice issued under any Act is no bar in entertaining the writ petition in appropriate case. The case at hand was regarded as an appropriate case for entertaining the writ petition [see -Siemens Ltd. vs. State of Maharashtra 2006 (12) SCC 33 and Whirlpool Corporation vs. Registrar of Trade Marks (1998) 8 SCC 1 ]81. Before parting, we consider it apposite to mention that we have set out the facts of the case only for the purpose of appreciating and deciding the legal issue arising in the appeal namely - the validity of issuance of notice under Section 4 of the PP Act and not beyond it. We have not examined the rival claims of the parties over the property in question on merits and nor have recorded any finding on the rival claims82. In this view of the matter, whenever the question of ownership of the rights of the parties will be gone into by the concerned court, it shall decide the said question/s strictly on the basis of pleadings and the evidence adduced by the parties in accordance with law uninfluenced by any observations made by the High Court and this Court. | 1 | 7,927 | 2,035 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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be, by filing civil suit in the Civil Court. The respondents cannot now be permitted to go back from their statement and take recourse to a remedy of summary procedure under the PP Act, which is otherwise not available to them. 69. Fourth, this Court while granting special leave to appeal on 03.08.2009 had also granted liberty to respondent No.1 (Union of India) to file civil suit against the appellants, if they are so advised. It was, however, not resorted to. 70. Fifth, the effect of quashing the resumption notice dated 21.01.1971 issued by the respondents by the High Court vide order dated 05.02.1979/06.02.1979 in relation to the suit property was that respondent No.1 (Union of India) was not entitled to resort to any kind of summary remedy to evict the appellants from the suit property not only under the Bombay Land Requisition Act, 1948 but also under the PP Act because the PP Act also provides similar summary remedy of eviction. 71. Sixth, the Civil Court alone could try and decide the question of declaration of ownership of any immovable property between the parties and such disputes could not be decided in summary proceedings under the PP Act. 72. This takes us to examine another question raised by the respondents as to whether judgment rendered by the Bombay High Court dated 06.02.1979 stood merged in the order of this Court dated 04.08.1998. In our view, it does not merge. 73. In our view, the principle of merger is fairly well settled. For merger to operate, the superior court must go into the merits of the issues decided by the subordinate court and record finding/s one way or other on its merits. If this is not done by the superior court, a plea of merger has no application in such a case and the order of subordinate court would continue to hold the field (see Shanmugaval Nadar vs. State of Tamil Nadu [1989 (4) SCC 187 ]. 74. In our view, this court while disposing of the appeals by its order dated 04.08.1998, did not go into the merits of the various contentions which were decided by the High Court in its order dated 06.02.1979 and disposed of the appeal on the statement made by the respondents through the Solicitor General that respondent No.1 (Union of India) would take recourse to the remedy of the civil court by filing a civil suit. 75. Indeed, in the light of such statement made by the respondents (who were appellants in the appeal), which resulted in disposal of their appeal, the respondents themselves did not call upon this Court to examine the merits of the issues raised by them in their appeals. In such a situation, there was no occasion for this Court to apply the mind to the merits much less to record any finding on any of the issues arising in the appeal. In this view of the matter, the principle of merger could not operate. 76. Now coming to another argument, the learned counsel for the respondents contended that there lies a distinction between the two types of Tribunals -one which exercises powers only when it is shown that certain state of facts exist and other which has jurisdiction to determine whether the preliminary state of facts exists as well as it has the jurisdiction to proceed further to do something more as explained in the case reported in Chaube Jagdish Prasad vs. Ganga Prasad Chaturvedi 1959 (supp) 1 SCR 733 pages 743-744. 77. It is on the basis of this submission, learned counsel contended that the Estate Officer has jurisdiction to examine the facts of this case in Section 4 proceedings under the Act. 78. We do not agree. In our opinion, once the Constitution Bench in the case of Kaiser-I Hind (supra) after examining the provisions of the PP Act has laid down the law as to how the PP Act operates and needs to be applied, all the issues arising under the PP Act has to be examined in the light of the law which deals with the PP Act. 79. The law laid down in Chaube Jagdish Prasad (supra) relied on by the learned counsel for the respondents was entirely on different context and has no application for deciding the issue involved in this appeal. 80. Yet, last submission of the learned counsel for the respondents that the writ petition was not maintainable to challenge the notice issued under Section 4 of the PP Act has no merit and deserves rejection. Suffice it to say, firstly, the High Court having entertained the writ petition and dismissing it on merits, this objection does not survive for consideration and second, in the light of long line of decisions on this question, a writ petition to question the legality and correctness of the notice issued under any Act is no bar in entertaining the writ petition in appropriate case. The case at hand was regarded as an appropriate case for entertaining the writ petition [see -Siemens Ltd. vs. State of Maharashtra 2006 (12) SCC 33 and Whirlpool Corporation vs. Registrar of Trade Marks (1998) 8 SCC 1 ]. 81. Before parting, we consider it apposite to mention that we have set out the facts of the case only for the purpose of appreciating and deciding the legal issue arising in the appeal namely - the validity of issuance of notice under Section 4 of the PP Act and not beyond it. We have not examined the rival claims of the parties over the property in question on merits and nor have recorded any finding on the rival claims. 82. In this view of the matter, whenever the question of ownership of the rights of the parties will be gone into by the concerned court, it shall decide the said question/s strictly on the basis of pleadings and the evidence adduced by the parties in accordance with law uninfluenced by any observations made by the High Court and this Court.
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in this Court)68. Third, respondent No.1 (Union of India) itself stated in this Court in earlier round of litigation while disposing of their Civil Appeal Nos.609, 611-613, 614 and 621 of 1980 that they would seek dispossession of the appellants from the property in question in accordance with law and, if need be, by filing civil suit in the Civil Court. The respondents cannot now be permitted to go back from their statement and take recourse to a remedy of summary procedure under the PP Act, which is otherwise not available to them69. Fourth, this Court while granting special leave to appeal on 03.08.2009 had also granted liberty to respondent No.1 (Union of India) to file civil suit against the appellants, if they are so advised. It was, however, not resorted to70. Fifth, the effect of quashing the resumption notice dated 21.01.1971 issued by the respondents by the High Court vide order dated 05.02.1979/06.02.1979 in relation to the suit property was that respondent No.1 (Union of India) was not entitled to resort to any kind of summary remedy to evict the appellants from the suit property not only under the Bombay Land Requisition Act, 1948 but also under the PP Act because the PP Act also provides similar summary remedy of eviction71. Sixth, the Civil Court alone could try and decide the question of declaration of ownership of any immovable property between the parties and such disputes could not be decided in summary proceedings under the PP Act73. In our view, the principle of merger is fairly well settled. For merger to operate, the superior court must go into the merits of the issues decided by the subordinate court and record finding/s one way or other on its merits. If this is not done by the superior court, a plea of merger has no application in such a case and the order of subordinate court would continue to hold the field (see Shanmugaval Nadar vs. State of Tamil Nadu [1989 (4) SCC 187 ]74. In our view, this court while disposing of the appeals by its order dated 04.08.1998, did not go into the merits of the various contentions which were decided by the High Court in its order dated 06.02.1979 and disposed of the appeal on the statement made by the respondents through the Solicitor General that respondent No.1 (Union of India) would take recourse to the remedy of the civil court by filing a civil suit75. Indeed, in the light of such statement made by the respondents (who were appellants in the appeal), which resulted in disposal of their appeal, the respondents themselves did not call upon this Court to examine the merits of the issues raised by them in their appeals. In such a situation, there was no occasion for this Court to apply the mind to the merits much less to record any finding on any of the issues arising in the appeal. In this view of the matter, the principle of merger could not operate76. Now coming to another argument, the learned counsel for the respondents contended that there lies a distinction between the two types of Tribunals -one which exercises powers only when it is shown that certain state of facts exist and other which has jurisdiction to determine whether the preliminary state of facts exists as well as it has the jurisdiction to proceed further to do something more as explained in the case reported in Chaube Jagdish Prasad vs. Ganga Prasad Chaturvedi 1959 (supp) 1 SCR 733 pages 743-74477. It is on the basis of this submission, learned counsel contended that the Estate Officer has jurisdiction to examine the facts of this case in Section 4 proceedings under the Act78. We do not agree. In our opinion, once the Constitution Bench in the case of Kaiser-I Hind (supra) after examining the provisions of the PP Act has laid down the law as to how the PP Act operates and needs to be applied, all the issues arising under the PP Act has to be examined in the light of the law which deals with the PP Act.79. The law laid down in Chaube Jagdish Prasad (supra) relied on by the learned counsel for the respondents was entirely on different context and has no application for deciding the issue involved in this appeal80. Yet, last submission of the learned counsel for the respondents that the writ petition was not maintainable to challenge the notice issued under Section 4 of the PP Act has no merit and deserves rejection. Suffice it to say, firstly, the High Court having entertained the writ petition and dismissing it on merits, this objection does not survive for consideration and second, in the light of long line of decisions on this question, a writ petition to question the legality and correctness of the notice issued under any Act is no bar in entertaining the writ petition in appropriate case. The case at hand was regarded as an appropriate case for entertaining the writ petition [see -Siemens Ltd. vs. State of Maharashtra 2006 (12) SCC 33 and Whirlpool Corporation vs. Registrar of Trade Marks (1998) 8 SCC 1 ]81. Before parting, we consider it apposite to mention that we have set out the facts of the case only for the purpose of appreciating and deciding the legal issue arising in the appeal namely - the validity of issuance of notice under Section 4 of the PP Act and not beyond it. We have not examined the rival claims of the parties over the property in question on merits and nor have recorded any finding on the rival claims82. In this view of the matter, whenever the question of ownership of the rights of the parties will be gone into by the concerned court, it shall decide the said question/s strictly on the basis of pleadings and the evidence adduced by the parties in accordance with law uninfluenced by any observations made by the High Court and this Court.
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Commissioner of Wealth Tax (Central) Calcutta Vs. Moon Mills Limited | HEGDE, J.1. In this appeal by special leave, the only question that we have to consider is whether on the facts and the circumstances of the case the Tribunal was right in holding that the income-tax liabilities amounting to Rs. 1, 994, 270 was not allowable as a deduction in the computation of net wealth of the assessee-company in view of the provisions of section 2(m)(iii) of the Wealth-tax Act, 1957. The assessee is ex parte Herein, we are concerned with the assessees wealth-tax assessment for the year 1959-60, the corresponding valuation date being the calendar year ending December 31, 19582. In the computation of the net wealth of the assessee as on the material valuation date, the Wealth-tax Officer refuted to allow deduction in respect of a sum of Rs. 10, 81, 971 being the income-tax liability of the assessee. The major part of the amount represented the income-tax assessed and demanded from the assessee-company in respect of the assessment year 1951-52, which had been disputed in appeal and was not paid on the valuation date. Before the Appellate Assistant Commissioner and the Tribunal the claim for deduction was scaled down to Rs. 10, 31, 971. The Tribunal allowed deduction only in respect of the sum of Rs. 37, 701 being the last instalment of advance tax demanded under section 18A, which remained outstanding on the valuation date. Regarding the balance of Rs. 9, 94, 270 being the amount of income-tax liability which had been disputed by the assessee in appeal, the Tribunal held that it could not be allowed as a deduction in the computation of the net wealth in view of section 2(m)(iii)3. The High Court answered the question in favour of the assessee on the assumption that the same is covered by the decision of this court in Kesoram Industries and Cotton Mills Ltd. v. Commmissioner of Income-tax. The material facts of that case were : In its balance-sheet for the year ending March, 31, 1957 the assessee had made provision for the payment of income-tax and super-tax in respect of that year of account. The question was whether that amount was debt owed within the meaning of section 2(m) of the Wealth-tax Act. The court answered that question in the affirmative. Therein the court did not go into the scope of sub-clause (iii) of section 2(m) of the Wealth-tax Act as the facts of that case did not come within the scope of that provision. Clause (m) of section 2 reads as follows" (m) net wealth means the amount by which the aggregate value computed in accordance with the provisions of this Act of all the assets, wherever located, belonging to the assessee on the valuation date, including assets required to be included in his net wealth as on that date under this Act, is in excess of the aggregate value of all the debts owed by the assessee on the valuation date other than--(iii) the amount of the tax, penalty or interest payable in consequence of any order passed under or its pursuance of this Act or any law relating to taxation of income or profits, or the Estate Duty Act, 1953, the Expenditure-tax Act, 1957, or the Gift-tax Act, 1958, (a) which is outstanding on the valuation date and is claimed by the assessee in appeal, revision or other proceeding as not being payable by him, or(b) which, although not claimed by the assessee as not being payable by h im, is nevertheless outstanding for a Period of more than twelve months on the valuation date." [Emphasis supplied.]4. In view of this sub-clause, the assessee was not entitled to claim the deduction in question. The High Court clearly erred in overlooking this clause though the same had been pointedly referred to in the statement of the case5. | 1[ds]In view of thisthe assessee was not entitled to claim the deduction in question. The High Court clearly erred in overlooking this clause though the same had been pointedly referred to in the statement of the case | 1 | 733 | 42 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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HEGDE, J.1. In this appeal by special leave, the only question that we have to consider is whether on the facts and the circumstances of the case the Tribunal was right in holding that the income-tax liabilities amounting to Rs. 1, 994, 270 was not allowable as a deduction in the computation of net wealth of the assessee-company in view of the provisions of section 2(m)(iii) of the Wealth-tax Act, 1957. The assessee is ex parte Herein, we are concerned with the assessees wealth-tax assessment for the year 1959-60, the corresponding valuation date being the calendar year ending December 31, 19582. In the computation of the net wealth of the assessee as on the material valuation date, the Wealth-tax Officer refuted to allow deduction in respect of a sum of Rs. 10, 81, 971 being the income-tax liability of the assessee. The major part of the amount represented the income-tax assessed and demanded from the assessee-company in respect of the assessment year 1951-52, which had been disputed in appeal and was not paid on the valuation date. Before the Appellate Assistant Commissioner and the Tribunal the claim for deduction was scaled down to Rs. 10, 31, 971. The Tribunal allowed deduction only in respect of the sum of Rs. 37, 701 being the last instalment of advance tax demanded under section 18A, which remained outstanding on the valuation date. Regarding the balance of Rs. 9, 94, 270 being the amount of income-tax liability which had been disputed by the assessee in appeal, the Tribunal held that it could not be allowed as a deduction in the computation of the net wealth in view of section 2(m)(iii)3. The High Court answered the question in favour of the assessee on the assumption that the same is covered by the decision of this court in Kesoram Industries and Cotton Mills Ltd. v. Commmissioner of Income-tax. The material facts of that case were : In its balance-sheet for the year ending March, 31, 1957 the assessee had made provision for the payment of income-tax and super-tax in respect of that year of account. The question was whether that amount was debt owed within the meaning of section 2(m) of the Wealth-tax Act. The court answered that question in the affirmative. Therein the court did not go into the scope of sub-clause (iii) of section 2(m) of the Wealth-tax Act as the facts of that case did not come within the scope of that provision. Clause (m) of section 2 reads as follows" (m) net wealth means the amount by which the aggregate value computed in accordance with the provisions of this Act of all the assets, wherever located, belonging to the assessee on the valuation date, including assets required to be included in his net wealth as on that date under this Act, is in excess of the aggregate value of all the debts owed by the assessee on the valuation date other than--(iii) the amount of the tax, penalty or interest payable in consequence of any order passed under or its pursuance of this Act or any law relating to taxation of income or profits, or the Estate Duty Act, 1953, the Expenditure-tax Act, 1957, or the Gift-tax Act, 1958, (a) which is outstanding on the valuation date and is claimed by the assessee in appeal, revision or other proceeding as not being payable by him, or(b) which, although not claimed by the assessee as not being payable by h im, is nevertheless outstanding for a Period of more than twelve months on the valuation date." [Emphasis supplied.]4. In view of this sub-clause, the assessee was not entitled to claim the deduction in question. The High Court clearly erred in overlooking this clause though the same had been pointedly referred to in the statement of the case5.
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In view of thisthe assessee was not entitled to claim the deduction in question. The High Court clearly erred in overlooking this clause though the same had been pointedly referred to in the statement of the case
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National Insurance Co.Ltd Vs. Harjeet Rice Mills | have exceeded its jurisdiction. Thus, the appellant was directed to pay a sum of Rs. 8,96,500/- with interest thereon at the rate of 18% per annum from 2.1.1992, till the date of payment. The appellant filed an appeal before the High Court of Jammu & Kashmir. The High Court declined to interfere, essentially stating that the finding of fact arrived at by the State Commission, could not be interfered with in the circumstances of the case. Thus, the appeal was dismissed. 3. Learned Senior Counsel for the appellant first submitted that the High Court was in error in not setting aside the decision of the State Commission on the ground that the State Commission lacked pecuniary jurisdiction to entertain the claim. He pointed out that the pecuniary jurisdiction was limited to entertaining claims for Rs. 10 lakhs or less and that in the present case, the claim was for Rs. 10 lakhs plus interest thereon, taking the claim out of the purview of the Commission. Learned counsel for the respondent submitted that the claim was for Rs. 10 lakhs and the claim for interest cannot take the claim beyond the jurisdiction of the State Commission. He also pointed out that the Act has since been amended and now the Commission has been conferred jurisdiction to entertain a claim for a sum above Rs. 10 lakhs. He also submitted that the objection to pecuniary jurisdiction was not taken at the threshold and the High Court was justified in overruling the contention in that regard. 4. We do not think it necessary to go into this question on merits in view of the course we propose to adopt and in view of the amendment to the Act enhancing the pecuniary jurisdiction of the State Commission and the present claim being within that enhanced jurisdiction. 5. One of the main defences attempted by the appellant was that the fire was not accidental and hence the appellant had no liability under the policy. The respondent- claimant met this plea by pointing out that the surveyor had reported that the fire was caused by a short-circuit as pleaded by it. It is true that the Surveyors report supported the claim of the respondent herein. But the said report was also based on an investigation by the police, supporting a conclusion that the fire was caused by short-circuit of electricity. It is seen that there was a further police investigation and the Deputy Superintendent of Police R.S. Pura had reported that the earlier investigation was perfunctory, that the cause of the fire has to be properly investigated and in the circumstances a fresh investigation was called for. The appellant had engaged a private investigator to investigate and that agency had reported that the fire might not have been caused by short-circuit; that it could have been arson or a deliberate attempt to make an insurance claim; that the loss estimated could not have occurred considering the capacity of the godown and that the available materials in the custody of the police indicated that what was burned was paddy husk and not rice or paddy itself as claimed. The appellant argued before the Commission that in the light of this report, the Commission should decline jurisdiction and direct the claimant to go to a Civil Court to establish its claim. It was also argued that the report of the Surveyor could not be accepted in the circumstances, especially in view of the report of the Deputy Superintendent of Police. The claimant argued that the report of the private investigator could not be looked into in the light of Section 64 UM(c) of the Insurance Act, since there was nothing to show that the private investigator was licensed. The State Commission accepted the position canvassed for by the claimant and refused to look into the report of the private investigator. The High Court in appeal, also endorsed that position. 6. We are of the view that the State Commission should have given an opportunity to the appellant before us to prove the investigation report. Section 64UM of the Insurance Act cannot stand in the way of the insurance company in establishing that the claim was a fraud on the company, or that it was a case of deliberately causing a fire so as to lay the foundation for an insurance claim. Similarly, the Commission did not apply its mind to the aspect highlighted that the first police investigation was reported to be perfunctory and a fresh, proper investigation had been recommended. Similarly, the discrepancy in the capacity of the godown and the possibility that what was lost was only or mainly paddy husk, should have persuaded the Commission to make a proper enquiry before deciding to accept the Surveyors report in this case. The High Court, in our view, has failed to exercise its appellate jurisdiction properly. It failed to see that it had the duty as the Appellate Authority to satisfy itself that no fraud was involved and that the claim was genuine and sustainable. We are of the view that adequate prima facie material was available to warrant a proper enquiry on that question. In this situation, we are satisfied that interference is called for in this appeal.7. We are satisfied that the proper course to adopt is to set aside the decisions of the High Court and the State Commission and to remand the claim for a fresh enquiry and decision by the Commission. Since, we are of the view that a proper enquiry and a fresh decision by the initial authority itself is called for, we refrain from discussing the relevant aspects argued before us, so as to ensure that no prejudice is caused to either side. Now that the claim comes within the limit of the pecuniary jurisdiction of the State Commission, we are satisfied that the proceedings can be remanded to the State Commission itself for a proper decision on all the questions involved including the question of the cause of fire. | 1[ds]4. We do not think it necessary to go into this question on merits in view of the course we propose to adopt and in view of the amendment to the Act enhancing the pecuniary jurisdiction of the State Commission and the present claim being within that enhanced jurisdiction.We are of the view that the State Commission should have given an opportunity to the appellant before us to prove the investigation report. Section 64UM of the Insurance Act cannot stand in the way of the insurance company in establishing that the claim was a fraud on the company, or that it was a case of deliberately causing a fire so as to lay the foundation for an insurance claim. Similarly, the Commission did not apply its mind to the aspect highlighted that the first police investigation was reported to be perfunctory and a fresh, proper investigation had been recommended. Similarly, the discrepancy in the capacity of the godown and the possibility that what was lost was only or mainly paddy husk, should have persuaded the Commission to make a proper enquiry before deciding to accept the Surveyors report in this case. The High Court, in our view, has failed to exercise its appellate jurisdiction properly. It failed to see that it had the duty as the Appellate Authority to satisfy itself that no fraud was involved and that the claim was genuine and sustainable. We are of the view that adequate prima facie material was available to warrant a proper enquiry on that question. In this situation, we are satisfied that interference is called for in this appeal.7. We are satisfied that the proper course to adopt is to set aside the decisions of the High Court and the State Commission and to remand the claim for a fresh enquiry and decision by the Commission. Since, we are of the view that a proper enquiry and a fresh decision by the initial authority itself is called for, we refrain from discussing the relevant aspects argued before us, so as to ensure that no prejudice is caused to either side. Now that the claim comes within the limit of the pecuniary jurisdiction of the State Commission, we are satisfied that the proceedings can be remanded to the State Commission itself for a proper decision on all the questions involved including the question of the cause of fire. | 1 | 1,493 | 425 | ### 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:
have exceeded its jurisdiction. Thus, the appellant was directed to pay a sum of Rs. 8,96,500/- with interest thereon at the rate of 18% per annum from 2.1.1992, till the date of payment. The appellant filed an appeal before the High Court of Jammu & Kashmir. The High Court declined to interfere, essentially stating that the finding of fact arrived at by the State Commission, could not be interfered with in the circumstances of the case. Thus, the appeal was dismissed. 3. Learned Senior Counsel for the appellant first submitted that the High Court was in error in not setting aside the decision of the State Commission on the ground that the State Commission lacked pecuniary jurisdiction to entertain the claim. He pointed out that the pecuniary jurisdiction was limited to entertaining claims for Rs. 10 lakhs or less and that in the present case, the claim was for Rs. 10 lakhs plus interest thereon, taking the claim out of the purview of the Commission. Learned counsel for the respondent submitted that the claim was for Rs. 10 lakhs and the claim for interest cannot take the claim beyond the jurisdiction of the State Commission. He also pointed out that the Act has since been amended and now the Commission has been conferred jurisdiction to entertain a claim for a sum above Rs. 10 lakhs. He also submitted that the objection to pecuniary jurisdiction was not taken at the threshold and the High Court was justified in overruling the contention in that regard. 4. We do not think it necessary to go into this question on merits in view of the course we propose to adopt and in view of the amendment to the Act enhancing the pecuniary jurisdiction of the State Commission and the present claim being within that enhanced jurisdiction. 5. One of the main defences attempted by the appellant was that the fire was not accidental and hence the appellant had no liability under the policy. The respondent- claimant met this plea by pointing out that the surveyor had reported that the fire was caused by a short-circuit as pleaded by it. It is true that the Surveyors report supported the claim of the respondent herein. But the said report was also based on an investigation by the police, supporting a conclusion that the fire was caused by short-circuit of electricity. It is seen that there was a further police investigation and the Deputy Superintendent of Police R.S. Pura had reported that the earlier investigation was perfunctory, that the cause of the fire has to be properly investigated and in the circumstances a fresh investigation was called for. The appellant had engaged a private investigator to investigate and that agency had reported that the fire might not have been caused by short-circuit; that it could have been arson or a deliberate attempt to make an insurance claim; that the loss estimated could not have occurred considering the capacity of the godown and that the available materials in the custody of the police indicated that what was burned was paddy husk and not rice or paddy itself as claimed. The appellant argued before the Commission that in the light of this report, the Commission should decline jurisdiction and direct the claimant to go to a Civil Court to establish its claim. It was also argued that the report of the Surveyor could not be accepted in the circumstances, especially in view of the report of the Deputy Superintendent of Police. The claimant argued that the report of the private investigator could not be looked into in the light of Section 64 UM(c) of the Insurance Act, since there was nothing to show that the private investigator was licensed. The State Commission accepted the position canvassed for by the claimant and refused to look into the report of the private investigator. The High Court in appeal, also endorsed that position. 6. We are of the view that the State Commission should have given an opportunity to the appellant before us to prove the investigation report. Section 64UM of the Insurance Act cannot stand in the way of the insurance company in establishing that the claim was a fraud on the company, or that it was a case of deliberately causing a fire so as to lay the foundation for an insurance claim. Similarly, the Commission did not apply its mind to the aspect highlighted that the first police investigation was reported to be perfunctory and a fresh, proper investigation had been recommended. Similarly, the discrepancy in the capacity of the godown and the possibility that what was lost was only or mainly paddy husk, should have persuaded the Commission to make a proper enquiry before deciding to accept the Surveyors report in this case. The High Court, in our view, has failed to exercise its appellate jurisdiction properly. It failed to see that it had the duty as the Appellate Authority to satisfy itself that no fraud was involved and that the claim was genuine and sustainable. We are of the view that adequate prima facie material was available to warrant a proper enquiry on that question. In this situation, we are satisfied that interference is called for in this appeal.7. We are satisfied that the proper course to adopt is to set aside the decisions of the High Court and the State Commission and to remand the claim for a fresh enquiry and decision by the Commission. Since, we are of the view that a proper enquiry and a fresh decision by the initial authority itself is called for, we refrain from discussing the relevant aspects argued before us, so as to ensure that no prejudice is caused to either side. Now that the claim comes within the limit of the pecuniary jurisdiction of the State Commission, we are satisfied that the proceedings can be remanded to the State Commission itself for a proper decision on all the questions involved including the question of the cause of fire.
### Response:
1
### Explanation:
4. We do not think it necessary to go into this question on merits in view of the course we propose to adopt and in view of the amendment to the Act enhancing the pecuniary jurisdiction of the State Commission and the present claim being within that enhanced jurisdiction.We are of the view that the State Commission should have given an opportunity to the appellant before us to prove the investigation report. Section 64UM of the Insurance Act cannot stand in the way of the insurance company in establishing that the claim was a fraud on the company, or that it was a case of deliberately causing a fire so as to lay the foundation for an insurance claim. Similarly, the Commission did not apply its mind to the aspect highlighted that the first police investigation was reported to be perfunctory and a fresh, proper investigation had been recommended. Similarly, the discrepancy in the capacity of the godown and the possibility that what was lost was only or mainly paddy husk, should have persuaded the Commission to make a proper enquiry before deciding to accept the Surveyors report in this case. The High Court, in our view, has failed to exercise its appellate jurisdiction properly. It failed to see that it had the duty as the Appellate Authority to satisfy itself that no fraud was involved and that the claim was genuine and sustainable. We are of the view that adequate prima facie material was available to warrant a proper enquiry on that question. In this situation, we are satisfied that interference is called for in this appeal.7. We are satisfied that the proper course to adopt is to set aside the decisions of the High Court and the State Commission and to remand the claim for a fresh enquiry and decision by the Commission. Since, we are of the view that a proper enquiry and a fresh decision by the initial authority itself is called for, we refrain from discussing the relevant aspects argued before us, so as to ensure that no prejudice is caused to either side. Now that the claim comes within the limit of the pecuniary jurisdiction of the State Commission, we are satisfied that the proceedings can be remanded to the State Commission itself for a proper decision on all the questions involved including the question of the cause of fire.
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N.M. Siddique Vs. Union of India | 15 of 1965 in the High Court of Allahabad which on April 20, 1967 was remanded by the High Court to the trial Court for recording its findings on Issues Nos. 11 and 12. By an order dated August 29, 1967, the trial Court found in favour of the appellant on both the issues. It held on the assumption that the appellants claim was not barred by res judicata that he would have been necessarily promoted to the post of chief clerk and Superintendent, since his name was on the appropriate panels in Class III service and that he would have been promoted later to the post of Assistant Personnel Officer in Class II according to the "Next Below Rule". On receipt of these findings, the High Court by its judgment dated February 19, 1969 allowed the appellants appeal partly and decreed a further sum of Rs. 8, 325.34 in his favour. The High Court also decided the issue of res judicata in his favour. This appeal is directed against the judgment of the High Court on a certificate granted by it, under Art. 133(1)(a) & (b) of the Constitution.8. Mr. Yogeshwar Prasad who appears on behalf of the appellant has raised several contentions in this appeal which may be set out before dealing specifically with the more important of them. It is contended by the learned counsel (i) that the High Court is wrong in its assumption that a committee appointed by the Divisional Superintendent had found the appellant guilty of any charges; (ii) that the appellant was not only put on the panel for promotion but was, in fact, promoted to the higher grades as is clear from the findings dated May 17, 1956 recorded by the learned civil Judge, Lucknow (iii) that the High Court committed a further error in basing its judgment on circular No. 975 dated May 6, 1946 which was not in force at the relevant time and that another circular which was relied upon by the trial Court was actually in force at that time; and (iv) that Rule 148 of the Railway Establishment Code under which the service of the appellant were terminated on both the occasions, first in 1948 and again in 1955, having been struck down by this Court. It is not correct to hold that the appellants termination was set aside for a technical reason.9. Having given a close consideration to these submissions, we see no ground for interfering with the judgment of the High Court. In the first place, the mere circumstance that the appellant was put on a panel for promotion does not mean that he would have been automatically promoted to the higher post. Being empanelled for promotion confers upon concerned the limited right of being considered for promotion, which is another way of saying that persons who are put on the panel framed for promotion to a higher post, are at the given moment considered eligible promotion. Event subsequent to the formation of the panel may render any person, who is included in the panel unfit for promotion, which is what has happened in the instant case.10. The High Court was also right in relying upon the circular of May 16, 1946 which is at Ext 63. It provides that an individual on the selected list who does not obtain promotion during the year need not be interviewed by the Selection Board again and his name would be carried forward to the next years list, unless something happens during the course of the year which may render him unit for promotion. It follows from this circular that it would have been open to the railway administration, even if the appellant had remained in service and was not to be dismissed, to report to the Selection Board reasons why the appellant was considered unit for promotion to the selection post. The other circular on which the trial Court relied and which, according to the appellant, is the only circular to apply is, in our opinion, not relevant on this point.11. There is also no substance in the contention that the appellant was not found guilty of any charges at any time. It is manifest from the record that Committee appointed by the divisional Superintendent had found the appellant guilty of the charges levelled against him and that the Divisional Superintendent and, later on, the General Manager accepted the report of the Committee as sufficient for terminating the appellants services. The technical reason for which the appellants dismissal was set aside was that the order of dismissal was passed by the Divisional Superintendent and not by the General Manager who alone could pass that order.12. A grievance was made on behalf of the appellant that the High Court was in error in refusing to award interest to the appellant of the suit. As observed by the High Court, the appellant did not by his suit ask for interest for a period prior to the suit and even paragraph 11 of the plaint which that point. Besides, though the trial Court did not decree interest prior to the suit, the appellant did not claim it in his memorandum of appeal.13. Counsel for the appellant attempted to argue that the High Court was in error in holding that the salary between November 3, 1955 and January 15, 1956 was barred by time. It is indisputable that the proper article of the Limitation Act, 1908 to apply is Art. 102. It prescribes a period of three years from the date when the wages accrue due. The suit in the instant case was field on March 15, 1959 and making allowance for the two months period of notice under S. 80 of the Code of Civil Procedure, only that part of the salary can be decreed which accrued due within three years preceding January 15, 1959. The High Court was, therefore, right that the salary which had accrued due between November 3, 1955 and January 15, 1956 was barred by time. | 0[ds]9. Having given a close consideration to these submissions, we see no ground for interfering with the judgment of the High Court. In the first place, the mere circumstance that the appellant was put on a panel for promotion does not mean that he would have been automatically promoted to the higher post. Being empanelled for promotion confers upon concerned the limited right of being considered for promotion, which is another way of saying that persons who are put on the panel framed for promotion to a higher post, are at the given moment considered eligible promotion. Event subsequent to the formation of the panel may render any person, who is included in the panel unfit for promotion, which is what has happened in the instant case.10. The High Court was also right in relying upon the circular of May 16, 1946 which is at Ext 63. It provides that an individual on the selected list who does not obtain promotion during the year need not be interviewed by the Selection Board again and his name would be carried forward to the next years list, unless something happens during the course of the year which may render him unit for promotion. It follows from this circular that it would have been open to the railway administration, even if the appellant had remained in service and was not to be dismissed, to report to the Selection Board reasons why the appellant was considered unit for promotion to the selection post. The other circular on which the trial Court relied and which, according to the appellant, is the only circular to apply is, in our opinion, not relevant on this point.11. There is also no substance in the contention that the appellant was not found guilty of any charges at any time. It is manifest from the record that Committee appointed by the divisional Superintendent had found the appellant guilty of the charges levelled against him and that the Divisional Superintendent and, later on, the General Manager accepted the report of the Committee as sufficient for terminating the appellants services. The technical reason for which the appellants dismissal was set aside was that the order of dismissal was passed by the Divisional Superintendent and not by the General Manager who alone could pass that order.Counsel for the appellant attempted to argue that the High Court was in error in holding that the salary between November 3, 1955 and January 15, 1956 was barred by time. It is indisputable that the proper article of the Limitation Act, 1908 to apply is Art. 102. It prescribes a period of three years from the date when the wages accrue due. The suit in the instant case was field on March 15, 1959 and making allowance for the two months period of notice under S. 80 of the Code of Civil Procedure, only that part of the salary can be decreed which accrued due within three years preceding January 15, 1959. The High Court was, therefore, right that the salary which had accrued due between November 3, 1955 and January 15, 1956 was barred by time. | 0 | 1,865 | 567 | ### 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:
15 of 1965 in the High Court of Allahabad which on April 20, 1967 was remanded by the High Court to the trial Court for recording its findings on Issues Nos. 11 and 12. By an order dated August 29, 1967, the trial Court found in favour of the appellant on both the issues. It held on the assumption that the appellants claim was not barred by res judicata that he would have been necessarily promoted to the post of chief clerk and Superintendent, since his name was on the appropriate panels in Class III service and that he would have been promoted later to the post of Assistant Personnel Officer in Class II according to the "Next Below Rule". On receipt of these findings, the High Court by its judgment dated February 19, 1969 allowed the appellants appeal partly and decreed a further sum of Rs. 8, 325.34 in his favour. The High Court also decided the issue of res judicata in his favour. This appeal is directed against the judgment of the High Court on a certificate granted by it, under Art. 133(1)(a) & (b) of the Constitution.8. Mr. Yogeshwar Prasad who appears on behalf of the appellant has raised several contentions in this appeal which may be set out before dealing specifically with the more important of them. It is contended by the learned counsel (i) that the High Court is wrong in its assumption that a committee appointed by the Divisional Superintendent had found the appellant guilty of any charges; (ii) that the appellant was not only put on the panel for promotion but was, in fact, promoted to the higher grades as is clear from the findings dated May 17, 1956 recorded by the learned civil Judge, Lucknow (iii) that the High Court committed a further error in basing its judgment on circular No. 975 dated May 6, 1946 which was not in force at the relevant time and that another circular which was relied upon by the trial Court was actually in force at that time; and (iv) that Rule 148 of the Railway Establishment Code under which the service of the appellant were terminated on both the occasions, first in 1948 and again in 1955, having been struck down by this Court. It is not correct to hold that the appellants termination was set aside for a technical reason.9. Having given a close consideration to these submissions, we see no ground for interfering with the judgment of the High Court. In the first place, the mere circumstance that the appellant was put on a panel for promotion does not mean that he would have been automatically promoted to the higher post. Being empanelled for promotion confers upon concerned the limited right of being considered for promotion, which is another way of saying that persons who are put on the panel framed for promotion to a higher post, are at the given moment considered eligible promotion. Event subsequent to the formation of the panel may render any person, who is included in the panel unfit for promotion, which is what has happened in the instant case.10. The High Court was also right in relying upon the circular of May 16, 1946 which is at Ext 63. It provides that an individual on the selected list who does not obtain promotion during the year need not be interviewed by the Selection Board again and his name would be carried forward to the next years list, unless something happens during the course of the year which may render him unit for promotion. It follows from this circular that it would have been open to the railway administration, even if the appellant had remained in service and was not to be dismissed, to report to the Selection Board reasons why the appellant was considered unit for promotion to the selection post. The other circular on which the trial Court relied and which, according to the appellant, is the only circular to apply is, in our opinion, not relevant on this point.11. There is also no substance in the contention that the appellant was not found guilty of any charges at any time. It is manifest from the record that Committee appointed by the divisional Superintendent had found the appellant guilty of the charges levelled against him and that the Divisional Superintendent and, later on, the General Manager accepted the report of the Committee as sufficient for terminating the appellants services. The technical reason for which the appellants dismissal was set aside was that the order of dismissal was passed by the Divisional Superintendent and not by the General Manager who alone could pass that order.12. A grievance was made on behalf of the appellant that the High Court was in error in refusing to award interest to the appellant of the suit. As observed by the High Court, the appellant did not by his suit ask for interest for a period prior to the suit and even paragraph 11 of the plaint which that point. Besides, though the trial Court did not decree interest prior to the suit, the appellant did not claim it in his memorandum of appeal.13. Counsel for the appellant attempted to argue that the High Court was in error in holding that the salary between November 3, 1955 and January 15, 1956 was barred by time. It is indisputable that the proper article of the Limitation Act, 1908 to apply is Art. 102. It prescribes a period of three years from the date when the wages accrue due. The suit in the instant case was field on March 15, 1959 and making allowance for the two months period of notice under S. 80 of the Code of Civil Procedure, only that part of the salary can be decreed which accrued due within three years preceding January 15, 1959. The High Court was, therefore, right that the salary which had accrued due between November 3, 1955 and January 15, 1956 was barred by time.
### Response:
0
### Explanation:
9. Having given a close consideration to these submissions, we see no ground for interfering with the judgment of the High Court. In the first place, the mere circumstance that the appellant was put on a panel for promotion does not mean that he would have been automatically promoted to the higher post. Being empanelled for promotion confers upon concerned the limited right of being considered for promotion, which is another way of saying that persons who are put on the panel framed for promotion to a higher post, are at the given moment considered eligible promotion. Event subsequent to the formation of the panel may render any person, who is included in the panel unfit for promotion, which is what has happened in the instant case.10. The High Court was also right in relying upon the circular of May 16, 1946 which is at Ext 63. It provides that an individual on the selected list who does not obtain promotion during the year need not be interviewed by the Selection Board again and his name would be carried forward to the next years list, unless something happens during the course of the year which may render him unit for promotion. It follows from this circular that it would have been open to the railway administration, even if the appellant had remained in service and was not to be dismissed, to report to the Selection Board reasons why the appellant was considered unit for promotion to the selection post. The other circular on which the trial Court relied and which, according to the appellant, is the only circular to apply is, in our opinion, not relevant on this point.11. There is also no substance in the contention that the appellant was not found guilty of any charges at any time. It is manifest from the record that Committee appointed by the divisional Superintendent had found the appellant guilty of the charges levelled against him and that the Divisional Superintendent and, later on, the General Manager accepted the report of the Committee as sufficient for terminating the appellants services. The technical reason for which the appellants dismissal was set aside was that the order of dismissal was passed by the Divisional Superintendent and not by the General Manager who alone could pass that order.Counsel for the appellant attempted to argue that the High Court was in error in holding that the salary between November 3, 1955 and January 15, 1956 was barred by time. It is indisputable that the proper article of the Limitation Act, 1908 to apply is Art. 102. It prescribes a period of three years from the date when the wages accrue due. The suit in the instant case was field on March 15, 1959 and making allowance for the two months period of notice under S. 80 of the Code of Civil Procedure, only that part of the salary can be decreed which accrued due within three years preceding January 15, 1959. The High Court was, therefore, right that the salary which had accrued due between November 3, 1955 and January 15, 1956 was barred by time.
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CDC Financial Services (Mauritius) Ltd., Vs. BPL Communications Ltd & Others | cellular licence in favour of Respondent 1. The Division Bench passed an order on 4-7-2002 directing the parties to maintain "status quo as it exists today for five weeks".8. This order was communicated to the arbitrator by one of the five shareholders. In addition, the said five shareholders also expressed their view that the arbitrator had acted in a biased manner in passing the interim order on 2-7-2002 and, therefore, they would approach the "appropriate forum" for his removal.9. The arbitrator by a letter dated 15-7-2002 replied to the threat of the five shareholders to remove him stating that it was open for him to decide on that issue under S.13(2) of the 1996 Act. He reiterated the contents of an earlier notice sent by him by which he had called a meeting of the parties on 24-7-2002. The items on the agenda included the following:4.2. An exchange of views on the effect on the present arbitration of the order of the Karnataka High Court.4.3. The arbitrators order dated 2nd July, 2002 for interim and conservatory relief (the respondents compliance with the order; possible applications by the parties in regard to the order).4.7. Indication by the parties how they wish to proceed further in this matter, following the arbitrators order dated 2-7-2002, in particular, how they wish to prove their respective cases (written evidence, oral evidence, expert witnesses).10. Respondent 1 then filed three interlocutory applications before the Division Bench of the High Court. In the first application Respondent 1 prayed for the initiation of contempt proceedings against the appellant on the allegation that the appellant had not obeyed the interim order dated 4-7-2002. The second interlocutory application contained a prayer to direct the appellant to maintain the status quo and not to take steps or to participate in the arbitration proceedings in any manner whatsoever until the disposal of the contempt application. The third application was for a direction on the appellant and its Director to be personally present before the High Court so that "substantial justice" could be done by sending them to prison in the event the appellant and its Director were unable to sufficiently explain their action.11. The High Court passed a second order on 23-7-2002 on these applications. The High Court said that it was not appropriate to initiate contempt proceedings against the appellant, but the High Court directed that the arbitrator would not take cognizance of the controversy pending in the Court, more particularly when the five shareholders being Respondents 7 to 11 had been restrained from pledging their equity shares in favour of the appellant and when there was a direction by the High Court to maintain status quo until further orders. The operative portion of the order reads thus: "Therefore, we direct that Respondent 6 (the appellant before us) is restrained to participate on Agenda Items 4.2, 4.3 and 4.7 and the arbitrator will not take cognizance of the said agenda items in view of the status quo order of this Court, wherein Respondent 6 is a party." The interim order granted on 4-7-2002 was also directed to continue until further orders.12. The appellants have impugned the orders dated 4-7-2002 and 23-7-2002 before us. It has been submitted:(1) that the writ applications had been filed by Respondent 1 in abuse of the process of the Court; (2) the writ petition was based on an alleged apprehension of the possible outcome of the implementation of the pledge agreement in the event the arbitrator passed an award as claimed by the appellant before the arbitrator; (3) the writ petition was not only premature but wholly unfounded, speculative and mala fide; and (4) the High Court has grossly erred in interfering with the arbitration proceedings appropriately initiated under the 1996 Act.13. The learned counsel appearing on behalf of Respondent 1 has submitted that his client was entitled to challenge the pledge agreement under Article 226 of the Constitution as there was no other option available to it since it was not a party to the agreement itself. It is stated that the implementation of the pledge agreement would have serious consequences as far as Respondent 1 is concerned, since the agreement could result in the appellant becoming the shareholder of more than 49% shareholding in Respondent 1, in violation of Reserve Bank of India permission which has made the grant of cellular licence to Respondent 1 conditional upon the foreign shareholding in Respondent 1 being limited to 49%. It is also pointed out that the enforcement of the pledge agreement could result in the management of Respondent 1 being taken over by the foreign investors in which case it would also amount to a violation of another condition of the licence as laid down by Reserve Bank of India. 14. Whatever may be the merits of the writ application, we are of the view and it has been fairly conceded by the learned Senior Counsel appearing on behalf of Respondent 1 that the High Court should have had regard to S.5 of the 1996 Act before granting the reliefs it did. Under S.5 of the 1996 Act, courts are restrained from interfering with arbitration except in the manner provided in the 1996 Act. That the orders passed by the High Court would amount to a violation of this mandate is not seriously disputed by the respondents. We, accordingly, set aside the orders of the High Court without expressing our views on the merits of the contentions of the parties in any manner whatsoever. The orders dated 4-7-2002 and 23-7-2002 are accordingly, set aside. The respondents are restrained from moving any applications in the pending writ petition which would have the effect of interfering with the continuance and conclusion of the arbitration proceedings. The appeal of Respondent 1 before the Division Bench being preferred from the refusal to grant an interim order, does not survive and is accordingly dismissed. The matter shall now be heard by the learned Single Judge and disposed of in accordance with law. | 1[ds]14. Whatever may be the merits of the writ application, we are of the view and it has been fairly conceded by the learned Senior Counsel appearing on behalf of Respondent 1 that the High Court should have had regard to S.5 of the 1996 Act before granting the reliefs it did. Under S.5 of the 1996 Act, courts are restrained from interfering with arbitration except in the manner provided in the 1996 Act. That the orders passed by the High Court would amount to a violation of this mandate is not seriously disputed by the respondents. We, accordingly, set aside the orders of the High Court without expressing our views on the merits of the contentions of the parties in any manner whatsoever. The orders dated02 are accordingly, set aside. The respondents are restrained from moving any applications in the pending writ petition which would have the effect of interfering with the continuance and conclusion of the arbitration proceedings. The appeal of Respondent 1 before the Division Bench being preferred from the refusal to grant an interim order, does not survive and is accordingly dismissed. The matter shall now be heard by the learned Single Judge and disposed of in accordance with law. | 1 | 2,018 | 223 | ### 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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cellular licence in favour of Respondent 1. The Division Bench passed an order on 4-7-2002 directing the parties to maintain "status quo as it exists today for five weeks".8. This order was communicated to the arbitrator by one of the five shareholders. In addition, the said five shareholders also expressed their view that the arbitrator had acted in a biased manner in passing the interim order on 2-7-2002 and, therefore, they would approach the "appropriate forum" for his removal.9. The arbitrator by a letter dated 15-7-2002 replied to the threat of the five shareholders to remove him stating that it was open for him to decide on that issue under S.13(2) of the 1996 Act. He reiterated the contents of an earlier notice sent by him by which he had called a meeting of the parties on 24-7-2002. The items on the agenda included the following:4.2. An exchange of views on the effect on the present arbitration of the order of the Karnataka High Court.4.3. The arbitrators order dated 2nd July, 2002 for interim and conservatory relief (the respondents compliance with the order; possible applications by the parties in regard to the order).4.7. Indication by the parties how they wish to proceed further in this matter, following the arbitrators order dated 2-7-2002, in particular, how they wish to prove their respective cases (written evidence, oral evidence, expert witnesses).10. Respondent 1 then filed three interlocutory applications before the Division Bench of the High Court. In the first application Respondent 1 prayed for the initiation of contempt proceedings against the appellant on the allegation that the appellant had not obeyed the interim order dated 4-7-2002. The second interlocutory application contained a prayer to direct the appellant to maintain the status quo and not to take steps or to participate in the arbitration proceedings in any manner whatsoever until the disposal of the contempt application. The third application was for a direction on the appellant and its Director to be personally present before the High Court so that "substantial justice" could be done by sending them to prison in the event the appellant and its Director were unable to sufficiently explain their action.11. The High Court passed a second order on 23-7-2002 on these applications. The High Court said that it was not appropriate to initiate contempt proceedings against the appellant, but the High Court directed that the arbitrator would not take cognizance of the controversy pending in the Court, more particularly when the five shareholders being Respondents 7 to 11 had been restrained from pledging their equity shares in favour of the appellant and when there was a direction by the High Court to maintain status quo until further orders. The operative portion of the order reads thus: "Therefore, we direct that Respondent 6 (the appellant before us) is restrained to participate on Agenda Items 4.2, 4.3 and 4.7 and the arbitrator will not take cognizance of the said agenda items in view of the status quo order of this Court, wherein Respondent 6 is a party." The interim order granted on 4-7-2002 was also directed to continue until further orders.12. The appellants have impugned the orders dated 4-7-2002 and 23-7-2002 before us. It has been submitted:(1) that the writ applications had been filed by Respondent 1 in abuse of the process of the Court; (2) the writ petition was based on an alleged apprehension of the possible outcome of the implementation of the pledge agreement in the event the arbitrator passed an award as claimed by the appellant before the arbitrator; (3) the writ petition was not only premature but wholly unfounded, speculative and mala fide; and (4) the High Court has grossly erred in interfering with the arbitration proceedings appropriately initiated under the 1996 Act.13. The learned counsel appearing on behalf of Respondent 1 has submitted that his client was entitled to challenge the pledge agreement under Article 226 of the Constitution as there was no other option available to it since it was not a party to the agreement itself. It is stated that the implementation of the pledge agreement would have serious consequences as far as Respondent 1 is concerned, since the agreement could result in the appellant becoming the shareholder of more than 49% shareholding in Respondent 1, in violation of Reserve Bank of India permission which has made the grant of cellular licence to Respondent 1 conditional upon the foreign shareholding in Respondent 1 being limited to 49%. It is also pointed out that the enforcement of the pledge agreement could result in the management of Respondent 1 being taken over by the foreign investors in which case it would also amount to a violation of another condition of the licence as laid down by Reserve Bank of India. 14. Whatever may be the merits of the writ application, we are of the view and it has been fairly conceded by the learned Senior Counsel appearing on behalf of Respondent 1 that the High Court should have had regard to S.5 of the 1996 Act before granting the reliefs it did. Under S.5 of the 1996 Act, courts are restrained from interfering with arbitration except in the manner provided in the 1996 Act. That the orders passed by the High Court would amount to a violation of this mandate is not seriously disputed by the respondents. We, accordingly, set aside the orders of the High Court without expressing our views on the merits of the contentions of the parties in any manner whatsoever. The orders dated 4-7-2002 and 23-7-2002 are accordingly, set aside. The respondents are restrained from moving any applications in the pending writ petition which would have the effect of interfering with the continuance and conclusion of the arbitration proceedings. The appeal of Respondent 1 before the Division Bench being preferred from the refusal to grant an interim order, does not survive and is accordingly dismissed. The matter shall now be heard by the learned Single Judge and disposed of in accordance with law.
### Response:
1
### Explanation:
14. Whatever may be the merits of the writ application, we are of the view and it has been fairly conceded by the learned Senior Counsel appearing on behalf of Respondent 1 that the High Court should have had regard to S.5 of the 1996 Act before granting the reliefs it did. Under S.5 of the 1996 Act, courts are restrained from interfering with arbitration except in the manner provided in the 1996 Act. That the orders passed by the High Court would amount to a violation of this mandate is not seriously disputed by the respondents. We, accordingly, set aside the orders of the High Court without expressing our views on the merits of the contentions of the parties in any manner whatsoever. The orders dated02 are accordingly, set aside. The respondents are restrained from moving any applications in the pending writ petition which would have the effect of interfering with the continuance and conclusion of the arbitration proceedings. The appeal of Respondent 1 before the Division Bench being preferred from the refusal to grant an interim order, does not survive and is accordingly dismissed. The matter shall now be heard by the learned Single Judge and disposed of in accordance with law.
|
Gurdit Singh And Others Vs. State Of Punjab And Others | 1963, as he gave no opportunity to appellants 2 and 3 of being heard. The fact that the first appellant was heard before that order was passed is of no moment because the persons who were vitally concerned in re-opening the case were appellants 2 and 3. Admittedly, no notice of the proceedings to re-open the case was given to them. It is not for us to speculate what defences were available to them and whether the defences available would have materially affected the destiny of the decision. We do not think it necessary to decide in this case whether the failure to observe the rule audi alteram partem would per se vitiate an order or whether it is also necessary to show prejudice to the person affected resulting from the failure to observe the rule. Suffice it to say that in the present case we are of the view that if notice had been given to appellants 2 and 3, they could, at any rate, have shown the true nature and character of the judgment of the civil court upon which they relied.8. It is relevant to note that the judgment itself was not challenged as collusive by the respondents. We are quite aware that the defendant in the suit in which the judgment was obtained, namely, the first appellant, did not put forward any contention. But it would be rash to jump to the conclusion from the mere fact that no defence was put forward by the first appellant in the suit that the decree was obtained collusively. Under Section 43 of the Evidence Act a person who is not a party to a judgment can show that it was obtained by fraud or collusion. No such attempt was made in this case.9. Nor are we satisfied that every judgment which has the apparent effect of diminishing the area of land of a person would be within the ambit of S.32-DD (b). Generally speaking, a judgment adjudicates on the rights of the parties as they existed before the suit in which it was obtained.10. A judgment is an affirmation of a relation between a particular predicate and a particular subject. So, in law, it is the affirmation by the law of the legal consequences attending a proved or admitted state of facts. It is always a declaration that a liability, recognised as within the jural sphere, does or does not exist. A judgment, as the culmination of the action, declares the existence of the right, recognizes the commission of the injury, or negatives the allegation of one or the other".11. A judgment of a court is an affirmation, by the authorized societal agent of the state, speaking by warrant of law and in the name of the state, of the legal consequences attending a proved or admitted state of facts. Its declaratory, determinative and adjudicatory function isits distinctive characteristic. Its recording gives an official certification to a pre-existing relation establishes a new one on pre-existing grounds**.*see Black on Judgments, Vol. 1, 2nd ed., pp.1-2.**see Borchard, "Declaratory Judgments" 2nd ed, pp.8-1012. The judgment of the civil Court with which we are concerned, adjudicated on the rights of the parties as they existed before the suit and when it declared that the mutation was effected not with the idea of transferring the property to the first appellant but for some other reason, the effect of the declaration was that there was no real transfer of the property in favour of the first appellant and that the property remained always in the ownership of appellants 2 and 3, notwithstanding the purported transfer evidenced by the mutation in the revenue records. It is impermissible to give the wide language employed in clause (b) of Section 32-DD an unconfined operation. When a transfer or mutation is made on account of fraud or mistake and if a suit is filed for a declaration that the transfer or mutation was made on account of fraud or mistake and a judgment obtained, certainly the judgment would not have the effect of diminishing the area of a person which could have been declared as a surplus area within the meaning of Section 32-DD. The legal effect of such a declaration would be that the transferee or the person in whose name the mutation was effected had no right in the property. The land must have belonged to the first appellant prior to the judgment in order that it might be postulated that the judgment has the effect of diminishing the total area in his hands. To put it differently, prior to the judgment, the land must have belonged to him in order that it may be said that the effect of the judgment is to dimisgh the area of his holding. If the effect of the judgment is only to declare that the land never belonged to the first appellant, it has not the effect of diminishing area of land in his possession. We are aware that the object of this provision in an Act like the one under consideration is to prevent circumvention of its provisions by dubious and indirect methods. But that is no reason why we should put a construction upon the section which its language can hardly bear. It would have been open to the respondents to allege and prove that the judgment was obtained collusively. But that could have been done only after notice to appellants 2 and 3 and after giving them an opportunity of being heard. Therefore, to say, as the High Court has said, that no prejudice was caused to appellants 2 and 3 for want of an opportunity to them of being heard, is neither here nor there. We think the High Court went wrong in assuming that the Collector was right when he ignored the judgment by his order dated May 20, 1963 on the ground that it had the effect of diminishing the area of the first appellant which could have been declared as his surplus. | 1[ds]6. We are not satisfied that this is a correct approach to the question. The Collector purported to act under Section 15 of the Land Revenue Code, which, obviously has no application. The High Court did not rest its decision on S.15 of the Punjab Land Revenue Code for holding that Collector had jurisdiction to pass the order dated May 20, 1963. When the Collector passed the order dated March 28, 1961 determining the surplus area in the hands of the first appellant, he took into consideration the effect of the judgment of the civil court declaring that the mutation of the name of the first appellant in the revenue record was effected only to enable him to obtain a gun licence. That order of the Collector dated March 28, 1961 was a perfectly valid one when it was passed. No one challenged that order and it became final for all purposes.We are also not satisfied that the Collector was acting in consonance with the principles of natural justice when he passed the order dated May 20, 1963, as he gave no opportunity to appellants 2 and 3 of being heard. The fact that the first appellant was heard before that order was passed is of no moment because the persons who were vitally concerned in re-opening the case were appellants 2 and 3. Admittedly, no notice of the proceedings to re-open the case was given to them. It is not for us to speculate what defences were available to them and whether the defences available would have materially affected the destiny of the decision. We do not think it necessary to decide in this case whether the failure to observe the rule audi alteram partem would per se vitiate an order or whether it is also necessary to show prejudice to the person affected resulting from the failure to observe the rule. Suffice it to say that in the present case we are of the view that if notice had been given to appellants 2 and 3, they could, at any rate, have shown the true nature and character of the judgment of the civil court upon which they relied.The judgment of the civil Court with which we are concerned, adjudicated on the rights of the parties as they existed before the suit and when it declared that the mutation was effected not with the idea of transferring the property to the first appellant but for some other reason, the effect of the declaration was that there was no real transfer of the property in favour of the first appellant and that the property remained always in the ownership of appellants 2 and 3, notwithstanding the purported transfer evidenced by the mutation in the revenue records. It is impermissible to give the wide language employed in clause (b) of Section 32-DD an unconfined operation. When a transfer or mutation is made on account of fraud or mistake and if a suit is filed for a declaration that the transfer or mutation was made on account of fraud or mistake and a judgment obtained, certainly the judgment would not have the effect of diminishing the area of a person which could have been declared as a surplus area within the meaning of Section 32-DD. The legal effect of such a declaration would be that the transferee or the person in whose name the mutation was effected had no right in the property. The land must have belonged to the first appellant prior to the judgment in order that it might be postulated that the judgment has the effect of diminishing the total area in his hands. To put it differently, prior to the judgment, the land must have belonged to him in order that it may be said that the effect of the judgment is to dimisgh the area of his holding. If the effect of the judgment is only to declare that the land never belonged to the first appellant, it has not the effect of diminishing area of land in his possession. We are aware that the object of this provision in an Act like the one under consideration is to prevent circumvention of its provisions by dubious and indirect methods. But that is no reason why we should put a construction upon the section which its language can hardly bear. It would have been open to the respondents to allege and prove that the judgment was obtained collusively. But that could have been done only after notice to appellants 2 and 3 and after giving them an opportunity of being heard. Therefore, to say, as the High Court has said, that no prejudice was caused to appellants 2 and 3 for want of an opportunity to them of being heard, is neither here nor there. We think the High Court went wrong in assuming that the Collector was right when he ignored the judgment by his order dated May 20, 1963 on the ground that it had the effect of diminishing the area of the first appellant which could have been declared as his surplus.It is relevant to note that the judgment itself was not challenged as collusive by the respondents. We are quite aware that the defendant in the suit in which the judgment was obtained, namely, the first appellant, did not put forward any contention. But it would be rash to jump to the conclusion from the mere fact that no defence was put forward by the first appellant in the suit that the decree was obtained collusively. Under Section 43 of the Evidence Act a person who is not a party to a judgment can show that it was obtained by fraud or collusion. No such attempt was made in this case.9. Nor are we satisfied that every judgment which has the apparent effect of diminishing the area of land of a person would be within the ambit of(b). Generally speaking, a judgment adjudicates on the rights of the parties as they existed before the suit in which it was obtained. | 1 | 2,512 | 1,074 | ### 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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1963, as he gave no opportunity to appellants 2 and 3 of being heard. The fact that the first appellant was heard before that order was passed is of no moment because the persons who were vitally concerned in re-opening the case were appellants 2 and 3. Admittedly, no notice of the proceedings to re-open the case was given to them. It is not for us to speculate what defences were available to them and whether the defences available would have materially affected the destiny of the decision. We do not think it necessary to decide in this case whether the failure to observe the rule audi alteram partem would per se vitiate an order or whether it is also necessary to show prejudice to the person affected resulting from the failure to observe the rule. Suffice it to say that in the present case we are of the view that if notice had been given to appellants 2 and 3, they could, at any rate, have shown the true nature and character of the judgment of the civil court upon which they relied.8. It is relevant to note that the judgment itself was not challenged as collusive by the respondents. We are quite aware that the defendant in the suit in which the judgment was obtained, namely, the first appellant, did not put forward any contention. But it would be rash to jump to the conclusion from the mere fact that no defence was put forward by the first appellant in the suit that the decree was obtained collusively. Under Section 43 of the Evidence Act a person who is not a party to a judgment can show that it was obtained by fraud or collusion. No such attempt was made in this case.9. Nor are we satisfied that every judgment which has the apparent effect of diminishing the area of land of a person would be within the ambit of S.32-DD (b). Generally speaking, a judgment adjudicates on the rights of the parties as they existed before the suit in which it was obtained.10. A judgment is an affirmation of a relation between a particular predicate and a particular subject. So, in law, it is the affirmation by the law of the legal consequences attending a proved or admitted state of facts. It is always a declaration that a liability, recognised as within the jural sphere, does or does not exist. A judgment, as the culmination of the action, declares the existence of the right, recognizes the commission of the injury, or negatives the allegation of one or the other".11. A judgment of a court is an affirmation, by the authorized societal agent of the state, speaking by warrant of law and in the name of the state, of the legal consequences attending a proved or admitted state of facts. Its declaratory, determinative and adjudicatory function isits distinctive characteristic. Its recording gives an official certification to a pre-existing relation establishes a new one on pre-existing grounds**.*see Black on Judgments, Vol. 1, 2nd ed., pp.1-2.**see Borchard, "Declaratory Judgments" 2nd ed, pp.8-1012. The judgment of the civil Court with which we are concerned, adjudicated on the rights of the parties as they existed before the suit and when it declared that the mutation was effected not with the idea of transferring the property to the first appellant but for some other reason, the effect of the declaration was that there was no real transfer of the property in favour of the first appellant and that the property remained always in the ownership of appellants 2 and 3, notwithstanding the purported transfer evidenced by the mutation in the revenue records. It is impermissible to give the wide language employed in clause (b) of Section 32-DD an unconfined operation. When a transfer or mutation is made on account of fraud or mistake and if a suit is filed for a declaration that the transfer or mutation was made on account of fraud or mistake and a judgment obtained, certainly the judgment would not have the effect of diminishing the area of a person which could have been declared as a surplus area within the meaning of Section 32-DD. The legal effect of such a declaration would be that the transferee or the person in whose name the mutation was effected had no right in the property. The land must have belonged to the first appellant prior to the judgment in order that it might be postulated that the judgment has the effect of diminishing the total area in his hands. To put it differently, prior to the judgment, the land must have belonged to him in order that it may be said that the effect of the judgment is to dimisgh the area of his holding. If the effect of the judgment is only to declare that the land never belonged to the first appellant, it has not the effect of diminishing area of land in his possession. We are aware that the object of this provision in an Act like the one under consideration is to prevent circumvention of its provisions by dubious and indirect methods. But that is no reason why we should put a construction upon the section which its language can hardly bear. It would have been open to the respondents to allege and prove that the judgment was obtained collusively. But that could have been done only after notice to appellants 2 and 3 and after giving them an opportunity of being heard. Therefore, to say, as the High Court has said, that no prejudice was caused to appellants 2 and 3 for want of an opportunity to them of being heard, is neither here nor there. We think the High Court went wrong in assuming that the Collector was right when he ignored the judgment by his order dated May 20, 1963 on the ground that it had the effect of diminishing the area of the first appellant which could have been declared as his surplus.
### Response:
1
### Explanation:
is a correct approach to the question. The Collector purported to act under Section 15 of the Land Revenue Code, which, obviously has no application. The High Court did not rest its decision on S.15 of the Punjab Land Revenue Code for holding that Collector had jurisdiction to pass the order dated May 20, 1963. When the Collector passed the order dated March 28, 1961 determining the surplus area in the hands of the first appellant, he took into consideration the effect of the judgment of the civil court declaring that the mutation of the name of the first appellant in the revenue record was effected only to enable him to obtain a gun licence. That order of the Collector dated March 28, 1961 was a perfectly valid one when it was passed. No one challenged that order and it became final for all purposes.We are also not satisfied that the Collector was acting in consonance with the principles of natural justice when he passed the order dated May 20, 1963, as he gave no opportunity to appellants 2 and 3 of being heard. The fact that the first appellant was heard before that order was passed is of no moment because the persons who were vitally concerned in re-opening the case were appellants 2 and 3. Admittedly, no notice of the proceedings to re-open the case was given to them. It is not for us to speculate what defences were available to them and whether the defences available would have materially affected the destiny of the decision. We do not think it necessary to decide in this case whether the failure to observe the rule audi alteram partem would per se vitiate an order or whether it is also necessary to show prejudice to the person affected resulting from the failure to observe the rule. Suffice it to say that in the present case we are of the view that if notice had been given to appellants 2 and 3, they could, at any rate, have shown the true nature and character of the judgment of the civil court upon which they relied.The judgment of the civil Court with which we are concerned, adjudicated on the rights of the parties as they existed before the suit and when it declared that the mutation was effected not with the idea of transferring the property to the first appellant but for some other reason, the effect of the declaration was that there was no real transfer of the property in favour of the first appellant and that the property remained always in the ownership of appellants 2 and 3, notwithstanding the purported transfer evidenced by the mutation in the revenue records. It is impermissible to give the wide language employed in clause (b) of Section 32-DD an unconfined operation. When a transfer or mutation is made on account of fraud or mistake and if a suit is filed for a declaration that the transfer or mutation was made on account of fraud or mistake and a judgment obtained, certainly the judgment would not have the effect of diminishing the area of a person which could have been declared as a surplus area within the meaning of Section 32-DD. The legal effect of such a declaration would be that the transferee or the person in whose name the mutation was effected had no right in the property. The land must have belonged to the first appellant prior to the judgment in order that it might be postulated that the judgment has the effect of diminishing the total area in his hands. To put it differently, prior to the judgment, the land must have belonged to him in order that it may be said that the effect of the judgment is to dimisgh the area of his holding. If the effect of the judgment is only to declare that the land never belonged to the first appellant, it has not the effect of diminishing area of land in his possession. We are aware that the object of this provision in an Act like the one under consideration is to prevent circumvention of its provisions by dubious and indirect methods. But that is no reason why we should put a construction upon the section which its language can hardly bear. It would have been open to the respondents to allege and prove that the judgment was obtained collusively. But that could have been done only after notice to appellants 2 and 3 and after giving them an opportunity of being heard. Therefore, to say, as the High Court has said, that no prejudice was caused to appellants 2 and 3 for want of an opportunity to them of being heard, is neither here nor there. We think the High Court went wrong in assuming that the Collector was right when he ignored the judgment by his order dated May 20, 1963 on the ground that it had the effect of diminishing the area of the first appellant which could have been declared as his surplus.It is relevant to note that the judgment itself was not challenged as collusive by the respondents. We are quite aware that the defendant in the suit in which the judgment was obtained, namely, the first appellant, did not put forward any contention. But it would be rash to jump to the conclusion from the mere fact that no defence was put forward by the first appellant in the suit that the decree was obtained collusively. Under Section 43 of the Evidence Act a person who is not a party to a judgment can show that it was obtained by fraud or collusion. No such attempt was made in this case.9. Nor are we satisfied that every judgment which has the apparent effect of diminishing the area of land of a person would be within the ambit of(b). Generally speaking, a judgment adjudicates on the rights of the parties as they existed before the suit in which it was obtained.
|
M/S Boc India Ltd Vs. State Of Jharkhand | ingredients of the last mentioned class qualify themselves as and are eligible to be called "Raw-Material" for the end- product. One of the valid tests, in our opinion, could be that the ingredient should be so essential for the chemical processes culminating in the emergence of the desired end-product, that having regard to its importance in and indispensability for the process, it could be said that its very consumption on burning-up is its quality and value as raw-materials. In such a case, the relevant test is not its absence in the end-product, but the dependence of the end-product for its essential presence at the delivery end of the process. The ingredient goes into the making of the end-product in the sense that without its absence the presence of the end-product, as such, is rendered impossible. This quality should coalesce with the requirement that its utilisation is in the manufacturing process as distinct from the manufacturing apparatus." 21. Yet again, in the case of Tata Engineering & Locomotive Company Limited vs. State of Bihar & Anr. [(1994) 6 SCC 479] , this Court while interpreting the provisions of Section 13(1)(b) of the Act itself, held that batteries, tyres and tubes which are by themselves finished products would be raw-material when they are fitted in a vehicle, stating: "What requires consideration, therefore, is whether items such as tyres, tubes, batteries etc. purchased by the appellant for use in the manufacture of vehicles which are otherwise finished products could avail of concessional rate of tax at 1%. That would depend on the construction and understanding of the expression industrial raw-material (inputs) used in the Notification. The word raw-material has not been defined in the Act. It has, therefore, to be understood in the ordinary and well accepted connotation of it in the common parlance of the persons who deal with it. According to dictionary, it means something which is used for manufacturing or producing the good. The ordinary common sense understanding of it is that it is something from which another new or distinct commodity can be produced." 22. Mr. B.B. Singh, however, rightly pointed out that the question as to whether the oxygen gas is a raw material or not had not been raised before the Assessing Authority. For the first time, before this Court, a question of fact has been raised. We cannot, for arriving at such a finding as to whether the same is correct or not, rely on Wikipedia alone, on which reliance has been placed. {See Commissioner of Customs, Bangalore vs. ACER India (P) Ltd. [(2008) 1 SCC 382] and Ponds India Limited vs. Commissioner of Trade Tax, Lucknow [(2008) 8 SCC 369] 23. We do not know what are the manufacturing processes involved and what role oxygen gas has to play in the matter of manufacturing of steel. It is also not possible for us to base our decision solely on the basis of a diagram contained in Encyclopaedia Britannica. Whether oxygen gas can be considered to be a raw material is essentially a question of fact. Evidence is required to be adduced. Such evidence although may be in possession of TISCO. In the event, such a question is raised by the assessee, namely, BOC, the Assessing Authority must go therein. For the purpose of claiming exemption from payment of tax and/or special rate of tax applicable to a particular gas or commodity or goods, the assessee itself must bring on record sufficient materials to show that it comes within the purview of the notification. Both in M/s Ballarpur Industries Ltd (supra) and Tata Engineering & Locomotive Company Limited [supra], the question as to whether sodium sulphate and/or batteries, tyres, tubes were raw materials or not could be determined by this Court as such a question had been raised by the Assessing Authority.24. We may, however, must place on record that we do not agree with Mr. B.B. Singh that the principle that as a procedure has been prescribed in the statute, the same must be followed or no benefit would be available to the assessee as is said to have been held by this Court in Narbada Prasad vs. Chhagan Lal & Ors. [(1969) 1 SCR 499] and in Kunwar Pal Singh (dead) by L.Rs. etc. etc. vs. State of U.P. & ors. [(2007) 5 SCC 85] . The said decisions cannot have any application in the facts of the present case. In Narbada Prasad vs. Chhagan Lal & Ors [supra], this Court was dealing with a matter concerning Representation of the People Act in regard to filing of an election petition as in the election petition essential facts as specified therein was required to be pleaded in the manner laid down therein. In Kunwar Pal Singh (dead) by L.Rs. etc. etc. vs. State of U.P. & ors. [(2007) 5 SCC 85] , this Court was dealing with the provisions of the Land Acquisition Act. Keeping in view the fact that the same was barred by limitation, this Court held: "The principle is well settled that where any statutory provision provides a particular manner for doing a particular act, then, theat thing or act must be done in accordance with the manner prescribed therefor in the Act." 25. For the self same reasons, we are of the opinion, that it is not necessary to go into the question as to whether a person even if he proves that he inadvertently did not claim the benefit of a notification would depend upon the facts and circumstances of each case as no such rule in absolute terms can be laid down therefor. 26. We may, however, notice that this Court in Share Medical Care vs. Union of India & ors. [(2007) 4 SCC 573] has opined as under: "15. From the above decisions, it is clear that even if an applicant does not claim benefit under a particular notification at the initial stage, he is not debarred, prohibited or estopped from claiming such benefit at a later stage." | 1[ds]16. BOC admittedly is the manufacturer of oxygen gas. It is a dealer within the meaning of the provisions of the Act being a supplier of its product. It, thus, comes within the purview of `dealer as contained in Section 2(e) of the Act as it carries on the business of buying, selling, supplying or distributing goods for cash or for deferred payment or for commission, remuneration or other valuable consideration. It is an assessee. It even as an agent of the State is bound to collect taxes on its behalf and deposit the same in accordance with law. Non-compliance thereof would lead to penal actions. Even in the demand made by the Deputy Commissioner, Commercial Taxes, Jamshedpur Circle, Jamshedpur dated 22.7.2005 it was threatened with proceedings for recovery of the differential amount unless it produced the evidence of deposit thereof.17. Thus, a demand has been made on BOC. Hence, the opinion of the High Court that it did not have any locus standi to maintain the writ application cannot be accepted. It may be true that the consumer of oxygen gas is TISCO. It was also entitled to purchase the said goods at a concessional rate. If the material is used for manufacture, the rate of tax is three per cent whereas if the material is used as raw material for processing and/or manufacturing of the end product, indisputably, the rate of tax would be two per cent. Ultimately, BOC may be entitled to recover the differential amount of tax from TISCO, but, the same by itself would not mean that it is a busybody. Not only the penal proceedings but also other proceedings could be initiated against it for non-deposit of the aggregate amount of tax within the prescribed period. If an order of assessment is passed against the assessee, the only remedy before it is to prefer an appeal/revision in terms of the provisions of the Act. Thus, in our opinion, it was a person aggrieved to maintain a writ application.Mr. B.B. Singh, however, rightly pointed out that the question as to whether the oxygen gas is a raw material or not had not been raised before the Assessing Authority. For the first time, before this Court, a question of fact has been raised. We cannot, for arriving at such a finding as to whether the same is correct or not, rely on Wikipedia alone, on which reliance has been placed.We do not know what are the manufacturing processes involved and what role oxygen gas has to play in the matter of manufacturing of steel. It is also not possible for us to base our decision solely on the basis of a diagram contained in Encyclopaedia Britannica. Whether oxygen gas can be considered to be a raw material is essentially a question of fact. Evidence is required to be adduced. Such evidence although may be in possession of TISCO. In the event, such a question is raised by the assessee, namely, BOC, the Assessing Authority must go therein. For the purpose of claiming exemption from payment of tax and/or special rate of tax applicable to a particular gas or commodity or goods, the assessee itself must bring on record sufficient materials to show that it comes within the purview of the notification. Both in M/s Ballarpur Industries Ltd (supra) and Tata Engineering & Locomotive Company Limited [supra], the question as to whether sodium sulphate and/or batteries, tyres, tubes were raw materials or not could be determined by this Court as such a question had been raised by the Assessing Authority.24. We may, however, must place on record that we do not agree with Mr. B.B. Singh that the principle that as a procedure has been prescribed in the statute, the same must be followed or no benefit would be available to the assessee as is said to have been held by this Court in Narbada Prasad vs. Chhagan Lal & Ors. [(1969) 1 SCR 499] and in Kunwar Pal Singh (dead) by L.Rs. etc. etc. vs. State of U.P. & ors. [(2007) 5 SCC 85] . The said decisions cannot have any application in the facts of the present case. In Narbada Prasad vs. Chhagan Lal & Ors [supra], this Court was dealing with a matter concerning Representation of the People Act in regard to filing of an election petition as in the election petition essential facts as specified therein was required to be pleaded in the manner laid down therein.For the self same reasons, we are of the opinion, that it is not necessary to go into the question as to whether a person even if he proves that he inadvertently did not claim the benefit of a notification would depend upon the facts and circumstances of each case as no such rule in absolute terms can be laid down therefor. | 1 | 5,704 | 909 | ### 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:
ingredients of the last mentioned class qualify themselves as and are eligible to be called "Raw-Material" for the end- product. One of the valid tests, in our opinion, could be that the ingredient should be so essential for the chemical processes culminating in the emergence of the desired end-product, that having regard to its importance in and indispensability for the process, it could be said that its very consumption on burning-up is its quality and value as raw-materials. In such a case, the relevant test is not its absence in the end-product, but the dependence of the end-product for its essential presence at the delivery end of the process. The ingredient goes into the making of the end-product in the sense that without its absence the presence of the end-product, as such, is rendered impossible. This quality should coalesce with the requirement that its utilisation is in the manufacturing process as distinct from the manufacturing apparatus." 21. Yet again, in the case of Tata Engineering & Locomotive Company Limited vs. State of Bihar & Anr. [(1994) 6 SCC 479] , this Court while interpreting the provisions of Section 13(1)(b) of the Act itself, held that batteries, tyres and tubes which are by themselves finished products would be raw-material when they are fitted in a vehicle, stating: "What requires consideration, therefore, is whether items such as tyres, tubes, batteries etc. purchased by the appellant for use in the manufacture of vehicles which are otherwise finished products could avail of concessional rate of tax at 1%. That would depend on the construction and understanding of the expression industrial raw-material (inputs) used in the Notification. The word raw-material has not been defined in the Act. It has, therefore, to be understood in the ordinary and well accepted connotation of it in the common parlance of the persons who deal with it. According to dictionary, it means something which is used for manufacturing or producing the good. The ordinary common sense understanding of it is that it is something from which another new or distinct commodity can be produced." 22. Mr. B.B. Singh, however, rightly pointed out that the question as to whether the oxygen gas is a raw material or not had not been raised before the Assessing Authority. For the first time, before this Court, a question of fact has been raised. We cannot, for arriving at such a finding as to whether the same is correct or not, rely on Wikipedia alone, on which reliance has been placed. {See Commissioner of Customs, Bangalore vs. ACER India (P) Ltd. [(2008) 1 SCC 382] and Ponds India Limited vs. Commissioner of Trade Tax, Lucknow [(2008) 8 SCC 369] 23. We do not know what are the manufacturing processes involved and what role oxygen gas has to play in the matter of manufacturing of steel. It is also not possible for us to base our decision solely on the basis of a diagram contained in Encyclopaedia Britannica. Whether oxygen gas can be considered to be a raw material is essentially a question of fact. Evidence is required to be adduced. Such evidence although may be in possession of TISCO. In the event, such a question is raised by the assessee, namely, BOC, the Assessing Authority must go therein. For the purpose of claiming exemption from payment of tax and/or special rate of tax applicable to a particular gas or commodity or goods, the assessee itself must bring on record sufficient materials to show that it comes within the purview of the notification. Both in M/s Ballarpur Industries Ltd (supra) and Tata Engineering & Locomotive Company Limited [supra], the question as to whether sodium sulphate and/or batteries, tyres, tubes were raw materials or not could be determined by this Court as such a question had been raised by the Assessing Authority.24. We may, however, must place on record that we do not agree with Mr. B.B. Singh that the principle that as a procedure has been prescribed in the statute, the same must be followed or no benefit would be available to the assessee as is said to have been held by this Court in Narbada Prasad vs. Chhagan Lal & Ors. [(1969) 1 SCR 499] and in Kunwar Pal Singh (dead) by L.Rs. etc. etc. vs. State of U.P. & ors. [(2007) 5 SCC 85] . The said decisions cannot have any application in the facts of the present case. In Narbada Prasad vs. Chhagan Lal & Ors [supra], this Court was dealing with a matter concerning Representation of the People Act in regard to filing of an election petition as in the election petition essential facts as specified therein was required to be pleaded in the manner laid down therein. In Kunwar Pal Singh (dead) by L.Rs. etc. etc. vs. State of U.P. & ors. [(2007) 5 SCC 85] , this Court was dealing with the provisions of the Land Acquisition Act. Keeping in view the fact that the same was barred by limitation, this Court held: "The principle is well settled that where any statutory provision provides a particular manner for doing a particular act, then, theat thing or act must be done in accordance with the manner prescribed therefor in the Act." 25. For the self same reasons, we are of the opinion, that it is not necessary to go into the question as to whether a person even if he proves that he inadvertently did not claim the benefit of a notification would depend upon the facts and circumstances of each case as no such rule in absolute terms can be laid down therefor. 26. We may, however, notice that this Court in Share Medical Care vs. Union of India & ors. [(2007) 4 SCC 573] has opined as under: "15. From the above decisions, it is clear that even if an applicant does not claim benefit under a particular notification at the initial stage, he is not debarred, prohibited or estopped from claiming such benefit at a later stage."
### Response:
1
### Explanation:
16. BOC admittedly is the manufacturer of oxygen gas. It is a dealer within the meaning of the provisions of the Act being a supplier of its product. It, thus, comes within the purview of `dealer as contained in Section 2(e) of the Act as it carries on the business of buying, selling, supplying or distributing goods for cash or for deferred payment or for commission, remuneration or other valuable consideration. It is an assessee. It even as an agent of the State is bound to collect taxes on its behalf and deposit the same in accordance with law. Non-compliance thereof would lead to penal actions. Even in the demand made by the Deputy Commissioner, Commercial Taxes, Jamshedpur Circle, Jamshedpur dated 22.7.2005 it was threatened with proceedings for recovery of the differential amount unless it produced the evidence of deposit thereof.17. Thus, a demand has been made on BOC. Hence, the opinion of the High Court that it did not have any locus standi to maintain the writ application cannot be accepted. It may be true that the consumer of oxygen gas is TISCO. It was also entitled to purchase the said goods at a concessional rate. If the material is used for manufacture, the rate of tax is three per cent whereas if the material is used as raw material for processing and/or manufacturing of the end product, indisputably, the rate of tax would be two per cent. Ultimately, BOC may be entitled to recover the differential amount of tax from TISCO, but, the same by itself would not mean that it is a busybody. Not only the penal proceedings but also other proceedings could be initiated against it for non-deposit of the aggregate amount of tax within the prescribed period. If an order of assessment is passed against the assessee, the only remedy before it is to prefer an appeal/revision in terms of the provisions of the Act. Thus, in our opinion, it was a person aggrieved to maintain a writ application.Mr. B.B. Singh, however, rightly pointed out that the question as to whether the oxygen gas is a raw material or not had not been raised before the Assessing Authority. For the first time, before this Court, a question of fact has been raised. We cannot, for arriving at such a finding as to whether the same is correct or not, rely on Wikipedia alone, on which reliance has been placed.We do not know what are the manufacturing processes involved and what role oxygen gas has to play in the matter of manufacturing of steel. It is also not possible for us to base our decision solely on the basis of a diagram contained in Encyclopaedia Britannica. Whether oxygen gas can be considered to be a raw material is essentially a question of fact. Evidence is required to be adduced. Such evidence although may be in possession of TISCO. In the event, such a question is raised by the assessee, namely, BOC, the Assessing Authority must go therein. For the purpose of claiming exemption from payment of tax and/or special rate of tax applicable to a particular gas or commodity or goods, the assessee itself must bring on record sufficient materials to show that it comes within the purview of the notification. Both in M/s Ballarpur Industries Ltd (supra) and Tata Engineering & Locomotive Company Limited [supra], the question as to whether sodium sulphate and/or batteries, tyres, tubes were raw materials or not could be determined by this Court as such a question had been raised by the Assessing Authority.24. We may, however, must place on record that we do not agree with Mr. B.B. Singh that the principle that as a procedure has been prescribed in the statute, the same must be followed or no benefit would be available to the assessee as is said to have been held by this Court in Narbada Prasad vs. Chhagan Lal & Ors. [(1969) 1 SCR 499] and in Kunwar Pal Singh (dead) by L.Rs. etc. etc. vs. State of U.P. & ors. [(2007) 5 SCC 85] . The said decisions cannot have any application in the facts of the present case. In Narbada Prasad vs. Chhagan Lal & Ors [supra], this Court was dealing with a matter concerning Representation of the People Act in regard to filing of an election petition as in the election petition essential facts as specified therein was required to be pleaded in the manner laid down therein.For the self same reasons, we are of the opinion, that it is not necessary to go into the question as to whether a person even if he proves that he inadvertently did not claim the benefit of a notification would depend upon the facts and circumstances of each case as no such rule in absolute terms can be laid down therefor.
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Gujarat Pollution Control Board Vs. M/s Nicosulf Industries & Export Pvt. Ltd. & Others | of the Constitution. It is, therefore, submitted that it was never challenged by the respondents 1 and 2. They cannot be permitted to urge that the Act was not passed pursuant to Article 250 of the Constitution. The passing of the resolution by the State Legislature of two or more States is a condition precedent for investing the Parliament with the power to make a law on that topic or matter and then it shall be lawful for the Parliament to make a law for regulating that matter accordingly. The law so made or enacted by the Parliament under Article 252(1) of the Constitution will apply only to those States whose legislatures have passed resolutions under that provision and also to such States which have afterwards adopted the same by resolution passed by the legislatures of such States in that behalf. Therefore, at the relevant point of time the unamended Section 49 was applicable and delegation to the chairman of the power to sanction prosecution by the Board was valid and effective. Even otherwise resolution dated 27.3.1984 clearly establishes that the Board delegated to the Chairman the power of sanctioning prosecution. Therefore, this was valid and effective even for the purpose of amended Section 49(1)(a) of the Act. Section 49 is in two parts namely (i) a complaint made by the Board and (ii) by any officer authorized in this behalf by it. The delegation of the power of sanctioning prosecution in favour of the Chairman can always be read as the power of authorizing prosecution after Section 49 was amended. 10. The Inspection Report clearly establishes the name of accused No.3 as the person in charge of the unit. In the statement recorded under Section 313 of the Code of Criminal Procedure, 1973 (in short the Code) A-3 has clearly admitted that the same is true. Reference is also made to Section 21 which deals with power to take samples of effluents and procedure to be followed in connection therewith. 11. In response, learned counsel for the respondents 1 and 2 submitted that the High Court had clearly recorded that the conditions required compliance with the water standards if water over-flowed from the solar evaporation pans and the sample taken was from the drain that ran from the factory to the evaporation pans. On the aforesaid basis, the High Court came to hold that there had been no violation of the terms of the Water Act. The submission of the prosecution that the water flows from the factory to the pans in a kachcha drain thereby there was violation of conditions is not based on materials in the sense that it was not the basis for the complaint and was also not the basis of judgments of courts below. 12. Learned counsel for the respondent submitted that the question is whether the amended provisions apply and the authorization has to be by the State Board. That question need not be gone into as the prosecution was required to prove that the solar evaporation pan maintained by the company had over flown and the over flown effluent did not conform to the tolerance limits prescribed. The documents on record clearly establish that the company was discharging its effluent into the drain leading to the solar evaporation pan i.e. into the solar evaporation pan. There was nothing to show that any sample of any over flown effluent has been taken. It is pointed out that the sample taken on 22.6.1989 is not of over flown effluent, but of effluent which was on the way to the solar evaporation pan for further treatment. It is also submitted that Section 21(5) obliges the Board to forward the sample for the purpose of analysis. In the instant case the sample was taken on 22.6.1989 and was received on 28.6.1989. The delay has not been explained. 13. There is no substantial difference in the language of the amended Section 49. The High Court proceeded on the basis that the complaint was illegal since the complaint filed was not duly authorized. Though the High Court proceeded on the basis of amended Section 49, the amended as well as un-amended provisions require the State Board to file a complaint or to authorize any of its officers to file the complaint. The authorization has to be by the State Board. According to the Board under Section 11-A of the Act it had delegated to the Chairman the power to authorize an officer to file a complaint. Resolution dated 27.3.1984 refers to the delegation of power to sanctioning prosecution. The High Court has held that the power to sanction a complaint is distinct from the power to authorize the complaint. This view is clearly unsustainable for the reason that if the provisions are construed in the context that as a check over the complaint filed, then the grant of sanction to file a complaint would be in law an authorization to file the complaint. The stand of the appellant that the difference between sanction and authorization in the context of provisions of the Act and incontra-distinction to the provisions of IPC and the Code is more semantic than real. The stand is well founded. The appeal can be disposed of on the ground that factually there is nothing to show that the sample collected was from the over-flown effluent. The evidence on record clearly shows that the effluent was on the way to the solar evaporation pans for further treatment. The said effluent would never meet the parameters prescribed as it is yet to be treated. Thus, the alleged breach of condition No.4 has not been proved. On that ground alone the appeal deserves to be dismissed. In view of this conclusion it is not necessary to go into the other aspects as to what is the effect of the resolution of the State notified on 28.10.1999 i.e. after the date of amendment of the statute of Section 49 on 29.9.1999. The authorization by the Chairman was on 18.8.1989. | 0[ds]There is no substantial difference in the language of the amended Section 49. The High Court proceeded on the basis that the complaint was illegal since the complaint filed was not duly authorized. Though the High Court proceeded on the basis of amended Section 49, the amended as well as un-amended provisions require the State Board to file a complaint or to authorize any of its officers to file the complaint. The authorization has to be by the State Board. According to the Board under Section 11-A of the Act it had delegated to the Chairman the power to authorize an officer to file a complaint. Resolution dated 27.3.1984 refers to the delegation of power to sanctioning prosecution. The High Court has held that the power to sanction a complaint is distinct from the power to authorize the complaint. This view is clearly unsustainable for the reason that if the provisions are construed in the context that as a check over the complaint filed, then the grant of sanction to file a complaint would be in law an authorization to file the complaint. The stand of the appellant that the difference between sanction and authorization in the context of provisions of the Act and incontra-distinction to the provisions of IPC and the Code is more semantic than real. The stand is well founded. The appeal can be disposed of on the ground that factually there is nothing to show that the sample collected was from the over-flown effluent. The evidence on record clearly shows that the effluent was on the way to the solar evaporation pans for further treatment. The said effluent would never meet the parameters prescribed as it is yet to be treated. Thus, the alleged breach of condition No.4 has not been proved. On that ground alone the appeal deserves to be dismissed. In view of this conclusion it is not necessary to go into the other aspects as to what is the effect of the resolution of the State notified on 28.10.1999 i.e. after the date of amendment of the statute of Section 49 on 29.9.1999. The authorization by the Chairman was on 18.8.1989. | 0 | 2,144 | 383 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
of the Constitution. It is, therefore, submitted that it was never challenged by the respondents 1 and 2. They cannot be permitted to urge that the Act was not passed pursuant to Article 250 of the Constitution. The passing of the resolution by the State Legislature of two or more States is a condition precedent for investing the Parliament with the power to make a law on that topic or matter and then it shall be lawful for the Parliament to make a law for regulating that matter accordingly. The law so made or enacted by the Parliament under Article 252(1) of the Constitution will apply only to those States whose legislatures have passed resolutions under that provision and also to such States which have afterwards adopted the same by resolution passed by the legislatures of such States in that behalf. Therefore, at the relevant point of time the unamended Section 49 was applicable and delegation to the chairman of the power to sanction prosecution by the Board was valid and effective. Even otherwise resolution dated 27.3.1984 clearly establishes that the Board delegated to the Chairman the power of sanctioning prosecution. Therefore, this was valid and effective even for the purpose of amended Section 49(1)(a) of the Act. Section 49 is in two parts namely (i) a complaint made by the Board and (ii) by any officer authorized in this behalf by it. The delegation of the power of sanctioning prosecution in favour of the Chairman can always be read as the power of authorizing prosecution after Section 49 was amended. 10. The Inspection Report clearly establishes the name of accused No.3 as the person in charge of the unit. In the statement recorded under Section 313 of the Code of Criminal Procedure, 1973 (in short the Code) A-3 has clearly admitted that the same is true. Reference is also made to Section 21 which deals with power to take samples of effluents and procedure to be followed in connection therewith. 11. In response, learned counsel for the respondents 1 and 2 submitted that the High Court had clearly recorded that the conditions required compliance with the water standards if water over-flowed from the solar evaporation pans and the sample taken was from the drain that ran from the factory to the evaporation pans. On the aforesaid basis, the High Court came to hold that there had been no violation of the terms of the Water Act. The submission of the prosecution that the water flows from the factory to the pans in a kachcha drain thereby there was violation of conditions is not based on materials in the sense that it was not the basis for the complaint and was also not the basis of judgments of courts below. 12. Learned counsel for the respondent submitted that the question is whether the amended provisions apply and the authorization has to be by the State Board. That question need not be gone into as the prosecution was required to prove that the solar evaporation pan maintained by the company had over flown and the over flown effluent did not conform to the tolerance limits prescribed. The documents on record clearly establish that the company was discharging its effluent into the drain leading to the solar evaporation pan i.e. into the solar evaporation pan. There was nothing to show that any sample of any over flown effluent has been taken. It is pointed out that the sample taken on 22.6.1989 is not of over flown effluent, but of effluent which was on the way to the solar evaporation pan for further treatment. It is also submitted that Section 21(5) obliges the Board to forward the sample for the purpose of analysis. In the instant case the sample was taken on 22.6.1989 and was received on 28.6.1989. The delay has not been explained. 13. There is no substantial difference in the language of the amended Section 49. The High Court proceeded on the basis that the complaint was illegal since the complaint filed was not duly authorized. Though the High Court proceeded on the basis of amended Section 49, the amended as well as un-amended provisions require the State Board to file a complaint or to authorize any of its officers to file the complaint. The authorization has to be by the State Board. According to the Board under Section 11-A of the Act it had delegated to the Chairman the power to authorize an officer to file a complaint. Resolution dated 27.3.1984 refers to the delegation of power to sanctioning prosecution. The High Court has held that the power to sanction a complaint is distinct from the power to authorize the complaint. This view is clearly unsustainable for the reason that if the provisions are construed in the context that as a check over the complaint filed, then the grant of sanction to file a complaint would be in law an authorization to file the complaint. The stand of the appellant that the difference between sanction and authorization in the context of provisions of the Act and incontra-distinction to the provisions of IPC and the Code is more semantic than real. The stand is well founded. The appeal can be disposed of on the ground that factually there is nothing to show that the sample collected was from the over-flown effluent. The evidence on record clearly shows that the effluent was on the way to the solar evaporation pans for further treatment. The said effluent would never meet the parameters prescribed as it is yet to be treated. Thus, the alleged breach of condition No.4 has not been proved. On that ground alone the appeal deserves to be dismissed. In view of this conclusion it is not necessary to go into the other aspects as to what is the effect of the resolution of the State notified on 28.10.1999 i.e. after the date of amendment of the statute of Section 49 on 29.9.1999. The authorization by the Chairman was on 18.8.1989.
### Response:
0
### Explanation:
There is no substantial difference in the language of the amended Section 49. The High Court proceeded on the basis that the complaint was illegal since the complaint filed was not duly authorized. Though the High Court proceeded on the basis of amended Section 49, the amended as well as un-amended provisions require the State Board to file a complaint or to authorize any of its officers to file the complaint. The authorization has to be by the State Board. According to the Board under Section 11-A of the Act it had delegated to the Chairman the power to authorize an officer to file a complaint. Resolution dated 27.3.1984 refers to the delegation of power to sanctioning prosecution. The High Court has held that the power to sanction a complaint is distinct from the power to authorize the complaint. This view is clearly unsustainable for the reason that if the provisions are construed in the context that as a check over the complaint filed, then the grant of sanction to file a complaint would be in law an authorization to file the complaint. The stand of the appellant that the difference between sanction and authorization in the context of provisions of the Act and incontra-distinction to the provisions of IPC and the Code is more semantic than real. The stand is well founded. The appeal can be disposed of on the ground that factually there is nothing to show that the sample collected was from the over-flown effluent. The evidence on record clearly shows that the effluent was on the way to the solar evaporation pans for further treatment. The said effluent would never meet the parameters prescribed as it is yet to be treated. Thus, the alleged breach of condition No.4 has not been proved. On that ground alone the appeal deserves to be dismissed. In view of this conclusion it is not necessary to go into the other aspects as to what is the effect of the resolution of the State notified on 28.10.1999 i.e. after the date of amendment of the statute of Section 49 on 29.9.1999. The authorization by the Chairman was on 18.8.1989.
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N T P C Ltd Vs. K Pothu Raju | the first respondent or that they do not fit in the minimum medical standards of minimum service period, it is not possible, therefore, to specify, in the same terms as the Supreme Court has done, in the instant case, but to observe generally that a person who has crossed the age limit or a person who is below the age of employment can obviously be not regularized or treated as employee of first respondent. Similarly, a person who is not medically fit cannot claim employment and if has so worked alright, but cannot by virtue of such employment claim the benefits of the employees of the first respondent. It would be advisable in such circumstances that the first respondent corrects its mistakes and allows the cases of all the employees and treats all those who are not unfit to continue in the employment of first respondent as its employees." 4. Hence, this appeal. 5. The learned Senior Counsel appearing on behalf of the appellant placed strong reliance upon the decisions reported in Indian Petrochemicals Corporation Ltd. & Another vs. Shramik Sena & Others [(1999) 6 SCC 439] and other related decisions to contend that the Division Bench went wrong in reversing the decision of the learned Single Judge and that the respondent-workers, who are indisputedly the workers in the canteen engaged by the contractor, cannot claim to be part of the appellants establishment and claim for regularisation in the services of the appellant-Undertaking and consequently the order under challenge is liable to be set aside. Per contra, learned Senior Counsel appearing for the respondent-workers placed reliance upon the decisions reported in Indian Overseas Bank vs. I.O.B. Staff Canteen Workers Union & Another [(2000) 4 SCC 245] as well as Steel Authority of India Ltd. & Others. vs. National Union Waterfront Workers & Others [(2001) 7 SCC 1] and in VST Industries Ltd. vs. VST Industries Workers Union & Another [(2001) 1 SCC 298] to contend that the decision of the Division Bench does not require any interference in this appeal. Reliance was also placed on an earlier decision of this Court in The Saraspur Mills Co. Ltd. vs. Ramanlal Chimanlal & Others [(1974) 3 SCC 66] for sustaining the decision of the High Court under-challenge.6. We have carefully considered the submissions of the learned counsel appearing on either side. In (1974) 3 SCC 66 (supra), this Court held that where there is a statutory liability on the company concerned to run a canteen in the factory, then even though the canteen was run by a Co-operative Society, the employees working in the canteen would be covered by the definition of the word "employed" envisaged in Section 3(13) of the Bombay Industrial Relations Act. In (2001) 1 SCC 298 (supra) dealing with the claim of workers of a canteen run through a private contractor in pursuance of the obligation of the industrial establishment under Section 46 of the Factories Act, 1948, this Court upheld the claim of workers of being treated as the workers of the company itself. In (2001) 7 SCC 1 (supra), a Constitution Bench of this Court considered the claims of contract labourers engaged by a contractor of absorption in the establishment of the principal employer on issuance of the abolition notification under the provisions of the Contract Labour (Regulation and Abolition) Act, 1970 and the rules made thereunder. This Court, while adverting to the position of law in force, has observed as follows: "106. We have gone through the decisions of this Court in VST Industries case, G.B. Pant University case and M. Aslam case. All of them relate to statutory liability to maintain the canteen by the principal employer in the factory/establishment. That is why in those cases, as in Saraspur Mills case the contract labour working in the canteen were treated as workers of the principal employer. These cases stand on a different footing and it is not possible to deduce from them the broad principle of law that on the contract labour system being abolished under sub-section (1) of Section 10 of the CLRA Act the contract labour working in the establishment of the principal employer have to be absorbed as regular employees of the establishment.107. An analysis of the cases, discussed above, shows that they fall in three classes: (i) where contract labour is engaged in or in connection with the work of an establishment and employment of contact labour is prohibited either because the industrial adjudicator/court ordered abolition of contract labour or because the appropriate Government issued notification under Section 10(1) of the CLRA Act, no automatic absorption of the contract labor working in the establishment was ordered; (ii) where the contract was found to be a sham and nominal, rather a camouflage, in which case the contract labour working in the establishment of the principal employer were held, in fact and in reality, the employees of the principal employer himself. Indeed, such cases do not relate to abolition of contract labour but present instances wherein the Court pierced the veil and declared the correct position as a fact at the stage after employment of contract labour stood prohibited; (iii) where in discharge of a statutory obligation of maintaining a canteen in an establishment the principal employer availed the services of a contractor the courts have held that the contract labour would indeed be the employees of the principal employer." 7. Consequently, we consider it to be too late in the day for the appellant, which had an obligation under the Factories Act, 1948 to run the canteen to contend to the contrary. So far as the case on hand is concerned, the Division Bench has chosen to leave liberty to the appellant to consider the claims of the workers as to whether they satisfy the requirements and whether they are otherwise unfit for confirmations. In the light of all these, we are unable to countenance the challenge to the decision of the High Court, as either legitimate or valid one. 8. | 0[ds]consider it to be too late in the day for the appellant, which had an obligation under the Factories Act, 1948 to run the canteen to contend to the contrary. So far as the case on hand is concerned, the Division Bench has chosen to leave liberty to the appellant to consider the claims of the workers as to whether they satisfy the requirements and whether they are otherwise unfit for confirmations. In the light of all these, we are unable to countenance the challenge to the decision of the High Court, as either legitimate or valid one. | 0 | 1,959 | 110 | ### Instruction:
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the first respondent or that they do not fit in the minimum medical standards of minimum service period, it is not possible, therefore, to specify, in the same terms as the Supreme Court has done, in the instant case, but to observe generally that a person who has crossed the age limit or a person who is below the age of employment can obviously be not regularized or treated as employee of first respondent. Similarly, a person who is not medically fit cannot claim employment and if has so worked alright, but cannot by virtue of such employment claim the benefits of the employees of the first respondent. It would be advisable in such circumstances that the first respondent corrects its mistakes and allows the cases of all the employees and treats all those who are not unfit to continue in the employment of first respondent as its employees." 4. Hence, this appeal. 5. The learned Senior Counsel appearing on behalf of the appellant placed strong reliance upon the decisions reported in Indian Petrochemicals Corporation Ltd. & Another vs. Shramik Sena & Others [(1999) 6 SCC 439] and other related decisions to contend that the Division Bench went wrong in reversing the decision of the learned Single Judge and that the respondent-workers, who are indisputedly the workers in the canteen engaged by the contractor, cannot claim to be part of the appellants establishment and claim for regularisation in the services of the appellant-Undertaking and consequently the order under challenge is liable to be set aside. Per contra, learned Senior Counsel appearing for the respondent-workers placed reliance upon the decisions reported in Indian Overseas Bank vs. I.O.B. Staff Canteen Workers Union & Another [(2000) 4 SCC 245] as well as Steel Authority of India Ltd. & Others. vs. National Union Waterfront Workers & Others [(2001) 7 SCC 1] and in VST Industries Ltd. vs. VST Industries Workers Union & Another [(2001) 1 SCC 298] to contend that the decision of the Division Bench does not require any interference in this appeal. Reliance was also placed on an earlier decision of this Court in The Saraspur Mills Co. Ltd. vs. Ramanlal Chimanlal & Others [(1974) 3 SCC 66] for sustaining the decision of the High Court under-challenge.6. We have carefully considered the submissions of the learned counsel appearing on either side. In (1974) 3 SCC 66 (supra), this Court held that where there is a statutory liability on the company concerned to run a canteen in the factory, then even though the canteen was run by a Co-operative Society, the employees working in the canteen would be covered by the definition of the word "employed" envisaged in Section 3(13) of the Bombay Industrial Relations Act. In (2001) 1 SCC 298 (supra) dealing with the claim of workers of a canteen run through a private contractor in pursuance of the obligation of the industrial establishment under Section 46 of the Factories Act, 1948, this Court upheld the claim of workers of being treated as the workers of the company itself. In (2001) 7 SCC 1 (supra), a Constitution Bench of this Court considered the claims of contract labourers engaged by a contractor of absorption in the establishment of the principal employer on issuance of the abolition notification under the provisions of the Contract Labour (Regulation and Abolition) Act, 1970 and the rules made thereunder. This Court, while adverting to the position of law in force, has observed as follows: "106. We have gone through the decisions of this Court in VST Industries case, G.B. Pant University case and M. Aslam case. All of them relate to statutory liability to maintain the canteen by the principal employer in the factory/establishment. That is why in those cases, as in Saraspur Mills case the contract labour working in the canteen were treated as workers of the principal employer. These cases stand on a different footing and it is not possible to deduce from them the broad principle of law that on the contract labour system being abolished under sub-section (1) of Section 10 of the CLRA Act the contract labour working in the establishment of the principal employer have to be absorbed as regular employees of the establishment.107. An analysis of the cases, discussed above, shows that they fall in three classes: (i) where contract labour is engaged in or in connection with the work of an establishment and employment of contact labour is prohibited either because the industrial adjudicator/court ordered abolition of contract labour or because the appropriate Government issued notification under Section 10(1) of the CLRA Act, no automatic absorption of the contract labor working in the establishment was ordered; (ii) where the contract was found to be a sham and nominal, rather a camouflage, in which case the contract labour working in the establishment of the principal employer were held, in fact and in reality, the employees of the principal employer himself. Indeed, such cases do not relate to abolition of contract labour but present instances wherein the Court pierced the veil and declared the correct position as a fact at the stage after employment of contract labour stood prohibited; (iii) where in discharge of a statutory obligation of maintaining a canteen in an establishment the principal employer availed the services of a contractor the courts have held that the contract labour would indeed be the employees of the principal employer." 7. Consequently, we consider it to be too late in the day for the appellant, which had an obligation under the Factories Act, 1948 to run the canteen to contend to the contrary. So far as the case on hand is concerned, the Division Bench has chosen to leave liberty to the appellant to consider the claims of the workers as to whether they satisfy the requirements and whether they are otherwise unfit for confirmations. In the light of all these, we are unable to countenance the challenge to the decision of the High Court, as either legitimate or valid one. 8.
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consider it to be too late in the day for the appellant, which had an obligation under the Factories Act, 1948 to run the canteen to contend to the contrary. So far as the case on hand is concerned, the Division Bench has chosen to leave liberty to the appellant to consider the claims of the workers as to whether they satisfy the requirements and whether they are otherwise unfit for confirmations. In the light of all these, we are unable to countenance the challenge to the decision of the High Court, as either legitimate or valid one.
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Nohiria Ram Vs. Union of India | on a permanent post; Fundamental Rule 113 says that a Government servant transferred to foreign service shall remain in the cadre or cadres in which he was included in a substantive or officiating capacity immediately before his transfer and may be given such substantive or officiating promotion in those cadres as the authority competent to order promotion may decide.In the present case, the appellant held a lien on the additional post in which he was confirmed; therefore, his transfer on foreign service was admissible under Fundamental Rule 111. He did not, however, belong to a cadre immediately before his transfer, and Fundamental Rule 113 had no application in his case. 14. Lastly, it has been argued that the Public Service Commission had no authority to impose a condition that the appellant would not have any claim to appointment as a Routine Division Clerk in the Secretariat or its attached Offices. In one of his representations the appellant said that he signed the note which drew his attention to the condition on "the understanding that it had no value whatsoever being contrary to the rules and Government orders." The contention of the appellant is that the Public Service Commission which was constituted in 1926 and functioned under the rules published in the Home Department notification No. F. 178/14/24 Ests. Dated October 14, 1928, dealt with the recruitment of class I and class II officers of the Civil Services in India, and the rules then in force did not provide for the discharge of any function by the Public Service Commission in respect of the recruitment to and control of the subordinate service to which the appellant belonged. This contention was accepted by the learned Subordinate Judge. The High Court, on appeal, held that the appointment of the appellant was governed by the instructions laid down in an office memorandum of the Government of India in the Home Department dated December 8, 1928, paragraph VIII where of stated-"Special cases.- To meet cases where a candidate, though not possessing the prescribed educational qualification, has acquitted himself satisfactorily in examinations of a higher or equivalent standard, or has acquired great experience of Government service outside the ministerial staff or possesses special qualifications for a particular class of work, the Public Service Commission are empowered (a) to admit to the examination persons possessing educational qualifications other than those prescribed, and (b) to exempt from the examination or to admit to a particular Division persons who by reason of their previous record can in their opinion properly be exempted or admitted as the case may be. In the case of persons already in Government service such action will be taken only on the recommendation of the Department concerned. In view of the discretion vested in the Commission by this provision, it will no longer be open to Departments to recruit independently for their offices or subordinate offices men with special or technical qualifications. Before making any such appointment they will be required to secure the Public Service Commissions concurrence." 15. The case of the appellant, who had not passed the qualifying examination held previously by the staff Selection Board whose place the Public Service Commission took in 1926, was presumably referred to the Public Service Commission under the aforesaid paragraph. Learned counsel for the appellant has contended that even the instructions contained therein do not justify the imposition of a condition by the Public Service Commission, and the only powers the Public Service Commission could exercise were those mentioned in (a) and (b) thereof. 16. We think that it is unnecessary to examine the validity of these contentions on the present occasion. Assuming but without deciding that it was not necessary to refer the case of the appellant to the Public Service Commission or that the Public Service Commission could not impose any condition on the appointment of the appellant, the fact still remains that the appropriate authority which sanctioned the additional post made it quite clear that the post was outside the regular cadre and the Director General, Indian Medical Service, said that the post had been treated in practice as being outside the regular establishment though attached to his office for purposes of administrative control. That being the position, it matters little what powers the Public Service Commission had with regard to the case of the appellant referred to it. We must make it clear, however, that we do not express dissent-it being unnecessary for us to do so-from the view expressed by the High Court that in giving concurrence to the appointment of the appellant, it was open to the Public Service Commission to give a conditional concurrence. 17. This brings us to a close of the case of the appellant in Civil Appeal 116. Only a few words are necessary to dispose of Civil Appeal 117.That appeal requires no serious exegesis of any recondite service rule or obscure departmental order. In view of the finding that the appellant was not a member of the regular establishment of the Director General, Indian Medical Service, he was not entitled to claim seniority in that office. It is true that the appellant obtained a decree from the learned Sub-ordinate Judge; it was, however, a declaratory decree only, as the appellant did not press for the other reliefs as to increment, promotion etc.Even the declaratory decree was put in jeopardy when respondent No. 1 appealed from it. In these circumstances, how could the appellant refuse to do the work given to him? We have referred to the circumstances in which the appellant refused to do work in the Public Health Section to which he was allotted; he did not work from October 13, 1952 and got no pay from November, 1952. The appellant has to thank himself for the predicament in which he is placed. All that we can say is that if he had shown patience, good sense and moderation, he could have avoided a great part of the trouble he brought on himself. 18. | 0[ds]7. It is quite clear from the aforesaid orders that the post to which the appellant was appointed permanently in 1930,was a post outside the cadre of the regular establishment of the Director General, Indian Medical Service. Indeed, on April 2, 1935, the Home Department (as it was then called) ruled on a reference made to it that "the strength of the ministerial staff of the Director General, Indian Medical Service, was exclusive of the two posts the cost of which was recovered from the Indian Research Fund Association."It is true that the additional post in which the appellant was made permanent was not constituted into a separate cadre; the obvious reason was that it was an additional post outside the regular cadre. None of the rules to which learned counsel has drawn our attention prevents the appropriate authority from creating an additional post outside the regular cadre of a particular office, to which the post may be attached for purposes of administrative controlThe rule corresponds to Art. 783 in Chapter XLI of the Civil Service Regulations, and lays down the principles in accordance with which the cost, or a definite portion of the cost, of the additional post shall be recovered. It does not decide the question if the post is part of the cadre or not; that depends on the decision of the appropriate authority, and we know that in the present case the appropriate authority had decided from the very beginning that the additional post which the appellant held was outside the regular establishment of the Director General, Indian Medical ServiceIn so far as it is relevant for our purpose, Fundamental Rule 111 says that a transfer to foreign service is not admissible unless the Government servant transferred holds a lien on a permanent post; Fundamental Rule 113 says that a Government servant transferred to foreign service shall remain in the cadre or cadres in which he was included in a substantive or officiating capacity immediately before his transfer and may be given such substantive or officiating promotion in those cadres as the authority competent to order promotion may decide.In the present case, the appellant held a lien on the additional post in which he was confirmed; therefore, his transfer on foreign service was admissible under Fundamental Rule 111. He did not, however, belong to a cadre immediately before his transfer, and Fundamental Rule 113 had no application in his caseThe case of the appellant, who had not passed the qualifying examination held previously by the staff Selection Board whose place the Public Service Commission took in 1926, was presumably referred to the Public Service Commission under the aforesaid paragraphWe think that it is unnecessary to examine the validity of these contentions on the present occasion. Assuming but without deciding that it was not necessary to refer the case of the appellant to the Public Service Commission or that the Public Service Commission could not impose any condition on the appointment of the appellant, the fact still remains that the appropriate authority which sanctioned the additional post made it quite clear that the post was outside the regular cadre and the Director General, Indian Medical Service, said that the post had been treated in practice as being outside the regular establishment though attached to his office for purposes of administrative control. That being the position, it matters little what powers the Public Service Commission had with regard to the case of the appellant referred to it. We must make it clear, however, that we do not express dissent-it being unnecessary for us to do so-from the view expressed by the High Court that in giving concurrence to the appointment of the appellant, it was open to the Public Service Commission to give a conditional concurrenceThis brings us to a close of the case of the appellant in Civil Appeal 116. Only a few words are necessary to dispose of Civil Appeal 117.That appeal requires no serious exegesis of any recondite service rule or obscure departmental order. In view of the finding that the appellant was not a member of the regular establishment of the Director General, Indian Medical Service, he was not entitled to claim seniority in that office. It is true that the appellant obtained a decree from the learned Sub-ordinate Judge; it was, however, a declaratory decree only, as the appellant did not press for the other reliefs as to increment, promotion etc.Even the declaratory decree was put in jeopardy when respondent No. 1 appealed from it. In these circumstances, how could the appellant refuse to do the work given to him? We have referred to the circumstances in which the appellant refused to do work in the Public Health Section to which he was allotted; he did not work from October 13, 1952 and got no pay from November, 1952. The appellant has to thank himself for the predicament in which he is placed. All that we can say is that if he had shown patience, good sense and moderation, he could have avoided a great part of the trouble he brought on himself. | 0 | 5,216 | 924 | ### Instruction:
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on a permanent post; Fundamental Rule 113 says that a Government servant transferred to foreign service shall remain in the cadre or cadres in which he was included in a substantive or officiating capacity immediately before his transfer and may be given such substantive or officiating promotion in those cadres as the authority competent to order promotion may decide.In the present case, the appellant held a lien on the additional post in which he was confirmed; therefore, his transfer on foreign service was admissible under Fundamental Rule 111. He did not, however, belong to a cadre immediately before his transfer, and Fundamental Rule 113 had no application in his case. 14. Lastly, it has been argued that the Public Service Commission had no authority to impose a condition that the appellant would not have any claim to appointment as a Routine Division Clerk in the Secretariat or its attached Offices. In one of his representations the appellant said that he signed the note which drew his attention to the condition on "the understanding that it had no value whatsoever being contrary to the rules and Government orders." The contention of the appellant is that the Public Service Commission which was constituted in 1926 and functioned under the rules published in the Home Department notification No. F. 178/14/24 Ests. Dated October 14, 1928, dealt with the recruitment of class I and class II officers of the Civil Services in India, and the rules then in force did not provide for the discharge of any function by the Public Service Commission in respect of the recruitment to and control of the subordinate service to which the appellant belonged. This contention was accepted by the learned Subordinate Judge. The High Court, on appeal, held that the appointment of the appellant was governed by the instructions laid down in an office memorandum of the Government of India in the Home Department dated December 8, 1928, paragraph VIII where of stated-"Special cases.- To meet cases where a candidate, though not possessing the prescribed educational qualification, has acquitted himself satisfactorily in examinations of a higher or equivalent standard, or has acquired great experience of Government service outside the ministerial staff or possesses special qualifications for a particular class of work, the Public Service Commission are empowered (a) to admit to the examination persons possessing educational qualifications other than those prescribed, and (b) to exempt from the examination or to admit to a particular Division persons who by reason of their previous record can in their opinion properly be exempted or admitted as the case may be. In the case of persons already in Government service such action will be taken only on the recommendation of the Department concerned. In view of the discretion vested in the Commission by this provision, it will no longer be open to Departments to recruit independently for their offices or subordinate offices men with special or technical qualifications. Before making any such appointment they will be required to secure the Public Service Commissions concurrence." 15. The case of the appellant, who had not passed the qualifying examination held previously by the staff Selection Board whose place the Public Service Commission took in 1926, was presumably referred to the Public Service Commission under the aforesaid paragraph. Learned counsel for the appellant has contended that even the instructions contained therein do not justify the imposition of a condition by the Public Service Commission, and the only powers the Public Service Commission could exercise were those mentioned in (a) and (b) thereof. 16. We think that it is unnecessary to examine the validity of these contentions on the present occasion. Assuming but without deciding that it was not necessary to refer the case of the appellant to the Public Service Commission or that the Public Service Commission could not impose any condition on the appointment of the appellant, the fact still remains that the appropriate authority which sanctioned the additional post made it quite clear that the post was outside the regular cadre and the Director General, Indian Medical Service, said that the post had been treated in practice as being outside the regular establishment though attached to his office for purposes of administrative control. That being the position, it matters little what powers the Public Service Commission had with regard to the case of the appellant referred to it. We must make it clear, however, that we do not express dissent-it being unnecessary for us to do so-from the view expressed by the High Court that in giving concurrence to the appointment of the appellant, it was open to the Public Service Commission to give a conditional concurrence. 17. This brings us to a close of the case of the appellant in Civil Appeal 116. Only a few words are necessary to dispose of Civil Appeal 117.That appeal requires no serious exegesis of any recondite service rule or obscure departmental order. In view of the finding that the appellant was not a member of the regular establishment of the Director General, Indian Medical Service, he was not entitled to claim seniority in that office. It is true that the appellant obtained a decree from the learned Sub-ordinate Judge; it was, however, a declaratory decree only, as the appellant did not press for the other reliefs as to increment, promotion etc.Even the declaratory decree was put in jeopardy when respondent No. 1 appealed from it. In these circumstances, how could the appellant refuse to do the work given to him? We have referred to the circumstances in which the appellant refused to do work in the Public Health Section to which he was allotted; he did not work from October 13, 1952 and got no pay from November, 1952. The appellant has to thank himself for the predicament in which he is placed. All that we can say is that if he had shown patience, good sense and moderation, he could have avoided a great part of the trouble he brought on himself. 18.
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7. It is quite clear from the aforesaid orders that the post to which the appellant was appointed permanently in 1930,was a post outside the cadre of the regular establishment of the Director General, Indian Medical Service. Indeed, on April 2, 1935, the Home Department (as it was then called) ruled on a reference made to it that "the strength of the ministerial staff of the Director General, Indian Medical Service, was exclusive of the two posts the cost of which was recovered from the Indian Research Fund Association."It is true that the additional post in which the appellant was made permanent was not constituted into a separate cadre; the obvious reason was that it was an additional post outside the regular cadre. None of the rules to which learned counsel has drawn our attention prevents the appropriate authority from creating an additional post outside the regular cadre of a particular office, to which the post may be attached for purposes of administrative controlThe rule corresponds to Art. 783 in Chapter XLI of the Civil Service Regulations, and lays down the principles in accordance with which the cost, or a definite portion of the cost, of the additional post shall be recovered. It does not decide the question if the post is part of the cadre or not; that depends on the decision of the appropriate authority, and we know that in the present case the appropriate authority had decided from the very beginning that the additional post which the appellant held was outside the regular establishment of the Director General, Indian Medical ServiceIn so far as it is relevant for our purpose, Fundamental Rule 111 says that a transfer to foreign service is not admissible unless the Government servant transferred holds a lien on a permanent post; Fundamental Rule 113 says that a Government servant transferred to foreign service shall remain in the cadre or cadres in which he was included in a substantive or officiating capacity immediately before his transfer and may be given such substantive or officiating promotion in those cadres as the authority competent to order promotion may decide.In the present case, the appellant held a lien on the additional post in which he was confirmed; therefore, his transfer on foreign service was admissible under Fundamental Rule 111. He did not, however, belong to a cadre immediately before his transfer, and Fundamental Rule 113 had no application in his caseThe case of the appellant, who had not passed the qualifying examination held previously by the staff Selection Board whose place the Public Service Commission took in 1926, was presumably referred to the Public Service Commission under the aforesaid paragraphWe think that it is unnecessary to examine the validity of these contentions on the present occasion. Assuming but without deciding that it was not necessary to refer the case of the appellant to the Public Service Commission or that the Public Service Commission could not impose any condition on the appointment of the appellant, the fact still remains that the appropriate authority which sanctioned the additional post made it quite clear that the post was outside the regular cadre and the Director General, Indian Medical Service, said that the post had been treated in practice as being outside the regular establishment though attached to his office for purposes of administrative control. That being the position, it matters little what powers the Public Service Commission had with regard to the case of the appellant referred to it. We must make it clear, however, that we do not express dissent-it being unnecessary for us to do so-from the view expressed by the High Court that in giving concurrence to the appointment of the appellant, it was open to the Public Service Commission to give a conditional concurrenceThis brings us to a close of the case of the appellant in Civil Appeal 116. Only a few words are necessary to dispose of Civil Appeal 117.That appeal requires no serious exegesis of any recondite service rule or obscure departmental order. In view of the finding that the appellant was not a member of the regular establishment of the Director General, Indian Medical Service, he was not entitled to claim seniority in that office. It is true that the appellant obtained a decree from the learned Sub-ordinate Judge; it was, however, a declaratory decree only, as the appellant did not press for the other reliefs as to increment, promotion etc.Even the declaratory decree was put in jeopardy when respondent No. 1 appealed from it. In these circumstances, how could the appellant refuse to do the work given to him? We have referred to the circumstances in which the appellant refused to do work in the Public Health Section to which he was allotted; he did not work from October 13, 1952 and got no pay from November, 1952. The appellant has to thank himself for the predicament in which he is placed. All that we can say is that if he had shown patience, good sense and moderation, he could have avoided a great part of the trouble he brought on himself.
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Principal Commissioner of Income Tax-III, Bangalore and another Vs. M/s Wipro Limited | under section 139(5) can only substitute its original return under Section 139(1) and cannot transform it into a return under Section 139(3), in order to avail the benefit of carrying forward or set-off of any loss under Section 80 of the IT Act. The assessee can file a revised return in a case where there is an omission or a wrong statement. But a revised return of income, under Section 139(5) cannot be filed, to withdraw the claim and subsequently claiming the carried forward or set- off of any loss. Filing a revised return under Section 139(5) of the IT Act and taking a contrary stand and/or claiming the exemption, which was specifically not claimed earlier while filing the original return of income is not permissible. By filing the revised return of income, the assessee cannot be permitted to substitute the original return of income filed under section 139(1) of the IT Act. Therefore, claiming benefit under section 10B (8) and furnishing the declaration as required under section 10B (8) in the revised return of income which was much after the due date of filing the original return of income under section 139(1) of the IT Act, cannot mean that the assessee has complied with the condition of furnishing the declaration before the due date of filing the original return of income under section 139(1) of the Act. As observed hereinabove, for claiming the benefit under section 10B (8), both the conditions of furnishing the declaration and to file the same before the due date of filing the original return of income are mandatory in nature. 10. Even the submission on behalf of the assessee that it was not necessary to exercise the option under section 10B (8) of the IT Act and even without filing the revised return of income, the assessee could have submitted the declaration in writing to the assessing officer during the assessment proceedings has no substance and the same cannot be accepted. Even the submission made on behalf of the assessee that filing of the declaration subsequently and may be during the assessment proceedings would have made no difference also has no substance. The significance of filing a declaration under section 10B (8) can be said to be co-terminus with filing of a return under section 139(1), as a check has been put in place by virtue of section 10B (5) to verify the correctness of claim of deduction at the time of filing the return. If an assessee claims an exemption under the Act by virtue of Section 10B, then the correctness of claim has already been verified under section 10B (5). Therefore, if the claim is withdrawn post the date of filing of return, the accountants report under section 10B (5) would become falsified and would stand to be nullified. 11. Now so far as the reliance placed upon the decision of this Court in the case of G.M. Knitting Industries Pvt. Ltd. (supra), relied upon by the learned counsel appearing on behalf of the assessee is concerned, Section 10B (8) is an exemption provision which cannot be compared with claiming an additional depreciation under section 32(1) (ii-a) of the Act. As per the settled position of law, an assessee claiming exemption has to strictly and literally comply with the exemption provisions. Therefore, the said decision shall not be applicable to the facts of the case on hand, while considering the exemption provisions. Even otherwise, Chapter III and Chapter VIA of the Act operate in different realms and principles of Chapter III, which deals with incomes which do not form a part of total income, cannot be equated with mechanism provided for deductions in Chapter VIA, which deals with deductions to be made in computing total income. Therefore, none of the decisions which are relied upon on behalf of the assessee on interpretation of Chapter VIA shall be applicable while considering the claim under Section 10B (8) of the IT Act. 12. Even the submission on behalf of the assessee that the assessee had a substantive statutory right under Section 10B (8) to opt out of Section 10B which cannot be nullified by construing the purely procedural time requirement regarding the filing of the declaration under Section 10B (8) as being mandatory also has no substance. As observed hereinabove, the exemption provisions are to be strictly and literally complied with and the same cannot be construed as procedural requirement. 13. So far as the submission on behalf of the assessee that against the decision of the Delhi High Court in the case of Moser Baer (supra), a special leave petition has been dismissed as withdrawn and the revenue cannot be permitted to take a contrary view is concerned, it is to be noted that the special leave petition against the decision of the Delhi High Court in the case of Moser Baer (supra) has been dismissed as withdrawn due to there being low tax effect and the question of law has specifically been kept open. Therefore, withdrawal of the special leave petition against the decision of the Delhi High Court in the case of Moser Baer (supra) cannot be held against the revenue. 14. In view of the above discussion and for the reasons stated above, we are of the opinion that the High Court has committed a grave error in observing and holding that the requirement of furnishing a declaration under Section 10B (8) of the IT Act is mandatory, but the time limit within which the declaration is to be filed is not mandatory but is directory. The same is erroneous and contrary to the unambiguous language contained in Section 10B (8) of the IT Act. We hold that for claiming the benefit under Section 10B (8) of the IT Act, the twin conditions of furnishing a declaration before the assessing officer and that too before the due date of filing the original return of income under section 139(1) are to be satisfied and both are mandatorily to be complied with. | 1[ds]On a plain reading of Section 10B (8) of the IT Act as it is, i.e., where the assessee, before the due date for furnishing the return of income under sub-section (1) of section 139, furnishes to the Assessing Officer a declaration in writing that the provisions of Section 10B may not be made applicable to him, the provisions of Section 10B shall not apply to him for any of the relevant assessment years, we note that the wording of the Section 10B (8) is very clear and unambiguous. For claiming the benefit under Section 10B (8), the twin conditions of furnishing the declaration to the assessing officer in writing and that the same must be furnished before the due date of filing the return of income under sub-section (1) of section 139 of the IT Act are required to be fulfilled and/or satisfied. In our view, both the conditions to be satisfied are mandatory. It cannot be said that one of the conditions would be mandatory and the other would be directory, where the words used for furnishing the declaration to the assessing officer and to be furnished before the due date of filing the original return of income under sub- section (1) of section 139 are same/similar. It cannot be disputed that in a taxing statute the provisions are to be read as they are and they are to be literally construed, more particularly in a case of exemption sought by an assessee.9. In such a situation, filing a revised return under section 139(5) of the IT Act claiming carrying forward of losses subsequently would not help the assessee. In the present case, the assessee filed its original return under section 139(1) and not under section 139(3). Therefore, the Revenue is right in submitting that the revised return filed by the assessee under section 139(5) can only substitute its original return under Section 139(1) and cannot transform it into a return under Section 139(3), in order to avail the benefit of carrying forward or set-off of any loss under Section 80 of the IT Act. The assessee can file a revised return in a case where there is an omission or a wrong statement. But a revised return of income, under Section 139(5) cannot be filed, to withdraw the claim and subsequently claiming the carried forward or set- off of any loss. Filing a revised return under Section 139(5) of the IT Act and taking a contrary stand and/or claiming the exemption, which was specifically not claimed earlier while filing the original return of income is not permissible. By filing the revised return of income, the assessee cannot be permitted to substitute the original return of income filed under section 139(1) of the IT Act. Therefore, claiming benefit under section 10B (8) and furnishing the declaration as required under section 10B (8) in the revised return of income which was much after the due date of filing the original return of income under section 139(1) of the IT Act, cannot mean that the assessee has complied with the condition of furnishing the declaration before the due date of filing the original return of income under section 139(1) of the Act. As observed hereinabove, for claiming the benefit under section 10B (8), both the conditions of furnishing the declaration and to file the same before the due date of filing the original return of income are mandatory in nature.10. Even the submission on behalf of the assessee that it was not necessary to exercise the option under section 10B (8) of the IT Act and even without filing the revised return of income, the assessee could have submitted the declaration in writing to the assessing officer during the assessment proceedings has no substance and the same cannot be accepted. Even the submission made on behalf of the assessee that filing of the declaration subsequently and may be during the assessment proceedings would have made no difference also has no substance. The significance of filing a declaration under section 10B (8) can be said to be co-terminus with filing of a return under section 139(1), as a check has been put in place by virtue of section 10B (5) to verify the correctness of claim of deduction at the time of filing the return. If an assessee claims an exemption under the Act by virtue of Section 10B, then the correctness of claim has already been verified under section 10B (5). Therefore, if the claim is withdrawn post the date of filing of return, the accountants report under section 10B (5) would become falsified and would stand to be nullified.11. Now so far as the reliance placed upon the decision of this Court in the case of G.M. Knitting Industries Pvt. Ltd. (supra), relied upon by the learned counsel appearing on behalf of the assessee is concerned, Section 10B (8) is an exemption provision which cannot be compared with claiming an additional depreciation under section 32(1) (ii-a) of the Act. As per the settled position of law, an assessee claiming exemption has to strictly and literally comply with the exemption provisions. Therefore, the said decision shall not be applicable to the facts of the case on hand, while considering the exemption provisions. Even otherwise, Chapter III and Chapter VIA of the Act operate in different realms and principles of Chapter III, which deals with incomes which do not form a part of total income, cannot be equated with mechanism provided for deductions in Chapter VIA, which deals with deductions to be made in computing total income. Therefore, none of the decisions which are relied upon on behalf of the assessee on interpretation of Chapter VIA shall be applicable while considering the claim under Section 10B (8) of the IT Act.12. Even the submission on behalf of the assessee that the assessee had a substantive statutory right under Section 10B (8) to opt out of Section 10B which cannot be nullified by construing the purely procedural time requirement regarding the filing of the declaration under Section 10B (8) as being mandatory also has no substance. As observed hereinabove, the exemption provisions are to be strictly and literally complied with and the same cannot be construed as procedural requirement.13. So far as the submission on behalf of the assessee that against the decision of the Delhi High Court in the case of Moser Baer (supra), a special leave petition has been dismissed as withdrawn and the revenue cannot be permitted to take a contrary view is concerned, it is to be noted that the special leave petition against the decision of the Delhi High Court in the case of Moser Baer (supra) has been dismissed as withdrawn due to there being low tax effect and the question of law has specifically been kept open. Therefore, withdrawal of the special leave petition against the decision of the Delhi High Court in the case of Moser Baer (supra) cannot be held against the revenue.14. In view of the above discussion and for the reasons stated above, we are of the opinion that the High Court has committed a grave error in observing and holding that the requirement of furnishing a declaration under Section 10B (8) of the IT Act is mandatory, but the time limit within which the declaration is to be filed is not mandatory but is directory. The same is erroneous and contrary to the unambiguous language contained in Section 10B (8) of the IT Act. We hold that for claiming the benefit under Section 10B (8) of the IT Act, the twin conditions of furnishing a declaration before the assessing officer and that too before the due date of filing the original return of income under section 139(1) are to be satisfied and both are mandatorily to be complied with. | 1 | 6,425 | 1,487 | ### 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:
under section 139(5) can only substitute its original return under Section 139(1) and cannot transform it into a return under Section 139(3), in order to avail the benefit of carrying forward or set-off of any loss under Section 80 of the IT Act. The assessee can file a revised return in a case where there is an omission or a wrong statement. But a revised return of income, under Section 139(5) cannot be filed, to withdraw the claim and subsequently claiming the carried forward or set- off of any loss. Filing a revised return under Section 139(5) of the IT Act and taking a contrary stand and/or claiming the exemption, which was specifically not claimed earlier while filing the original return of income is not permissible. By filing the revised return of income, the assessee cannot be permitted to substitute the original return of income filed under section 139(1) of the IT Act. Therefore, claiming benefit under section 10B (8) and furnishing the declaration as required under section 10B (8) in the revised return of income which was much after the due date of filing the original return of income under section 139(1) of the IT Act, cannot mean that the assessee has complied with the condition of furnishing the declaration before the due date of filing the original return of income under section 139(1) of the Act. As observed hereinabove, for claiming the benefit under section 10B (8), both the conditions of furnishing the declaration and to file the same before the due date of filing the original return of income are mandatory in nature. 10. Even the submission on behalf of the assessee that it was not necessary to exercise the option under section 10B (8) of the IT Act and even without filing the revised return of income, the assessee could have submitted the declaration in writing to the assessing officer during the assessment proceedings has no substance and the same cannot be accepted. Even the submission made on behalf of the assessee that filing of the declaration subsequently and may be during the assessment proceedings would have made no difference also has no substance. The significance of filing a declaration under section 10B (8) can be said to be co-terminus with filing of a return under section 139(1), as a check has been put in place by virtue of section 10B (5) to verify the correctness of claim of deduction at the time of filing the return. If an assessee claims an exemption under the Act by virtue of Section 10B, then the correctness of claim has already been verified under section 10B (5). Therefore, if the claim is withdrawn post the date of filing of return, the accountants report under section 10B (5) would become falsified and would stand to be nullified. 11. Now so far as the reliance placed upon the decision of this Court in the case of G.M. Knitting Industries Pvt. Ltd. (supra), relied upon by the learned counsel appearing on behalf of the assessee is concerned, Section 10B (8) is an exemption provision which cannot be compared with claiming an additional depreciation under section 32(1) (ii-a) of the Act. As per the settled position of law, an assessee claiming exemption has to strictly and literally comply with the exemption provisions. Therefore, the said decision shall not be applicable to the facts of the case on hand, while considering the exemption provisions. Even otherwise, Chapter III and Chapter VIA of the Act operate in different realms and principles of Chapter III, which deals with incomes which do not form a part of total income, cannot be equated with mechanism provided for deductions in Chapter VIA, which deals with deductions to be made in computing total income. Therefore, none of the decisions which are relied upon on behalf of the assessee on interpretation of Chapter VIA shall be applicable while considering the claim under Section 10B (8) of the IT Act. 12. Even the submission on behalf of the assessee that the assessee had a substantive statutory right under Section 10B (8) to opt out of Section 10B which cannot be nullified by construing the purely procedural time requirement regarding the filing of the declaration under Section 10B (8) as being mandatory also has no substance. As observed hereinabove, the exemption provisions are to be strictly and literally complied with and the same cannot be construed as procedural requirement. 13. So far as the submission on behalf of the assessee that against the decision of the Delhi High Court in the case of Moser Baer (supra), a special leave petition has been dismissed as withdrawn and the revenue cannot be permitted to take a contrary view is concerned, it is to be noted that the special leave petition against the decision of the Delhi High Court in the case of Moser Baer (supra) has been dismissed as withdrawn due to there being low tax effect and the question of law has specifically been kept open. Therefore, withdrawal of the special leave petition against the decision of the Delhi High Court in the case of Moser Baer (supra) cannot be held against the revenue. 14. In view of the above discussion and for the reasons stated above, we are of the opinion that the High Court has committed a grave error in observing and holding that the requirement of furnishing a declaration under Section 10B (8) of the IT Act is mandatory, but the time limit within which the declaration is to be filed is not mandatory but is directory. The same is erroneous and contrary to the unambiguous language contained in Section 10B (8) of the IT Act. We hold that for claiming the benefit under Section 10B (8) of the IT Act, the twin conditions of furnishing a declaration before the assessing officer and that too before the due date of filing the original return of income under section 139(1) are to be satisfied and both are mandatorily to be complied with.
### Response:
1
### Explanation:
return filed by the assessee under section 139(5) can only substitute its original return under Section 139(1) and cannot transform it into a return under Section 139(3), in order to avail the benefit of carrying forward or set-off of any loss under Section 80 of the IT Act. The assessee can file a revised return in a case where there is an omission or a wrong statement. But a revised return of income, under Section 139(5) cannot be filed, to withdraw the claim and subsequently claiming the carried forward or set- off of any loss. Filing a revised return under Section 139(5) of the IT Act and taking a contrary stand and/or claiming the exemption, which was specifically not claimed earlier while filing the original return of income is not permissible. By filing the revised return of income, the assessee cannot be permitted to substitute the original return of income filed under section 139(1) of the IT Act. Therefore, claiming benefit under section 10B (8) and furnishing the declaration as required under section 10B (8) in the revised return of income which was much after the due date of filing the original return of income under section 139(1) of the IT Act, cannot mean that the assessee has complied with the condition of furnishing the declaration before the due date of filing the original return of income under section 139(1) of the Act. As observed hereinabove, for claiming the benefit under section 10B (8), both the conditions of furnishing the declaration and to file the same before the due date of filing the original return of income are mandatory in nature.10. Even the submission on behalf of the assessee that it was not necessary to exercise the option under section 10B (8) of the IT Act and even without filing the revised return of income, the assessee could have submitted the declaration in writing to the assessing officer during the assessment proceedings has no substance and the same cannot be accepted. Even the submission made on behalf of the assessee that filing of the declaration subsequently and may be during the assessment proceedings would have made no difference also has no substance. The significance of filing a declaration under section 10B (8) can be said to be co-terminus with filing of a return under section 139(1), as a check has been put in place by virtue of section 10B (5) to verify the correctness of claim of deduction at the time of filing the return. If an assessee claims an exemption under the Act by virtue of Section 10B, then the correctness of claim has already been verified under section 10B (5). Therefore, if the claim is withdrawn post the date of filing of return, the accountants report under section 10B (5) would become falsified and would stand to be nullified.11. Now so far as the reliance placed upon the decision of this Court in the case of G.M. Knitting Industries Pvt. Ltd. (supra), relied upon by the learned counsel appearing on behalf of the assessee is concerned, Section 10B (8) is an exemption provision which cannot be compared with claiming an additional depreciation under section 32(1) (ii-a) of the Act. As per the settled position of law, an assessee claiming exemption has to strictly and literally comply with the exemption provisions. Therefore, the said decision shall not be applicable to the facts of the case on hand, while considering the exemption provisions. Even otherwise, Chapter III and Chapter VIA of the Act operate in different realms and principles of Chapter III, which deals with incomes which do not form a part of total income, cannot be equated with mechanism provided for deductions in Chapter VIA, which deals with deductions to be made in computing total income. Therefore, none of the decisions which are relied upon on behalf of the assessee on interpretation of Chapter VIA shall be applicable while considering the claim under Section 10B (8) of the IT Act.12. Even the submission on behalf of the assessee that the assessee had a substantive statutory right under Section 10B (8) to opt out of Section 10B which cannot be nullified by construing the purely procedural time requirement regarding the filing of the declaration under Section 10B (8) as being mandatory also has no substance. As observed hereinabove, the exemption provisions are to be strictly and literally complied with and the same cannot be construed as procedural requirement.13. So far as the submission on behalf of the assessee that against the decision of the Delhi High Court in the case of Moser Baer (supra), a special leave petition has been dismissed as withdrawn and the revenue cannot be permitted to take a contrary view is concerned, it is to be noted that the special leave petition against the decision of the Delhi High Court in the case of Moser Baer (supra) has been dismissed as withdrawn due to there being low tax effect and the question of law has specifically been kept open. Therefore, withdrawal of the special leave petition against the decision of the Delhi High Court in the case of Moser Baer (supra) cannot be held against the revenue.14. In view of the above discussion and for the reasons stated above, we are of the opinion that the High Court has committed a grave error in observing and holding that the requirement of furnishing a declaration under Section 10B (8) of the IT Act is mandatory, but the time limit within which the declaration is to be filed is not mandatory but is directory. The same is erroneous and contrary to the unambiguous language contained in Section 10B (8) of the IT Act. We hold that for claiming the benefit under Section 10B (8) of the IT Act, the twin conditions of furnishing a declaration before the assessing officer and that too before the due date of filing the original return of income under section 139(1) are to be satisfied and both are mandatorily to be complied with.
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Bharat Sanchar Nigam Ltd. and Anr Vs. S.K. Bhatnagar and Ors | Vikramajit Sen, J. 1. Leave granted. 2. This Appeal assails the Order passed on 22.11.2010 by the Division Bench of the High Court of Judicature at Allahabad in Writ Petition No.1580 (S/B) of 2010. Regretfully, it is a laconic order in respect of an extremely cryptic decision of the Central Administrative Tribunal (CAT), Lucknow Bench, Lucknow rendered on 7.1.2008 in Original Application No.153 of 2007. In the impugned Order it has been noted that Respondent no.1 retired from the service of the Appellant-company on 31.5.1990; he was serving as Telecom District Engineer (Chambal), Gwalior. It is also duly noted that Respondent no.1 had applied for commutation of his pension. It stands admitted that he was receiving pension predicated on the commutation viz., not full pension. Neither of the Orders state the date of the application for commutation of pension, but in the hearing before us it has been indicated that this request was made in 1988. The Appellants’ submission before the Division Bench of the High Court was that a Cheque No.312436 dated 18.12.1990 had been dispatched to Respondent no.1 at his Lucknow address. Before this Court, the contention is that payment was made by a Demand Draft bearing even number. It was in 2007 that Respondent no.1 filed the abovementioned Original Application before the CAT, Lucknow Bench which passed the aforementioned cryptic Order on 7.1.2008. Since Respondent no.1 had retired on 31.5.1990 his grievance of having not received the commuted pension amount of Rs.87,400/- has come after the passage of 17 long years. It is palpably clear that this inordinate delay has been glossed over in the impugned Order. So far as the CAT, Lucknow Bench is concerned it has firstly observed that disputed questions of fact have arisen and, therefore, it would not be proper for the Tribunal to decide the case yet, inexplicably it has gone on to opine that it cannot be concluded that the aforesaid amount of Rs.87,400/- had been paid to Applicant-Respondent no.1. It has directed B.S.N.L. to furnish within one month valid proof of receipt of cheque by the Applicant-Respondent no.1, failing which an adverse inference would be drawn in law. While we appreciate that Respondent no.1-claimant cannot prove the negative, viz., that he did not receive the cheque allegedly dispatched to him, the factum of the passage of 17 years would be good ground not to cast a presumption of law against the Appellants. It appears that the State Bank of India has pleaded that the records, being more than ten years old, stand destroyed, and therefore no information in this regard could be furnished. In these circumstances how is the dispute to be decided. Before us, a photocopy of the Cash Book maintained by the Appellants, presumably in the ordinary course of business, has been furnished. It purportedly indicates that three Demand Drafts had been got issued, ostensibly against cash deposit. The Tribunal proceeded in haste in not addressing the dispute in detail. 3. Learned counsel for Respondent no.1 has drawn our attention to Union of India & Ors. v. Tarsem Singh (2008) 8 SCC 648 wherein this Court has held that normally service matter claims are rejected either on limitation or on the grounds of delay/laches; the exception being cases of continuing wrong. We cannot appreciate how this advances the case of Respondent no.1. Two facts are important – (a) that it is the case of Respondent no.1 himself that he applied for commutation of his pension before his retirement; and (b) that he was not receiving his full pension. This should have alerted any Adjudicating Authority to consider the veracity of his claim without invoking the principle of ‘presumption in law’. Tarsem Singh, therefore, does not assist the case of Respondent no.1 a wit. 4. We find that there is no alternative but to remand the matter back to the High Court of Judicature at Allahabad for a complete and detailed consideration of the matter. It must consider all the evidence collected by both the adversaries and come to a definite answer without resorting to fastening a ‘presumption in law’ on either party keeping the long passage of time in perspective. It must also consider whether the claim stood barred by limitation, or was pregnant of the possibility of being rejected for delay and laches. 5. | 1[ds]We find that there is no alternative but to remand the matter back to the High Court of Judicature at Allahabad for a complete and detailed consideration of the matter. It must consider all the evidence collected by both the adversaries and come to a definite answer without resorting to fastening a ‘presumption inon either party keeping the long passage of time in perspective. It must also consider whether the claim stood barred by limitation, or was pregnant of the possibility of being rejected for delay and laches. | 1 | 803 | 97 | ### 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:
Vikramajit Sen, J. 1. Leave granted. 2. This Appeal assails the Order passed on 22.11.2010 by the Division Bench of the High Court of Judicature at Allahabad in Writ Petition No.1580 (S/B) of 2010. Regretfully, it is a laconic order in respect of an extremely cryptic decision of the Central Administrative Tribunal (CAT), Lucknow Bench, Lucknow rendered on 7.1.2008 in Original Application No.153 of 2007. In the impugned Order it has been noted that Respondent no.1 retired from the service of the Appellant-company on 31.5.1990; he was serving as Telecom District Engineer (Chambal), Gwalior. It is also duly noted that Respondent no.1 had applied for commutation of his pension. It stands admitted that he was receiving pension predicated on the commutation viz., not full pension. Neither of the Orders state the date of the application for commutation of pension, but in the hearing before us it has been indicated that this request was made in 1988. The Appellants’ submission before the Division Bench of the High Court was that a Cheque No.312436 dated 18.12.1990 had been dispatched to Respondent no.1 at his Lucknow address. Before this Court, the contention is that payment was made by a Demand Draft bearing even number. It was in 2007 that Respondent no.1 filed the abovementioned Original Application before the CAT, Lucknow Bench which passed the aforementioned cryptic Order on 7.1.2008. Since Respondent no.1 had retired on 31.5.1990 his grievance of having not received the commuted pension amount of Rs.87,400/- has come after the passage of 17 long years. It is palpably clear that this inordinate delay has been glossed over in the impugned Order. So far as the CAT, Lucknow Bench is concerned it has firstly observed that disputed questions of fact have arisen and, therefore, it would not be proper for the Tribunal to decide the case yet, inexplicably it has gone on to opine that it cannot be concluded that the aforesaid amount of Rs.87,400/- had been paid to Applicant-Respondent no.1. It has directed B.S.N.L. to furnish within one month valid proof of receipt of cheque by the Applicant-Respondent no.1, failing which an adverse inference would be drawn in law. While we appreciate that Respondent no.1-claimant cannot prove the negative, viz., that he did not receive the cheque allegedly dispatched to him, the factum of the passage of 17 years would be good ground not to cast a presumption of law against the Appellants. It appears that the State Bank of India has pleaded that the records, being more than ten years old, stand destroyed, and therefore no information in this regard could be furnished. In these circumstances how is the dispute to be decided. Before us, a photocopy of the Cash Book maintained by the Appellants, presumably in the ordinary course of business, has been furnished. It purportedly indicates that three Demand Drafts had been got issued, ostensibly against cash deposit. The Tribunal proceeded in haste in not addressing the dispute in detail. 3. Learned counsel for Respondent no.1 has drawn our attention to Union of India & Ors. v. Tarsem Singh (2008) 8 SCC 648 wherein this Court has held that normally service matter claims are rejected either on limitation or on the grounds of delay/laches; the exception being cases of continuing wrong. We cannot appreciate how this advances the case of Respondent no.1. Two facts are important – (a) that it is the case of Respondent no.1 himself that he applied for commutation of his pension before his retirement; and (b) that he was not receiving his full pension. This should have alerted any Adjudicating Authority to consider the veracity of his claim without invoking the principle of ‘presumption in law’. Tarsem Singh, therefore, does not assist the case of Respondent no.1 a wit. 4. We find that there is no alternative but to remand the matter back to the High Court of Judicature at Allahabad for a complete and detailed consideration of the matter. It must consider all the evidence collected by both the adversaries and come to a definite answer without resorting to fastening a ‘presumption in law’ on either party keeping the long passage of time in perspective. It must also consider whether the claim stood barred by limitation, or was pregnant of the possibility of being rejected for delay and laches. 5.
### Response:
1
### Explanation:
We find that there is no alternative but to remand the matter back to the High Court of Judicature at Allahabad for a complete and detailed consideration of the matter. It must consider all the evidence collected by both the adversaries and come to a definite answer without resorting to fastening a ‘presumption inon either party keeping the long passage of time in perspective. It must also consider whether the claim stood barred by limitation, or was pregnant of the possibility of being rejected for delay and laches.
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Shyam Sunder & Others Vs. The State of Rajasthan | in degree between practical certainty and reasonable probability. Where the coincidence of cause and effect is not a matter of actual observation there is necessarily a hiatus in the direct evidence, but this may be legitimately bridged by an inference from the facts actually observed and proved".In other words, an inference is a deduction from established facts and an assumption or a guess is something quite different but not necessarily related to established facts.14. Alternatively, in those instances where the defendant is unable to explain the accident, it is incumbent upon him to advance positive proof that he had taken all reasonable steps to avert foreseeable harm.15. Res ipsa loquitur is an immensely important vehicle for importing strict liability into negligence cases. In practice, there are many cases where res ipsa loquitur is properly invoked in which the defendant is unable to show affirmatively either that he took all reasonable precautions to avoid injury or that the particular cause of the injury was not associated with negligence on his part. Industrial and traffic accidents and injuries caused by defective merchandise are so frequently of this type that the theoretical limitations of the maxim are quite overshadowed by its practical significance. See Millner: "Negligence in Modern Law" 92.16. Over the years, the general trend in the application of the maxim has undoubtedly become more sympathetic to plaintiffs. Concomitant with the rise in safety standards and expanding knowledge of the mechanical devices of our age, less hesitation is felt in concluding that the miscarriage of a familiar activity is so unusual that it is most probably the result of some fault on the part of whoever is responsible for its safe performance (see John G. Fleming. The Law of Torts, 4th ed., p. 260).17. We are inclined to think the learned District Judge was correct in inferring negligence on the part of the driver. Generally speaking, an ordinary road-worthy vehicle would not catch fire. We think that the driver was negligent in putting the vehicle on the road. From the evidence it is clear that the radiator was getting heated frequently and that the driver was pouring water in the radiator after every 6 or 7 miles of the journey. The vehicle took 9 hours to cover the distance of 70 miles beteween Chittorgarh and Pratasgarh. The fact that normally a motor vehicle would not catch fire if its mechanism is in order would indicate that there was some defect in it. The District Judge found on the basis of the evidence of the witnesses that the driver knew about this defective condition of the truck when he started from Bhilwara.18. It is clear that the driver was in management of the vehicle and the accident is such that it does not happen in the ordinary course of things. There is no evidence as to how the truck caught fire. There was no explanation by the defendant about it. It was a matter within the exclusive knowledge of the defendant. It was not possible for the plaintiff to give any evidence as to the cause of the accident.19. In these circumstances, we think that the maxim res ipsa loquitur is attracted.20. It was, however, argued on behalf of the respondent that the State was engaged in performing a function appertaining to its character as sovereign as the driver was acting in the course of his employment in connection with famine relief work and therefore, even if the driver was negligent, the State would not be liable for damages. Reliance was placed on the ruling of this Court in Kasturilal v. State of Uttar Pradesh, (1965) 1 SCR 375 = (AIR 1965 SC 1039 = 1965 (2) Cri LJ, 144) where this Court said that the liability of the State for a tort committed by its servant in the course of his employment would depend upon the question whether the employment was of the category which could claim the special characteristic of sovereign power. We do not pause to consider the question whether the immunity of the State for injuries on its citizens committed in the exercise of what are called sovereign functions has any moral justification today. Its historic and jurisprudential support lies in the oft-quoted words of Blackstone. Blackstone Commentaries (10th ed. 1887):"The king can do no wrong..........The king, moreover, is not only incapable of doing wrong, but even of thinking wrong; he can never mean to do an improper thing: in him is no folly or weakness".In modern times, the chief proponent of the sovereign immunity doctrine has been Mr. Justice Holmes who, in 1907, declared for a unanimous Supreme Court: Kawanankea v. Polyblank, (1906) 205 U. S. 349, 353."A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends."Today, hardly anyone agrees that the stated ground for exempting the sovereign from suit is either logical or practical. We do not also think it necessary to consider whether there is any rational dividing line between the so-called sovereign and proprietary or commercial functions for determining the liability of the State.21. We are of the view that, as the law stands today, it is not possible to say that famine relief work is a sovereign function of the State as it has been traditionally understood. It is a work which can be and is being undertaken by private individuals. There is nothing peculiar about it so that it might be predicated that the State alone can legitimately undertake the work.22. In the view we have taken on the merits of the case, we do not think it necessary to canvass the correctness of the view expressed by the High Court that the appeal by the State before the High Court did not abate even though the legal representatives of the plaintiff-respondent there were not impleaded within the period of limitation. | 1[ds]The maxim is only a convenient label to apply to a set of circumstances in which the plaintiff proves a case so as to call for a rebuttal from the defendant, without having to allege and prove any specific act or omission on the part of the defendant. The principal function of the maxim is to prevent injustice which would result if a plaintiff were invariably compelled to prove the precise cause of the accident and the defendant responsible for it, even when the facts bearing in the matter are at the outset unknown to him and often within the knowledge of the defendant. But thought the parties relative access to evidence is an influential factor, it is not controlling. Thus, the fact that the defendant is as much at a loss to explain the accident or himself died in it does not preclude an adverse inference against him, if the odds otherwise point to hisThe plaintiff merely proves a result, not any particular act or omission producing the result. If the result, in the circumstances in which he proves it makes it more probable than not that it was caused by the negligence of the defendant, the doctrine of res ipsa loquitur is said to apply, and the plaintiff will be entitled to succeed unless the defendant by evidence rebuts that probability.12. The answer needed by the defendant to meet the plaintiffs case may take alternative forms. Firstly, it may consist in a positive explanation by the defendant of how the accident did in fact occur, of such a kind as to exonerate the defendant from any charge of negligence.Res ipsa loquitur is an immensely important vehicle for importing strict liability into negligence cases. In practice, there are many cases where res ipsa loquitur is properly invoked in which the defendant is unable to show affirmatively either that he took all reasonable precautions to avoid injury or that the particular cause of the injury was not associated with negligence on his part. Industrial and traffic accidents and injuries caused by defective merchandise are so frequently of this type that the theoretical limitations of the maxim are quite overshadowed by its practical significance.We are inclined to think the learned District Judge was correct in inferring negligence on the part of the driver. Generally speaking, an ordinary road-worthy vehicle would not catch fire. We think that the driver was negligent in putting the vehicle on the road. From the evidence it is clear that the radiator was getting heated frequently and that the driver was pouring water in the radiator after every 6 or 7 miles of the journey. The vehicle took 9 hours to cover the distance of 70 miles beteween Chittorgarh and Pratasgarh. The fact that normally a motor vehicle would not catch fire if its mechanism is in order would indicate that there was some defect in it. The District Judge found on the basis of the evidence of the witnesses that the driver knew about this defective condition of the truck when he started from Bhilwara.18. It is clear that the driver was in management of the vehicle and the accident is such that it does not happen in the ordinary course of things. There is no evidence as to how the truck caught fire. There was no explanation by the defendant about it. It was a matter within the exclusive knowledge of the defendant. It was not possible for the plaintiff to give any evidence as to the cause of the accident.We are of the view that, as the law stands today, it is not possible to say that famine relief work is a sovereign function of the State as it has been traditionally understood. It is a work which can be and is being undertaken by private individuals. There is nothing peculiar about it so that it might be predicated that the State alone can legitimately undertake the work.22. In the view we have taken on the merits of the case, we do not think it necessary to canvass the correctness of the view expressed by the High Court that the appeal by the State before the High Court did not abate even though the legal representatives of the plaintiff-respondent there were not impleaded within the period ofmaxim does not embody any rule of substantive law nor a rule of evidence. It is perhaps not a rule of any kind but simply the caption to an argument on the evidence. Lord Shaw remarked that if the phrase had not been in Latin, nobody would have called it a principle. See Ballardv. North British Rly. Co., 1923 SC (HL)The maxim is only a convenient label to apply to a set of circumstances in which the plaintiff proves a case so as to call for a rebuttal from the defendant, without having to allege and prove any specific act or omission on the part of the defendant. The principal function of the maxim is to prevent injustice which would result if a plaintiff were invariably compelled to prove the precise cause of the accident and the defendant responsible for it, even when the facts bearing in the matter are at the outset unknown to him and often within the knowledge of the defendant. But thought the parties relative access to evidence is an influential factor, it is not controlling. Thus, the fact that the defendant is as much at a loss to explain the accident or himself died in it does not preclude an adverse inference against him, if the odds otherwise point to hisnegligence (see John G. Fleming. The Law of Torts, 4th ed., p. 264). The mere happening of the accident may be more consistent with the negligence on the part of the defendant than with other causes. The maxim is based on commonsense and its purpose is to do justice when the facts bearing on causation and on the care exercised by defendant are at the outset unknown to the plaintiff and are or ought to be within the knowledge of the defendant. (see Barkwavv. South Wales Transport, (1950) 1 All ER. It should be noticed that the defendant does not advance his case by inventing fanciful theories, unsupported by evidence, of how the event might have occurred. The whole inquiry is concerned with probabilities and facts are required, not mere conjecture unsupported byother words, an inference is a deduction from established facts and an assumption or a guess is something quite different but not necessarily related to established facts.14. Alternatively, in those instances where the defendant is unable to explain the accident, it is incumbent upon him to advance positive proof that he had taken all reasonable steps to avert foreseeable harm.It is clear that the driver was in management of the vehicle and the accident is such that it does not happen in the ordinary course of things. There is no evidence as to how the truck caught fire. There was no explanation by the defendant about it. It was a matter within the exclusive knowledge of the defendant. It was not possible for the plaintiff to give any evidence as to the cause of the accident.In these circumstances, we think that the maxim res ipsa loquitur isdo not pause to consider the question whether the immunity of the State for injuries on its citizens committed in the exercise of what are called sovereign functions has any moral justificationhardly anyone agrees that the stated ground for exempting the sovereign from suit is either logical or practical. We do not also think it necessary to consider whether there is any rational dividing line between thesovereign and proprietary or commercial functions for determining the liability of the State.21.We are of the view that, as the law stands today, it is not possible to say that famine relief work is a sovereign function of the State as it has been traditionally understood. It is a work which can be and is being undertaken by private individuals. There is nothing peculiar about it so that it might be predicated that the State alone can legitimately undertake the work. | 1 | 2,757 | 1,445 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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in degree between practical certainty and reasonable probability. Where the coincidence of cause and effect is not a matter of actual observation there is necessarily a hiatus in the direct evidence, but this may be legitimately bridged by an inference from the facts actually observed and proved".In other words, an inference is a deduction from established facts and an assumption or a guess is something quite different but not necessarily related to established facts.14. Alternatively, in those instances where the defendant is unable to explain the accident, it is incumbent upon him to advance positive proof that he had taken all reasonable steps to avert foreseeable harm.15. Res ipsa loquitur is an immensely important vehicle for importing strict liability into negligence cases. In practice, there are many cases where res ipsa loquitur is properly invoked in which the defendant is unable to show affirmatively either that he took all reasonable precautions to avoid injury or that the particular cause of the injury was not associated with negligence on his part. Industrial and traffic accidents and injuries caused by defective merchandise are so frequently of this type that the theoretical limitations of the maxim are quite overshadowed by its practical significance. See Millner: "Negligence in Modern Law" 92.16. Over the years, the general trend in the application of the maxim has undoubtedly become more sympathetic to plaintiffs. Concomitant with the rise in safety standards and expanding knowledge of the mechanical devices of our age, less hesitation is felt in concluding that the miscarriage of a familiar activity is so unusual that it is most probably the result of some fault on the part of whoever is responsible for its safe performance (see John G. Fleming. The Law of Torts, 4th ed., p. 260).17. We are inclined to think the learned District Judge was correct in inferring negligence on the part of the driver. Generally speaking, an ordinary road-worthy vehicle would not catch fire. We think that the driver was negligent in putting the vehicle on the road. From the evidence it is clear that the radiator was getting heated frequently and that the driver was pouring water in the radiator after every 6 or 7 miles of the journey. The vehicle took 9 hours to cover the distance of 70 miles beteween Chittorgarh and Pratasgarh. The fact that normally a motor vehicle would not catch fire if its mechanism is in order would indicate that there was some defect in it. The District Judge found on the basis of the evidence of the witnesses that the driver knew about this defective condition of the truck when he started from Bhilwara.18. It is clear that the driver was in management of the vehicle and the accident is such that it does not happen in the ordinary course of things. There is no evidence as to how the truck caught fire. There was no explanation by the defendant about it. It was a matter within the exclusive knowledge of the defendant. It was not possible for the plaintiff to give any evidence as to the cause of the accident.19. In these circumstances, we think that the maxim res ipsa loquitur is attracted.20. It was, however, argued on behalf of the respondent that the State was engaged in performing a function appertaining to its character as sovereign as the driver was acting in the course of his employment in connection with famine relief work and therefore, even if the driver was negligent, the State would not be liable for damages. Reliance was placed on the ruling of this Court in Kasturilal v. State of Uttar Pradesh, (1965) 1 SCR 375 = (AIR 1965 SC 1039 = 1965 (2) Cri LJ, 144) where this Court said that the liability of the State for a tort committed by its servant in the course of his employment would depend upon the question whether the employment was of the category which could claim the special characteristic of sovereign power. We do not pause to consider the question whether the immunity of the State for injuries on its citizens committed in the exercise of what are called sovereign functions has any moral justification today. Its historic and jurisprudential support lies in the oft-quoted words of Blackstone. Blackstone Commentaries (10th ed. 1887):"The king can do no wrong..........The king, moreover, is not only incapable of doing wrong, but even of thinking wrong; he can never mean to do an improper thing: in him is no folly or weakness".In modern times, the chief proponent of the sovereign immunity doctrine has been Mr. Justice Holmes who, in 1907, declared for a unanimous Supreme Court: Kawanankea v. Polyblank, (1906) 205 U. S. 349, 353."A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends."Today, hardly anyone agrees that the stated ground for exempting the sovereign from suit is either logical or practical. We do not also think it necessary to consider whether there is any rational dividing line between the so-called sovereign and proprietary or commercial functions for determining the liability of the State.21. We are of the view that, as the law stands today, it is not possible to say that famine relief work is a sovereign function of the State as it has been traditionally understood. It is a work which can be and is being undertaken by private individuals. There is nothing peculiar about it so that it might be predicated that the State alone can legitimately undertake the work.22. In the view we have taken on the merits of the case, we do not think it necessary to canvass the correctness of the view expressed by the High Court that the appeal by the State before the High Court did not abate even though the legal representatives of the plaintiff-respondent there were not impleaded within the period of limitation.
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limitations of the maxim are quite overshadowed by its practical significance.We are inclined to think the learned District Judge was correct in inferring negligence on the part of the driver. Generally speaking, an ordinary road-worthy vehicle would not catch fire. We think that the driver was negligent in putting the vehicle on the road. From the evidence it is clear that the radiator was getting heated frequently and that the driver was pouring water in the radiator after every 6 or 7 miles of the journey. The vehicle took 9 hours to cover the distance of 70 miles beteween Chittorgarh and Pratasgarh. The fact that normally a motor vehicle would not catch fire if its mechanism is in order would indicate that there was some defect in it. The District Judge found on the basis of the evidence of the witnesses that the driver knew about this defective condition of the truck when he started from Bhilwara.18. It is clear that the driver was in management of the vehicle and the accident is such that it does not happen in the ordinary course of things. There is no evidence as to how the truck caught fire. There was no explanation by the defendant about it. It was a matter within the exclusive knowledge of the defendant. It was not possible for the plaintiff to give any evidence as to the cause of the accident.We are of the view that, as the law stands today, it is not possible to say that famine relief work is a sovereign function of the State as it has been traditionally understood. It is a work which can be and is being undertaken by private individuals. There is nothing peculiar about it so that it might be predicated that the State alone can legitimately undertake the work.22. In the view we have taken on the merits of the case, we do not think it necessary to canvass the correctness of the view expressed by the High Court that the appeal by the State before the High Court did not abate even though the legal representatives of the plaintiff-respondent there were not impleaded within the period ofmaxim does not embody any rule of substantive law nor a rule of evidence. It is perhaps not a rule of any kind but simply the caption to an argument on the evidence. Lord Shaw remarked that if the phrase had not been in Latin, nobody would have called it a principle. See Ballardv. North British Rly. Co., 1923 SC (HL)The maxim is only a convenient label to apply to a set of circumstances in which the plaintiff proves a case so as to call for a rebuttal from the defendant, without having to allege and prove any specific act or omission on the part of the defendant. The principal function of the maxim is to prevent injustice which would result if a plaintiff were invariably compelled to prove the precise cause of the accident and the defendant responsible for it, even when the facts bearing in the matter are at the outset unknown to him and often within the knowledge of the defendant. But thought the parties relative access to evidence is an influential factor, it is not controlling. Thus, the fact that the defendant is as much at a loss to explain the accident or himself died in it does not preclude an adverse inference against him, if the odds otherwise point to hisnegligence (see John G. Fleming. The Law of Torts, 4th ed., p. 264). The mere happening of the accident may be more consistent with the negligence on the part of the defendant than with other causes. The maxim is based on commonsense and its purpose is to do justice when the facts bearing on causation and on the care exercised by defendant are at the outset unknown to the plaintiff and are or ought to be within the knowledge of the defendant. (see Barkwavv. South Wales Transport, (1950) 1 All ER. It should be noticed that the defendant does not advance his case by inventing fanciful theories, unsupported by evidence, of how the event might have occurred. The whole inquiry is concerned with probabilities and facts are required, not mere conjecture unsupported byother words, an inference is a deduction from established facts and an assumption or a guess is something quite different but not necessarily related to established facts.14. Alternatively, in those instances where the defendant is unable to explain the accident, it is incumbent upon him to advance positive proof that he had taken all reasonable steps to avert foreseeable harm.It is clear that the driver was in management of the vehicle and the accident is such that it does not happen in the ordinary course of things. There is no evidence as to how the truck caught fire. There was no explanation by the defendant about it. It was a matter within the exclusive knowledge of the defendant. It was not possible for the plaintiff to give any evidence as to the cause of the accident.In these circumstances, we think that the maxim res ipsa loquitur isdo not pause to consider the question whether the immunity of the State for injuries on its citizens committed in the exercise of what are called sovereign functions has any moral justificationhardly anyone agrees that the stated ground for exempting the sovereign from suit is either logical or practical. We do not also think it necessary to consider whether there is any rational dividing line between thesovereign and proprietary or commercial functions for determining the liability of the State.21.We are of the view that, as the law stands today, it is not possible to say that famine relief work is a sovereign function of the State as it has been traditionally understood. It is a work which can be and is being undertaken by private individuals. There is nothing peculiar about it so that it might be predicated that the State alone can legitimately undertake the work.
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RAJINDER KUMAR BANSAL & ORS Vs. MUNICIPAL COMMITTEE & ORS | entitled to possession even though the purpose may not be on that falls under Section 10(3)(a)(i)(ii) and (iii). Sub-section 10(3)(c) would also support the construction which I am putting on it, as the landlord who is occupying only a part of the building may apply to the Controller for an order directing a tenant occupying a portion of the building to put the landlord in possession if he required additional accommodation for residential purposes of or purposes of a business which he is carrying on. The purport of this sub-section would be that if the landlord is in occupation of a portion of a residential or non- residential building he would be entitled to the other portion, and I see no warrant in the section for restricting his right to activities which are commercial in nature. 8. ……..On a consideration of the decisions and on a consideration of the submissions made by the learned Counsel on either side, I am satisfied that the learned District Judge was right in holding that the carrying on the Thanneerpandal activity would be for purposes of business as required under Section (3) (a)(iii) of the Act. 12. We find that the High Court has distinguished the Full Bench judgment in Model Town Welfare Council not for good reasons. The rented land as defined in Section 2(f) of the Punjab Act is pari materia with definition of rented land in the Act. It has been held that the expression business appearing in Section 2(f) need not necessarily be commercial business carried on with a profit motive. The word includes within its scope a charitable business or a dealing in the interest of public or a section of the public. Therefore, use of land as club for a pavilion is in interest of section of the public. Thus, land let out to a club which for the purpose of construction and use of pavilion falls within the scope of Section 2(f) of the Act and thus eviction petition is maintainable under the Act. 13. The judgment in Haji Ismail Valid Mohmad was a case where the premises were let out to a club to hold entertainment programmes and music concerts. It was found that the activities of club are more in the nature of cultural activities or recreational activities. A perusal of the said judgment shows that the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 apply to premises let out to residence, education, business, trade or storage and also open land let out for building purposes. The argument was raised that the premises were let out for purposes of education. However, the High Court took the view that the premises let out to tenant were for promoting cultural activities. Therefore, the tenant was entitled to protection of Section 6 of the Act. It was the said finding which was reversed by the Court, the Court has held as under: 16. We regret, we cannot agree with this conclusion of law. The activities of the club are more in the nature of cultural activities or recreational activities. They are certainly not for education. In our view, in the context in which the term education appears, it does not refer to such cultural activities or recreational activities as amounting to education. The basic purpose of the club activities relate to fraternizing among the members by playing indoor or outdoor games or otherwise. Such activities cannot lead to the conclusion that the premises were let for purposes of education and consequently the respondent/tenant was not entitled to the protection of the Act. We are thus constrained to set aside the impugned judgment of the High Court as well as the judgment of the lower appellate court and restore the judgment dated August 30, 1974 passed by the learned trial court. The appeal is allowed with costs. 14. The High Court has also relied upon Supreme Court judgments reported as Narain Swadeshi Mills v. Commissioner of Excess Profits Tax AIR 1955 SC 176 , Senairam Doongarmall v. Commissioner of Income Tax AIR 1961 SC 1579 , Manipur Administration v. Nila Chandra Singh AIR 1964 SC 1533 , as well as the judgment of Punjab & Haryana High Court reported as Hazara Singh. The judgment reported in Senairam Doongarmall arises out of the Income-Tax Act, 1922 to determine the business income. The judgment reported as Narain Swadeshi Mills is to determine the existence of business under the Excess Profits Tax Act, 1940. The judgment reported as Manipur Administration pertains to a control order issued under the Essential Commodities Act, 1955. Each of the statute is enacted for a particular objective in mind. The definition in one statute cannot be used for interpreting the same word in another statute. The judgment of the High Court in Hazara Singh is renting of an agricultural land though within the municipal area. All these judgments are clearly not applicable to the present case where the rented land was let out to a club with an implied permission to construct. The Tenant has constructed a pavilion in the year 1911 and the said pavilion was mortgaged to the District Board. The District Boards were constituted as part of local self-Government under the Punjab District Boards Act, 1883. The said Act was repealed when the Punjab Municipal Act, 1911 was enacted. The only question requires to be examined was whether such sports activity can be said to be either business or trade. The Full Bench of the High Court was erroneous in holding that the land let out to the club used for pavilion is not for the purpose of business. 15. Learned Counsel for the State raised an argument that the huge amount of property tax has not been paid by the lessee or the successor. The fact is wholly inconsequential. Since the finding of fact was recorded by the learned Rent Controller and the Appellate Authority has not been disputed, therefore, the order of the eviction was rightfully passed against the respondents. | 1[ds]12. We find that the High Court has distinguished the Full Bench judgment in Model Town Welfare Council not for good reasons. The rented land as defined in Section 2(f) of the Punjab Act is pari materia with definition of rented land in the Act. It has been held that the expression business appearing in Section 2(f) need not necessarily be commercial business carried on with a profit motive. The word includes within its scope a charitable business or a dealing in the interest of public or a section of the public. Therefore, use of land as club for a pavilion is in interest of section of the public. Thus, land let out to a club which for the purpose of construction and use of pavilion falls within the scope of Section 2(f) of the Act and thus eviction petition is maintainable under the Act.13. The judgment in Haji Ismail Valid Mohmad was a case where the premises were let out to a club to hold entertainment programmes and music concerts. It was found that the activities of club are more in the nature of cultural activities or recreational activities. A perusal of the said judgment shows that the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 apply to premises let out to residence, education, business, trade or storage and also open land let out for building purposes. The argument was raised that the premises were let out for purposes of education. However, the High Court took the view that the premises let out to tenant were for promoting cultural activities. Therefore, the tenant was entitled to protection of Section 6 of the Act. It was the said finding which was reversed by the Court, the Court has held as under:16. We regret, we cannot agree with this conclusion of law. The activities of the club are more in the nature of cultural activities or recreational activities. They are certainly not for education. In our view, in the context in which the term education appears, it does not refer to such cultural activities or recreational activities as amounting to education. The basic purpose of the club activities relate to fraternizing among the members by playing indoor or outdoor games or otherwise. Such activities cannot lead to the conclusion that the premises were let for purposes of education and consequently the respondent/tenant was not entitled to the protection of the Act. We are thus constrained to set aside the impugned judgment of the High Court as well as the judgment of the lower appellate court and restore the judgment dated August 30, 1974 passed by the learned trial court. The appeal is allowed with costs.14. The High Court has also relied upon Supreme Court judgments reported as Narain Swadeshi Mills v. Commissioner of Excess Profits Tax AIR 1955 SC 176 , Senairam Doongarmall v. Commissioner of Income Tax AIR 1961 SC 1579 , Manipur Administration v. Nila Chandra Singh AIR 1964 SC 1533 , as well as the judgment of Punjab & Haryana High Court reported as Hazara Singh. The judgment reported in Senairam Doongarmall arises out of the Income-Tax Act, 1922 to determine the business income. The judgment reported as Narain Swadeshi Mills is to determine the existence of business under the Excess Profits Tax Act, 1940. The judgment reported as Manipur Administration pertains to a control order issued under the Essential Commodities Act, 1955. Each of the statute is enacted for a particular objective in mind. The definition in one statute cannot be used for interpreting the same word in another statute. The judgment of the High Court in Hazara Singh is renting of an agricultural land though within the municipal area. All these judgments are clearly not applicable to the present case where the rented land was let out to a club with an implied permission to construct. The Tenant has constructed a pavilion in the year 1911 and the said pavilion was mortgaged to the District Board. The District Boards were constituted as part of local self-Government under the Punjab District Boards Act, 1883. The said Act was repealed when the Punjab Municipal Act, 1911 was enacted. The only question requires to be examined was whether such sports activity can be said to be either business or trade. The Full Bench of the High Court was erroneous in holding that the land let out to the club used for pavilion is not for the purpose of business.The fact is wholly inconsequential. Since the finding of fact was recorded by the learned Rent Controller and the Appellate Authority has not been disputed, therefore, the order of the eviction was rightfully passed against the respondents. | 1 | 4,275 | 851 | ### 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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entitled to possession even though the purpose may not be on that falls under Section 10(3)(a)(i)(ii) and (iii). Sub-section 10(3)(c) would also support the construction which I am putting on it, as the landlord who is occupying only a part of the building may apply to the Controller for an order directing a tenant occupying a portion of the building to put the landlord in possession if he required additional accommodation for residential purposes of or purposes of a business which he is carrying on. The purport of this sub-section would be that if the landlord is in occupation of a portion of a residential or non- residential building he would be entitled to the other portion, and I see no warrant in the section for restricting his right to activities which are commercial in nature. 8. ……..On a consideration of the decisions and on a consideration of the submissions made by the learned Counsel on either side, I am satisfied that the learned District Judge was right in holding that the carrying on the Thanneerpandal activity would be for purposes of business as required under Section (3) (a)(iii) of the Act. 12. We find that the High Court has distinguished the Full Bench judgment in Model Town Welfare Council not for good reasons. The rented land as defined in Section 2(f) of the Punjab Act is pari materia with definition of rented land in the Act. It has been held that the expression business appearing in Section 2(f) need not necessarily be commercial business carried on with a profit motive. The word includes within its scope a charitable business or a dealing in the interest of public or a section of the public. Therefore, use of land as club for a pavilion is in interest of section of the public. Thus, land let out to a club which for the purpose of construction and use of pavilion falls within the scope of Section 2(f) of the Act and thus eviction petition is maintainable under the Act. 13. The judgment in Haji Ismail Valid Mohmad was a case where the premises were let out to a club to hold entertainment programmes and music concerts. It was found that the activities of club are more in the nature of cultural activities or recreational activities. A perusal of the said judgment shows that the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 apply to premises let out to residence, education, business, trade or storage and also open land let out for building purposes. The argument was raised that the premises were let out for purposes of education. However, the High Court took the view that the premises let out to tenant were for promoting cultural activities. Therefore, the tenant was entitled to protection of Section 6 of the Act. It was the said finding which was reversed by the Court, the Court has held as under: 16. We regret, we cannot agree with this conclusion of law. The activities of the club are more in the nature of cultural activities or recreational activities. They are certainly not for education. In our view, in the context in which the term education appears, it does not refer to such cultural activities or recreational activities as amounting to education. The basic purpose of the club activities relate to fraternizing among the members by playing indoor or outdoor games or otherwise. Such activities cannot lead to the conclusion that the premises were let for purposes of education and consequently the respondent/tenant was not entitled to the protection of the Act. We are thus constrained to set aside the impugned judgment of the High Court as well as the judgment of the lower appellate court and restore the judgment dated August 30, 1974 passed by the learned trial court. The appeal is allowed with costs. 14. The High Court has also relied upon Supreme Court judgments reported as Narain Swadeshi Mills v. Commissioner of Excess Profits Tax AIR 1955 SC 176 , Senairam Doongarmall v. Commissioner of Income Tax AIR 1961 SC 1579 , Manipur Administration v. Nila Chandra Singh AIR 1964 SC 1533 , as well as the judgment of Punjab & Haryana High Court reported as Hazara Singh. The judgment reported in Senairam Doongarmall arises out of the Income-Tax Act, 1922 to determine the business income. The judgment reported as Narain Swadeshi Mills is to determine the existence of business under the Excess Profits Tax Act, 1940. The judgment reported as Manipur Administration pertains to a control order issued under the Essential Commodities Act, 1955. Each of the statute is enacted for a particular objective in mind. The definition in one statute cannot be used for interpreting the same word in another statute. The judgment of the High Court in Hazara Singh is renting of an agricultural land though within the municipal area. All these judgments are clearly not applicable to the present case where the rented land was let out to a club with an implied permission to construct. The Tenant has constructed a pavilion in the year 1911 and the said pavilion was mortgaged to the District Board. The District Boards were constituted as part of local self-Government under the Punjab District Boards Act, 1883. The said Act was repealed when the Punjab Municipal Act, 1911 was enacted. The only question requires to be examined was whether such sports activity can be said to be either business or trade. The Full Bench of the High Court was erroneous in holding that the land let out to the club used for pavilion is not for the purpose of business. 15. Learned Counsel for the State raised an argument that the huge amount of property tax has not been paid by the lessee or the successor. The fact is wholly inconsequential. Since the finding of fact was recorded by the learned Rent Controller and the Appellate Authority has not been disputed, therefore, the order of the eviction was rightfully passed against the respondents.
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12. We find that the High Court has distinguished the Full Bench judgment in Model Town Welfare Council not for good reasons. The rented land as defined in Section 2(f) of the Punjab Act is pari materia with definition of rented land in the Act. It has been held that the expression business appearing in Section 2(f) need not necessarily be commercial business carried on with a profit motive. The word includes within its scope a charitable business or a dealing in the interest of public or a section of the public. Therefore, use of land as club for a pavilion is in interest of section of the public. Thus, land let out to a club which for the purpose of construction and use of pavilion falls within the scope of Section 2(f) of the Act and thus eviction petition is maintainable under the Act.13. The judgment in Haji Ismail Valid Mohmad was a case where the premises were let out to a club to hold entertainment programmes and music concerts. It was found that the activities of club are more in the nature of cultural activities or recreational activities. A perusal of the said judgment shows that the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 apply to premises let out to residence, education, business, trade or storage and also open land let out for building purposes. The argument was raised that the premises were let out for purposes of education. However, the High Court took the view that the premises let out to tenant were for promoting cultural activities. Therefore, the tenant was entitled to protection of Section 6 of the Act. It was the said finding which was reversed by the Court, the Court has held as under:16. We regret, we cannot agree with this conclusion of law. The activities of the club are more in the nature of cultural activities or recreational activities. They are certainly not for education. In our view, in the context in which the term education appears, it does not refer to such cultural activities or recreational activities as amounting to education. The basic purpose of the club activities relate to fraternizing among the members by playing indoor or outdoor games or otherwise. Such activities cannot lead to the conclusion that the premises were let for purposes of education and consequently the respondent/tenant was not entitled to the protection of the Act. We are thus constrained to set aside the impugned judgment of the High Court as well as the judgment of the lower appellate court and restore the judgment dated August 30, 1974 passed by the learned trial court. The appeal is allowed with costs.14. The High Court has also relied upon Supreme Court judgments reported as Narain Swadeshi Mills v. Commissioner of Excess Profits Tax AIR 1955 SC 176 , Senairam Doongarmall v. Commissioner of Income Tax AIR 1961 SC 1579 , Manipur Administration v. Nila Chandra Singh AIR 1964 SC 1533 , as well as the judgment of Punjab & Haryana High Court reported as Hazara Singh. The judgment reported in Senairam Doongarmall arises out of the Income-Tax Act, 1922 to determine the business income. The judgment reported as Narain Swadeshi Mills is to determine the existence of business under the Excess Profits Tax Act, 1940. The judgment reported as Manipur Administration pertains to a control order issued under the Essential Commodities Act, 1955. Each of the statute is enacted for a particular objective in mind. The definition in one statute cannot be used for interpreting the same word in another statute. The judgment of the High Court in Hazara Singh is renting of an agricultural land though within the municipal area. All these judgments are clearly not applicable to the present case where the rented land was let out to a club with an implied permission to construct. The Tenant has constructed a pavilion in the year 1911 and the said pavilion was mortgaged to the District Board. The District Boards were constituted as part of local self-Government under the Punjab District Boards Act, 1883. The said Act was repealed when the Punjab Municipal Act, 1911 was enacted. The only question requires to be examined was whether such sports activity can be said to be either business or trade. The Full Bench of the High Court was erroneous in holding that the land let out to the club used for pavilion is not for the purpose of business.The fact is wholly inconsequential. Since the finding of fact was recorded by the learned Rent Controller and the Appellate Authority has not been disputed, therefore, the order of the eviction was rightfully passed against the respondents.
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Ram Prakash Vs. Mohammad Ali Khan (Dead) Through L.R'S | Dwivedi, J.1. In this appeal the bone of contention is a certain zamindari grove. The grove belonged to a number of co-sharers. But in a partition it fell to the share of one Sakhawat Ali and one Hafiz Ali. On 16-2-1946 Hafiz Ali executed a composite document of lease and sale in favour of the appellant, Ram Prakash. He let out his share in the grove land and sold his share in the standing trees to Ram Prakash. On the same day another similar document was executed in favour of the appellant by Smt. Abbasi widow of Sakhawat Ali. She executed the document for self and as guardian of her minor sons and daughters. The document was in respect of her share and her childrens shares. Subsequent to the execution of those documents the proprietary right of some other co-shares (presumably some successors of Sakhawat Ali) in the grove land was sold to one Mohammad Ali. The appellant instituted a suit some time in 1946 against Mohammad Ali and others for injunction and alternatively for possession over the grove. Some time in 1947 Mohammad Ali and others also instituted a rival suit for cancellation of the aforesaid leases. Their case, was that the leases were invalid as S. 246 of the U. P. Tenancy Act prohibited the execution of a lease by some of the co-sharers only. The two suits were tried together. The trial Court dismissed the suit of the appellant and decreed the other suit. Two appeals were preferred against the decree of the trial Court. The lower appellate Court granted a decree in favour of the appellant for joint possession over the share of Hafiz Ali and Smt. Abbasi in the grove land. It was held that the lease executed by Smt. Abbasi as guardian of the minors was invalid. So no decree was passed in respect of their shares. The other appeal was disposed of on the same terms. Mohammad Ali then filed two second appeals in the Allahabad High Court. They were numbered 2350 and 2351 of 1953. Second appeal No. 2350 of 1953 was filed against the decree passed in the appellants suit; second appeal No. 2351 of 1953 was filed against the decree in his own suit. During the pendency of the appeals, Mohammad Ali died and his legal representatives were brought on record. Second appeal No. 2351 of 1953 was dismissed by a learned Judge of the High Court. Second Appeal No. 2350 of 1953 came up for hearing before another learned Judge. The appeal was allowed with respect to the lease of grove land and dismissed as regards the sale of trees. Hence this appeal by special leave.2. We agree with the learned Judge that after the commencement of the U. P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as the Act), the appellant has no subsisting interest in the grove land. Section 18 (1) of the Act provides that all lands in possession or held or deemed to be held by an intermediary as an intermediarys grove on the date immediately preceding the date of vesting shall be deemed to be settled by the State Government with such intermediary. Section 2 (12) of the Act defines an intermediary as "a proprietor, under-proprietor, sub-proprietor, thekedar, permanent lessee in Avadh, permanent tenure-holder of an estate or part thereof." Section 2 (13) defines "intermediarys grove" as grove land held or occupied by an intermediary as such.3. As the grove in dispute was an intermediarys grove, Mohammad Ali and others, who were intermediaries on the relevant date, became its bhumidars. The lessee of an intermediarys grove land is not an intermediarys grove land is not an intermediary because he does not fall within the definition of the word "intermediary". No other provision of the Act gives him any kind of interest in the intermediarys grove land. Accordingly, the appellant gets no right in the grove land in dispute. The scheme of the Act is to create new rights in place of old rights. The old rights are dead and gone after the commencement of the Act.(vide Rana Sheo Ambar Singh v. Allahabad Bank Ltd., Allahabad, (1962) 2 SCR 441 = (AIR 1961 SC 1790 ) and Jamshed Jahan Begam v. Lakhan Lal, (1970) 2 SCR 566 = (AIR 1971 SC 1678 ) ).4. The decision of the High Court in second appeal No. 2351 of 1953 cannot operate as res judicata in this appeal. Second appeal No. 2351 of 1953 arose out of the suit instituted by Mohammad Ali and others. That suit was for cancellation of the leases on the ground that they were made in contravention of the provisions of S. 246 of the U. P. Tenancy Act. The question whether the Zamindari Abolition and Land Reforms Act gave any rights to the appellant in the grove land in dispute could not be and was in fact not considered in that appeal. In that appeal the material issue was whether the leases were void. The argument on behalf of Mohammad Ali and others in second appeal No. 2350 of 1953 now is that assuming that the leases are valid, the lessee has no subsisting right in the grove land after the enforcement of the Act. | 0[ds]2. We agree with the learned Judge that after the commencement of the U. P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as the Act), the appellant has no subsisting interest in the grove land.As the grove in dispute was an intermediarys grove, Mohammad Ali and others, who were intermediaries on the relevant date, became its bhumidars. The lessee of an intermediarys grove land is not an intermediarys grove land is not an intermediary because he does not fall within the definition of the word "intermediary". No other provision of the Act gives him any kind of interest in the intermediarys grove land. Accordingly, the appellant gets no right in the grove land in dispute. The scheme of the Act is to create new rights in place of old rights. The old rights are dead and gone after the commencement of the Act.The decision of the High Court in second appeal No. 2351 of 1953 cannot operate as res judicata in this appeal. Second appeal No. 2351 of 1953 arose out of the suit instituted by Mohammad Ali and others. That suit was for cancellation of the leases on the ground that they were made in contravention of the provisions of S. 246 of the U. P. Tenancy Act. The question whether the Zamindari Abolition and Land Reforms Act gave any rights to the appellant in the grove land in dispute could not be and was in fact not considered in that appeal. In that appeal the material issue was whether the leases were void. The argument on behalf of Mohammad Ali and others in second appeal No. 2350 of 1953 now is that assuming that the leases are valid, the lessee has no subsisting right in the grove land after the enforcement of the Act. | 0 | 975 | 328 | ### 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:
Dwivedi, J.1. In this appeal the bone of contention is a certain zamindari grove. The grove belonged to a number of co-sharers. But in a partition it fell to the share of one Sakhawat Ali and one Hafiz Ali. On 16-2-1946 Hafiz Ali executed a composite document of lease and sale in favour of the appellant, Ram Prakash. He let out his share in the grove land and sold his share in the standing trees to Ram Prakash. On the same day another similar document was executed in favour of the appellant by Smt. Abbasi widow of Sakhawat Ali. She executed the document for self and as guardian of her minor sons and daughters. The document was in respect of her share and her childrens shares. Subsequent to the execution of those documents the proprietary right of some other co-shares (presumably some successors of Sakhawat Ali) in the grove land was sold to one Mohammad Ali. The appellant instituted a suit some time in 1946 against Mohammad Ali and others for injunction and alternatively for possession over the grove. Some time in 1947 Mohammad Ali and others also instituted a rival suit for cancellation of the aforesaid leases. Their case, was that the leases were invalid as S. 246 of the U. P. Tenancy Act prohibited the execution of a lease by some of the co-sharers only. The two suits were tried together. The trial Court dismissed the suit of the appellant and decreed the other suit. Two appeals were preferred against the decree of the trial Court. The lower appellate Court granted a decree in favour of the appellant for joint possession over the share of Hafiz Ali and Smt. Abbasi in the grove land. It was held that the lease executed by Smt. Abbasi as guardian of the minors was invalid. So no decree was passed in respect of their shares. The other appeal was disposed of on the same terms. Mohammad Ali then filed two second appeals in the Allahabad High Court. They were numbered 2350 and 2351 of 1953. Second appeal No. 2350 of 1953 was filed against the decree passed in the appellants suit; second appeal No. 2351 of 1953 was filed against the decree in his own suit. During the pendency of the appeals, Mohammad Ali died and his legal representatives were brought on record. Second appeal No. 2351 of 1953 was dismissed by a learned Judge of the High Court. Second Appeal No. 2350 of 1953 came up for hearing before another learned Judge. The appeal was allowed with respect to the lease of grove land and dismissed as regards the sale of trees. Hence this appeal by special leave.2. We agree with the learned Judge that after the commencement of the U. P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as the Act), the appellant has no subsisting interest in the grove land. Section 18 (1) of the Act provides that all lands in possession or held or deemed to be held by an intermediary as an intermediarys grove on the date immediately preceding the date of vesting shall be deemed to be settled by the State Government with such intermediary. Section 2 (12) of the Act defines an intermediary as "a proprietor, under-proprietor, sub-proprietor, thekedar, permanent lessee in Avadh, permanent tenure-holder of an estate or part thereof." Section 2 (13) defines "intermediarys grove" as grove land held or occupied by an intermediary as such.3. As the grove in dispute was an intermediarys grove, Mohammad Ali and others, who were intermediaries on the relevant date, became its bhumidars. The lessee of an intermediarys grove land is not an intermediarys grove land is not an intermediary because he does not fall within the definition of the word "intermediary". No other provision of the Act gives him any kind of interest in the intermediarys grove land. Accordingly, the appellant gets no right in the grove land in dispute. The scheme of the Act is to create new rights in place of old rights. The old rights are dead and gone after the commencement of the Act.(vide Rana Sheo Ambar Singh v. Allahabad Bank Ltd., Allahabad, (1962) 2 SCR 441 = (AIR 1961 SC 1790 ) and Jamshed Jahan Begam v. Lakhan Lal, (1970) 2 SCR 566 = (AIR 1971 SC 1678 ) ).4. The decision of the High Court in second appeal No. 2351 of 1953 cannot operate as res judicata in this appeal. Second appeal No. 2351 of 1953 arose out of the suit instituted by Mohammad Ali and others. That suit was for cancellation of the leases on the ground that they were made in contravention of the provisions of S. 246 of the U. P. Tenancy Act. The question whether the Zamindari Abolition and Land Reforms Act gave any rights to the appellant in the grove land in dispute could not be and was in fact not considered in that appeal. In that appeal the material issue was whether the leases were void. The argument on behalf of Mohammad Ali and others in second appeal No. 2350 of 1953 now is that assuming that the leases are valid, the lessee has no subsisting right in the grove land after the enforcement of the Act.
### Response:
0
### Explanation:
2. We agree with the learned Judge that after the commencement of the U. P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as the Act), the appellant has no subsisting interest in the grove land.As the grove in dispute was an intermediarys grove, Mohammad Ali and others, who were intermediaries on the relevant date, became its bhumidars. The lessee of an intermediarys grove land is not an intermediarys grove land is not an intermediary because he does not fall within the definition of the word "intermediary". No other provision of the Act gives him any kind of interest in the intermediarys grove land. Accordingly, the appellant gets no right in the grove land in dispute. The scheme of the Act is to create new rights in place of old rights. The old rights are dead and gone after the commencement of the Act.The decision of the High Court in second appeal No. 2351 of 1953 cannot operate as res judicata in this appeal. Second appeal No. 2351 of 1953 arose out of the suit instituted by Mohammad Ali and others. That suit was for cancellation of the leases on the ground that they were made in contravention of the provisions of S. 246 of the U. P. Tenancy Act. The question whether the Zamindari Abolition and Land Reforms Act gave any rights to the appellant in the grove land in dispute could not be and was in fact not considered in that appeal. In that appeal the material issue was whether the leases were void. The argument on behalf of Mohammad Ali and others in second appeal No. 2350 of 1953 now is that assuming that the leases are valid, the lessee has no subsisting right in the grove land after the enforcement of the Act.
|
HARDIAL SINGH Vs. BALBIR KAUR & ANR | counsel appearing for the plaintiffs. At the time when notice was issued in this case on 06.03.2017, we notice that what was projected before this Court was that substantial questions of law were not framed and without that the second appeal has been allowed by the High Court. It was on this premise that this Court issued notice. Mr.Rakesh K. Khanna, learned senior counsel, would, in fact, point out that this Court had already taken a view regarding the provisions of law applicable as regards the High Court of Punjab and Haryana in a second appeal in the decision reported in Pankajakshi (Dead) Through Legal Representatives and Others v. Chandrika and Others (2016) 6 SCC 157 . This judgment was rendered on 25.02.2016. In fact, learned senior counsel would point out that at the time when notice was issued by this Court noticing that substantial question of law was not framed, the judgment in Pankajakshi (Dead) Through Legal Representatives and Others (supra) had not been reported. This Court in Pankajakshi (Dead) Through Legal Representatives and Others (supra) which is, in fact, a Constitution Bench judgment has found that as far as Punjab and Haryana High Court is concerned, in a second appeal, the law which would be applicable would be Section 41 of Punjab Courts Act, 1918. Therein, this Court inter alia held as follows: The judgment in Kulwant Kaur case [Kulwant Kaur v. Gurdial Singh Mann, (2001) 4 SCC 262] raised a question which arose on an application of Section 41 of the Punjab Courts Act, 1918. This section was couched in language similar to Section 100 of the Code of Civil Procedure as it existed before the Code of Civil Procedure (Amendment) Act, 1976, which amended Section 100 to make it more restrictive so that a second appeal could only be filed if there was a substantial question of law involved in the matter. 6. This Court took the view that it is Section 41 of the Punjab Courts Act, 1918, which would continue to govern the fate of a second appeal in the Punjab High Court. Thus, on the one hand, as far as in Punjab and Haryana is concerned, in a second appeal, the Court need not frame substantial questions of law in a second appeal, that is different from saying that it can exercise its jurisdiction de hors the boundaries of its powers located in Section 41 of the Punjab Courts Act, 1918. 7. Considering the effect of Pankajakshi (Dead) Through Legal Representatives and Others (supra), this Court has in Randhir Kaur v. Prithvi Pal Singh and Others (2019) 17 SCC 71 inter alia, held as follows: 15. A perusal of the aforesaid judgments would show that the jurisdiction in second appeal is not to interfere with the findings of fact on the ground that findings are erroneous, however, gross or inexcusable the error may seem to be. The findings of fact will also include the findings on the basis of documentary evidence. The jurisdiction to interfere in the second appeal is only where there is an error in law or procedure and not merely an error on a question of fact. 16. In view of the above, we find that the High Court could not interfere with the findings of fact recorded after appreciation of evidence merely because the High Court thought that another view would be a better view. The learned first appellate court has considered the absence of clause in the first power of attorney to purchase land on behalf of the plaintiff; the fact that the plaintiff has not appeared as witness. 8. Still further, this Court in judgment reported in Avtar Singh & Ors. v. Bimla Devi & Ors. 2021 SCC Online SC 827 again the scope of the jurisdiction which is available to the High Court of Punjab and Haryana in the matter of the second appeal has explained as follows: 20. It is thus evident, therefore, that mere findings of fact cannot be interfered with in exercise of second appellate jurisdiction given the three limbs of jurisdiction available under Section 41 of the Punjab Courts Act. Findings of fact which are unreasonable, or which are rendered by overlooking the record, therefore, per se do not appear to fall within the scope of second appellate review by the High Court. In these circumstances, the High Courts findings - which are based entirely on the reappreciation of the record - and consequent interference with the concurrent findings of the lower courts, cannot be upheld. 9. A perusal of the impugned judgment which was, in fact, rendered on 02.02.2013 which is prior to the judgment in Pankajakshi (Dead) Through Legal Representatives and Others (supra) would, undoubtedly, appear to bear the appellant out in his complaint at the stage when the Court considered it on the first occasion, namely, that the learned Judge has proceeded to deal with the second appeal even without formulating a substantial question of law as would have been the requirement as it was understood in law in the year 2013 in the absence of the judgment in Pankajakshi (Dead) Through Legal Representatives and Others (supra). We would notice that the High Court has proceeded in the matter without even carefully attending to the evidence which is available on record. It is another matter that in a second appeal jurisdiction of the Court as understood by this Court is very narrow. We would think that the findings which have been rendered and the approach of the Court would make it incompatible with the power available to the Court within the four walls of its jurisdiction in a second appeal as laid down by this Court. 10. But then, the learned counsel for the respondent, would submit that this Court may remit the matter back so that the Court may consider the second appeal strictly within the ambit of the provision as applicable to the Punjab and Haryana High Court. We would think that the said request merits acceptance. | 1[ds]This Court in Pankajakshi (Dead) Through Legal Representatives and Others (supra) which is, in fact, a Constitution Bench judgment has found that as far as Punjab and Haryana High Court is concerned, in a second appeal, the law which would be applicable would be Section 41 of Punjab Courts Act, 1918. Therein, this Court inter alia held as follows:The judgment in Kulwant Kaur case [Kulwant Kaur v. Gurdial Singh Mann, (2001) 4 SCC 262] raised a question which arose on an application of Section 41 of the Punjab Courts Act, 1918. This section was couched in language similar to Section 100 of the Code of Civil Procedure as it existed before the Code of Civil Procedure (Amendment) Act, 1976, which amended Section 100 to make it more restrictive so that a second appeal could only be filed if there was a substantial question of law involved in the matter.6. This Court took the view that it is Section 41 of the Punjab Courts Act, 1918, which would continue to govern the fate of a second appeal in the Punjab High Court. Thus, on the one hand, as far as in Punjab and Haryana is concerned, in a second appeal, the Court need not frame substantial questions of law in a second appeal, that is different from saying that it can exercise its jurisdiction de hors the boundaries of its powers located in Section 41 of the Punjab Courts Act, 1918.7. Considering the effect of Pankajakshi (Dead) Through Legal Representatives and Others (supra), this Court has in Randhir Kaur v. Prithvi Pal Singh and Others (2019) 17 SCC 71 inter alia, held as follows:15. A perusal of the aforesaid judgments would show that the jurisdiction in second appeal is not to interfere with the findings of fact on the ground that findings are erroneous, however, gross or inexcusable the error may seem to be. The findings of fact will also include the findings on the basis of documentary evidence. The jurisdiction to interfere in the second appeal is only where there is an error in law or procedure and not merely an error on a question of fact.16. In view of the above, we find that the High Court could not interfere with the findings of fact recorded after appreciation of evidence merely because the High Court thought that another view would be a better view. The learned first appellate court has considered the absence of clause in the first power of attorney to purchase land on behalf of the plaintiff; the fact that the plaintiff has not appeared as witness.9. A perusal of the impugned judgment which was, in fact, rendered on 02.02.2013 which is prior to the judgment in Pankajakshi (Dead) Through Legal Representatives and Others (supra) would, undoubtedly, appear to bear the appellant out in his complaint at the stage when the Court considered it on the first occasion, namely, that the learned Judge has proceeded to deal with the second appeal even without formulating a substantial question of law as would have been the requirement as it was understood in law in the year 2013 in the absence of the judgment in Pankajakshi (Dead) Through Legal Representatives and Others (supra). We would notice that the High Court has proceeded in the matter without even carefully attending to the evidence which is available on record. It is another matter that in a second appeal jurisdiction of the Court as understood by this Court is very narrow. We would think that the findings which have been rendered and the approach of the Court would make it incompatible with the power available to the Court within the four walls of its jurisdiction in a second appeal as laid down by this Court.We would think that the said request merits acceptance. | 1 | 1,693 | 705 | ### 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:
counsel appearing for the plaintiffs. At the time when notice was issued in this case on 06.03.2017, we notice that what was projected before this Court was that substantial questions of law were not framed and without that the second appeal has been allowed by the High Court. It was on this premise that this Court issued notice. Mr.Rakesh K. Khanna, learned senior counsel, would, in fact, point out that this Court had already taken a view regarding the provisions of law applicable as regards the High Court of Punjab and Haryana in a second appeal in the decision reported in Pankajakshi (Dead) Through Legal Representatives and Others v. Chandrika and Others (2016) 6 SCC 157 . This judgment was rendered on 25.02.2016. In fact, learned senior counsel would point out that at the time when notice was issued by this Court noticing that substantial question of law was not framed, the judgment in Pankajakshi (Dead) Through Legal Representatives and Others (supra) had not been reported. This Court in Pankajakshi (Dead) Through Legal Representatives and Others (supra) which is, in fact, a Constitution Bench judgment has found that as far as Punjab and Haryana High Court is concerned, in a second appeal, the law which would be applicable would be Section 41 of Punjab Courts Act, 1918. Therein, this Court inter alia held as follows: The judgment in Kulwant Kaur case [Kulwant Kaur v. Gurdial Singh Mann, (2001) 4 SCC 262] raised a question which arose on an application of Section 41 of the Punjab Courts Act, 1918. This section was couched in language similar to Section 100 of the Code of Civil Procedure as it existed before the Code of Civil Procedure (Amendment) Act, 1976, which amended Section 100 to make it more restrictive so that a second appeal could only be filed if there was a substantial question of law involved in the matter. 6. This Court took the view that it is Section 41 of the Punjab Courts Act, 1918, which would continue to govern the fate of a second appeal in the Punjab High Court. Thus, on the one hand, as far as in Punjab and Haryana is concerned, in a second appeal, the Court need not frame substantial questions of law in a second appeal, that is different from saying that it can exercise its jurisdiction de hors the boundaries of its powers located in Section 41 of the Punjab Courts Act, 1918. 7. Considering the effect of Pankajakshi (Dead) Through Legal Representatives and Others (supra), this Court has in Randhir Kaur v. Prithvi Pal Singh and Others (2019) 17 SCC 71 inter alia, held as follows: 15. A perusal of the aforesaid judgments would show that the jurisdiction in second appeal is not to interfere with the findings of fact on the ground that findings are erroneous, however, gross or inexcusable the error may seem to be. The findings of fact will also include the findings on the basis of documentary evidence. The jurisdiction to interfere in the second appeal is only where there is an error in law or procedure and not merely an error on a question of fact. 16. In view of the above, we find that the High Court could not interfere with the findings of fact recorded after appreciation of evidence merely because the High Court thought that another view would be a better view. The learned first appellate court has considered the absence of clause in the first power of attorney to purchase land on behalf of the plaintiff; the fact that the plaintiff has not appeared as witness. 8. Still further, this Court in judgment reported in Avtar Singh & Ors. v. Bimla Devi & Ors. 2021 SCC Online SC 827 again the scope of the jurisdiction which is available to the High Court of Punjab and Haryana in the matter of the second appeal has explained as follows: 20. It is thus evident, therefore, that mere findings of fact cannot be interfered with in exercise of second appellate jurisdiction given the three limbs of jurisdiction available under Section 41 of the Punjab Courts Act. Findings of fact which are unreasonable, or which are rendered by overlooking the record, therefore, per se do not appear to fall within the scope of second appellate review by the High Court. In these circumstances, the High Courts findings - which are based entirely on the reappreciation of the record - and consequent interference with the concurrent findings of the lower courts, cannot be upheld. 9. A perusal of the impugned judgment which was, in fact, rendered on 02.02.2013 which is prior to the judgment in Pankajakshi (Dead) Through Legal Representatives and Others (supra) would, undoubtedly, appear to bear the appellant out in his complaint at the stage when the Court considered it on the first occasion, namely, that the learned Judge has proceeded to deal with the second appeal even without formulating a substantial question of law as would have been the requirement as it was understood in law in the year 2013 in the absence of the judgment in Pankajakshi (Dead) Through Legal Representatives and Others (supra). We would notice that the High Court has proceeded in the matter without even carefully attending to the evidence which is available on record. It is another matter that in a second appeal jurisdiction of the Court as understood by this Court is very narrow. We would think that the findings which have been rendered and the approach of the Court would make it incompatible with the power available to the Court within the four walls of its jurisdiction in a second appeal as laid down by this Court. 10. But then, the learned counsel for the respondent, would submit that this Court may remit the matter back so that the Court may consider the second appeal strictly within the ambit of the provision as applicable to the Punjab and Haryana High Court. We would think that the said request merits acceptance.
### Response:
1
### Explanation:
This Court in Pankajakshi (Dead) Through Legal Representatives and Others (supra) which is, in fact, a Constitution Bench judgment has found that as far as Punjab and Haryana High Court is concerned, in a second appeal, the law which would be applicable would be Section 41 of Punjab Courts Act, 1918. Therein, this Court inter alia held as follows:The judgment in Kulwant Kaur case [Kulwant Kaur v. Gurdial Singh Mann, (2001) 4 SCC 262] raised a question which arose on an application of Section 41 of the Punjab Courts Act, 1918. This section was couched in language similar to Section 100 of the Code of Civil Procedure as it existed before the Code of Civil Procedure (Amendment) Act, 1976, which amended Section 100 to make it more restrictive so that a second appeal could only be filed if there was a substantial question of law involved in the matter.6. This Court took the view that it is Section 41 of the Punjab Courts Act, 1918, which would continue to govern the fate of a second appeal in the Punjab High Court. Thus, on the one hand, as far as in Punjab and Haryana is concerned, in a second appeal, the Court need not frame substantial questions of law in a second appeal, that is different from saying that it can exercise its jurisdiction de hors the boundaries of its powers located in Section 41 of the Punjab Courts Act, 1918.7. Considering the effect of Pankajakshi (Dead) Through Legal Representatives and Others (supra), this Court has in Randhir Kaur v. Prithvi Pal Singh and Others (2019) 17 SCC 71 inter alia, held as follows:15. A perusal of the aforesaid judgments would show that the jurisdiction in second appeal is not to interfere with the findings of fact on the ground that findings are erroneous, however, gross or inexcusable the error may seem to be. The findings of fact will also include the findings on the basis of documentary evidence. The jurisdiction to interfere in the second appeal is only where there is an error in law or procedure and not merely an error on a question of fact.16. In view of the above, we find that the High Court could not interfere with the findings of fact recorded after appreciation of evidence merely because the High Court thought that another view would be a better view. The learned first appellate court has considered the absence of clause in the first power of attorney to purchase land on behalf of the plaintiff; the fact that the plaintiff has not appeared as witness.9. A perusal of the impugned judgment which was, in fact, rendered on 02.02.2013 which is prior to the judgment in Pankajakshi (Dead) Through Legal Representatives and Others (supra) would, undoubtedly, appear to bear the appellant out in his complaint at the stage when the Court considered it on the first occasion, namely, that the learned Judge has proceeded to deal with the second appeal even without formulating a substantial question of law as would have been the requirement as it was understood in law in the year 2013 in the absence of the judgment in Pankajakshi (Dead) Through Legal Representatives and Others (supra). We would notice that the High Court has proceeded in the matter without even carefully attending to the evidence which is available on record. It is another matter that in a second appeal jurisdiction of the Court as understood by this Court is very narrow. We would think that the findings which have been rendered and the approach of the Court would make it incompatible with the power available to the Court within the four walls of its jurisdiction in a second appeal as laid down by this Court.We would think that the said request merits acceptance.
|
V. Subramaniam Vs. Rajesh Raghuvandra Rao | object (Chintamanrao and another vs. The State of Madhya Pradesh (supra). The mode of approach to ascertain the reasonableness of restriction has been succinctly stated by Patanjali Ssastri, C.J. in State of Madras vs. V.G. Row AIR 1952 SC 196 :"It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict." 26. The primary object of registration of a firm is protection of third parties who were subjected to hardship and difficulties in the matter of proving as to who were the partners. Under the earlier law, a third party obtaining a decree was often put to expenses and delay in proving that a particular person was a partner of that firm. The registration of a firm provides protection to the third parties against false denials of partnership and the evasion of liability. Once a firm is registered under the Act the statements recorded in the Register regarding the constitution of the firm are conclusive proof of the fact contained therein as against the partner. A partner whose name appears on the Register cannot deny that he is a partner except under the circumstances provided. Even then registration of a partnership firm is not made compulsory under the Act. A partnership firm can come into existence and function without being registered. However, the Maharashtra Amendment effects such stringent disabilities on a firm as in our opinion are crippling in nature. It lays down that an unregistered firm cannot enforce its claims against third parties. Similarly, a partner who is not registered is unable to enforce his claims against third parties or against his fellow partners. An exception to this disability was a suit for dissolution of a firm or a suit for accounts of a dissolved firm or a suit for recovery of property of a dissolved firm. Thus a partnership firm can come into existence, function as long as there is no problem, and disappear from existence without being registered. This is changed by the 1984 Amendment extending the bar of the proceedings to a suit for dissolution or recovery of property as well. The effect of the Amendment is that a partnership firm is allowed to come into existence and function without registration but it cannot go out of existence (with certain exceptions). This can result into a situation where in case of disputes amongst the partners the relationship of partnership cannot be put an end to by approaching a court of law. A dishonest partner, if in control of the business, or if simply stronger, can successfully deprive the other partner of his dues from the partnership. It could result in extreme hardship and injustice. Might would be right. An aggrieved partner is left without any remedy whatsoever. He can neither file a suit to compel the mischievous partner to cooperate for registration, as such a suit is not maintainable, nor can he resort to arbitration if any, because the arbitration proceedings would be hit by Section 69(1) of the Act (Jagdish Chandra Gupta vs. Kajaria Traders (India) Ltd. AIR 1964 SC 1882 ).27. In our opinion the restrictions placed by sub-section 2A of Section 69 introduced by the Maharashtra Amendment Act, for the reasons given above, are arbitrary and of excessive nature and go beyond what is in the public interest. Hence the restrictions cannot be regarded as reasonable.28. In the Constitution bench decision of this Court in Maneka Gandhi vs. Union of India and another (supra) it has been held that arbitrariness and unreasonableness violates Articles 14 and 19(1)(g) of the Constitution. The said provision is clearly unreasonable and arbitrary since by prohibiting suits for dissolution of an unregistered firm, for accounts and for realization of the properties of the firm, it creates a situation where businessmen will be very reluctant to enter into an unregistered partnership out of fear that they will not be able to recover the money they have invested in the firm or to get out of the firm if they wish to do so. As already stated above there is no legal requirement, unlike in England, which makes registration of a firm compulsory, rather in India it is voluntary. Both registered and unregistered are legal though of course registration and non registration have different legal consequences as stated above. The High Court was of the view that the object of the Maharashtra Amendment was to induce partners to register and it was intended to protect third party members of the public. We cannot see how sub-section 2A of Section 69 in any way protects the third party members of the public. It makes it virtually impossible for partners in an unregistered firm to dissolve the firm or recover their share in the property of the firm. Hence it is totally arbitrary. 29. It is true that it has been held by this Court in Government of Andhra Pradesh & Others vs. P. Laxmi Devi AIR 2008 SC 1640 that the Court should not lightly declare a statute to be unconstitutional as it expresses the will of the people through its elected representatives. However, that does not mean that a statute can never be declared as unconstitutional. In fact the aforesaid decision this Court has held that in some circumstances a statute can be declared as unconstitutional, namely, where it clearly violates some constitutional provision. Since in our opinion sub-section 2A of Section 69 as introduced by the Maharashtra Legislature clearly violates Articles 14, 19(1)(g) and 300A of the Constitution, it is in our opinion ultra vires and is hence declared unconstitutional. | 1[ds]16. In our opinion2A of Section 69 inserted by the Maharashtra Amendment violates Articles 14, 19(1)(g) and 300A of the Constitution of India.17. It has already been mentioned above that a partnership firm, whether registered or unregistered, is not a distinct legal entity, and hence the property of the firm really belongs to the partners of the firm.2A virtually deprives a partner in an unregistered firm from recovery of his share in the property of the firm or from seeking dissolution of the firm.The primary object of registration of a firm is protection of third parties who were subjected to hardship and difficulties in the matter of proving as to who were the partners. Under the earlier law, a third party obtaining a decree was often put to expenses and delay in proving that a particular person was a partner of that firm. The registration of a firm provides protection to the third parties against false denials of partnership and the evasion of liability. Once a firm is registered under the Act the statements recorded in the Register regarding the constitution of the firm are conclusive proof of the fact contained therein as against the partner. A partner whose name appears on the Register cannot deny that he is a partner except under the circumstances provided. Even then registration of a partnership firm is not made compulsory under the Act. A partnership firm can come into existence and function without being registered. However, the Maharashtra Amendment effects such stringent disabilities on a firm as in our opinion are crippling in nature. It lays down that an unregistered firm cannot enforce its claims against third parties. Similarly, a partner who is not registered is unable to enforce his claims against third parties or against his fellow partners. An exception to this disability was a suit for dissolution of a firm or a suit for accounts of a dissolved firm or a suit for recovery of property of a dissolved firm. Thus a partnership firm can come into existence, function as long as there is no problem, and disappear from existence without being registered. This is changed by the 1984 Amendment extending the bar of the proceedings to a suit for dissolution or recovery of property as well. The effect of the Amendment is that a partnership firm is allowed to come into existence and function without registration but it cannot go out of existence (with certain exceptions). This can result into a situation where in case of disputes amongst the partners the relationship of partnership cannot be put an end to by approaching a court of law. A dishonest partner, if in control of the business, or if simply stronger, can successfully deprive the other partner of his dues from the partnership. It could result in extreme hardship and injustice. Might would be right. An aggrieved partner is left without any remedy whatsoever. He can neither file a suit to compel the mischievous partner to cooperate for registration, as such a suit is not maintainable, nor can he resort to arbitration if any, because the arbitration proceedings would be hit by Section 69(1) of the Act (Jagdish Chandra Gupta vs. Kajaria Traders (India) Ltd. AIR 1964 SC 1882 ).27. In our opinion the restrictions placed by sub-section 2A of Section 69 introduced by the Maharashtra Amendment Act, for the reasons given above, are arbitrary and of excessive nature and go beyond what is in the public interest. Hence the restrictions cannot be regarded as reasonable.28. In the Constitution bench decision of this Court in Maneka Gandhi vs. Union of India and another (supra) it has been held that arbitrariness and unreasonableness violates Articles 14 and 19(1)(g) of the Constitution. The said provision is clearly unreasonable and arbitrary since by prohibiting suits for dissolution of an unregistered firm, for accounts and for realization of the properties of the firm, it creates a situation where businessmen will be very reluctant to enter into an unregistered partnership out of fear that they will not be able to recover the money they have invested in the firm or to get out of the firm if they wish to do so. As already stated above there is no legal requirement, unlike in England, which makes registration of a firm compulsory, rather in India it is voluntary. Both registered and unregistered are legal though of course registration and non registration have different legal consequences as stated above.The High Court was of the view that the object of the Maharashtra Amendment was to induce partners to register and it was intended to protect third party members of the public. We cannot see how sub-section 2A of Section 69 in any way protects the third party members of the public. It makes it virtually impossible for partners in an unregistered firm to dissolve the firm or recover their share in the property of the firm. Hence it is totally arbitrary.It is true that it has been held by this Court in Government of Andhra Pradesh & Others vs. P. Laxmi Devi AIR 2008 SC 1640 that the Court should not lightly declare a statute to be unconstitutional as it expresses the will of the people through its elected representatives. However, that does not mean that a statute can never be declared as unconstitutional. In fact the aforesaid decision this Court has held that in some circumstances a statute can be declared as unconstitutional, namely, where it clearly violates some constitutional provision. Since in our opinion sub-section 2A of Section 69 as introduced by the Maharashtra Legislature clearly violates Articles 14, 19(1)(g) and 300A of the Constitution, it is in our opinion ultra vires and is hence declared unconstitutional. | 1 | 3,317 | 1,049 | ### 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:
object (Chintamanrao and another vs. The State of Madhya Pradesh (supra). The mode of approach to ascertain the reasonableness of restriction has been succinctly stated by Patanjali Ssastri, C.J. in State of Madras vs. V.G. Row AIR 1952 SC 196 :"It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict." 26. The primary object of registration of a firm is protection of third parties who were subjected to hardship and difficulties in the matter of proving as to who were the partners. Under the earlier law, a third party obtaining a decree was often put to expenses and delay in proving that a particular person was a partner of that firm. The registration of a firm provides protection to the third parties against false denials of partnership and the evasion of liability. Once a firm is registered under the Act the statements recorded in the Register regarding the constitution of the firm are conclusive proof of the fact contained therein as against the partner. A partner whose name appears on the Register cannot deny that he is a partner except under the circumstances provided. Even then registration of a partnership firm is not made compulsory under the Act. A partnership firm can come into existence and function without being registered. However, the Maharashtra Amendment effects such stringent disabilities on a firm as in our opinion are crippling in nature. It lays down that an unregistered firm cannot enforce its claims against third parties. Similarly, a partner who is not registered is unable to enforce his claims against third parties or against his fellow partners. An exception to this disability was a suit for dissolution of a firm or a suit for accounts of a dissolved firm or a suit for recovery of property of a dissolved firm. Thus a partnership firm can come into existence, function as long as there is no problem, and disappear from existence without being registered. This is changed by the 1984 Amendment extending the bar of the proceedings to a suit for dissolution or recovery of property as well. The effect of the Amendment is that a partnership firm is allowed to come into existence and function without registration but it cannot go out of existence (with certain exceptions). This can result into a situation where in case of disputes amongst the partners the relationship of partnership cannot be put an end to by approaching a court of law. A dishonest partner, if in control of the business, or if simply stronger, can successfully deprive the other partner of his dues from the partnership. It could result in extreme hardship and injustice. Might would be right. An aggrieved partner is left without any remedy whatsoever. He can neither file a suit to compel the mischievous partner to cooperate for registration, as such a suit is not maintainable, nor can he resort to arbitration if any, because the arbitration proceedings would be hit by Section 69(1) of the Act (Jagdish Chandra Gupta vs. Kajaria Traders (India) Ltd. AIR 1964 SC 1882 ).27. In our opinion the restrictions placed by sub-section 2A of Section 69 introduced by the Maharashtra Amendment Act, for the reasons given above, are arbitrary and of excessive nature and go beyond what is in the public interest. Hence the restrictions cannot be regarded as reasonable.28. In the Constitution bench decision of this Court in Maneka Gandhi vs. Union of India and another (supra) it has been held that arbitrariness and unreasonableness violates Articles 14 and 19(1)(g) of the Constitution. The said provision is clearly unreasonable and arbitrary since by prohibiting suits for dissolution of an unregistered firm, for accounts and for realization of the properties of the firm, it creates a situation where businessmen will be very reluctant to enter into an unregistered partnership out of fear that they will not be able to recover the money they have invested in the firm or to get out of the firm if they wish to do so. As already stated above there is no legal requirement, unlike in England, which makes registration of a firm compulsory, rather in India it is voluntary. Both registered and unregistered are legal though of course registration and non registration have different legal consequences as stated above. The High Court was of the view that the object of the Maharashtra Amendment was to induce partners to register and it was intended to protect third party members of the public. We cannot see how sub-section 2A of Section 69 in any way protects the third party members of the public. It makes it virtually impossible for partners in an unregistered firm to dissolve the firm or recover their share in the property of the firm. Hence it is totally arbitrary. 29. It is true that it has been held by this Court in Government of Andhra Pradesh & Others vs. P. Laxmi Devi AIR 2008 SC 1640 that the Court should not lightly declare a statute to be unconstitutional as it expresses the will of the people through its elected representatives. However, that does not mean that a statute can never be declared as unconstitutional. In fact the aforesaid decision this Court has held that in some circumstances a statute can be declared as unconstitutional, namely, where it clearly violates some constitutional provision. Since in our opinion sub-section 2A of Section 69 as introduced by the Maharashtra Legislature clearly violates Articles 14, 19(1)(g) and 300A of the Constitution, it is in our opinion ultra vires and is hence declared unconstitutional.
### Response:
1
### Explanation:
16. In our opinion2A of Section 69 inserted by the Maharashtra Amendment violates Articles 14, 19(1)(g) and 300A of the Constitution of India.17. It has already been mentioned above that a partnership firm, whether registered or unregistered, is not a distinct legal entity, and hence the property of the firm really belongs to the partners of the firm.2A virtually deprives a partner in an unregistered firm from recovery of his share in the property of the firm or from seeking dissolution of the firm.The primary object of registration of a firm is protection of third parties who were subjected to hardship and difficulties in the matter of proving as to who were the partners. Under the earlier law, a third party obtaining a decree was often put to expenses and delay in proving that a particular person was a partner of that firm. The registration of a firm provides protection to the third parties against false denials of partnership and the evasion of liability. Once a firm is registered under the Act the statements recorded in the Register regarding the constitution of the firm are conclusive proof of the fact contained therein as against the partner. A partner whose name appears on the Register cannot deny that he is a partner except under the circumstances provided. Even then registration of a partnership firm is not made compulsory under the Act. A partnership firm can come into existence and function without being registered. However, the Maharashtra Amendment effects such stringent disabilities on a firm as in our opinion are crippling in nature. It lays down that an unregistered firm cannot enforce its claims against third parties. Similarly, a partner who is not registered is unable to enforce his claims against third parties or against his fellow partners. An exception to this disability was a suit for dissolution of a firm or a suit for accounts of a dissolved firm or a suit for recovery of property of a dissolved firm. Thus a partnership firm can come into existence, function as long as there is no problem, and disappear from existence without being registered. This is changed by the 1984 Amendment extending the bar of the proceedings to a suit for dissolution or recovery of property as well. The effect of the Amendment is that a partnership firm is allowed to come into existence and function without registration but it cannot go out of existence (with certain exceptions). This can result into a situation where in case of disputes amongst the partners the relationship of partnership cannot be put an end to by approaching a court of law. A dishonest partner, if in control of the business, or if simply stronger, can successfully deprive the other partner of his dues from the partnership. It could result in extreme hardship and injustice. Might would be right. An aggrieved partner is left without any remedy whatsoever. He can neither file a suit to compel the mischievous partner to cooperate for registration, as such a suit is not maintainable, nor can he resort to arbitration if any, because the arbitration proceedings would be hit by Section 69(1) of the Act (Jagdish Chandra Gupta vs. Kajaria Traders (India) Ltd. AIR 1964 SC 1882 ).27. In our opinion the restrictions placed by sub-section 2A of Section 69 introduced by the Maharashtra Amendment Act, for the reasons given above, are arbitrary and of excessive nature and go beyond what is in the public interest. Hence the restrictions cannot be regarded as reasonable.28. In the Constitution bench decision of this Court in Maneka Gandhi vs. Union of India and another (supra) it has been held that arbitrariness and unreasonableness violates Articles 14 and 19(1)(g) of the Constitution. The said provision is clearly unreasonable and arbitrary since by prohibiting suits for dissolution of an unregistered firm, for accounts and for realization of the properties of the firm, it creates a situation where businessmen will be very reluctant to enter into an unregistered partnership out of fear that they will not be able to recover the money they have invested in the firm or to get out of the firm if they wish to do so. As already stated above there is no legal requirement, unlike in England, which makes registration of a firm compulsory, rather in India it is voluntary. Both registered and unregistered are legal though of course registration and non registration have different legal consequences as stated above.The High Court was of the view that the object of the Maharashtra Amendment was to induce partners to register and it was intended to protect third party members of the public. We cannot see how sub-section 2A of Section 69 in any way protects the third party members of the public. It makes it virtually impossible for partners in an unregistered firm to dissolve the firm or recover their share in the property of the firm. Hence it is totally arbitrary.It is true that it has been held by this Court in Government of Andhra Pradesh & Others vs. P. Laxmi Devi AIR 2008 SC 1640 that the Court should not lightly declare a statute to be unconstitutional as it expresses the will of the people through its elected representatives. However, that does not mean that a statute can never be declared as unconstitutional. In fact the aforesaid decision this Court has held that in some circumstances a statute can be declared as unconstitutional, namely, where it clearly violates some constitutional provision. Since in our opinion sub-section 2A of Section 69 as introduced by the Maharashtra Legislature clearly violates Articles 14, 19(1)(g) and 300A of the Constitution, it is in our opinion ultra vires and is hence declared unconstitutional.
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State Of Gujarat & Ors Vs. Ambalal Haiderbhai Etc | -(i) in any case where the land proposed to be acquired is agricultural land, consult the Senior Agricultural Officer of the district whether or not such land is good agricultural land;(ii) determine, having regard to the provisions o f sections 23 and 24 of the Act, the approximate amount of compensation likely to be payable in respect of the land which, in the opinion of the Collector, should be acquired for the Company; and(ii) ascertain whether the Company offered a reasonable price (not being less than the compensation so determined), to the persons interested in the l and proposed to be acquired.Explanation.-For the purpose of this rule "good agricultural land" means any land which, considering the level of agricultural production and the crop pattern of the area in which it is situated, is of average or above average productivity and includes a garden or grove land.(3) As soon as may be after holding the enquiry under sub-rule (2), the Collector shall submit a report to the appropriate Government and a copy of the same shall be forward by that Government to the Committee.(4) No declaration shall be made by the appropriate Government under section 6 of the Act unless-( i) the appropriate Government has consulted the Committee and has considered the report submitted under this rule and the report, if any, submitted under section 5A of the Act; and(ii) the agreement under section 41 of the Act has been executed by the Company".To sum up, sub-rule (1) of the above quoted rule requires the appropriate Government to which an application is made by a Company for acquisition of land to direct the Collector to submit a report on six matters set out therein.4. Sub-rule (2) of the said rule re-emphasizes what is contained in sub-rule (1) by making it obligatory for the Collector to hold an enquiry into six matters referred to in sub-rule (1). It also makes it obligatory for the Collector while holding the enquiry (1) to consult the Senior Agricultural Officer of the District in case the land is agricultural land, (2) to determine the approximate a mount of compensation likely to be payable in respect of the land in question keeping in view the provisions of sections 23 and 24 of the Act and (3) to ascertain whether the Company offered a reasonable price (which is not less than the compensation so determined) to the persons interested in the land which is proposed to be acquired.5. A conjoint reading of sub-rules (1) and (2) leaves no room for doubt that the enquiry by the Collector, which is meant inter alia to find out whether all reasonable efforts have been made by the Company to get the land by negotiation on payment of reasonable price and such efforts have not fructified and to determine the approximate amount of compensation likely to be payable in respect of the land keeping in view the provisions of sections 23 and 24 of the Act, is of vital importance to the persons interested in the land.6. Sub-rule (3) of the rule requires the Collector to submit his report to the concerned Government which in turn is required before making a declaration under section 6 of the Act to consider that report as well as the report, if any, submitted by it under section 5A of the Act after ascertaining the view of the Committee constituted under Rul e 3 of the Rules in regard to the Collectors report under Rule 4 of the Rules.Although the above mentioned rule is silent regarding the mode and method of the enquiry to be held by the Collector and the report of the Collector is of a recommendatory character, yet regard being had to the legislative history and purpose of the rule, and the mischief sought to be prevented, we have no hesitation in holding that, in conducting the enquiry, the Collector has, in the interest of fair play, to observe the principles of natural justice by affording the persons interested in the land a reasonable opportunity of being heard and of adducing material before the Collector to refute the allegations of the Company. The concept of natural justice which as evident from the observations made in A. K. Kraipaks case (supra), has undergone a great deal of change in recent years. The dividing line between an administrative and quasi-judicial function is often blurred.7. Our view is reinforced by the following illuminating observations made by the learned Chief Justice in State of Gujarat &Anr. v. Patel Chaturbhai Narsibhai &Ors.(1)"The contention of the State that the enquiry under rule 4 is administrative and that the owner of the land is not entitled to be given an opportunity to be heard at the enquiry cannot be accepted for these reasons. The enquiry under rule 4 shows that the Collector is to submit a report among other matters that the Company has made all reasonable efforts to get such lands by negotiation with the persons interested therein on payment of reasonable price and such efforts have failed. The persons interested therein are the owners of the land which is proposed to be acquired. The company at such an enquiry has to show that the company made negotiations with the owners of the land. The owners of the land are, therefore, entitled to be heard at such an enquiry for the purpose of proving or disproving the reasonable efforts of the company to get such land by negotiation. The contention on behalf of the State that the owners of the land will get an opportunity when an enquiry is made under section 5-A of the Act is equally unsound. Section 17 of the Act provides that the appropriate Government may direct that the provisions of section 5-A shall not apply, and if it does so direct a declaration may be made under section 6 at any time after the publication of the notification under section 4 of the Act. Therefore, the enquiry under section 5A may not be held." | 0[ds]A conjoint reading of sub-rules (1) and (2) leaves no room for doubt that the enquiry by the Collector, which is meant inter alia to find out whether all reasonable efforts have been made by the Company to get the land by negotiation on payment of reasonable price and such efforts have not fructified and to determine the approximate amount of compensation likely to be payable in respect of the land keeping in view the provisions of sections 23 and 24 of the Act, is of vital importance to the persons interested in the(3) of the rule requires the Collector to submit his report to the concerned Government which in turn is required before making a declaration under section 6 of the Act to consider that report as well as the report, if any, submitted by it under section 5A of the Act after ascertaining the view of the Committee constituted under Rul e 3 of the Rules in regard to the Collectors report under Rule 4 of the Rules.Although the above mentioned rule is silent regarding the mode and method of the enquiry to be held by the Collector and the report of the Collector is of a recommendatory character, yet regard being had to the legislative history and purpose of the rule, and the mischief sought to be prevented, we have no hesitation in holding that, in conducting the enquiry, the Collector has, in the interest of fair play, to observe the principles of natural justice by affording the persons interested in the land a reasonable opportunity of being heard and of adducing material before the Collector to refute the allegations of the Company. The concept of natural justice which as evident from the observations made in A. K. Kraipaks case (supra), has undergone a great deal of change in recent years. The dividing line between an administrative and quasi-judicial function is oftenview is reinforced by the following illuminating observations made by the learned Chief Justice in State of Gujarat &Anr. v. Patel Chaturbhai Narsibhaicontention of the State that the enquiry under rule 4 is administrative and that the owner of the land is not entitled to be given an opportunity to be heard at the enquiry cannot be accepted for these reasons. The enquiry under rule 4 shows that the Collector is to submit a report among other matters that the Company has made all reasonable efforts to get such lands by negotiation with the persons interested therein on payment of reasonable price and such efforts have failed. The persons interested therein are the owners of the land which is proposed to be acquired. The company at such an enquiry has to show that the company made negotiations with the owners of the land. The owners of the land are, therefore, entitled to be heard at such an enquiry for the purpose of proving or disproving the reasonable efforts of the company to get such land by negotiation. The contention on behalf of the State that the owners of the land will get an opportunity when an enquiry is made under section 5-A of the Act is equally unsound. Section 17 of the Act provides that the appropriate Government may direct that the provisions of section 5-A shall not apply, and if it does so direct a declaration may be made under section 6 at any time after the publication of the notification under section 4 of the Act. Therefore, the enquiry under section 5A may not be held." | 0 | 1,997 | 625 | ### 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:
-(i) in any case where the land proposed to be acquired is agricultural land, consult the Senior Agricultural Officer of the district whether or not such land is good agricultural land;(ii) determine, having regard to the provisions o f sections 23 and 24 of the Act, the approximate amount of compensation likely to be payable in respect of the land which, in the opinion of the Collector, should be acquired for the Company; and(ii) ascertain whether the Company offered a reasonable price (not being less than the compensation so determined), to the persons interested in the l and proposed to be acquired.Explanation.-For the purpose of this rule "good agricultural land" means any land which, considering the level of agricultural production and the crop pattern of the area in which it is situated, is of average or above average productivity and includes a garden or grove land.(3) As soon as may be after holding the enquiry under sub-rule (2), the Collector shall submit a report to the appropriate Government and a copy of the same shall be forward by that Government to the Committee.(4) No declaration shall be made by the appropriate Government under section 6 of the Act unless-( i) the appropriate Government has consulted the Committee and has considered the report submitted under this rule and the report, if any, submitted under section 5A of the Act; and(ii) the agreement under section 41 of the Act has been executed by the Company".To sum up, sub-rule (1) of the above quoted rule requires the appropriate Government to which an application is made by a Company for acquisition of land to direct the Collector to submit a report on six matters set out therein.4. Sub-rule (2) of the said rule re-emphasizes what is contained in sub-rule (1) by making it obligatory for the Collector to hold an enquiry into six matters referred to in sub-rule (1). It also makes it obligatory for the Collector while holding the enquiry (1) to consult the Senior Agricultural Officer of the District in case the land is agricultural land, (2) to determine the approximate a mount of compensation likely to be payable in respect of the land in question keeping in view the provisions of sections 23 and 24 of the Act and (3) to ascertain whether the Company offered a reasonable price (which is not less than the compensation so determined) to the persons interested in the land which is proposed to be acquired.5. A conjoint reading of sub-rules (1) and (2) leaves no room for doubt that the enquiry by the Collector, which is meant inter alia to find out whether all reasonable efforts have been made by the Company to get the land by negotiation on payment of reasonable price and such efforts have not fructified and to determine the approximate amount of compensation likely to be payable in respect of the land keeping in view the provisions of sections 23 and 24 of the Act, is of vital importance to the persons interested in the land.6. Sub-rule (3) of the rule requires the Collector to submit his report to the concerned Government which in turn is required before making a declaration under section 6 of the Act to consider that report as well as the report, if any, submitted by it under section 5A of the Act after ascertaining the view of the Committee constituted under Rul e 3 of the Rules in regard to the Collectors report under Rule 4 of the Rules.Although the above mentioned rule is silent regarding the mode and method of the enquiry to be held by the Collector and the report of the Collector is of a recommendatory character, yet regard being had to the legislative history and purpose of the rule, and the mischief sought to be prevented, we have no hesitation in holding that, in conducting the enquiry, the Collector has, in the interest of fair play, to observe the principles of natural justice by affording the persons interested in the land a reasonable opportunity of being heard and of adducing material before the Collector to refute the allegations of the Company. The concept of natural justice which as evident from the observations made in A. K. Kraipaks case (supra), has undergone a great deal of change in recent years. The dividing line between an administrative and quasi-judicial function is often blurred.7. Our view is reinforced by the following illuminating observations made by the learned Chief Justice in State of Gujarat &Anr. v. Patel Chaturbhai Narsibhai &Ors.(1)"The contention of the State that the enquiry under rule 4 is administrative and that the owner of the land is not entitled to be given an opportunity to be heard at the enquiry cannot be accepted for these reasons. The enquiry under rule 4 shows that the Collector is to submit a report among other matters that the Company has made all reasonable efforts to get such lands by negotiation with the persons interested therein on payment of reasonable price and such efforts have failed. The persons interested therein are the owners of the land which is proposed to be acquired. The company at such an enquiry has to show that the company made negotiations with the owners of the land. The owners of the land are, therefore, entitled to be heard at such an enquiry for the purpose of proving or disproving the reasonable efforts of the company to get such land by negotiation. The contention on behalf of the State that the owners of the land will get an opportunity when an enquiry is made under section 5-A of the Act is equally unsound. Section 17 of the Act provides that the appropriate Government may direct that the provisions of section 5-A shall not apply, and if it does so direct a declaration may be made under section 6 at any time after the publication of the notification under section 4 of the Act. Therefore, the enquiry under section 5A may not be held."
### Response:
0
### Explanation:
A conjoint reading of sub-rules (1) and (2) leaves no room for doubt that the enquiry by the Collector, which is meant inter alia to find out whether all reasonable efforts have been made by the Company to get the land by negotiation on payment of reasonable price and such efforts have not fructified and to determine the approximate amount of compensation likely to be payable in respect of the land keeping in view the provisions of sections 23 and 24 of the Act, is of vital importance to the persons interested in the(3) of the rule requires the Collector to submit his report to the concerned Government which in turn is required before making a declaration under section 6 of the Act to consider that report as well as the report, if any, submitted by it under section 5A of the Act after ascertaining the view of the Committee constituted under Rul e 3 of the Rules in regard to the Collectors report under Rule 4 of the Rules.Although the above mentioned rule is silent regarding the mode and method of the enquiry to be held by the Collector and the report of the Collector is of a recommendatory character, yet regard being had to the legislative history and purpose of the rule, and the mischief sought to be prevented, we have no hesitation in holding that, in conducting the enquiry, the Collector has, in the interest of fair play, to observe the principles of natural justice by affording the persons interested in the land a reasonable opportunity of being heard and of adducing material before the Collector to refute the allegations of the Company. The concept of natural justice which as evident from the observations made in A. K. Kraipaks case (supra), has undergone a great deal of change in recent years. The dividing line between an administrative and quasi-judicial function is oftenview is reinforced by the following illuminating observations made by the learned Chief Justice in State of Gujarat &Anr. v. Patel Chaturbhai Narsibhaicontention of the State that the enquiry under rule 4 is administrative and that the owner of the land is not entitled to be given an opportunity to be heard at the enquiry cannot be accepted for these reasons. The enquiry under rule 4 shows that the Collector is to submit a report among other matters that the Company has made all reasonable efforts to get such lands by negotiation with the persons interested therein on payment of reasonable price and such efforts have failed. The persons interested therein are the owners of the land which is proposed to be acquired. The company at such an enquiry has to show that the company made negotiations with the owners of the land. The owners of the land are, therefore, entitled to be heard at such an enquiry for the purpose of proving or disproving the reasonable efforts of the company to get such land by negotiation. The contention on behalf of the State that the owners of the land will get an opportunity when an enquiry is made under section 5-A of the Act is equally unsound. Section 17 of the Act provides that the appropriate Government may direct that the provisions of section 5-A shall not apply, and if it does so direct a declaration may be made under section 6 at any time after the publication of the notification under section 4 of the Act. Therefore, the enquiry under section 5A may not be held."
|
The Controller Of Estate Duty, Mysore,Bangalore Vs. Haji Abdul Sattar Sait & Ors | above is that the Cutchi Memons who proceeded either from Cutch or from Bombay to Madras and who, it appears, settled down amongst Hindus, Hindu surroundings and traditions there, regulated their affairs as regards their property, succession and inhentance according to the Hindu law which they had retained while in Cutch and to which they were already accustomedIt is true that some of the Cutchi Memons went over to the then State of Mysore either from Cutch or from Western India or Madras. As aforesaid, the family members of the deceased, Haji Mahomed Hussain Sait, settled down in Bangalore Civil Station some time between 1928 and 1930. On the basis of that fact, reliance was placed on the decision of the then High Court of Mysore in Elia Sait v. Dharayya where the question for consideration was whether the custom of adoption recognised in the Hindu law prevailed also among the Cutchi Memons there. The High Court, it appears, had both the Bombay view and the Madras view as expressed in S. Hajee Aboo Buckers case but preferred the Bombay view as stated in Haji Oosmans cases. The High Court, however, gave no reasoning for that preference nor did it have before it, as it appears from the decision itself, any evidence as to the customary law which the Cutchi Memons settled in Bangalore followed. That being so, that decision cannot be treated as a well-considered judgment reflecting the position of the customary law applicable to Cutchi Memons who had settled down in the then Mysore State nor was it consequently binding on the High Court The question next is, whether the subsequent legislation on which the revenue relied changed in any way the position as laid down by Kumaraswamy Sastry J.? 18. The Cutchi Memons Act, 1920 (XLVI of 1920), was an enabling Act as its long title and preamble indicate. Its second section provided that any Cutchi Memon, who had attained the age of majority and was at the time a resident in British India, could declare in the prescribed manner and before the prescribed authority that he desired to obtain the benefit of the Act, and thereafter, such a declarant, his minor children and their descendants would, in matters of succession and inheritance, be governed by the Mahomedan law. It is nobodys case that any such declaration was ever made to get the benefit of the Act. The Act, therefore, would have no operation upon the respondents. Then came the Cutchi Memons Act, 1938 (X of 1938), which was passed, inter alia, to facilitate administration of justice by the civil courts under a uniform established code for all Cutchi Memons in various parts of the country instead of "a wide field of custom and usage" which "has to be traversed for a proper determination of the case". The Act came into force as from November 1, 1938. Section 2 provided that all Cutchi Memons, subject, however, to the provisions of section 3, shall in matters of succession and inheritance be governed by the Mahomedan law. Section 3, subject to which the foregoing section applied, is a saving provision and provides that nothing in the Act "shall affect any right or liability acquired or incurred before its commencement or any legal proceeding or remedy in respect of any such right or liability; and any such legal proceeding or remedy may be continued or enforced as if this Act had not been passed". In between the two Acts was enacted the Muslim Personal Law (Shariat) Application Act (XXVI of 1937). We do not have to consider the effect of this Act in view of Mr. Desai having in express terms stated that he was not relying upon itThe Cutchi Memons Act (X of 1938) was not extended at first to the Civil Station area in Bangalore where the deceased and the members of his family had settled down and carried on business. Until 1947, that area was administered by the Viceroy in his capacity as the Crown representative. A number of Acts passed by the Central, Legislature were extended by him to this area with or without modifications but not the Cutchi Memons Act, 1938. In 1948, after the said area was retroceded to Mysore, the Mysore Legislature passed the Retroceded Areas (Application of Laws) Act, 1948, extending to the Civil Station area certain laws and enactments in force in the princely State of Mysore. One of them was the Mysore Cutchi Memons Act (1 of 1943), which was verbatim the same as the Central Act (X of 1938), and contained only three sections. The first section gave the title of the Act. The second section provided that, subject to section 3, all Cutchi Memons shall in matters of succession and inheritance be governed by the Mahomedan law. Thus, the option of being governed by the Mahomedan law contained in the 1920 Act was replaced by a uniform and mandatory provision. But, the third section, which is a saving provision, inter alia, provided that, nothing in this Act shall affect any right or liability acquired or incurred before its commencement or any legal proceeding or remedy in respect of such right or liability and any such proceeding or remedy may be continued or enforced as if this Act had not been passed." 19. If the parties as aforesaid were governed in matters of property, succession and inheritance by the rules of Hindu law including the rules as to joint family property, its distribution according to the rule of survivorship and the right of a son in it by birth, the High Court would be right in its view that the accountable persons, having been born long before 1948, had already acquired a right by birth in the property held by their father, a right expressly saved by section 3 of the Act. There was, therefore, no question of that interest passing to them on the death of their father as envisaged by section 5 of the Estate Duty Act. | 0[ds]6. It is a rule of Mahomedan law, the correctness of which is not capable of any doubt, that it applies not only to persons who are Mahomedans by birth but by religion also. Accordingly, a person converting to Mahomedanism changes not only his religion but also his personal law. (Mitar Sen Singh v. Maqbul Hasan Khan). Such a rigid rule, however, applies to cases of individual conversions, for, in cases of wholesale conversion of a caste or a community, it is recognised that the converts might retain a part of their original personal law according to their hitherto held habits, traditions and the surroundings. This principle was laid down in Fidahusein v. Monghibai, where the question arose whether a Khoja of the Shia Ishna Ashari sect could dispose of the whole of his property by testamentary disposition. Tracing the history and the conversion of Khojas from its previous decisions, the High Court held that the conversion of Khojas to the Shia Imami Ismaili sect was not a case of individual conversions but of a mass or community conversion, and that in such a case it could be properly presumed that such converts might retain a portion of their original personal law according to their social habits and surroundings. They, therefore, retain their personal law unless they consciously adopt another7. The High Court deduced the following principle" A Hindu convert residing in India is governed by his personal law unless he renounces the old law and accepts the new one, except where a statutory provision is made. His intention to renounce the old law is to be inferred(a) if he attaches himself to a class which follows a particular law, or(b) if he observes some family usage or custom derogatory to the old law."17. That being the position, there is no question of our having to decide whether the Bombay view, as reflected in the decisions since Beaman J., threw doubts on the dicta in the earlier decisions and the Madras view, as reflected in S. Hajee Aboo Bucker Saits case, or of having to prefer one against the other. We do not do so not only because it is not necessary but also because were we to do so at this date, it might perhaps have the result of upsetting a number of titles settled on the basis of the decisions of each of the two High Courts and perhaps elsewhere too. The conclusion which we arrive at on consideration of the decisions referred to above is that the Cutchi Memons who proceeded either from Cutch or from Bombay to Madras and who, it appears, settled down amongst Hindus, Hindu surroundings and traditions there, regulated their affairs as regards their property, succession and inhentance according to the Hindu law which they had retained while in Cutch and to which they were already accustomedIt is true that some of the Cutchi Memons went over to the then State of Mysore either from Cutch or from Western India or Madras. As aforesaid, the family members of the deceased, Haji Mahomed Hussain Sait, settled down in Bangalore Civil Station some time between 1928 and 1930. On the basis of that fact, reliance was placed on the decision of the then High Court of Mysore in Elia Sait v. Dharayya where the question for consideration was whether the custom of adoption recognised in the Hindu law prevailed also among the Cutchi Memons there. The High Court, it appears, had both the Bombay view and the Madras view as expressed in S. Hajee Aboo Buckers case but preferred the Bombay view as stated in Haji Oosmans cases. The High Court, however, gave no reasoning for that preference nor did it have before it, as it appears from the decision itself, any evidence as to the customary law which the Cutchi Memons settled in Bangalore followed. That being so, that decision cannot be treated as a well-considered judgment reflecting the position of the customary law applicable to Cutchi Memons who had settled down in the then Mysore State nor was it consequently binding on the High Court18. The Cutchi Memons Act, 1920 (XLVI of 1920), was an enabling Act as its long title and preamble indicate. Its second section provided that any Cutchi Memon, who had attained the age of majority and was at the time a resident in British India, could declare in the prescribed manner and before the prescribed authority that he desired to obtain the benefit of the Act, and thereafter, such a declarant, his minor children and their descendants would, in matters of succession and inheritance, be governed by the Mahomedan law. It is nobodys case that any such declaration was ever made to get the benefit of the Act. The Act, therefore, would have no operation upon the respondents. Then came the Cutchi Memons Act, 1938 (X of 1938), which was passed, inter alia, to facilitate administration of justice by the civil courts under a uniform established code for all Cutchi Memons in various parts of the country instead of "a wide field of custom and usage" which "has to be traversed for a proper determination of the case". The Act came into force as from November 1, 1938. Section 2 provided that all Cutchi Memons, subject, however, to the provisions of section 3, shall in matters of succession and inheritance be governed by the Mahomedan law. Section 3, subject to which the foregoing section applied, is a saving provision and provides that nothing in the Act "shall affect any right or liability acquired or incurred before its commencement or any legal proceeding or remedy in respect of any such right or liability; and any such legal proceeding or remedy may be continued or enforced as if this Act had not been passed". In between the two Acts was enacted the Muslim Personal Law (Shariat) Application Act (XXVI of 1937). We do not have to consider the effect of this Act in view of Mr. Desai having in express terms stated that he was not relying upon itThe Cutchi Memons Act (X of 1938) was not extended at first to the Civil Station area in Bangalore where the deceased and the members of his family had settled down and carried on business. Until 1947, that area was administered by the Viceroy in his capacity as the Crown representative. A number of Acts passed by the Central, Legislature were extended by him to this area with or without modifications but not the Cutchi Memons Act, 1938. In 1948, after the said area was retroceded to Mysore, the Mysore Legislature passed the Retroceded Areas (Application of Laws) Act, 1948, extending to the Civil Station area certain laws and enactments in force in the princely State of Mysore. One of them was the Mysore Cutchi Memons Act (1 of 1943), which was verbatim the same as the Central Act (X of 1938), and contained only three sections. The first section gave the title of the Act. The second section provided that, subject to section 3, all Cutchi Memons shall in matters of succession and inheritance be governed by the Mahomedan law. Thus, the option of being governed by the Mahomedan law contained in the 1920 Act was replaced by a uniform and mandatory provision. But, the third section, which is a saving provision, inter alia, provided that, nothing in this Act shall affect any right or liability acquired or incurred before its commencement or any legal proceeding or remedy in respect of such right or liability and any such proceeding or remedy may be continued or enforced as if this Act had not been passed."19. If the parties as aforesaid were governed in matters of property, succession and inheritance by the rules of Hindu law including the rules as to joint family property, its distribution according to the rule of survivorship and the right of a son in it by birth, the High Court would be right in its view that the accountable persons, having been born long before 1948, had already acquired a right by birth in the property held by their father, a right expressly saved by section 3 of the Act. There was, therefore, no question of that interest passing to them on the death of their father as envisaged by section 5 of the Estate Duty Act8. The question as to which personal law, sects among the Muslims, such as the Khojas and the Memons, would be subject to in matters of property, succession and inheritance arose in Bombay as early as 1847. In Hirbai v. Sonabae, commonly called the Khoja and Memos cases, the Supreme Court of Bombay was called upon to determine the claim of two sisters in the estate left by their father, who had died intestate without leaving any male issue. The claim was resisted on the ground that in the Khoja community the custom was that females were excluded from any share in their fathers estate, and were entitled only to maintenance and marriage expenses. A suit raising precisely the same question was also before the court between members of Cutchi Memons sect. Both the suits were tried together and disposed of by Sir Erskine Perry C. J. by a common judgment in which he held the custom put forward before him as proved11. Moosa Haji Joonas Noorani v. Haji Abdul Rahim Haji Hamed is yet another instance where the High Court held that in the absence of a special custom as to succession the Hindu law of inheritance would apply to Cutchi Memons, and, therefore, when a Cutchi Memon widow dies issueless, her property would be governed by the Hindu law as to stridhan. A year later, in Haji Noor Mahomed v. MacLeod the rule of devolution of property by survivorship was applied to parties who were Cutchi Memons in the matter of a family firm, save that somewhat contrary to it, the principle of relationship between the manager and the members of the family was held not to applyThe above analysis shows that, barring one or two stray decisions, the general trend of judicial opinion in Bombay was that both the Khojas and the Cutchi Memons retained, despite their conversion, considerable portion of their personal law and that the rules of Hindu law were accepted by them as customary law in matters of property, inheritance and succession, including rules as to joint family property, the right of a son therein by birth and the devolution thereof by survivorship12. In Jan Mahomed Abdulla Datu v. Datu Jaffer Beaman J., after an elaborate analysis of the previous decisions dealing with both Khojas and Cutchi Memons, struck for the first time a note of dissent and laid down two propositions(1) that the invariable and general presumption was that Mahomedans were governed by the Mahomedan law and usage and that it lay upon a party setting up a custom in derogation of that law to prove it strictly, and(2) that in matters of simple succession and inheritance, it was to be taken as established that these two matters among Khojas and Cutchi Memons were governed by Hindu law "as applied to separate and self-acquired property"In Siddick Hajee Aboo Bucker Sait v. Ebrahim Hajee Aboo Bucker Sait, Kumaraswamy Sastri J., after an analysis of the case law in Bombay, come to the conclusion that since the Khojas and the Cutchi Memons spread themselves from Cutch and Kathiawar, where they had originally settled down and where they had lived in Hindu kingdoms with Hindu surroundings and traditions, there was nothing surprising that they retained the rules of Hindu law in general not only in matters of succession and inheritance but also concepts such as the joint family property and its devolution by survivorship. According to him, at the time of their conversion, the Cutchi Memons were Hindus governed by the Mitakshara system of joint and undivided family together with its rule of survivorship. "I find it difficult", he said, "to assume that the Cutchi Memons on their conversion were go enamoured of the Hindu law of inheritance that they adopted it, but were so dissatified with the laws of the joint family that they discarded the rules as to coparcenary and the sons interest in the property of his grandfather". Since there were no reported decisions on the position of the Cutchi Memons who had settled down in Madras, the learned judge had the High Courts record searched. As a result of that search, he found several suits filed by and against the Cutchi Memons wherein they were consistently treated as members of an undivided family governed by the rules applicable to the members of the Hindu joint families and decrees had been passed in those suits on that footing. Even as regards the parties before him, he found that till the filing of the suit, which he was trying, they had regulated their affairs upon the basis that the Hindu law of the joint family applied. On the premise that the Cutchi Memons in Madras had regulated succession and inheritance according to Hindu law, including its principle of devolution of property by survivorship, he held that the Hindu law of coparcenary and joint family applied to the Cutchi Memons settled in MadrasIn the light of this reasoning it would appear from the view taken in S. Hajee Aboo Bucker Saits case against which no other Madras view was shown to us, and especially as that view was supported also by the records of several other cases in that High Court, that Cutchi Memons, who had settled down in Madras, had regulated their affairs, since they had settled down amidst Hindus, according to Hindu law not only in matters of succession and inheritance, but also in matters of their property including the Hindu concept of coparcenary and survivorship | 0 | 7,529 | 2,540 | ### 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:
above is that the Cutchi Memons who proceeded either from Cutch or from Bombay to Madras and who, it appears, settled down amongst Hindus, Hindu surroundings and traditions there, regulated their affairs as regards their property, succession and inhentance according to the Hindu law which they had retained while in Cutch and to which they were already accustomedIt is true that some of the Cutchi Memons went over to the then State of Mysore either from Cutch or from Western India or Madras. As aforesaid, the family members of the deceased, Haji Mahomed Hussain Sait, settled down in Bangalore Civil Station some time between 1928 and 1930. On the basis of that fact, reliance was placed on the decision of the then High Court of Mysore in Elia Sait v. Dharayya where the question for consideration was whether the custom of adoption recognised in the Hindu law prevailed also among the Cutchi Memons there. The High Court, it appears, had both the Bombay view and the Madras view as expressed in S. Hajee Aboo Buckers case but preferred the Bombay view as stated in Haji Oosmans cases. The High Court, however, gave no reasoning for that preference nor did it have before it, as it appears from the decision itself, any evidence as to the customary law which the Cutchi Memons settled in Bangalore followed. That being so, that decision cannot be treated as a well-considered judgment reflecting the position of the customary law applicable to Cutchi Memons who had settled down in the then Mysore State nor was it consequently binding on the High Court The question next is, whether the subsequent legislation on which the revenue relied changed in any way the position as laid down by Kumaraswamy Sastry J.? 18. The Cutchi Memons Act, 1920 (XLVI of 1920), was an enabling Act as its long title and preamble indicate. Its second section provided that any Cutchi Memon, who had attained the age of majority and was at the time a resident in British India, could declare in the prescribed manner and before the prescribed authority that he desired to obtain the benefit of the Act, and thereafter, such a declarant, his minor children and their descendants would, in matters of succession and inheritance, be governed by the Mahomedan law. It is nobodys case that any such declaration was ever made to get the benefit of the Act. The Act, therefore, would have no operation upon the respondents. Then came the Cutchi Memons Act, 1938 (X of 1938), which was passed, inter alia, to facilitate administration of justice by the civil courts under a uniform established code for all Cutchi Memons in various parts of the country instead of "a wide field of custom and usage" which "has to be traversed for a proper determination of the case". The Act came into force as from November 1, 1938. Section 2 provided that all Cutchi Memons, subject, however, to the provisions of section 3, shall in matters of succession and inheritance be governed by the Mahomedan law. Section 3, subject to which the foregoing section applied, is a saving provision and provides that nothing in the Act "shall affect any right or liability acquired or incurred before its commencement or any legal proceeding or remedy in respect of any such right or liability; and any such legal proceeding or remedy may be continued or enforced as if this Act had not been passed". In between the two Acts was enacted the Muslim Personal Law (Shariat) Application Act (XXVI of 1937). We do not have to consider the effect of this Act in view of Mr. Desai having in express terms stated that he was not relying upon itThe Cutchi Memons Act (X of 1938) was not extended at first to the Civil Station area in Bangalore where the deceased and the members of his family had settled down and carried on business. Until 1947, that area was administered by the Viceroy in his capacity as the Crown representative. A number of Acts passed by the Central, Legislature were extended by him to this area with or without modifications but not the Cutchi Memons Act, 1938. In 1948, after the said area was retroceded to Mysore, the Mysore Legislature passed the Retroceded Areas (Application of Laws) Act, 1948, extending to the Civil Station area certain laws and enactments in force in the princely State of Mysore. One of them was the Mysore Cutchi Memons Act (1 of 1943), which was verbatim the same as the Central Act (X of 1938), and contained only three sections. The first section gave the title of the Act. The second section provided that, subject to section 3, all Cutchi Memons shall in matters of succession and inheritance be governed by the Mahomedan law. Thus, the option of being governed by the Mahomedan law contained in the 1920 Act was replaced by a uniform and mandatory provision. But, the third section, which is a saving provision, inter alia, provided that, nothing in this Act shall affect any right or liability acquired or incurred before its commencement or any legal proceeding or remedy in respect of such right or liability and any such proceeding or remedy may be continued or enforced as if this Act had not been passed." 19. If the parties as aforesaid were governed in matters of property, succession and inheritance by the rules of Hindu law including the rules as to joint family property, its distribution according to the rule of survivorship and the right of a son in it by birth, the High Court would be right in its view that the accountable persons, having been born long before 1948, had already acquired a right by birth in the property held by their father, a right expressly saved by section 3 of the Act. There was, therefore, no question of that interest passing to them on the death of their father as envisaged by section 5 of the Estate Duty Act.
### Response:
0
### Explanation:
its distribution according to the rule of survivorship and the right of a son in it by birth, the High Court would be right in its view that the accountable persons, having been born long before 1948, had already acquired a right by birth in the property held by their father, a right expressly saved by section 3 of the Act. There was, therefore, no question of that interest passing to them on the death of their father as envisaged by section 5 of the Estate Duty Act8. The question as to which personal law, sects among the Muslims, such as the Khojas and the Memons, would be subject to in matters of property, succession and inheritance arose in Bombay as early as 1847. In Hirbai v. Sonabae, commonly called the Khoja and Memos cases, the Supreme Court of Bombay was called upon to determine the claim of two sisters in the estate left by their father, who had died intestate without leaving any male issue. The claim was resisted on the ground that in the Khoja community the custom was that females were excluded from any share in their fathers estate, and were entitled only to maintenance and marriage expenses. A suit raising precisely the same question was also before the court between members of Cutchi Memons sect. Both the suits were tried together and disposed of by Sir Erskine Perry C. J. by a common judgment in which he held the custom put forward before him as proved11. Moosa Haji Joonas Noorani v. Haji Abdul Rahim Haji Hamed is yet another instance where the High Court held that in the absence of a special custom as to succession the Hindu law of inheritance would apply to Cutchi Memons, and, therefore, when a Cutchi Memon widow dies issueless, her property would be governed by the Hindu law as to stridhan. A year later, in Haji Noor Mahomed v. MacLeod the rule of devolution of property by survivorship was applied to parties who were Cutchi Memons in the matter of a family firm, save that somewhat contrary to it, the principle of relationship between the manager and the members of the family was held not to applyThe above analysis shows that, barring one or two stray decisions, the general trend of judicial opinion in Bombay was that both the Khojas and the Cutchi Memons retained, despite their conversion, considerable portion of their personal law and that the rules of Hindu law were accepted by them as customary law in matters of property, inheritance and succession, including rules as to joint family property, the right of a son therein by birth and the devolution thereof by survivorship12. In Jan Mahomed Abdulla Datu v. Datu Jaffer Beaman J., after an elaborate analysis of the previous decisions dealing with both Khojas and Cutchi Memons, struck for the first time a note of dissent and laid down two propositions(1) that the invariable and general presumption was that Mahomedans were governed by the Mahomedan law and usage and that it lay upon a party setting up a custom in derogation of that law to prove it strictly, and(2) that in matters of simple succession and inheritance, it was to be taken as established that these two matters among Khojas and Cutchi Memons were governed by Hindu law "as applied to separate and self-acquired property"In Siddick Hajee Aboo Bucker Sait v. Ebrahim Hajee Aboo Bucker Sait, Kumaraswamy Sastri J., after an analysis of the case law in Bombay, come to the conclusion that since the Khojas and the Cutchi Memons spread themselves from Cutch and Kathiawar, where they had originally settled down and where they had lived in Hindu kingdoms with Hindu surroundings and traditions, there was nothing surprising that they retained the rules of Hindu law in general not only in matters of succession and inheritance but also concepts such as the joint family property and its devolution by survivorship. According to him, at the time of their conversion, the Cutchi Memons were Hindus governed by the Mitakshara system of joint and undivided family together with its rule of survivorship. "I find it difficult", he said, "to assume that the Cutchi Memons on their conversion were go enamoured of the Hindu law of inheritance that they adopted it, but were so dissatified with the laws of the joint family that they discarded the rules as to coparcenary and the sons interest in the property of his grandfather". Since there were no reported decisions on the position of the Cutchi Memons who had settled down in Madras, the learned judge had the High Courts record searched. As a result of that search, he found several suits filed by and against the Cutchi Memons wherein they were consistently treated as members of an undivided family governed by the rules applicable to the members of the Hindu joint families and decrees had been passed in those suits on that footing. Even as regards the parties before him, he found that till the filing of the suit, which he was trying, they had regulated their affairs upon the basis that the Hindu law of the joint family applied. On the premise that the Cutchi Memons in Madras had regulated succession and inheritance according to Hindu law, including its principle of devolution of property by survivorship, he held that the Hindu law of coparcenary and joint family applied to the Cutchi Memons settled in MadrasIn the light of this reasoning it would appear from the view taken in S. Hajee Aboo Bucker Saits case against which no other Madras view was shown to us, and especially as that view was supported also by the records of several other cases in that High Court, that Cutchi Memons, who had settled down in Madras, had regulated their affairs, since they had settled down amidst Hindus, according to Hindu law not only in matters of succession and inheritance, but also in matters of their property including the Hindu concept of coparcenary and survivorship
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Commissioner of Income Tax, Karnataka Vs. Sterling Foods | a means to earn any other profit. Reference was also made to the meaning of word "source", and it was held that the import entitlements that the assessee had earned were awarded by the Central Government under the Scheme to encourage exports. The source referable to the profits and gains arising out of the sale proceeds of the import entitlement was, therefore, the Scheme of the Central Government and not the industrial undertaking of the assessee. 6. The question arose, as aforestated, again for the Assessment Year 1979-80 and the Division Bench of the High Court, then, basing itself on the amendment to Section 28 referred to above, decided otherwise. The relevant portion of the judgment and order under appeal reads thus :- "We have already extracted what was decided by this court. It cannot be said that decision is incorrect. What has happened is that decision as a binding precedent is of little value in the light of amendments made to section 28 retrospectively. If it is not binding on us, then at the time we are called upon to answer a question for the subsequent assessment year, we must look at the law as it was at the relevant time that is relevant for the assessment year 1979-80. Both the amendments have been effected from 1962-63 and therefore, in 1979-80, the income received from the Government of India by sale of import licences and incentives of export was income within the meaning of Section 28 assessable to tax as income from profits and gains of business or profession. It is in light that we have to answer the question." 7. It appears to us that the later Division Bench did not fully appreciate what had been held by the earlier Division Bench and to what had been so held the provision of Section 28 as amended made no difference. Therefore, in our view, the judgment under appeal would have to be set aside in as much as it did not follow an earlier binding judgment of the High Court itself.8. But learned counsel for the assessee submitted that he was entitled to urge, since the matter related to a different assessment year, that the earlier Division Bench judgment of the High Court was erroneous. Since we are of the view that the earlier judgment was not erroneous, it is not necessary to decide whether the assessee could so urge.9. In learned counsels submission, the profits and gains were derived from the assessees industrial undertaking and were, therefore, entitled to the deduction prescribed by Section 80HH. Learned counsel cited the judgment of the Madras High Court in Commissioner of Income-Tax, Madras-I v. Wheel and Rin Company of India Ltd., 107 ITR 168 which, no doubt, is squarely on the point and holds in favour of the assessee. to quote what would be fully explanatory, "In the first place as we pointed out already, the receipt by way of subsidy and the receipt by way of the profits due to the sale of import entitlement are directly referable to the export of the cycle rims made by the assessee and consequently they can be said to be profits and gains derived from the export of cycle rims even on the basis of any theory of proximity." 10. Our attention was also invited to the judgment of this Court in National Organic Chemical Industries Ltd. v. Collector of Central Excise, Bombay, 106 STC 467 . The relevant portion of the judgment is contained in paragraphs 10, 11 and 12 and they read thus : "10. The dictionaries state that the word "derive" is usually followed by the word "from", and it means : get to trace from a source; arise from, originate in; show the original or formation of.11. The use of the words "derived from" in item 11-AA(2) suggests that the original source of the product has to be found. Thus, as a matter of plain English, when it is said that one word is derived from another, often in another language. What is meant is that the source of that word is another word, often in another language. As an illustration, the word "democracy" is derived from the Greek word "Demos", the people and most dictionaries will so state. That is the ordinary meaning of the words "derived from" and there is no reason to depart from that ordinary meaning here.12. Crude petroleum is refined to produce raw naphtha. Raw naphtha is further refined, or cracked to produce the said products. This is not controverted. It seems to us to make no difference that the appellants buy the raw naphtha from others. The question is to be judged regardless of this, and the question is whether the intervention of the raw naphtha would justify the finding that the said produces are not "derived from refining of crude petroleum". The refining of crude petroleum produces various products at different stages. Raw naphtha is one such stage. The further refining, or cracking, of raw naphtha results in the said products. The source of the said products is crude petroleum. The said products must therefore, be held to have been derived from crude petroleum." 11. We do not think that the source of the import entitlement can be said to be the industrial undertaking of the assessee. The source of the import entitlements can, in the circumstances, only be said to be the Export Promotion Scheme of the Central Government whereunder the export entitlements become available. There must be, for the application of the words "derived from", a direct nexus between the profits and gains and the industrial undertaking. In the instant case the nexus is not direct but only incidental. The industrial undertaking exports processed sea food. By reason of such export, the Export Promotion Scheme applies. Thereunder, the assessee is entitled to import entitlements, which it can sell. The sale consideration therefrom cannot, in our view, be held to constitute a profit and gain derived from the assessees industrial undertaking. | 1[ds]7. It appears to us that the later Division Bench did not fully appreciate what had been held by the earlier Division Bench and to what had been so held the provision of Section 28 as amended made no difference. Therefore, in our view, the judgment under appeal would have to be set aside in as much as it did not follow an earlier binding judgment of the High Court itself.8. But learned counsel for the assessee submitted that he was entitled to urge, since the matter related to a different assessment year, that the earlier Division Bench judgment of the High Court was erroneous. Since we are of the view that the earlier judgment was not erroneous, it is not necessary to decide whether the assessee could so urge.We do not think that the source of the import entitlement can be said to be the industrial undertaking of the assessee. The source of the import entitlements can, in the circumstances, only be said to be the Export Promotion Scheme of the Central Government whereunder the export entitlements become available. There must be, for the application of the words "derived from", a direct nexus between the profits and gains and the industrial undertaking. In the instant case the nexus is not direct but only incidental. The industrial undertaking exports processed sea food. By reason of such export, the Export Promotion Scheme applies. Thereunder, the assessee is entitled to import entitlements, which it can sell. The sale consideration therefrom cannot, in our view, be held to constitute a profit and gain derived from the assessees industrial undertaking. | 1 | 2,031 | 299 | ### 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:
a means to earn any other profit. Reference was also made to the meaning of word "source", and it was held that the import entitlements that the assessee had earned were awarded by the Central Government under the Scheme to encourage exports. The source referable to the profits and gains arising out of the sale proceeds of the import entitlement was, therefore, the Scheme of the Central Government and not the industrial undertaking of the assessee. 6. The question arose, as aforestated, again for the Assessment Year 1979-80 and the Division Bench of the High Court, then, basing itself on the amendment to Section 28 referred to above, decided otherwise. The relevant portion of the judgment and order under appeal reads thus :- "We have already extracted what was decided by this court. It cannot be said that decision is incorrect. What has happened is that decision as a binding precedent is of little value in the light of amendments made to section 28 retrospectively. If it is not binding on us, then at the time we are called upon to answer a question for the subsequent assessment year, we must look at the law as it was at the relevant time that is relevant for the assessment year 1979-80. Both the amendments have been effected from 1962-63 and therefore, in 1979-80, the income received from the Government of India by sale of import licences and incentives of export was income within the meaning of Section 28 assessable to tax as income from profits and gains of business or profession. It is in light that we have to answer the question." 7. It appears to us that the later Division Bench did not fully appreciate what had been held by the earlier Division Bench and to what had been so held the provision of Section 28 as amended made no difference. Therefore, in our view, the judgment under appeal would have to be set aside in as much as it did not follow an earlier binding judgment of the High Court itself.8. But learned counsel for the assessee submitted that he was entitled to urge, since the matter related to a different assessment year, that the earlier Division Bench judgment of the High Court was erroneous. Since we are of the view that the earlier judgment was not erroneous, it is not necessary to decide whether the assessee could so urge.9. In learned counsels submission, the profits and gains were derived from the assessees industrial undertaking and were, therefore, entitled to the deduction prescribed by Section 80HH. Learned counsel cited the judgment of the Madras High Court in Commissioner of Income-Tax, Madras-I v. Wheel and Rin Company of India Ltd., 107 ITR 168 which, no doubt, is squarely on the point and holds in favour of the assessee. to quote what would be fully explanatory, "In the first place as we pointed out already, the receipt by way of subsidy and the receipt by way of the profits due to the sale of import entitlement are directly referable to the export of the cycle rims made by the assessee and consequently they can be said to be profits and gains derived from the export of cycle rims even on the basis of any theory of proximity." 10. Our attention was also invited to the judgment of this Court in National Organic Chemical Industries Ltd. v. Collector of Central Excise, Bombay, 106 STC 467 . The relevant portion of the judgment is contained in paragraphs 10, 11 and 12 and they read thus : "10. The dictionaries state that the word "derive" is usually followed by the word "from", and it means : get to trace from a source; arise from, originate in; show the original or formation of.11. The use of the words "derived from" in item 11-AA(2) suggests that the original source of the product has to be found. Thus, as a matter of plain English, when it is said that one word is derived from another, often in another language. What is meant is that the source of that word is another word, often in another language. As an illustration, the word "democracy" is derived from the Greek word "Demos", the people and most dictionaries will so state. That is the ordinary meaning of the words "derived from" and there is no reason to depart from that ordinary meaning here.12. Crude petroleum is refined to produce raw naphtha. Raw naphtha is further refined, or cracked to produce the said products. This is not controverted. It seems to us to make no difference that the appellants buy the raw naphtha from others. The question is to be judged regardless of this, and the question is whether the intervention of the raw naphtha would justify the finding that the said produces are not "derived from refining of crude petroleum". The refining of crude petroleum produces various products at different stages. Raw naphtha is one such stage. The further refining, or cracking, of raw naphtha results in the said products. The source of the said products is crude petroleum. The said products must therefore, be held to have been derived from crude petroleum." 11. We do not think that the source of the import entitlement can be said to be the industrial undertaking of the assessee. The source of the import entitlements can, in the circumstances, only be said to be the Export Promotion Scheme of the Central Government whereunder the export entitlements become available. There must be, for the application of the words "derived from", a direct nexus between the profits and gains and the industrial undertaking. In the instant case the nexus is not direct but only incidental. The industrial undertaking exports processed sea food. By reason of such export, the Export Promotion Scheme applies. Thereunder, the assessee is entitled to import entitlements, which it can sell. The sale consideration therefrom cannot, in our view, be held to constitute a profit and gain derived from the assessees industrial undertaking.
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7. It appears to us that the later Division Bench did not fully appreciate what had been held by the earlier Division Bench and to what had been so held the provision of Section 28 as amended made no difference. Therefore, in our view, the judgment under appeal would have to be set aside in as much as it did not follow an earlier binding judgment of the High Court itself.8. But learned counsel for the assessee submitted that he was entitled to urge, since the matter related to a different assessment year, that the earlier Division Bench judgment of the High Court was erroneous. Since we are of the view that the earlier judgment was not erroneous, it is not necessary to decide whether the assessee could so urge.We do not think that the source of the import entitlement can be said to be the industrial undertaking of the assessee. The source of the import entitlements can, in the circumstances, only be said to be the Export Promotion Scheme of the Central Government whereunder the export entitlements become available. There must be, for the application of the words "derived from", a direct nexus between the profits and gains and the industrial undertaking. In the instant case the nexus is not direct but only incidental. The industrial undertaking exports processed sea food. By reason of such export, the Export Promotion Scheme applies. Thereunder, the assessee is entitled to import entitlements, which it can sell. The sale consideration therefrom cannot, in our view, be held to constitute a profit and gain derived from the assessees industrial undertaking.
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M/S. Waterfall Estates Ltd.Madras Vs. The Commissioner Of Income-Tax, Tamil Nadu I, Madras | Officer to work out the details. Thereupon the assessee applied for and obtained the reference under Section 256(1)3. The issue arising from Questions 1 and 2 in short depends upon the answer to the question - whether the various activities being carried on by the appellant-assessee constitute one single integrated activity or do they represent distinct businesses. The question of this nature, it is evident, is essentially a question of fact. The statement of the case drawn up by the Tribunal summarises its findings in the following manner"(a) the various estates and the coffee curing works exist at different places and insofar as the assessee was concerned they were acquired at different times. They are independent and closure of one would not affect the continuance of another;(b) each estate has its own subsidiary accounts and is managed locally although overall the head office controls all the estates and maintains a single profit and loss account;(c) there are separate staff for the various estates and even for tea and coffee estates in Waterfall Estate separately;(d) the various estates are far-flung and not in one place; the characters of the business ventures in the various estates are different;(e) apart from the existence of a centralised management and head office where a single set of final accounts is maintained there is no evidence relating to interlacing, interconnection and interdependence of the various estates in the day-to-day affairs or of their functioning being dovetailed into one another." * 4. It is on the basis of the above findings that the Tribunal held that the several activities carried on by the appellant-assessee constitute separate and distinct activities. On reference, the High Court has agreed with the Tribunal and answered the said questions in favour of the Revenue and against the assessee. We are of the opinion that on the findings recorded by the Tribunal, the High Court was justified in rejecting the assessees contention5. Shri Ramachandran, the learned counsel for the appellant, however, contended that some of the tests applied by the Tribunal are erroneous, which has vitiated its finding. In particular, the learned counsel submitted that the circumstance that closure of one unit would not affect the activities of the other units is not at all a relevant consideration. Similarly, the fact that the several units were acquired at different points of time is said to be equally irrelevant. He strongly relied upon certain decisions including the decision of this Court in CIT v. Maharashtra Sugar Mills Ltd. in support of his contention 6. So far as Maharashtra Sugar Mills is concerned the factual findings therein are entirely distinct and different. In that case it was found by the Tribunal "that the cultivation of the sugarcane as well as the manufacture of the sugar constitute one business" - and that finding was not challenged by the Revenue before this Court. It was contended all the same that the assessees business consisted of two distinct parts. It was this contention which was rejected. The said decision is therefore clearly distinguishable in the light of the facts found in the present case. Mr Ramachandran then relied upon the decisions in CIT v. Prithvi Insurance Co. Ltd. Produce Exchange Corpn. Ltd. v. CIT, Standard Refinery and Distillery Ltd. v. CIT and B.R. Ltd. v. V.P. Gupta, CIT. All the decisions were rendered with reference to Section 24(2) of the Indian Income Tax Act, 1922. The question in all these cases was whether the business continued by the assessee in the relevant assessment years is the very same business wherein loss was originally sustained within the meaning of Section 24(2). The question considered in these decision is not the same as herein concerned. The object of enquiry in both the cases is not identical. We do not think it necessary to deal with the facts of each of the decisions for the aforesaid reason and also because the said question is essentially a question of fact. No single test can be devised as universal and conclusive. The question has to be decided on a consideration of all the relevant facts and circumstances. Some facts may tend one way and some others the other way. An overall view has to be taken and a conclusion arrived at. Even if it is found that one or two circumstances among the several circumstances relied upon are not relevant, the finding of fact recorded by the Tribunal cannot be interfered with if there are other relevant circumstances which sustain the finding, as held by this Court in Sree Meenakshi Mills Ltd. v. CIT(1957) 1 MLJ (SC) 1). In the present case, there are a number of other factors - apart from what are pointed out as irrelevant (assuming for the sake of argument that they are irrelevant) - to support the finding of the Tribunal7. Mr Ramachandran also relied upon the decision in CIT v. Indian Bank Ltd. The appellant therein was a banking company, which invested, in the course of its business, a large sum in securities including securities the interest from which was exempt from tax. While computing the business income of the assessee, profit and losses on the purchase and sale of all such securities were duly taken into account. The contention of the Revenue was that where a part of the profits of a business is not taxable, the expenditure incurred for earning those profits cannot be allowed as deduction. It was accordingly submitted that interest on monies borrowed from various depositors should be proportionately disallowed keeping in view the amounts invested in non-taxable securities. This argument was rejected with reference to and on the basis of Section 10(2)(xv) of the 1922 Act (corresponding to Section 37 of the present Act). We are unable to see how this decision helps the assessee on the question at issue8. Once we answer Questions 1 and 2 against the assessee, it is agreed, the third question does not really present any differently. It too has to be answered against the assessee | 0[ds]In the present case, there are a number of other factorsapart from what are pointed out as irrelevant (assuming for the sake of argument that they are irrelevant)to support the finding of the Tribunal7. Mr Ramachandran also relied upon the decision in CIT v. Indian Bank Ltd. The appellant therein was a banking company, which invested, in the course of its business, a large sum in securities including securities the interest from which was exempt from tax. While computing the business income of the assessee, profit and losses on the purchase and sale of all such securities were duly taken into account. The contention of the Revenue was that where a part of the profits of a business is not taxable, the expenditure incurred for earning those profits cannot be allowed as deduction. It was accordingly submitted that interest on monies borrowed from various depositors should be proportionately disallowed keeping in view the amounts invested insecurities. This argument was rejected with reference to and on the basis of Section 10(2)(xv) of the 1922 Act (corresponding to Section 37 of the present Act). We are unable to see how this decision helps the assessee on the question at issue8. Once we answer Questions 1 and 2 against the assessee, it is agreed, the third question does not really present any differently. It too has to be answered against the assessee | 0 | 1,877 | 262 | ### Instruction:
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Officer to work out the details. Thereupon the assessee applied for and obtained the reference under Section 256(1)3. The issue arising from Questions 1 and 2 in short depends upon the answer to the question - whether the various activities being carried on by the appellant-assessee constitute one single integrated activity or do they represent distinct businesses. The question of this nature, it is evident, is essentially a question of fact. The statement of the case drawn up by the Tribunal summarises its findings in the following manner"(a) the various estates and the coffee curing works exist at different places and insofar as the assessee was concerned they were acquired at different times. They are independent and closure of one would not affect the continuance of another;(b) each estate has its own subsidiary accounts and is managed locally although overall the head office controls all the estates and maintains a single profit and loss account;(c) there are separate staff for the various estates and even for tea and coffee estates in Waterfall Estate separately;(d) the various estates are far-flung and not in one place; the characters of the business ventures in the various estates are different;(e) apart from the existence of a centralised management and head office where a single set of final accounts is maintained there is no evidence relating to interlacing, interconnection and interdependence of the various estates in the day-to-day affairs or of their functioning being dovetailed into one another." * 4. It is on the basis of the above findings that the Tribunal held that the several activities carried on by the appellant-assessee constitute separate and distinct activities. On reference, the High Court has agreed with the Tribunal and answered the said questions in favour of the Revenue and against the assessee. We are of the opinion that on the findings recorded by the Tribunal, the High Court was justified in rejecting the assessees contention5. Shri Ramachandran, the learned counsel for the appellant, however, contended that some of the tests applied by the Tribunal are erroneous, which has vitiated its finding. In particular, the learned counsel submitted that the circumstance that closure of one unit would not affect the activities of the other units is not at all a relevant consideration. Similarly, the fact that the several units were acquired at different points of time is said to be equally irrelevant. He strongly relied upon certain decisions including the decision of this Court in CIT v. Maharashtra Sugar Mills Ltd. in support of his contention 6. So far as Maharashtra Sugar Mills is concerned the factual findings therein are entirely distinct and different. In that case it was found by the Tribunal "that the cultivation of the sugarcane as well as the manufacture of the sugar constitute one business" - and that finding was not challenged by the Revenue before this Court. It was contended all the same that the assessees business consisted of two distinct parts. It was this contention which was rejected. The said decision is therefore clearly distinguishable in the light of the facts found in the present case. Mr Ramachandran then relied upon the decisions in CIT v. Prithvi Insurance Co. Ltd. Produce Exchange Corpn. Ltd. v. CIT, Standard Refinery and Distillery Ltd. v. CIT and B.R. Ltd. v. V.P. Gupta, CIT. All the decisions were rendered with reference to Section 24(2) of the Indian Income Tax Act, 1922. The question in all these cases was whether the business continued by the assessee in the relevant assessment years is the very same business wherein loss was originally sustained within the meaning of Section 24(2). The question considered in these decision is not the same as herein concerned. The object of enquiry in both the cases is not identical. We do not think it necessary to deal with the facts of each of the decisions for the aforesaid reason and also because the said question is essentially a question of fact. No single test can be devised as universal and conclusive. The question has to be decided on a consideration of all the relevant facts and circumstances. Some facts may tend one way and some others the other way. An overall view has to be taken and a conclusion arrived at. Even if it is found that one or two circumstances among the several circumstances relied upon are not relevant, the finding of fact recorded by the Tribunal cannot be interfered with if there are other relevant circumstances which sustain the finding, as held by this Court in Sree Meenakshi Mills Ltd. v. CIT(1957) 1 MLJ (SC) 1). In the present case, there are a number of other factors - apart from what are pointed out as irrelevant (assuming for the sake of argument that they are irrelevant) - to support the finding of the Tribunal7. Mr Ramachandran also relied upon the decision in CIT v. Indian Bank Ltd. The appellant therein was a banking company, which invested, in the course of its business, a large sum in securities including securities the interest from which was exempt from tax. While computing the business income of the assessee, profit and losses on the purchase and sale of all such securities were duly taken into account. The contention of the Revenue was that where a part of the profits of a business is not taxable, the expenditure incurred for earning those profits cannot be allowed as deduction. It was accordingly submitted that interest on monies borrowed from various depositors should be proportionately disallowed keeping in view the amounts invested in non-taxable securities. This argument was rejected with reference to and on the basis of Section 10(2)(xv) of the 1922 Act (corresponding to Section 37 of the present Act). We are unable to see how this decision helps the assessee on the question at issue8. Once we answer Questions 1 and 2 against the assessee, it is agreed, the third question does not really present any differently. It too has to be answered against the assessee
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0
### Explanation:
In the present case, there are a number of other factorsapart from what are pointed out as irrelevant (assuming for the sake of argument that they are irrelevant)to support the finding of the Tribunal7. Mr Ramachandran also relied upon the decision in CIT v. Indian Bank Ltd. The appellant therein was a banking company, which invested, in the course of its business, a large sum in securities including securities the interest from which was exempt from tax. While computing the business income of the assessee, profit and losses on the purchase and sale of all such securities were duly taken into account. The contention of the Revenue was that where a part of the profits of a business is not taxable, the expenditure incurred for earning those profits cannot be allowed as deduction. It was accordingly submitted that interest on monies borrowed from various depositors should be proportionately disallowed keeping in view the amounts invested insecurities. This argument was rejected with reference to and on the basis of Section 10(2)(xv) of the 1922 Act (corresponding to Section 37 of the present Act). We are unable to see how this decision helps the assessee on the question at issue8. Once we answer Questions 1 and 2 against the assessee, it is agreed, the third question does not really present any differently. It too has to be answered against the assessee
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M/S TRIPOWER ENTERPRISES (PRIVATE) LIMITED Vs. STATE BANK OF INDIA & ORS | legal obligation to handover the title deeds or original documents being Exhibits A110 to A114 to the appellant for completion of the formalities of sale. 15. Thus understood, the High Court should have been loath in entertaining the writ petition filed by the guarantor, raising the same plea ad nauseam. The reason weighed with the High Court, in our opinion, is flimsy and untenable. That cannot be countenanced at the instance of the guarantor. The inevitable effect of entertaining the stated plea of guarantor will entail encouraging vexatious plea and procrastination of the concluded auction sale by delaying handing over of title documents to the highest bidder, in whose favour sale certificate has already been issued. It is a different matter that the direction for handing over of original documents would ostensibly appear to be in reference to an interim application in the pending O.A., but that course is inevitable in the fact situation of the present case. 16. The next question is: whether despite the decree of a Court of competent jurisdiction in favour of respondent No. 11 (A.R. Sridharan) concerning land bearing Paimash No. 722/4 admeasuring 1.80 acres, can the documents pertaining to that land be still made over to the appellant/auction purchaser, merely because sale certificate has been issued by the Bank in that regard? The sale certificate, as issued by the Bank, does make reference to land bearing survey No. 282, which inter alia, consists of old Paimash No. 722/4. Therefore, to the extent of land referred to in the decree dated 16.2.1990 passed by the Court of District Munsiff, Chengalpattu in O.S. No. 186/1976 in favour of the respondent No. 11 (A.R. Sridharan), despite the issuance of sale certificate, the title document in respect of old Paimash No. 722/4 ought not to be released until the final decision in O.A. No. 11/2008. We say so because the decree passed by the Court of competent jurisdiction, which had attained finality with the dismissal of the special leave petition by this Court on 11.5.1992 cannot be disregarded. The fact that other proceedings, including about the title in respect of land admeasuring 1.80 acres bearing Paimash No. 722/4 are pending between the parties, cannot be the basis to overlook the claim of the respondent No. 11 (A.R. Sridharan) until a Court of competent jurisdiction declares that the respondent No. 11 (A.R. Sridharan) had no subsisting right, title or interest in that property. 17. Reverting to the argument canvassed before us by the learned counsel for the contesting respondents that the appeal by the appellant ought not to be entertained, in our opinion, the same deserves to be rejected. We say so because the appellant is the auction purchaser and sale certificate has also been issued in its favour by the Bank. As a consequence thereof, the appellant is entitled to receive the title documents in respect of the properties referred to in the sale certificate. The fact that the Bank did not challenge the impugned decision of the High Court, cannot undermine the direct interest of the appellant in getting the relief which was claimed by the Bank to fulfil its obligation of handing over the original documents to the auction purchaser. Admittedly, the appellant is party to the O.A., as well as, in the application filed by the Bank for return of documents. The Bank has supported the stand taken by the appellant. We find no infirmity in the appellant having approached this Court instead of the Bank, the applicant before the DRT. Even the appellant could have itself approached the DRT for this very relief. Taking any view of the matter, the objection under consideration is of no avail to the contesting respondents. 18. It was faintly urged by the contesting respondents that the Bank had filed the application in question for return of original documents, on 11.11.2016, even before the auction sale in which the appellant turned out to be the highest bidder was conducted on 28.2.2017, or the sale certificate issued on 29.4.2017. This argument, in our opinion, is an argument of desperation. The same overlooks the factual matrix and the background in which the subject application was moved by the Bank on 11.11.2016. By that time, the Bank had already commenced the auction sale process. It is a different matter that the auction process had to be repeated as no fair offer was forthcoming. In other words, the subject application was filed by the Bank in anticipation that the auction would be concluded and by the time the application was decided, the sale certificate in favour of the highest bidder would have been issued. There is nothing wrong in Bank moving such application before the conclusion of the auction process and issuance of a sale certificate, in anticipation. No provision has been brought to our notice, which prohibits such a course to be adopted by the Bank. Accordingly, even this objection of the respondents is rejected. 19. Both sides have invited our attention to the decisions of this Court on the proposition whether the DRT is competent to answer the question regarding validity of the subject mortgage and also res judicata. We do not wish to dilate on the said decisions as the factum of validity of mortgage need not detain us, in the facts of the present case. Similarly, the issue of res judicata will be of no avail in light of the unambiguous stand taken by and on behalf of the guarantor, acknowledging the mortgage in question and also offering to pay all the outstanding dues of the Bank. Further, the O.A. is still pending before the DRT, in which both the parties would be free to urge all contentions, as may be permissible in law. The DRT may consider those contentions appropriately. In the present appeal, we must confine our consideration as to whether the DRT ought to have allowed the application filed by the Bank for return of original documents in view of peculiar indisputable facts of this case. | 1[ds]10. Considering the fact that the guarantor had filed writ petition before the High Court assailing the order passed by the DRAT, dated 29.3.2019, allowing the application filed by the Bank for return of original documents, we must first address the argument of the appellant (auction purchaser) that the guarantor cannot be allowed to approbate and reprobate and moreso, in view of the unambiguous affidavit admitting the mortgage and offer given by its Director to pay the outstanding dues of the Bank in the earlier proceedings including the findings recorded by the DRT/DRAT against it in relation to the plea of validity of the mortgage in question11. For that, we may first refer to the decision of the DRT, in earliest point of time, on the petition moved by the guarantor being S.A. No. 225/2008 challenging the possession notice dated 15.10.2008 issued by the Bank under Section 13(4) of the 2002 ActThe guarantor (the applicant therein) had not disputed the correctness of the aforementioned finding of fact recorded by the DRT. Mr. M. Shanmugham (respondent No. 7s deceased father), Mr. S. Balasubramaniam (respondent No. 4), Mr. S. Kumarappan (respondent No. 5) and Mr. S. Thiagarajan (respondent No. 8) were the Directors of the guarantor company. One of them – Mr. S. Thiagarajan (respondent No. 8) had even filed affidavit before the DRT on 27.1.2011 stating that the guarantor company was willing to pay the sum of Rs.350.12 lakhs within the time frame fixed by the DRT to be minimum six months. These facts clearly belie the claim of the guarantor. The guarantor cannot be permitted to resile from the admission of its liability. Similarly, the guarantor had filed a detailed counter affidavit in Writ Petition No. 710/1997, admitting the mortgage of the property with the Bank, but had alleged fraud and fabrication of documents by the respondent No. 11 (A.R. Sridharan). That, however, cannot come to the aid of the guarantor who had otherwise admitted its liability and the mortgage in question, in particular12. As aforesaid, the finding/opinion recorded by the DRT vide order dated 10.2.2011 has attained finality with the dismissal of the appeal (filed by the guarantor) before the DRAT on 8.2.2013 albeit on the ground of failure to comply with the pre-deposit condition. The guarantor cannot be allowed to approbate and reprobate from the commitment made in successive proceedings before the DRT and the High Court, as referred hitherto13. Notably, even in the subsequent proceedings before the DRT-III at Chennai, bearing S.I.A. SR No. 581/2015 in S.A. No. 356/2014 filed by the guarantor, for grant of injunction to restrain the Bank from bringing the scheduled property to sale till the disposal of S.A. No. 356/2014, the guarantor raised the same issue about the validity of the subject mortgageEven this decision has become final and must operate against the guarantor. The guarantor filed yet another application being I.A. No. 23/2018 in O.A. No. 11/2008 for impleadment of the appellant herein as the twelfth (12 th ) defendant in O.A. No. 11/2008, raising the same plea of validity of mortgage in question. That has been noted and negatived in paragraph 8 of the order of the DRT at Madurai, dated 15.2.2019 in the following words: -8. The petitioner company filed SA No. 225/2008 challenging the possession notice dated 15.10.08 issued by the R-bank. One of the contentions raised by the petitioner company is that there is no valid creation of mortgage over the properties, which are the subject matter of OA B Schedule. This Tribunal passed order in above SA on 10.02.11 by holding that there are no violations of provisions of the SARFAESI Act 2002 in respect of issuance of the possession notice. A finding has been given in the above said order that valid security interest has been created over the above said properties. Admittedly, it cannot be disputed that the appeal preferred by the petitioner company against the above order of this Tribunal before the Honble DRAT, Chennai was dismissed for non compliance of the conditional order passed by the Honble DRAT, to satisfy the 2 nd proviso u/s 18 of the SARFAESI Act 2002. Therefore, the order of this Tribunal passed in SA No. 225/2008 still holds goodThe guarantor continued to raise the same plea in the application being M.A. No. 92/2017 in SASR No. 4969/2017 filed before the DRT-III at Chennai, challenging the auction sale notice dated 9.2.2017, sale held on 28.2.2017 and consequential sale certificate issued to the appellant herein on 29.4.2017. That application was, however, rejected vide order dated 6.5.2019 on the ground of proceedings being barred by limitation14. Suffice it to observe that the guarantor has successively raised the issue regarding the validity of subject mortgage in different proceedings unsuccessfully. As aforestated, the concerned forum/Court unambiguously rejected the same. More importantly, the guarantor through its Director(s) having offered to pay the entire outstanding dues and also admitting on affidavit the factum of existence of subject mortgage in favour of the Bank, the question of showing any indulgence to the guarantor (by the High Court) did not arise. The guarantor cannot be allowed to raise the same plea repeatedly on every occasion/in every proceeding. Notably, the auction sale stands concluded and followed by issuance of sale certificate in favour of the appellant. Resultantly, the Bank is under legal obligation to handover the title deeds or original documents being Exhibits A110 to A114 to the appellant for completion of the formalities of sale15. Thus understood, the High Court should have been loath in entertaining the writ petition filed by the guarantor, raising the same plea ad nauseam. The reason weighed with the High Court, in our opinion, is flimsy and untenable. That cannot be countenanced at the instance of the guarantor. The inevitable effect of entertaining the stated plea of guarantor will entail encouraging vexatious plea and procrastination of the concluded auction sale by delaying handing over of title documents to the highest bidder, in whose favour sale certificate has already been issued. It is a different matter that the direction for handing over of original documents would ostensibly appear to be in reference to an interim application in the pending O.A., but that course is inevitable in the fact situation of the present caseThe sale certificate, as issued by the Bank, does make reference to land bearing survey No. 282, which inter alia, consists of old Paimash No. 722/4. Therefore, to the extent of land referred to in the decree dated 16.2.1990 passed by the Court of District Munsiff, Chengalpattu in O.S. No. 186/1976 in favour of the respondent No. 11 (A.R. Sridharan), despite the issuance of sale certificate, the title document in respect of old Paimash No. 722/4 ought not to be released until the final decision in O.A. No. 11/2008. We say so because the decree passed by the Court of competent jurisdiction, which had attained finality with the dismissal of the special leave petition by this Court on 11.5.1992 cannot be disregarded. The fact that other proceedings, including about the title in respect of land admeasuring 1.80 acres bearing Paimash No. 722/4 are pending between the parties, cannot be the basis to overlook the claim of the respondent No. 11 (A.R. Sridharan) until a Court of competent jurisdiction declares that the respondent No. 11 (A.R. Sridharan) had no subsisting right, title or interest in that property17. Reverting to the argument canvassed before us by the learned counsel for the contesting respondents that the appeal by the appellant ought not to be entertained, in our opinion, the same deserves to be rejected. We say so because the appellant is the auction purchaser and sale certificate has also been issued in its favour by the Bank. As a consequence thereof, the appellant is entitled to receive the title documents in respect of the properties referred to in the sale certificate. The fact that the Bank did not challenge the impugned decision of the High Court, cannot undermine the direct interest of the appellant in getting the relief which was claimed by the Bank to fulfil its obligation of handing over the original documents to the auction purchaser. Admittedly, the appellant is party to the O.A., as well as, in the application filed by the Bank for return of documents. The Bank has supported the stand taken by the appellant. We find no infirmity in the appellant having approached this Court instead of the Bank, the applicant before the DRT. Even the appellant could have itself approached the DRT for this very relief. Taking any view of the matter, the objection under consideration is of no avail to the contesting respondentsThis argument, in our opinion, is an argument of desperation. The same overlooks the factual matrix and the background in which the subject application was moved by the Bank on 11.11.2016. By that time, the Bank had already commenced the auction sale process. It is a different matter that the auction process had to be repeated as no fair offer was forthcoming. In other words, the subject application was filed by the Bank in anticipation that the auction would be concluded and by the time the application was decided, the sale certificate in favour of the highest bidder would have been issued. There is nothing wrong in Bank moving such application before the conclusion of the auction process and issuance of a sale certificate, in anticipation. No provision has been brought to our notice, which prohibits such a course to be adopted by the Bank. Accordingly, even this objection of the respondents is rejected19. Both sides have invited our attention to the decisions of this Court on the proposition whether the DRT is competent to answer the question regarding validity of the subject mortgage and also res judicata. We do not wish to dilate on the said decisions as the factum of validity of mortgage need not detain us, in the facts of the present case. Similarly, the issue of res judicata will be of no avail in light of the unambiguous stand taken by and on behalf of the guarantor, acknowledging the mortgage in question and also offering to pay all the outstanding dues of the Bank. Further, the O.A. is still pending before the DRT, in which both the parties would be free to urge all contentions, as may be permissible in law. The DRT may consider those contentions appropriately. In the present appeal, we must confine our consideration as to whether the DRT ought to have allowed the application filed by the Bank for return of original documents in view of peculiar indisputable facts of this case. | 1 | 8,489 | 1,991 | ### Instruction:
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legal obligation to handover the title deeds or original documents being Exhibits A110 to A114 to the appellant for completion of the formalities of sale. 15. Thus understood, the High Court should have been loath in entertaining the writ petition filed by the guarantor, raising the same plea ad nauseam. The reason weighed with the High Court, in our opinion, is flimsy and untenable. That cannot be countenanced at the instance of the guarantor. The inevitable effect of entertaining the stated plea of guarantor will entail encouraging vexatious plea and procrastination of the concluded auction sale by delaying handing over of title documents to the highest bidder, in whose favour sale certificate has already been issued. It is a different matter that the direction for handing over of original documents would ostensibly appear to be in reference to an interim application in the pending O.A., but that course is inevitable in the fact situation of the present case. 16. The next question is: whether despite the decree of a Court of competent jurisdiction in favour of respondent No. 11 (A.R. Sridharan) concerning land bearing Paimash No. 722/4 admeasuring 1.80 acres, can the documents pertaining to that land be still made over to the appellant/auction purchaser, merely because sale certificate has been issued by the Bank in that regard? The sale certificate, as issued by the Bank, does make reference to land bearing survey No. 282, which inter alia, consists of old Paimash No. 722/4. Therefore, to the extent of land referred to in the decree dated 16.2.1990 passed by the Court of District Munsiff, Chengalpattu in O.S. No. 186/1976 in favour of the respondent No. 11 (A.R. Sridharan), despite the issuance of sale certificate, the title document in respect of old Paimash No. 722/4 ought not to be released until the final decision in O.A. No. 11/2008. We say so because the decree passed by the Court of competent jurisdiction, which had attained finality with the dismissal of the special leave petition by this Court on 11.5.1992 cannot be disregarded. The fact that other proceedings, including about the title in respect of land admeasuring 1.80 acres bearing Paimash No. 722/4 are pending between the parties, cannot be the basis to overlook the claim of the respondent No. 11 (A.R. Sridharan) until a Court of competent jurisdiction declares that the respondent No. 11 (A.R. Sridharan) had no subsisting right, title or interest in that property. 17. Reverting to the argument canvassed before us by the learned counsel for the contesting respondents that the appeal by the appellant ought not to be entertained, in our opinion, the same deserves to be rejected. We say so because the appellant is the auction purchaser and sale certificate has also been issued in its favour by the Bank. As a consequence thereof, the appellant is entitled to receive the title documents in respect of the properties referred to in the sale certificate. The fact that the Bank did not challenge the impugned decision of the High Court, cannot undermine the direct interest of the appellant in getting the relief which was claimed by the Bank to fulfil its obligation of handing over the original documents to the auction purchaser. Admittedly, the appellant is party to the O.A., as well as, in the application filed by the Bank for return of documents. The Bank has supported the stand taken by the appellant. We find no infirmity in the appellant having approached this Court instead of the Bank, the applicant before the DRT. Even the appellant could have itself approached the DRT for this very relief. Taking any view of the matter, the objection under consideration is of no avail to the contesting respondents. 18. It was faintly urged by the contesting respondents that the Bank had filed the application in question for return of original documents, on 11.11.2016, even before the auction sale in which the appellant turned out to be the highest bidder was conducted on 28.2.2017, or the sale certificate issued on 29.4.2017. This argument, in our opinion, is an argument of desperation. The same overlooks the factual matrix and the background in which the subject application was moved by the Bank on 11.11.2016. By that time, the Bank had already commenced the auction sale process. It is a different matter that the auction process had to be repeated as no fair offer was forthcoming. In other words, the subject application was filed by the Bank in anticipation that the auction would be concluded and by the time the application was decided, the sale certificate in favour of the highest bidder would have been issued. There is nothing wrong in Bank moving such application before the conclusion of the auction process and issuance of a sale certificate, in anticipation. No provision has been brought to our notice, which prohibits such a course to be adopted by the Bank. Accordingly, even this objection of the respondents is rejected. 19. Both sides have invited our attention to the decisions of this Court on the proposition whether the DRT is competent to answer the question regarding validity of the subject mortgage and also res judicata. We do not wish to dilate on the said decisions as the factum of validity of mortgage need not detain us, in the facts of the present case. Similarly, the issue of res judicata will be of no avail in light of the unambiguous stand taken by and on behalf of the guarantor, acknowledging the mortgage in question and also offering to pay all the outstanding dues of the Bank. Further, the O.A. is still pending before the DRT, in which both the parties would be free to urge all contentions, as may be permissible in law. The DRT may consider those contentions appropriately. In the present appeal, we must confine our consideration as to whether the DRT ought to have allowed the application filed by the Bank for return of original documents in view of peculiar indisputable facts of this case.
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it to observe that the guarantor has successively raised the issue regarding the validity of subject mortgage in different proceedings unsuccessfully. As aforestated, the concerned forum/Court unambiguously rejected the same. More importantly, the guarantor through its Director(s) having offered to pay the entire outstanding dues and also admitting on affidavit the factum of existence of subject mortgage in favour of the Bank, the question of showing any indulgence to the guarantor (by the High Court) did not arise. The guarantor cannot be allowed to raise the same plea repeatedly on every occasion/in every proceeding. Notably, the auction sale stands concluded and followed by issuance of sale certificate in favour of the appellant. Resultantly, the Bank is under legal obligation to handover the title deeds or original documents being Exhibits A110 to A114 to the appellant for completion of the formalities of sale15. Thus understood, the High Court should have been loath in entertaining the writ petition filed by the guarantor, raising the same plea ad nauseam. The reason weighed with the High Court, in our opinion, is flimsy and untenable. That cannot be countenanced at the instance of the guarantor. The inevitable effect of entertaining the stated plea of guarantor will entail encouraging vexatious plea and procrastination of the concluded auction sale by delaying handing over of title documents to the highest bidder, in whose favour sale certificate has already been issued. It is a different matter that the direction for handing over of original documents would ostensibly appear to be in reference to an interim application in the pending O.A., but that course is inevitable in the fact situation of the present caseThe sale certificate, as issued by the Bank, does make reference to land bearing survey No. 282, which inter alia, consists of old Paimash No. 722/4. Therefore, to the extent of land referred to in the decree dated 16.2.1990 passed by the Court of District Munsiff, Chengalpattu in O.S. No. 186/1976 in favour of the respondent No. 11 (A.R. Sridharan), despite the issuance of sale certificate, the title document in respect of old Paimash No. 722/4 ought not to be released until the final decision in O.A. No. 11/2008. We say so because the decree passed by the Court of competent jurisdiction, which had attained finality with the dismissal of the special leave petition by this Court on 11.5.1992 cannot be disregarded. The fact that other proceedings, including about the title in respect of land admeasuring 1.80 acres bearing Paimash No. 722/4 are pending between the parties, cannot be the basis to overlook the claim of the respondent No. 11 (A.R. Sridharan) until a Court of competent jurisdiction declares that the respondent No. 11 (A.R. Sridharan) had no subsisting right, title or interest in that property17. Reverting to the argument canvassed before us by the learned counsel for the contesting respondents that the appeal by the appellant ought not to be entertained, in our opinion, the same deserves to be rejected. We say so because the appellant is the auction purchaser and sale certificate has also been issued in its favour by the Bank. As a consequence thereof, the appellant is entitled to receive the title documents in respect of the properties referred to in the sale certificate. The fact that the Bank did not challenge the impugned decision of the High Court, cannot undermine the direct interest of the appellant in getting the relief which was claimed by the Bank to fulfil its obligation of handing over the original documents to the auction purchaser. Admittedly, the appellant is party to the O.A., as well as, in the application filed by the Bank for return of documents. The Bank has supported the stand taken by the appellant. We find no infirmity in the appellant having approached this Court instead of the Bank, the applicant before the DRT. Even the appellant could have itself approached the DRT for this very relief. Taking any view of the matter, the objection under consideration is of no avail to the contesting respondentsThis argument, in our opinion, is an argument of desperation. The same overlooks the factual matrix and the background in which the subject application was moved by the Bank on 11.11.2016. By that time, the Bank had already commenced the auction sale process. It is a different matter that the auction process had to be repeated as no fair offer was forthcoming. In other words, the subject application was filed by the Bank in anticipation that the auction would be concluded and by the time the application was decided, the sale certificate in favour of the highest bidder would have been issued. There is nothing wrong in Bank moving such application before the conclusion of the auction process and issuance of a sale certificate, in anticipation. No provision has been brought to our notice, which prohibits such a course to be adopted by the Bank. Accordingly, even this objection of the respondents is rejected19. Both sides have invited our attention to the decisions of this Court on the proposition whether the DRT is competent to answer the question regarding validity of the subject mortgage and also res judicata. We do not wish to dilate on the said decisions as the factum of validity of mortgage need not detain us, in the facts of the present case. Similarly, the issue of res judicata will be of no avail in light of the unambiguous stand taken by and on behalf of the guarantor, acknowledging the mortgage in question and also offering to pay all the outstanding dues of the Bank. Further, the O.A. is still pending before the DRT, in which both the parties would be free to urge all contentions, as may be permissible in law. The DRT may consider those contentions appropriately. In the present appeal, we must confine our consideration as to whether the DRT ought to have allowed the application filed by the Bank for return of original documents in view of peculiar indisputable facts of this case.
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State of Mysore Vs. T. Digambar Rao | to 85 per cent (excluding 15 per cent solatium) and directing that the ex gratia payment be deferred in respect of buildings until the colonisation scheme was finalised.6. The Special Deputy Collector, No. 2 Tungabhadra Project (hereinafter referred to as the Land Acquisition Officer) made an award on November 30, 1950 fixing the compensation payable to the respondent at Rs. 50, 811-11-7. The respondent applied for a reference under Section 18 of the Act and the case was referred to the Sub-Judge, Bellary, on the question of compensation. He enhanced the compensation by Rs. 42, 347-13-11. Against that order, the Land Acquisition Officer filed an appeal in the High Court of Mysore. The High Court fixed the compensation payable to the respondent at Rs. 61, 255-10-0. After the decision of the High Court, the respondent made an application to the Government of Mysore for payment of ex gratia amount. The Government, by its letter dated February 9, 1962, rejected the application stating that his claim was untenable. It was to quash this order that the respondent filed the aforesaid writ petition.7. The High Court held that the respondent was entitled to ex gratia payment of 85 per cent on the compensation as fixed by it.8. The appellant, the State of Mysore, contended that the Madras Government undertook no legal liability to make ex gratia payment by the aforesaid orders and, therefore, no liability could devolve upon the successor State and that the quantum of ex gratia payment ordered to be given by the High Court was contrary to the terms of the order passed by the Government of Madras in that behalf.9. As regards the first contention, it was argued for the appellant that the orders, even though passed by the Governor of Madras, were administrative in character and did not create justiciable right in the respondent and that even if the orders could be construed as implying a promise to make the payment, it was not supported by consideration.10. Section 66 of the Andhra State Act, 1953, provides, in substance, that the liability in connection with the Tungabhadra Project incurred by the Government of Madras will pass on to the successor State and therefore, if the orders passed by the Madras Government created a legal liability on the Government of Madras to make the ex gratia payment and a corresponding right in the respondent.11. The appellant did not file any return before the High Court. The argument of the appellant before the High Court was that the liability of the Madras Government did not devolve upon the appellant and not that there was no liability upon the Government of Madras by virtue of these orders. It may be noted that the notification under Section 4(1) of the Act was published in 1941 and there was phenomenal rise in the market value of the lands thereafter. As already stated, it was only in 1949 that the Government published the notification under Section 6 of the Act. If the appellant had filed a return stating that the order to make the ex gratia payment did not create any liability upon the Government, the respondent could have shown how the payment, though termed ex gratia, created legal liability, as the Government of Madras undertook the liability in consideration of the forbearance of the respondent to resort to court for quashing the notification under Section 4(1) of the Act. The respondent submitted that as he was denied the opportunity to show that the Government of Madras promised to make the ex gratia payment in consideration of his forbearing to resort to civil court for quashing the notification under Section 4(1), the appellant should not be permitted to urge the plea at this stage. We think that there is great force in this contention and accept it.12. We feel no doubt that if the Madras Government was liable to make the ex gratia payment, that liability devolved on the appellant under Section 66 of the Andhra State Act, 1953.13. The second contention of the appellant was that the ex gratia payment should be computed only on the basis of the compensation fixed by the Land Acquisition Officer in his award and even if the civil court were to increase the compensation amount, the ex gratia payment should not exceed 85 per cent of the 1941 valuation and that no such amount need be paid at all where the court awards an amount either equal to or in excess of 1941 valuation plus 15 per cent solatium and 85 per cent ex gratia.14. The High Court was of the view that when the court, on reference, enhanced the compensation, the ex gratia, payment has to be made on the basis of the enhanced compensation and not on the basis of the amount of compensation fixed by the Land Acquisition Officer in his award and that no other reading of the order May 12, 1948 is permissible. This, in our opinion, is not correct. That order seems to us to make sense only if we read it as importing liability to make ex gratia payment of 85 per cent of the market value of the land as fixed by the Land Acquisition Officer in his award and that no ex gratia amount need be paid at all where the court awards an amount either equal to or in excess of 1941 valuation plus 15 per cent solatium and 85 per cent ex gratia on the 1941 valuation of the Land Acquisition Officer.15. The market value of the lands in question in 1941 as fixed by the Land Acquisition Officer in his award is Rs. 50, 811-11-7. The ex gratia payment should not exceed 85 per cent of this amount and that comes to Rs. 43, 191. Out of this amount, we have to deduct the compensation awarded in excess (over and above that awarded by the Land Acquisition Officer) by the High Court which is Rs. 10, 443 (i.e. Rs. 61, 255-10-0 minus Rs. 50, 811-11-7). | 0[ds]14. The High Court was of the view that when the court, on reference, enhanced the compensation, the ex gratia, payment has to be made on the basis of the enhanced compensation and not on the basis of the amount of compensation fixed by the Land Acquisition Officer in his award and that no other reading of the order May 12, 1948 is permissible. This, in our opinion, is not correct. That order seems to us to make sense only if we read it as importing liability to make ex gratia payment of 85 per cent of the market value of the land as fixed by the Land Acquisition Officer in his award and that no ex gratia amount need be paid at all where the court awards an amount either equal to or in excess of 1941 valuation plus 15 per cent solatium and 85 per cent ex gratia on the 1941 valuation of the Land Acquisition Officer.15. The market value of the lands in question in 1941 as fixed by the Land Acquisition Officer in his award is Rs. 50,The ex gratia payment should not exceed 85 per cent of this amount and that comes to Rs. 43, 191. Out of this amount, we have to deduct the compensation awarded in excess (over and above that awarded by the Land Acquisition Officer) by the High Court which is Rs. 10, 443 (i.e. Rs. 61,minus Rs. 50, | 0 | 1,633 | 271 | ### Instruction:
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to 85 per cent (excluding 15 per cent solatium) and directing that the ex gratia payment be deferred in respect of buildings until the colonisation scheme was finalised.6. The Special Deputy Collector, No. 2 Tungabhadra Project (hereinafter referred to as the Land Acquisition Officer) made an award on November 30, 1950 fixing the compensation payable to the respondent at Rs. 50, 811-11-7. The respondent applied for a reference under Section 18 of the Act and the case was referred to the Sub-Judge, Bellary, on the question of compensation. He enhanced the compensation by Rs. 42, 347-13-11. Against that order, the Land Acquisition Officer filed an appeal in the High Court of Mysore. The High Court fixed the compensation payable to the respondent at Rs. 61, 255-10-0. After the decision of the High Court, the respondent made an application to the Government of Mysore for payment of ex gratia amount. The Government, by its letter dated February 9, 1962, rejected the application stating that his claim was untenable. It was to quash this order that the respondent filed the aforesaid writ petition.7. The High Court held that the respondent was entitled to ex gratia payment of 85 per cent on the compensation as fixed by it.8. The appellant, the State of Mysore, contended that the Madras Government undertook no legal liability to make ex gratia payment by the aforesaid orders and, therefore, no liability could devolve upon the successor State and that the quantum of ex gratia payment ordered to be given by the High Court was contrary to the terms of the order passed by the Government of Madras in that behalf.9. As regards the first contention, it was argued for the appellant that the orders, even though passed by the Governor of Madras, were administrative in character and did not create justiciable right in the respondent and that even if the orders could be construed as implying a promise to make the payment, it was not supported by consideration.10. Section 66 of the Andhra State Act, 1953, provides, in substance, that the liability in connection with the Tungabhadra Project incurred by the Government of Madras will pass on to the successor State and therefore, if the orders passed by the Madras Government created a legal liability on the Government of Madras to make the ex gratia payment and a corresponding right in the respondent.11. The appellant did not file any return before the High Court. The argument of the appellant before the High Court was that the liability of the Madras Government did not devolve upon the appellant and not that there was no liability upon the Government of Madras by virtue of these orders. It may be noted that the notification under Section 4(1) of the Act was published in 1941 and there was phenomenal rise in the market value of the lands thereafter. As already stated, it was only in 1949 that the Government published the notification under Section 6 of the Act. If the appellant had filed a return stating that the order to make the ex gratia payment did not create any liability upon the Government, the respondent could have shown how the payment, though termed ex gratia, created legal liability, as the Government of Madras undertook the liability in consideration of the forbearance of the respondent to resort to court for quashing the notification under Section 4(1) of the Act. The respondent submitted that as he was denied the opportunity to show that the Government of Madras promised to make the ex gratia payment in consideration of his forbearing to resort to civil court for quashing the notification under Section 4(1), the appellant should not be permitted to urge the plea at this stage. We think that there is great force in this contention and accept it.12. We feel no doubt that if the Madras Government was liable to make the ex gratia payment, that liability devolved on the appellant under Section 66 of the Andhra State Act, 1953.13. The second contention of the appellant was that the ex gratia payment should be computed only on the basis of the compensation fixed by the Land Acquisition Officer in his award and even if the civil court were to increase the compensation amount, the ex gratia payment should not exceed 85 per cent of the 1941 valuation and that no such amount need be paid at all where the court awards an amount either equal to or in excess of 1941 valuation plus 15 per cent solatium and 85 per cent ex gratia.14. The High Court was of the view that when the court, on reference, enhanced the compensation, the ex gratia, payment has to be made on the basis of the enhanced compensation and not on the basis of the amount of compensation fixed by the Land Acquisition Officer in his award and that no other reading of the order May 12, 1948 is permissible. This, in our opinion, is not correct. That order seems to us to make sense only if we read it as importing liability to make ex gratia payment of 85 per cent of the market value of the land as fixed by the Land Acquisition Officer in his award and that no ex gratia amount need be paid at all where the court awards an amount either equal to or in excess of 1941 valuation plus 15 per cent solatium and 85 per cent ex gratia on the 1941 valuation of the Land Acquisition Officer.15. The market value of the lands in question in 1941 as fixed by the Land Acquisition Officer in his award is Rs. 50, 811-11-7. The ex gratia payment should not exceed 85 per cent of this amount and that comes to Rs. 43, 191. Out of this amount, we have to deduct the compensation awarded in excess (over and above that awarded by the Land Acquisition Officer) by the High Court which is Rs. 10, 443 (i.e. Rs. 61, 255-10-0 minus Rs. 50, 811-11-7).
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0
### Explanation:
14. The High Court was of the view that when the court, on reference, enhanced the compensation, the ex gratia, payment has to be made on the basis of the enhanced compensation and not on the basis of the amount of compensation fixed by the Land Acquisition Officer in his award and that no other reading of the order May 12, 1948 is permissible. This, in our opinion, is not correct. That order seems to us to make sense only if we read it as importing liability to make ex gratia payment of 85 per cent of the market value of the land as fixed by the Land Acquisition Officer in his award and that no ex gratia amount need be paid at all where the court awards an amount either equal to or in excess of 1941 valuation plus 15 per cent solatium and 85 per cent ex gratia on the 1941 valuation of the Land Acquisition Officer.15. The market value of the lands in question in 1941 as fixed by the Land Acquisition Officer in his award is Rs. 50,The ex gratia payment should not exceed 85 per cent of this amount and that comes to Rs. 43, 191. Out of this amount, we have to deduct the compensation awarded in excess (over and above that awarded by the Land Acquisition Officer) by the High Court which is Rs. 10, 443 (i.e. Rs. 61,minus Rs. 50,
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State of Rajasthan and Others Etc Vs. Union of India and others | does not appertain to legal rights of the States concerned to satisfy the requirement of Article 131 of the Constitution. These suits are, therefore, not maintainable in law and on this ground they are liable to be dismissed. 79. With regard to the Writ Petitions I had the opportunity to go through the judgments of my brothers Bhagwati and Gupta and I entirely agree with their reasoning and conclusion. I am clearly of opinion that there is no violation of the fundamental rights guaranteed to the petitioners under Articles 19(1)(f) and 31 of the Constitution as a consequence of the threatened dissolution of the Legislative Assembly. the Writ Petitions are, therefore, not maintainable and are liable for rejection. 80. Since, however, the question of mala fides of the proposed action of the Home Minister was argued at length with a pointed focus on the ensuing Presidential, election, I should touch on the point. 81. It is submitted that these grounds, ex facie, are completely irrelevant and extraneous and even mala fide. Mr. Niren De referred to the decision of the Privy Council in King Emperor v. Benoari Lal Sarma and Others(72 I.A. 57, 64.) and read to us the following passage:It is to be observed that the section (72 of Government of India Act, 1935) does not require the Governor-General to state that there is an emergency, or what the emergency is either in the text of the ordinance o r at all, and assuming that he acts bona fide and in accordance with his statutory powers, it cannot rest with the courts to challenge his review that the emergency exists. 82. Relying on the above passage, Mr. De submits that this Court is entitled to examine whether the direction is mala fide or not. 83. The Additional Solicitor General has drawn our attention to Bhagat Singh and Others v. The King-Emperor(58 I.A. 169, 172.) which is a decision of the Privy Council followed in Benoari Lai Sarmas case (supra) He read to us the following passage A state of emergency is something that does not permit of any exact definition. If connotes a state of matters calling for drastic action, which is to be judged as such by some one. It is more than obvious that some one must be the Governor-General, and he alone. Any other view would render utterly inept the whole provision. Emergency demands immediate action, and that action is prescribed to be taken by the Governor- General. It is he alone who can promulgate the Ordnance. 84. The President in our Constitution is a constitution al head and is bound to act on the aid and advice of the Council of Ministers (Article 74). This was the position even before the amendment of Article 74(1) of the Constitution by the 42nd Amendment (See Shamsher Singh &Anr. v. State of Pun jab ([1975] 1 S.C.R. 814.). The position has been made absolutely explicit by the amendment of Article 74(1) by the Constitution 42nd Amendment which says there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advise. What was judicially interpreted even under the unamended Article 74(1) has now been given parliamentary recognition by the Constitution Amendment. There can, therefore, be no doubt that the decision under Article 356 of the Constitution which is made by the President is a decision of the Council of Ministers. Because certain reasons ate given in the letter of the Home Minister, it cannot be said that those will, be the only grounds which will weigh with the Council of Ministers when they finally take a decision when the advise has been rejected by the Chief Ministers. There are so many imponderables that may intervene between the time of the letter and the actual advice of the Council of Ministers to the President. There may be further developments or apprehension of developments which the Government may have to take not of and finally when the Council of Ministers decides and advises the President to issue a proclamation under Article 356, the Court will be barred from enquiring into the advice that was tendered by the Cabinet to the President (Article 74(2). Then again under Article 356(5), the satisfaction of the President in issuing the proclamation under Article 356(1) shall be final and conclusive and shall not be questioned in any court on, any ground. In the view I have taken, I am not required to consider in the matters be fore us whether Article 356(5) of the Constitution is ultra vires the Constitution or not. Even the Additional Solicitor General based his arguments on the very terms of Article 356(1) de hors Article 356(5) relying upon Bhagat Singhs case (supra) that the subjective satisfaction of the President is not justiciable. It is inview of this stand of the Union that Mr. De drew our attention to Benoari Lai Sarmas case (supra ) where the Privy Council seems to have indicated that the question of mala fides could be gone in to by the court. Mr. De submits that a mala fide order under Article 356 will be no order in the eye of law. 85. I am not prepared to say that this Court, which is the last recourse for the oppressed and the bewildered, will, for good, refuse to consider when there may be sufficient materials to establish that a proclamation under Article 356(1) is tainted with mala fides. I would, however, hasten to add that the grounds given in the Home Ministers letter cannot be any strength of imagination be held to be mala fide or extraneous or irrelevant. These ground will have reasonable nexus with the subject of a proclamation under Articl e 356(1) of the Constitution. The matter would have been entirely different if there were no proposal, pari passu, for an appeal to the electorate by holding elections to these Assemblies. 86. | 0[ds]first ground of objection on behalf of the Union is confined to the suits. But, the remaining three grounds of objection are common to the suits as well as the Writ PetitionsHence it cannot be said that a mere attempt to get more political power for a party, as a means of pursuing the programme of that party, as, opposed to that of other parties, is constitutionally prohibited or per se illegal. There may be moral or even political objections to, such courses in certain circumstances. It may be urged that States should be permitted to function undisturbed by any directions or advise by the Union Government despite their differences with it on matters of socioeconomic or political policy on complexion. Rights were asserted, on behalf of State legislators, as though they were legal rights to continue. as legislators untill the expiry of the; constitutionally fixed spans of lives of their legislatures, barring cases of earlier dissolution. We are only concerned here with legal rights to dissolve and legal obstacles to such dissolutionWe, cannot anticipate decisions or interdict possible actions in situations which may or may not arise due to all kinds of factors-economic, social, moral and political.If the Union Government thinks that the circumstances of the situation demand that the, State Governments must seek a fresh mandate to justify their moral rights in the eyes of the people to continue to exercise power in the interests of their electors, or else the discontent of the masses may have its repercussion not only on the law and order situation but will also affect legal responsibilities or duties which the Union Government has towards a particular State o r towards Indian citizens in general, all of whom live in some State or other, can we say that resort to Article 356 of the Constitution is not called for ? I think that it is impossible to substitute our judgment for that of the Union Government on such a matterIt is futile to urge that article 172(1) of the Constitution, as amended, lays down an unalterable duration of six years for a legislative assembly from its first meeting because this article clearly contains the exception unless sooner dissolved. As observed above, it is no where laid down either in the Constitution or any law dealing with holding of elections to a legislative assembly what circumstances will justify its dissolution sooner than the duration it would otherwise enjoy.It was argued that the only authority empowered to dissolve a legislative assembly under Artic le 174 (2) (b) of the Constitution was the Governor of a State who had to act on the advice of the Council of Ministers in the State. It was submitted that the Union Government could not either advise, or in the form of advice, direct the State Government to ask the Governor to dissolve the State Assembly under any circumstances. Apparently, the principle of construction relied upon was a much used and easily misused principle; expressio unius est exclusio alterius. We do not think that such a principle could help the plaintiffs before us at all in as much as article 356 of the Constitution very clearly provides for the assumption by the President to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor. Article 174(2) (b) of the Constitution expressly vests the power of dissolving the legislative assembly in the Governor even if that had to be on the advice of the Council of Ministers in the State, but the power to give such advice would automatically, be taken over by the Union Government for the purposes of dissolution of the State Assembly when the President assumes governmental powers by a proclamation under Article 356(1) of the Constitution. A dissolution by the President after the proclamation would be as good as a dissolution by the Governor of a State whose powers; are taken overThe question was then mooted whether that was being done under article 356 of the Constitution did not amount to taking over by the President, acting on the advice of the Union Council of Ministers, of powers for dissolving the State Assemblies upon facts and circumstances which, in the judgment of the Union Council of Ministers, constituted sufficient grounds for a dissolution of the State Assembly, whereas the Constitution provides that this had to be done by the State Government on the advice of the Council of Ministers in a State. Such an argument is really an argument in a circle. It assumes that the taking over by the President, advised by the Union Council of Ministers, of th e functions of the Governor, advised by the State Council of Ministers, on this matter, was outside the purview of Article 356(1). A situation in which, according to the view of the Union Government, the State Council of Ministers had wrongly failed to advise the State Governor to dissolve the State Legislative Assembly, so that action under Article 3 5 6 ( 1 ) has to be taken, would be exceptional in which articles governing the exercise of functions normally are suspended an d do not operate at all. If article 356(1) of the Constitution or any other article contained any provision which amounted to a prohibition against assumption of powers of dissolution of State Assemblies by the President of India, it woul d be a different matter, but that, as we have repeatedly pointed out, is not the position here. Indeed, such a provision, had it been there, would have completely nullified article 356(1). Obviously, a proclamation under Article 356(1) to be effective must suspend the operation of article 174. It is evident that one of the reasons, perhaps the main reason for bringing about this exceptional situation in the cases now before us, is the refusal of the State Chief Ministers to comply with t he advice sent to them which they equate with a direction given in exercise of the executive powers of the Union GovernmentHaving considered the cases set out in the plaints and the petition before us, from every conceivable angle, I am unable to find a cause of action for the grant of any injunction or a writ or order in the nature of a Mandamus against any of the Defendants Opposite partiesIt seems to me impossible to hold that the suits filed by the six States do not raise a dispute involving a question depending upon the existence or extent of a legal right. The plaintiffs, by their suits, directly and specifically question the constitutional right and authority of the Union Government to issue a directive to the State Governments commending that the Chief Ministers should tender a certain advice to their Governors. The plaintiffs also question the constitutional right of the Union Government to dissolve the State Assemblies on the grounds mentioned in the Home Ministers letter to the Chief Ministers. Thus a legal, not a political, issue arising out of the existence and extent of a legal right squarely arises and the suits cannot be thrown out as falling outside the purview of art. 131.The error of the preliminary objection lies i n the assumption that it is necessary for attracting art. 131 that the plaintiff must assert a legal right in itself. That article contains no such restriction and it is sufficient in order that its provisions may apply that the plaintiff questions the legal or constitutional right asserted by the defendant, be it the Government of India or any other State. Such a challenge brings the suit within the terms of art. 131 for, the question for the decision of the Court is not whether this o r that particular legislative Assembly is entitled to continue in office but whether the Government of India, which asserts the constitutional right to dissolve the Assembly on the grounds alleged, possesses any such rightI find it difficult t o accept that the State as a polity is not entitled to raise a dispute of this nature. In a federation, whether classical or quasi-classical, the States are vitally interested in the definition of the powers of the Federal Government on one hand and their own on the other. A dispute bearing upon the delineation of those powers is precisely the one in which the federating States, no less than the Federal Government itself, are interested. The States, therefore, have the locus and the interest to contest and seek an adjudication of the claim set up by the Union Government. The bond of constitutional obligation between the Government of India and the States sustains that locusTurning now to the question whether the present suits seek to enforce any legal right of theit. is necessary to have a look at a few provisions of the Constitution. Save for the purpose of Part III State is not defined in the Constitution, but by reason of Article 367, clause (1), it must be given the same meaning which it has under the General Clauses Act, 1897. Section 3, clause (56) of the General Clauses Act, 1897 defines State, inter alia, to mean a St ate specified in the first Schedule to the Constitution. The States of Rajasthan, Madhya Pradesh, Punjab, Bihar, Himachal Pradesh and Orissa are States specified in the First Schedule and hence they are States within the meaning of t he Constitution. Article 1, clause (1) declares that India, that is Bharat, shall be a Union of States and a State is consequently a constituent part of the Union of India. Part VI of the Constitution contains provisions regarding the States. Article 153 says that there shall be a Governor for each State and under Article 154 the executive power of the State is vested in the Governor and has to be, exercised by him either directly or through officers subordinate to him in accordance with the Constitution. Article 163 provides for a Council of Ministers with a Chief Minister at the head to aid and advise the Governor in the exercise of his functions except in respect of. a limited area where he is by or under the Constitution required to exercise his functions or any of them in his discretion. There is no express provision in the Constitution requiring the Governor to act in accordance with the advice of the Council of Ministers as there is in the newly amended Article 74, clause (1) in regard to the President, but it is now well settled as a result of the decision of this Court in Shamsher Singh. v. State of Punjab([1975] S.C.R. 814.) that except in the narrow minimal area covered by Articles 163 (2), 371A (1) (b) and (d), 371A(2) (b) and (f) and sixth Schedule, Para 9(2), the Governor also is bound to act according to the advice of the Council of Ministers. This is broadly the scheme of the provisions in regard to the exercise of the executive power of the States. The legislative power of the State is exercisable by the Legislature under Article 168 and according to that Article, the Legislature of the State is to consist of the Governor and the Legislative Assembly, together with the Legislative Council in some of the States. Article 172 provides that every Legislative Assembly of a State, unless sooner dissolved, shall continue for six years from the date appointed for its first meeting. Originally the term was five years, but it was extended to six years by the FortySecond Constitution Amendment Act. Article 213 deals with a situation where the Legislature is not in session and provides that in such a case the Governor may legislate by promulgating ordinances when he is satisfied that circumstances exist which render it necessary for him to take immediate action. It will thus be seen that under the provisions of the Constitution the executive power of th e State is exercisable by the Governor aided and advised by a Council of Ministers and the Legislative power, by the Legislature of the State and in an emergent situation when the Legislature is not in session, by the Governor.Now, in order to determine whose legal right would be violated by the threatened action under Article 356, clause (1), we must proceed on the assumption that such action, when taken, would be constitutionally invalid, because if it were valid, there would be no cause for complaint. The question is: who would have cause of action if unconstitutional action were taken under Article 356, clause (1) ? If the executive power of the State vested in the Governor were taken away by the President or the legislative power of the State were exercisable not by the Legislature of the State or the Governor, but by or under the authority of Parliament or the Legislature of the State wered all these being actions which can be taken under Article 356, clauseo would be aggrieved ? Can the State say that its legal right is infringed ? We believe it can. Is it not the right of the State under the Constitution that its executive power shall be exercisable by the Governor except when any functions of the State Government or any powers of the Governor are assumed by the President by valid exercise of power under Article 356, clause (1) ? Is it not competent to the State to insist that it shall continue to have its legislature for making its laws, until its term expires or it is validly dissolved? Is it not a constitutional right of the State that its laws shall be made by its legislature, unless the President declares, in exercise of the power under Article 356, clause (1), that the powers of the legislature of the State shall be exercisable by or under the authority of Parliament ? These rights of the State under the Constitution. would certainly be affected by invalid exercise of power under Article 356, clause (1)This contention is not well founded and cannot be sustained.It is true that there is a distinction between State and State Government and this distinction is also evident from the language of Article 131 and, therefore, what has to be seen for the purpose of determining the applicability of that Article is whether any legal right of the State, as distinct from the State Government, is infringed. Now, undoubtedly, a State has no legal right to insist that it shall have a particular Council of Ministers or particular persons as members of the Legislative Assembly. But a State has certainly a right under the Constitution to say that its executive and legislative powers shall be exercisable in the manner provided in the Constitution. If a legal right of a State can be said to have been infringed when its Legislative Assembly is abolished, it is difficult to see how any other conclusion can follow when the Legislative Assembly is not abolished but suspended or dissolved. In the former case, the State is unconstitutionally deprived of its legislative organ and its legislative power is given over to another authority: in the letter, the constitutionally appointed organ remains but it is made ineffectual for a period during which t he legislative power is unconstitutionally vested in another authority. We fail to see any difference in the two situations so far as the State is concerned. The position is the same whether the constitutionally appointed organ for exercise of legislative power is amputated or paralysed. If one affects the legal right of the State, equally the other does. It may be that if a Legislative Assembly is suspended or dissolved and the legislative power of the State become, , , exercisable by or under the authority of Parliament by reason of Presidential action under Article 356, clause (1), the individual rights (A the members of the Legislative Assembly may be affected, but that does not mean that the legal right of the State would also not thereby be infringed. Unconstitutional exercise of power by the President under Article 356, clause (1) may injuriously affect rights of several persons. It may infringe not only the individual rights of the members of the Legislative Assembly, but also the constitutional right of the State to insist that the federal basis of the political structure set up by the constitution shall not be violated by an unconstitutional assault under Article 356, clause (1), we are, therefore, of the view, that the present suits seek to enforce a legal right of the States arising under the Constitution and the suits cannot be thrown out in limine as being outside the scope and ambit of Article 131. We must proceed, to consider the suits one important and serious question which arises for consideration on merits is as to what is the scope and ambit of the power under Article 356, clause (1). Can the President in exercise of this power dissolve a State Legislature, and if so, are there any limitations on this power, To answer this question, it is necessary to examine the scheme and language of different clauses of Article 3, 56 and the object and purpose for which it has been enacted. Article 3 56 occurs in Part XVIII which contains a fasciculus of articles from Article 352 to 360 dealing with emergency provisions. One of us (Bhagwati, J.) has occasion to point out in Additional District Magistrate, Jabalpur v. S. S. Shukla([1976] Supp. S.C.R. 172.) that there are three types of emergency which may cause crisis in the life of a nation. The first is where the security of the country is threatened by war or external aggression: the second arises on account of threat or presence of internal disturbance calculated to disrupt the life of the country and jeopardize the existence of constitutional Government and the third is occasioned when there is break down or potential break down of the economy threatening the financial stability or credit of the country. The first two types of emergency are dealt with in Article 352, while the third type is dealt with in Article 360. Article 352, clause (1) provides that if the President is satisfied that a grave emergency exists whereby the security of India or of any part of its territory is threatened, whether by war or external aggression or internal disturbance, be may, by proclamation, make a declaration to that effect and clause (2) of that Article requires that such Proclamation shall be laid before each House of Parliament and it shall cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament . The constitutional implications of a declaration of emergency under Article 352, clause (1) are vast and they are provided in Articles 250, 353, 354, 358 and 359. The emergency being an exceptional situation, arising out of a, national crisis, certain wide and sweepinghave been conferred on the Central Government and Parliament with a view to combat the situation and restore normal conditions. One such power is that given by Article 250 which provides that while a Proclamation o f Emergency is in operation, Parliament shall have the power to make laws for the whole or any part of the territory of India with respect to any of the matters enumerated in the State List. The effect of this provision is that the federal structure based on separation of powers is put out of action for the time being. Another power of a similar kind is that conferred by Article 353 which says that during the time that Proclamation of Emergency is in force. the executive power of the Union shall extend to the giving of direction to any State as to the manner in which the executive power thereof is to be exercised. This provision also derogates from the federal principle which forms the basis of the Constitution. This departure from the constitutional principle of federalism is permitted by the Constitution because of the extraordinary situation arising out of threat to the continued existence of constitutional democratic Government. Then we come to Article, 355 which enjoins a duty on the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provision s of the Constitution. Article 356 contains provisions for dealing with another kind of emergent situation arising from failure of constitutional machinery in the StatesIt is an emergency power and it has necessarily to be vested in the Central Government because quick and immediate action may be necessary to avert or combat constitutional break down in the State and moreover a constitutional obligation is laid on the Union to ensure, that the, Government of every State is carried on in accordance with the provisions of the Constitution. Any delay in taking action may in conceiveable cases frustrate the very object and purpose of conferment of this power on the President. Promptness may be the essence of effectiveness in such cases and public interest may suffer on account of tardiness in action. Hence the power conferred on the President under Article 356, clause (1) is not limited by the condition that it cannot be exercised when either or boths of Parliament are in session. Then again, clause (3) of Article 356 provides that a proclamation issued under clause (1) shall cease to operate at the expiration of two months, unless be fore the expiration of that period it has been approved by resolutions of both Houses of Parliament. This means that it shall continue to operate for a period of two months, unless sooner revoked. It is only for the purpose of its extension beyond two months that the approval of both Houses of Parliament is required by clause (3) of Article 356. If no such approval is forthcoming the proclamation cannot continue after the expiration of two months, but until then it certainly continue s and has full force and effect. It may be noted that clause (3) of Article 356 does not say that the proclamation shall be operative only on approval by both Houses of Parliament, nor does it provide that it shall cease to operate even before the expiry of two months, if disapproved by either House of Parliament, it is interesting to compare the language of Clause (3) of Article 356 with that of Article, 123. clause (2) in this connection, Article 123, clause (1) confers power on t he President to promulgate an ordinance during recess of Parliament when be is satisfied that circumstances exist which render it necessary for him to take immediate action and clause (2) of that Article provides that such ordinance shall cease to operate at the expiration of six weeks from the reassembly of Parliament, or if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions. The ordinance would continue to operate until the expiration of six weeks from the reassembly of Parliament unless before that date is disapproved by both Houses of Parliament. But when we come to clause (3) of Article 356, we find that a different scheme in regard to the life of a proclamation issued under clause (1) is adopted in that clause. Clause (3) of Article 356 does not confer power, on the two Houses of Parliament to put an end to the proclamation by disapproval before the expiration of the Period of two months and it is only if the life of the proclamation is to he extended beyond the period of two months that is required to be approved by both Houses of Parliament, it is, therefore, clear that disapproval by the either House of the Parliament before the expiration of two months has no constitutional relevance to the life of the Proclamation and the proclamation would continue in force for a period of two months , despite such disapproval.It would be clear from this discussion that when a proclamation is validly issued by the President under Article 356, clause (1), it has immediate force and effect, the moment it is issued and where, by the proclamation, the President has assumed to himself the powers of the Governor under sub-clause (a), he is entitled to exercise those powers as fully and effectually as the Governor, during the period of two months when the Proclamation is in operation. There is no limitation imposed by any Article of the Constitution that these powers , of the Governor can be exercised by the President only when they have no irreversible consequence and where they have such consequence, they cannot be exercised until the proclamation is approved by both Houses of Parliament. Whilst the proclamation is in force during the period of two months, the, President can exercise all the powers of the Governor assumed by him and the Court cannot read any limitation which would have the effect of cutting down the width and amplitude of such powers by confining their exercise only to those cases where no irretrievable consequence would ensure which would be beyond repair. When any power of the Governor is assumed by the President under the Proclamation, the President can, during the two months when the proclamation is in force, do, whatever the Governor could in exercise of such power, and it would be immaterial whether the consequence o f exercise of such power is final and irrevocable or not. To hold otherwise would be, to refuse to give full effect to the proclamation which as pointed out above, continues to operate with full force and vigour during the period of two months. It would be rewriting Article 356 and making approval of both Houses of Parliament a condition precedent to the coming into force of the proclamation so far as the particular power is concerned. Now one of the powers of the Governor which can be assumed by the President under the proclamation is the power to dissolve the Legislative Assembly , of the State under Art. 174(2) (b) and, therefore, the President also can dissolve the Legislative Assembly during the time that the proclamation is in force. It is difficult to see bow the exercise of this power by the President can be made conditional on the approval of the proclamation by the two Houses of Parliament. If the proclamation has full force and effect during the period of two months even without approval by the two Houses of Parliament, the President certainly can exercise the power of the Governor to dissolve the Legislative Assembly of the State without waiting for the approval of the proclamation by both Houses of Parliament. It is true that once the Legislative Assembly is dissolved by the President in exercise of the power assumed by him under the proclamation, it would be impossible to restore the status quo ante if the proclamation is not approved by both Houses of Parliament, but that is the inevitable consequence flowing from the exercise, of the power which the President undoubtedly Possesses during the time that the Proclamation is in force. This is clearly a necessary power because there may conceivably be cases where the exercise of the power of dissolution of the Legislative Assembly may become imperative in order to remedy the situation arising on account of break down of the constitutional machinery in the State and failure to exercise this power promptly may frustrate the basic object and purpose of a proclamation.......... under Article 356, clause (1). It is, therefore, not possible to accede to the argument of the petitioners, in the writ petitions that during the period of two months before approval of the proclamation by the two Houses of Parliament, no irreversible action, such as dissolution of the Legislative assembly of the State, can be taken by the President. The power to dissolve the Legislative Assembly of the State cannot also be denied to the President on the ground that the proclamation may not be approved by one or the other House of Parliament. In the first place, the existence of a constitutional power or the validity of its exercise cannot be determined by reference to a possible contingency. The Court cannot enter the realm of conjecture and surmise and speculate as to what would be the position at the expiration of two months whether the proclamation will be approved by both Houses of Parliament or not. Secondly, it is entirely immaterial whether or not the proclamation is approved by both Houses of Parliament, because even if it is not so approved, it would continue to be in full force, and effect for a period of two months, unless sooner revoked. It is also difficult to appreciate how Article 357, clause (1), sub clause (c) can possibly assist the argument of the petitioners. Thate provides that when the House of the People is not in session, the President can authorise expenditure out of the Consolidated Fund of the State pending receipt of sanction of such expenditure by the Parliament and consequently, it is possible that if Parliament does not sanction such expenditure, serious difficulty might arise. But that is merely a theoretical possibility which in practical reality of politics would hardly arise and it need not deflect us from placing on the language of Article 356 the only correct interpretation which its language bears. When the President issues a proclamation on the advice of the Central Government, it stands t o reason that the House of the People in which the Central Government enjoys majority would sanction expenditure out of the Consolidated Fund of the State. We are, therefore, of the view that even during the period of two months, without the approval of the proclamation by, both Houses of Parliament, the President can dissolve the Legislative Assembly of the State in exercise of the power of the Governor under Article 174(2) (b) assumed by him under the proclamation. This is t he correct constitutional interpretation of clause (1) and (3) of Article 356 guided by the language of these clauses and the context and setting in which they occur. It might appear at first blush that this constitutional interpretation would completely eliminate the Parliamentary central over the issue of proclamation and exercise of powers under it and the Central Government would be free to take over the administration of the State and paralyse or even dissolve the Legislative Assembly, even if it should appear that one or the other House of Parliament might not approve it. But this apprehension need not cause any undue anxiety, for it is based primarily on the possibility of abuse of the Power conferred under Article 356, clause (1). It must be remembered that merely because power may sometime be abused, it is no ground for denying the existence of the power. The wisdom of man has not yet been able to conceive of a government with power sufficient to answer all its legitimate needs and at the same time incapable of mischief. In the last analysis, a great deal must depend on the wisdom and honesty, integrity and character of those who are in charge of administration and the existence of enlighten ed and alert public opinion. Moreover, it is apparent that a piquant situation of considerable complexity and extra-ordinary consequences may arise if either House of Parliament disapproves of the proclamation and, therefore, political and pragmatic wisdom of the highest order and circumspection of utmost anxiety would necessarily inform the Central Government before exercising the weighty power conferred by Article 356, clause (1). Further more, it must be remembered that the principle of cabinet responsibility to Parliament lies at the core of our democratic structure of Government and the Central Government is accountable for all its actions to Parliament which consists of elected representatives of the people and if any action is taken by the Central Government which is improper or unjustified by moral, ethical or political norms, Parliament would certainly be there to bring them to book. The Political control exercised by Parliament would always be a salutary check against improper exercise of power or its misuse or abuse by the executive. And lastly the powers conferred on the President, that is, the Central Government, being a limited power, its exercise would, within the narrow minimal area, which we shall indicate later, be subject to judicial review ability. These are the safeguards which must alley the apprehension that the Central Government may act want only or capriciously in issuing a proclamation under Article 356, clause (1) by passing and ignoring the two Houses oft takes us to the next question whether any injunction can be granted against the Union of India restraining it from issuing a proclamation and dissolving the Legislative Assemblies of the States under Art. 356, cl. (1), for that is the primary relief claimed by the States in the suits. This question has been argued on a demurrer as if the averments made in the plaints were. We shall presently consider this question, but before that, we may dispose of a short point in regard to what has been described as a directive by Shri Charan Singh Home Minister to the Central Government, to the Chief Ministers of th e States concerned in the, suits (hereinafter referred to as the Plaintiff States). Each of the plaintiff states has sought a declaration that the directive of Shri Charan Singh is Unconstitutional, illegal and ultra vires the Constitution an d an injunction restraining the Union of India from giving effect to this directive. We fail to see how such declaration or injunction can be granted by the Court. The directive of Shri Charan Singh is nothing but an advice or suggestion to the Chief Minister of each plaintiff State to recommend to the Governor dissolution of the Legislative Assembly of the concerned State. It has been wrongly described as a directive. It has no constitutional authority behind it. It is always open to the Home Minister of the Central Government to give advice or suggestion to the Chief Minister of a State and the Chief Minister may accept or reject such advice or suggestion according as he thinks fit. The advice o r suggestion has no binding effect on the Chief Minister and no legal consequence flow from it. Hence it is not possible to say that the directive issued by Shri Charan Singh was unconstitutional, illegal or ultra vires. There is a lso no, question of giving effect to the directive and no injunction can, therefore, be granted restraining its implementation. The directive, if not accepted and carried but would certainly be a precursor to action under Art. 356, cl. (1) and, therefore, may be regarded as indicative of a threat, but standingby itself, it does not give rise to any cause of action in the State for declaration or injunction. Turning to the relief sought against the threatened exercise of power under Art. 356, cl. (1) we find that what is prayed for in this relief is permanent injunction restraining the defendant from taking recourse under Art. 356 of the Constitution of India to dissolve the Legislative Assembly of the State and from taking any steps from holding fresh elections to the State Assembly before March, 1978. It is indeed difficult to appreciate, how such a wide and sweeping injunction can be granted by this Court restraining the Union of India from exercising altogether its powers under Art. 356, cl. (1). How can the Union of India be prevented by this Court from discharging its constitutional obligations to the State. We have already pointed out that there is a constitutional duty enjoined on the Union of India to ensure that the Government of every State is carried on in accordance with the provisions of the Constitution and there is equally a constitutional obligation on the President that is, the Central Government, to, take action under Art. 356, Cl. (1), if he finds that a situation has arisen where the Government of the State cannot be carried on in accordance with the provisions of the Constitution. Can this Court issue a blanket order against the Union of India that whatever be the situation which may develop in the State and howsoever necessary it may become to exercise the power under Art. 356 cl. (1), the Union of India shall not take recourse, to that power to dissolve the Legislative Assembly of the State and hold fresh elections, to the State Legislative Assembly before March, 1978. That would clearly obstruct its discharge of the constitutional obligations by the Central Government and no such injunction can be issued by this Court.Realising this difficulty in their way, the plaintiff-States sought to limit the relief of injunction by confining it only to the ground set out in the directive of Shri Charan Singh and in the statement made by Shri Shanti Bhushan, Law Minister, at a talk on the All India Radio given by him. That ground, according to the plaintiff-States, was that since the Congress which was the ruling party in these States suffered a mass ive defeat at the General Elections to the Lok Sabha held in March 1977, the Legislative Assemblies of these States no longer reflected the wishes or views of the electorate and hence a fresh appeal to the political sovereign had become necessary and obligatory and the Legislative Assemblies of these States should, therefore, be dissolved with a view to obtaining a fresh mandate from the electorate. It was contended on behalf of the PlaintiffStates that this was the only ground on which Central Government proposed to take action under Art. 356, cl. (1) and since this ground was wholly extraneous and irrelevant to the basic condition for taking action under Art. 356, cl. (1), the Central Government was constitutionally not entitled to take. action under this clause and if any such action were taken by the Central Government, it would be outside the limits of its constitutionalThe learned Additional Solicitor Gene ral combated this contention by giving ad answer. First, he contended that it was not correct to say that the points of view expressed by Shri Charan Singh and Shri Shanti Bhushan constituted the only material or ground for the possible action under Art. 356, cl. (1). He urged that the points of view of these two ministers could not be equated with the advice which the Council of Ministers might give to the President under Art. 74, cl. (1) in regard to the dissolution of the Legislative Assemblies of the Plaintiff-States. The exercise of power under Art. 356, cl. (1), it was said, depends on a wide range, of situations depending upon varied and diverse considerations and it is not possible to say what grounds might ultimately weigh with the Council of Ministers in giving their advice to the President under Art. 74, cl. (1). Secondly he urged that in any event the ground that the, Legislative Assemblies of the Plaintiff-States had ceased to reflect the will of the electorate and, therefore, in order to ascertain the will of the people, and give effect to it, it was appropriate that the Legislative Assemblies should be dissolved and election should be held, was a ground which had reasonable nexus with the basic condition for invoking the exercise of power under Art. 356, cl. (1) and it was a legitimate and relevant ground which could be taken into account in arriving at the satisfaction that the Government of the State cannot be carried on in accordance with the provisions of thewere the rival contentions of the parties which we must now proceed to consider.But before we do so, we must at the threshold refer to one other argument of the learned Additional Solicitor General which sought to exclude the jurisdiction of the Court in relation to a question of this kind. He contended that the question whether in. a particular State a situation has arisen where the Government of the State cannot be carried on in accordance with the provisions of the Constitution and, therefore. action should be taken under Art. 356, cl. (1) is essentially a political question entrusted by the Constitution to the Union executive and on that account it is not justiciable before the Court. He urged that having regard to the political nature of the problem, it is not amenable to judicial determination and hence the Court must abstain from inquiring into, it. We do not think we can accept this argument. Of course, it is true that if a question brought before the Court is purely a political question not involving determination of any legal or constitutional right or obligation, the Court would not entertain it, since the Court is concerned only with adjudication of legal rights and liabilities. But merely because a question has a political complexion, that by itself is no ground why the Court should shrink from performing its duty under the Constitution if it raises an issue of constitutional determination. Every constitutional question concerns the allocation and exercise of governmental power and no constitutional question can, therefore, fail to be political. A constitution is a matter of purest politics, a structure of power and as pointed out by Charles Black in Perspectives in Constitutional law constitutional law symbolizes an intersection of law and politics, wherein issues of political power are acted on by persons trained in the legal tradition, working in judicial institutions, following the procedures of law, thinking as lawyers think. It was pointed out by Mr. Justice Brennan in the Opinion of the Court delivered by him in Baker v. Carr, (369 U.S. 186.) an apoch making decision in American constitutional history, that the mere fact that the suit seeks protection, of a political right does not mean that it presents a political question. This was put in more emphatic terms in Nixon v. Herndon(273 U.S. 536.) by saying that such an objection is little more than a play upon words. The, decision in Baker v. Carr, (Supra) was indeed a striking advance in the field of constitutional law in the United States. Even before Baker v. Carr., the courts in t he United States were dealing with a host of questions political in ordinary comprehension. Even the desegregation decision of the Supreme Court in Brown v. Board of Education(347 U.S. 483.) had a clearly political complexion. The Supreme Court also entertained questions in regard to the political right of voting and felt no hesitation about relieving against racial discrimination in voting and in Gomillion v. Lightfoot(364 U.S. 339.), it did this even when the racial discrimination was covert, being achieved by so redrawing a municipal boundary as to exclude virtually all Negroes, and no whites, from the city franchise. It is true that in Colegrove v. Green(328 U.S. 549.) the Supreme Court refused relief against Congressional districting inequities in illinois, but only three out of seven Justices who sat in that case based their decision on the ground that the question presented before them was political and non-justiciable and this view was in effect and substance reversed by the Supreme Court in Baker v. Carr. The Supreme Court in Baker v. Carr, held that it was within the competence of the federal Courts to entertain an action challenging a statute apportioning legislative districts as contrary to the equal protection clause. This case clearly decided a controversy which was political in character, namely, apportioning of legislative districts but it did so because a constitutionalf violation of the equal protection clause was directly involved and that question was plainly and indubitably within the jurisdiction of the Court to decide. It will, therefore, be seen that merely because a question has a political colour, the Court cannot fold its hands in despair and declare as a question arise s whether an authority under the constitution has acted within the limits of its power or exceeded it, it can certainly be decided by the Court. Indeed it would be its constitutional obligation to do so. It is necessary to assert in the clearest terms, particularly in the context of recent history, that the Constitution is Suprema lex, the paramount law of the land, and there is no department or branch of government above or beyond it. Every organ of government, be it the executive or the legislature or the judiciary, derives its authority from the Constitution and it has to act within the limits of its authority. No one howsoever highly placed and no authority howsoever lofty can claim that it shall be the sole judge of the extent of its power under the Constitution or whether its action is within the confines of such power laid down the Constitution. This Court is the ultimate interpret er of the Constitution and to this Court is assigned the delicate task of determining what is the power conferred on each branch of government, whether it is limited, and if so, what are the limits and whether any action of that branch transgresses such limits. It is for this Court to uphold the , constitutional values and to enforce the constitutional limitations. That is the essence of the rule of law. To quote the words of Mr. Justice Brennan in Baker v. Carr, Deciding whether a matter has in any measure been committed by the Constitution to another branch of government or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation and i s a responsibility of this Court as ultimate interpreter of the Constitution. Where there is manifestly unauthorised exercise of power under the Constitution, it is the duty of the Court to intervene. Let it not be forgotten, that to this Cou rt as much as to other branches of government, is committed the conservation and furtherance of democratic values. The Courts task is to identify those values in the constitutional plan and to work them into life in the cases that reach the Cour t. Tact and wise restraint ought to tamper any power but courage and the acceptance of responsibility have their place too. The Court cannot and should not shirk this responsibility, because it has sworn the oath of alligance to the Constitution and is also accountable to the people of this Country. There are indeed numerous decisions of this Court where constitutional issues have been adjudicated upon though enmeshed in questions of religious tenets, social practices, economic doctrines or educational policies. The Court has in these cases adjudicated not upon the social, religious, economic , or other issues, but solely on the constitutional questions brought before it and in doing so, the Court has not be en deterred by the fact that these constitutional questions may have such other overtones or facets. We cannot, therefore, decline to examine whether there is any constitutional violation involved in the President doing what he threatens to do, merely on the facile ground that the question is political in tone, colour or complexion.But when we say this, we must make it clear that the constitutional jurisdiction of this Court is confined only to saying whether the limits on the power conferred by the Constitution have been observed or there is transgression of such limits. Here the only limit on the Power of the President under Art. 356, cl. (1) is that the President should be satisfied that a situation has arisen whe re the Government of the State cannot be carried on in accordance with the provisions of the Constitution. The satisfaction of the President is a subjective one and , cannot be tested by reference to any objective tests. It is deliberately and advisedly subjective because the matter in respect to which he is to be satisfied is of such a nature that its decision must necessarily be left to the executive branch of Government. There may be a wide range of situations which may arise and the ir political implications and consequences may have to be evaluated in order to decide whether the situation is such that the Government of the State cannot be carried on in accordance with the provisions of the Constitution. It is not a decision which can be based on what the Supreme Court of United States has described as judicially discoverable and manageable standards. It would largely be a political judgment based on assessment of diverse and varied factors, fast changing situations, potential consequences, public reaction, motivations and responses of different classes of people and their anticipated future behaviour and a host of other considerations, in the light of experience of public affairs and pragmatic management of complex and often curious adjustments that go to make up the highly sophisticated mechanism of a modern democratic government. It cannot, therefore, by its very nature be a fit subject matter for judicial determination and hence it is left to the subjective satisfaction of the Central Government which is best in a position to decide it. The Court cannot in the circumstances, go into the question of correctness or adequacy of the fact s and circumstances on which the satisfaction of the Central Government is based. That would be a dangerous exercise for the Court, both because it is not a fit instrument for determining a question of this kind and also because the Court would thereby usurp the function of the Central Government and in doing so, enter the Political thicket, which it must avoid if it is to retain its legitimacy with the people. In fact it would not be possible for the Court to undertake this exercise, apart from total lack of jurisdiction to do so, since by reason of Art. 74 cl. (2), the question whether any and if so what advice was tendered by the Ministers to the President cannot be enquired into by the Court, and moreover, the step s taken by the responsible Government may be founded on information and apprehensions which are not known to and cannot always be made, known to, those who seek to impugn what has been done., (Vide Ningkan v. Government of Malaysia ([1970] A.C. 379.). But one thing is certain that if the satisfaction is mala fide or is based on wholly extraneous and irrelevant grounds, the Court would have jurisdiction to examine it, because in that case there would be no satisfaction of the President in regard to the matter which he is required to be satisfied. The satisfaction of the President is a condition precedent to the exercise of power under Art. 356, cl. (1) and if it can be shown that there is no satisfaction of the President at all, the exercise of the power would be constitutionally invalid. Of course by reason of cl. (5) of Art. 356, the satisfaction of the President is final and conclusive and cannot be assailed on any ground but this immunity from attack cannot apply where the challenge is not that the satisfaction is improper or unjustified, but that there is, no satisfaction at all. In such a case it is not the satisfaction arrived at by the President which is challenged, but the existence of the satisfaction itself. Take, for example, a case where the President gives the reason for taking action under Art. 356, cl. (1) and says that he is doing so, because the Chief Minister of the State is below five feet in height and, therefore, in his opinion a situation has arisen where the Government of the State cannot be carried on in accordance with the provisions of the Constitution. Can the so called satisfaction of the President in such a case not be challenged on the ground that it is absurd or perverse or mala fide or based on a wholly extraneous and irrelevant ground and is, therefore, no satisfaction at all. It must of course be concerned that in most cases it would be difficult, if not impossible, to challenge the exercise of power under Art. 356, cl. (1 ) even on this limited ground, because the facts and circumstances on which the satisfaction is based would not be known, but where it is possible, the existence of the satisfaction can always be challenged on the ground that it is mala fide or based on wholly extraneous and irrelevant grounds. This proposition derives support from the decision of the Judicial Committee of the Privy Council in King Emperor v. Banwari Lal Sarma(72 I.A. 57.) where Viscount Simon, L.C. agreed that the Governor General in declaring that emergency exists must act bona fide and in accordance with his statutory powers. This is the narrow minimal area in which the exercise of power under Art. 356, cl. (1) is subject to judicial review and apart from it, it cannot rest with the Court to challenge the satisfaction of the President that the situation contemplated in that clause exists.Let us now turn to the facts and examine them in the light of the principle discussed. It would seem from the above discussion that if it can be established affirmatively (1) that the proposed action of the President under Art. 356, Cl. (1) would be based only on the (, round that the Legislative Assemblies of the Plaintiff-States have ceased to reflect the will of the electorate and they should, therefore, be dissolved with a view to giving an opportunity to the people to elect their true representatives and (2) that this ground is wholly extraneous and irrelevant to the question which the President has to consider for the purpose of arriving at the requisite satisfaction, the PlaintiffStates might have a case for injunction against the Union of India. But we are afraid that neither of these two propositions can be said to be established in the present suitsThe right of a particular State to sue is not always equivalent to the right of the Council of Ministers in all matters. Even if a Government goes the State lives. Whether a particular Council of Ministers can survive threats to their existence depends no doubt immediately on its ability to enjoy the confidence of the majority in the Legislature, but also, in the last resort, in its ability to enjoy the confidence of the political sovereign, the electorate. The questions affecting the latter domain are. of highly political complexion and appertain to political rights of the Government and not to legal rights of the State. The rights agitated by the plaintiffs are principally of the Governments concerned who are interested in continuing the legislatures whose confidence they enjoy. On the other hand, it is claimed by the Home Minister in his letter that these Legislatures have lost the mandate of the people and that there is clear evidence , of their having lost the confidence of the people as a result o f the verdict in the recent general election to the Parliament. The Court is not concerned whether this is a (correct assessment or not. The Union Government is entitled to take political decisions. However, even if a political decision of the Government of India affects legal rights of the State as a legal entity, the existence and extent of that right will be triable under Article 131.The question is, are legal rights of the State involved in the dispute ?Article 131 speaks of a legalThat legal right must he that , of the State. The dispute about a legal right, its existence or extent, must be capable of agitation between the Government of India and the States. The character of the dispute within the scope of Artic le 131 that emerges is with regard to, a legal right which the States may be able to claim against the Government. For example, the State as a party must affirm a legal right of its own which the Government of India has denied or is interested in denying giving rise to a cause of action. For the purpose of deciding whether Article 131 is attracted the subject matter of the dispute, therefore, assumes great importances a clear illustration of a real dispute involving a legal; right. In that case the main dispute was regarding the question whether the fines credited to Provincial revenues and not to the Cantonment Funds belonged to the Province or the Central Government through the Cantonment. It will be noticed that the Federal Court clearly held that such a dispute clearly fell within the purview of S. 204(1) of the Government of India Act which was in pari materia to Art. 131 of the Constitution. That case is purely illustrative and decides that it is only such type of disputes as are contemplated by Art. 131. For these reasons, therefore, I am clearly of the view that having regard to the facts and circumstances of the present case, it has not been established that there was any dispute involving a legal right between the Government of India and the State Governments, and therefore one of the essential ingredients of Art. 131 not having been fulfilled the suits are not maintainable on this ground aloneA perusal of these Articles would reveal in unequivocal terms that wherever the Constitution has used the word State without any qualification it means State in the ordinary sense of its term, namely, the State along with its territory or institution s. Article 3 expressly empowers the Parliament to increase or diminish the area or territory of any State. It has no reference to the State Government at all or for that matter to a particular State Government run by a particular party. In my opinion, therefore, the word State in Art. 131 has also been used in this ordinary sense so as to include only the territory of the State and the permanent institutions contained therein. A dispute arising between the personnel running the institutions is beyond the ambit of Art. 131. Further more, it would appear that cls. (a)) of Art. 131 deliberately and advisedly use the word Government of India and one or more States. If the intention was to bring even, a Stale Government as run by the Council of Ministers within the purview of this provision, then the words one or more State Governments should have been used instead of using the word State. This is, therefore, an intrinsic circumstance which shows that the founding fathers of the Constitution intended that the dispute should be contained only to the Government of India and the States as a polity or a constituent unit of the republic instead of bringing in dispute raised by the Government run by a particular Council of Ministers which does not pertain to the State as such.Thus, summarising my conclusions on this point, the position is that the importThese observations, however, do not support the argument of Mr. Niren De at all. Even if an issue is not justiciable, if the circumstances relied upon by the executive authority are absolutely extraneous and irrelevant, the Courts have the undoubted power to scrutinise such an exercise of the executive power. Such a judicial scrutiny is one which comes into operation when the exercise of the executive power is colourable or mala fide and based on extraneous or irrelevant considerations. I shall deal with this aspect of the matter a little later. It is, however, sufficient to indicate here that an order passed under Art. 356 is immune from judicial scrutiny and unless it is shown that the President has been guided by extraneous considerations it cannot be examined by the CourtsThis brings us to the second facet of this argument, namely, whether the facts stated in the letter of the Home Minister or in the press or t he radio interviews are sufficient to enable the Central Government to take a decision to advise the President to dissolve the StateWe have already extracted the important portions of the statements made in the letter of the Home Minister and in the radio interview of the Law Minister and the Press interview of the Home Minister. These assertions made by the Ministers of the Central Government have, however, to be read and understood in the light of the prevailing circumstances which are established from the notifications issued by the Government of India from time to time which we shall deal with hereafter.By virtue of Ministry of Home Affairs, Notification No. G.S.R. 353 (E) dated June 26, 1975 the P resident of India issued a proclamation declaring that a grave emergency exists whereby the, security of India was threatened by internal disturbance. This notification was followed by another Ministry of Home Affairs Notification No. G.S .R. 361 (E) dated June 27, 1975 issued by the President under clause (1) of Art. 359 of the Constitution by which the right of any person to move any Court for the enforcement of the rights conferred by article 14, article 21 and article 22 of the Constitution were suspended for the period during which the proclamation of emergency was in force. Then followed the Maintenance of Internal Security (Amendment) Ordinance, 1975 (No. 4 of 1975) which was promulgated an June 29, 1975 and published in the Government of India Gazette, Extraordinary, Part 11, Section I dated June, 1975. pp. 213-15. Section 5 of the Ordinance added s. 16A and sub-s(6) of s. 16A provided that it shall not be necessary to disclose to any person detained under a detention order the grounds on which the order had been made during the period the declaration made in respect of such a person was in force. This was followed by the Maintenance of Internal Security (Amendment) Act, 1976 passed on January 25, 1976 which added sub-s. (9) to s. 16A of the principal Act which provided that the grounds on which an order of detention was made or purported to be made under s. 3 against any person in respect of whom a declaration was made under sub-s. (2) or sub-s. (3) and any information or materials on which such grounds or a declaration under sub-s. (2) or a declaration or confirmation under sub-s. (3) etc. was made was to be treated as confidential and shall be deemed to refer to matters of State and it would be against the public interest to disclose the same. Thus the effect of this provision was that no Court could call for the materials on the basis of which the order of detention was passed. In other words, any detention made during this period was put beyond judicial scrutiny. While this state of affairs existed, the President by order dated January 18, 1977 dissolved the Lok Sabha under Art.85 of the Constitution as would appear the Lok Sabha Secretariat Notification dated January 19, 1977 published in the Government of India Gazette Extraordinary, Part I, Section 1, dated January 19, 1977. This was followed by notification dated February 10, 1977 by the Ministry of Law. Justice and Company Affairs passed under sub-s. (2) of s. 14 of the Representation of the People Act, 1951 by which the President called upon the parliamentary constituencies to elect members in accordance with the provisions of the said Ac t and of the rules and orders made thereunder. In pursuance of this notification the Election Commission of India issued a notification on the same day appointing the dates of elections to be held in various constituencies which varied from 16t h to 20th March, 1977. According to this Notification there were 54 constituencies in Bihar, 10 constituencies in Haryana, 4 in Himachal Pradesh, 40 in Madhya Pradesh, 25 in Rajasthan, 85 in Uttar Pradesh, 42 in West Bengal, 21 in Orissa and 13 in Punjab. All these constituencies elected their representatives and from the results of the Lok Sabha as published in the Indian Express of March 25, 1977 it would appear that out of 85 constituencies in Uttar Pradesh not a single candidate belonging to the Congress party was returned. Similarly in Bihar out of 54 constituencies not a single candidate of the Congress party was elected. Similarly out of 13 constituencies in Punjab and 10 constituencies in Haryana not a single candidate of the Congress party was returned. The same position obtained in Himachal Pradesh where out of 4 constituencies not a Single Congress candidate was elected. In the States of Madhya Pradesh, Rajasthan, West Bengal and Orissa, the Congress party appears to have fared very badly also. In Madhya Pradesh out of 40 seats, the Congress party could bag only one seat, whereas in Rajasthan also the Congress met with a similar fate where it got only I seat out of 25 seats. In Orissa, also the Congress got only 4 seats out of 21 and in West Bengal it got only 3 seats out of 42. It would thus appear that in the nine states referred to above, the Congress party was practically routed. It is also clear that the voters who voted for the candidates standing for the Lok Sabha in the States were more or less the same who had voted the Congress party in the State Assemblies during the previous elections.Thus, summarising the position in short, it is clear(1) that a grave emergency was clamped in the whole country;(2) that civil liberties were withdrawn to a great extent;(3) that important fundamental rights of the people were suspended;(4) that strict censorship on the press was placed; and(5) that the judicial powers were crippled to a large extentIn the new elections the Congress party suffered a major reverse in the nine states and the people displayed complete lack of confidence in the Congress party. The cumulative effect of the circumstances mentioned above may lead to a reasonable inference that the people had given a massive verdict not only against the Congress candidates who fought the elections to the Lok Sabha but also to the policies and ideologies followed by the Congress Governments as a whole whether at the Centre or in the States during the twenty months preceding the elections . In these circumstances it cannot be said that the inference drawn by the Home Minister that the State Governments may have forfeited the confidence of the people is not a reasonable one or had no nexus with the action proposed to be taken under Art . 356 for dissolution of the AssembliesIt was suggested that the present ruling party wanted to have a President of its own choice and, therefore, it wanted to dissolve all the Assemblies and order fresh elections so that they are able to get candidates of their own choice elected to the various Assemblies. In the first place, there is no reliable material to prove this fact or to show that the Central Government was in any way swayed by those considerations. Secondly, if the Congress Governments in the States Concerned Were so sure of their position, I do not see any reason why they should not be able to face the challenge and after taking fresh mandate from the people vindicate their stand. Furthermore, we have to look at the circumstances catalogued above in order to find out whether an inference drawn by the Central Government from those circumstances can be said to be a reasonable one. Even assuming that from the circumstances mentioned above, the other inference that the electorate might choose different candidates for the States and the Lok Sabha is equally possible that by itself does not make t he action of the Central Government mala fide or ultra vires. If two inferences are reasonably possible, the very foundation of mala fide disappears. On the other hand, the important question to ask oneself is, could under the circum stances mentioned above and the manner in which the people have acted and reacted to the emergency and the post emergency era by returning a massive verdict against the Congress, it be said that the Central Government was guided by purely irrelevant or inept considerations or external or extraneous motives in wanting to have fresh elections to the Assemblies? The answer must be in the negative. I am convinced that having regard to the circumstances detailed above, the vie w taken by the Home Minister and the Law Minister cannot be said to be either extraneous or irrelevant or mala fide. The contention of the counsel for the plaintiffs and the petitioners on this score is, therefore, overruled.There is yet another facet of this problem. Assuming that the reasons and the grounds disclosed by the Home Minister in his letter are extraneous or irrelevant this is only the first stage of the matter. The second stage-which is the most vital stage-i s the one which comes into existence when the Council of Ministers deliberate and finally decide to advise the President. As to what further grounds may be considered by them at that time is anybodys guess. It is quite possible that the Council of Ministers may base the advice on grounds other than those mentioned in the letter of the Home MinisterIt was further argued by Mr. Garg as also by Mr. Bhatia appearing for the State of Himachal Pradesh that even assuming that Art. 356() (a) confers the power given to the Governor by Art. 174(2) it would be a proper exercise of the discretion of the President to prorogue the Assembly instead of taking the extreme course of dissolving it. This, however, is purely a matter which lies within the domain of politics. The Court cannot substitute its discretion for that of the President nor is it for the Court to play the role of an Advisor as to what the President or the Council of Ministers should do in a particular event. The Central Government which advises the President is the best Judge of facts to decide as to what course should be adopted in a particular case, namely, whether the Legislative Assembly should be prorogued or should be dissolved and it is open to the President to take any of these two actions and if he prefers one to the other, this matter is beyond judicial review. For these reasons, therefore, I am clearly of the opinion that Art. 356 does not contain any express or implied limitations on the nature or functions of the Governor which are to be exercised by the President under Art. 356(1) (a)..I generally agree with my Lord the Chief Justice on the other points lucidly discussed by him, except with regard to his observations regarding the theory of the basic structure of the Constitution on which I would refrain from expressing any opinion, because the question does not actually arise for decision in this Case14. I think that the two Union Ministers have stated certain grounds for inferring that the time has come to give the people the political sovereign a chance to pronounce its verdict on the fates of State Governments and legislatures in the nine States also in a manner which is constitutionally not open to objection. In so far as article 356 (1) may embrace matters of political and executive policy and expediency courts cannot interfere with these unless and until it is shown what constitutional provision the President is going to contravene of has contravened on admitted grounds of action under Article 356 (1) for, while Article 74(2) disables Courts from inquiring into the very existence or nature or contents of ministerial advice to the President, Article 356(5) makes it impossible for Courts to question the Presidents satisfaction on any ground. Hence, Court$, can only determine the validity of the action on whatever may remain for them to consider on what are admitted, on behalf of the President, to be grounds of Presidential satisfaction. Learned counsel for the plaintiffs and petitioners, when confronted with Article 35 6 (5), said they would challenge its validity as a provision violating, the basic structure of the Constitution. We, however, heard objections to the maintainability of suits and petitions even apart from the specific bar in Article 356(5). And, I propose to deal principally with those other objections.This Court has never abandoned its constitutional function as the final judge of constitutionality of all acts purported to be done under the authority of the Constitution. It has not refused to determine questions either of fact or of law so long as it has found itself possessed of power to do it and the cause of justice to be capable of being vindicated by its actions. But, it cannot assume unto itself powers the Constitution lodges elsewhere or undertake tasks entrusted by the Constitution to other departments of State which may be better equipped to perform them. The scrupulously discharged duties of all guardians of the Constitution include the duty not to transgress the- limitations of their Own constitutionally circumscribed powers by trespassing into what is properly the domain of other constitutional organs. Questions of political wisdom or executive policy only could not be subjected to judicial control. No doubt executive policy must also be subordinated to constitutionally sanctioned purposes. It has its sphere and limitations. But, so long as it operates within that sphere, its operations are immune from judicial interference. This is also a part of the doctrine of a rough separation of powers under the Supremacy of the Constitution repeatedly propounded by this Court and to which the Court unswervingly adheres even when its views differ or change on the correct interpretation of a particular constitutional provision19. Even if we were to narrow down the concept of a basic structure to bring it in accordance with the concept found in the passage cited above, we could only strike down that executive policy which could fairly appear to be a clear deviation from w hat the basic structure requires. What would be, as the report of the speech of the Law Minister shows, fairly and reasonably viewed as a policy intended to strengthen or secure what is included in that basic structure could not be struck down or con trolled at all by this Court as that would be an attempt to control executive policy within a sphere which is its own and where its supremacy must be and has been consistently upheld by this Court20. The basic assumption underlying the views expressed above, is that each of the three organs of the State-The Executive, the Legislature and the Judiciary has its own orbit of authority and operation. It must be left free by the other organs. to operate within that sphere even if it commits error s there. It is not for one of the three organs of State either to correct or to point an accusing finger at the other merely because it thinks that some error has been committed by the other when acting within the limits of its own powers. But, if either the Executive or the Legislature exceeds the scope of its powers, it places itself in the region where the effects of that excess should be capable of removal by the Judiciary which ought to redress the wrong done when properly brought up before it. A scrupulous adherence to this scheme is necessary for the smooth operations of our Constitutional mechanisms of checks and balances. It implies due respect for and confidence in each organ of our Republic by the other twoAs observed above, it is no where laid down either in the Constitution or any law dealing with holding of elections to a legislative assembly what circumstances will justify its dissolution sooner than the duration it would otherwise enjoy.It was argued that the only authority empowered to dissolve a legislative assembly under Artic le 174 (2) (b) of the Constitution was the Governor of a State who had to act on the advice of the Council of Ministers in the State. It was submitted that the Union Government could not either advise, or in the form of advice, direct the State Government to ask the Governor to dissolve the State Assembly under any circumstances. Apparently, the principle of construction relied upon was a much used and easily misused principle; expressio unius est exclusio alterius. We do not think that such a principle could help the plaintiffs before us at all in as much as article 356 of the Constitution very clearly provides for the assumption by the President to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor. Article 174(2) (b) of the Constitution expressly vests the power of dissolving the legislative assembly in the Governor even if that had to be on the advice of the Council of Ministers in the State, but the power to give such advice would automatically, be taken over by the Union Government for the purposes of dissolution of the State Assembly when the President assumes governmental powers by a proclamation under Article 356(1) of the Constitution. A dissolution by the President after the proclamation would be as good as a dissolution by the Governor of a State whose powers; are taken over27. The position of the Governor as the Constitutional head of State as a unit of the Indian Union as well) as the formal channel of communication between the Union and the State Government, who is appointed under article 155 of the Constitution by the President by Warrant under his hand and seal,was also touched in the course of arguments before us. On the one hand, as the Constitutional head of the State. he is ordinarily bound, by reason of a constitutional convention, by the advice of his Council of Ministers conveyed to him th rough the Chief Minister barring very exceptional circumstances among which may be as pointed out by my learned brothers Bhagwati and Iyer, JJ., in Shamsher Singhs case, supra (p. 875) a situation in which an appeal to the electorate by a dissolution is called for. On the other hand, as the defender of the Constitution and the law and the watch-dog of the interests of the whole country and well-being of the people of his State in particular, the, Governor is vested with certain discretionary powers in the exercise of which he can act independently. One of his independent functions is the making of the report to the Union Government on the strength of which Presidential power under Article 356(1) of the Constitution could be exercised. In so far as he acts in the larger interests of the people, appointed by the President to defend the Constitution and the Law he acts as an observer on behalf of the Union and has to keep a watch on how the administrative machinery and each or gan of constitutional Government is working in the State. Unless he keeps such a watch over all governmental activities and the State of public feelings about them he cannot satisfactorily discharge his function of making the report which may form the basis of the Presidential satisfaction under Article 356(1) of the Constitution. Indeed, the usual practice is that the President acts under Article 356(1) of the Constitution only on the Governors report. But, the, use of the words or otherwise (in article 356) show that Presidential satisfaction could be based on other material as well. This feature of our Constitution indicates most strikingly the extent to which inroads have been made by it on the federal principles of Government32. As we have tried to indicate above, attempts to secure political victories, by appeals to the electorate, are parts of the recognised rules of a democratic system of government permitting contests between rival parties so as to achieve certain other objectives. If such a contest with the desire for achieving a political victory in order to enforce certain programmes, believed by the members of a party to be beneficial for the people in a State, as a method of achieving the objects set out in the Preamble, are not only legal and permissible under the Constitution, but, obviously, constitute the only possible legitimate and legal means of attaining the power to enforce policies believed to be correct by various parties, according to their own lights, it could not possibly be asserted that procuring the dissolution of a State Legislative Assembly, with the object of gaining a political victory, is, in itself, an extraneous object which could not fall at ail under article 356 of the Constitution. In order to apply the doctrine that something cannot be done indirectly because it could not be done directly, it must first be established either that the object or the means are legally prohibited. In the cases before us, it does not appear to us that the object of gaining a political victory , set out in the plaints is, by itself, legally prohibited. Nor is there anything in law to prohibit a recourse to the means adopted. There is no assertion in the plaints or the petitions that anything is being done or attempted by legally prohibited means for a legally prohibited purpose. All that is suggested is that it is morally represensible to try to obtain an electoral victory in the States by dissolving the Assemblies so as to get rid of the Congress Governments in power there. On such a question of moral worth of either the ends or the means adopted, this Court cannot possibly sit in judgment. It is enough for our purposes that the plaints and the petitions do not disclose anything extraneous to the purpose of Article 356 (1) of the Constitution in the eyes of law. The sufficiency or adequacy of the grounds for action under article 356(1) of the Constitution is quite another matter. We do not think that we can go into that at all here.We find that in the plaint of the State of Himachal Pradesh the term prerogative has been used for the power of the State Governor to dissolve a Legislative Assembly, under Article 174, as though there was a violation of that prerogative by some paramount prerogative asserted by the Union Government. I do not think that the term prerogative can be correctly used, in its technical sense, with reference to any power exercised under our ConstitutionUnder our Constitution there is no prerogative in that technical sense. All constitutional powers are regulated by our written Constitution. There may be room for the development of conventions on a matter not fully covered as to the mode of exercise of a discretion or power. But, that is a matter distinct from prerogative. Under our Constitution, the residue of that power, which is neither legislative nor judicial, is covered by the caption: Executive. Thus, the equivalent of most prerogative powers would fall, under our law, under the heading of executive powers. Inasmuch as the term prerogative is sometimes used in a wider non-technical sense, as something which gives pre-eminence or an overriding attribute to a power, it may be said that such a power is lodged in the Union Government under Article 356(1) of the Constitution on all matters covered by that provision. The only question in such cases is whether the matter in relation to which the Union Government is proceeding or has acted is or is not within the purview of Article 356(t) of The Constitution. If it lies within that sphere, the Courts cannot interfere on the ground, at any rate, , that it is extraneous.Whenever the exercise of power to issue a proclamation under Article 356(1) of the Constitution has been challenged in a High Court it has been held that sufficiency of grounds on which the order, is based could not be questioned. Some of the dicta found there seem to lay down that the exercise of power to issue proclamations is not justiciable at all under any circumstances. This Court has not gone so far us that. If it is actually stated on behalf of the Union Government that an action was taken on a particular ground which really falls completely outside the purview of Article 356(1), the proclamation will be vitiated, not because the satisfaction was challenged or called in question on any ground but because it was admitted to be on matters outside Article 356(1)The power of the Governor-General was described as an absolute; powerin Bhagat Singhs case (supra), but learned counsel for the plaintiffs relied on the observation there that it is only to be used in extreme cases of necessity where the good Government of India demands it. We do not think that much assistance can be derived from a provision of the Government of India Act, 1935, which was really the precurser of Article 123 of our Constitution and meant for use in a different context in an Imperialistic era. Nevertheless, it shows t hat. even without a provision ousting the jurisdiction of the Courts, the subjective satisfaction of the Governor-General was held. to be unquestionable36. It is true that, as indicated above, the advice tendered by the Ministers to the President cannot be inquired into. It is also clear beyond doubt that the amended article 74(1) of the Constitution, whose validity has not been challenged before us by any party, makes it obligatory on the President to act in accordance with the advice tendered by the Union Council of Ministers, to him through the Prime Minister. Nevertheless, if all the grounds of action taken under article 356(1) of the Constitution are disclosed to the public by the Union Government and its own disclosure of ground s reveals that a constitutionally or legally prohibited or extraneous or collateral purpose is sought to be achieved by a proclamation under article 356 of the Constitution, this Court will not shirk its duty to act in the manner in which the law may then oblige it to act. But, when we find that allegations made in the plaints and in the petitions before us relate, in substance, only to the sufficiency of the grounds of action under article 356(1) of the Constitution, and go no further, we cannot proceed further with the consideration of the plaints under Article 131 or the petitions under Article 32 of the Constitution.I would not like to leave certain other matters also argued before us untouched in this fairly comprehensive expression of our views. It was urged that the power of dissolution of a State Legislative Assembly, even if it could be assumed by the President under Article 356(1) of the Constitution, after a failure of the State Government to carry out a direction of the Union Government on the subject, could no+ be exercised unless and until the matter bad been placed before both the Houses of Parliament so that it bad been subjected to such control as either of the two Houses of Parliament may chose to exercise over it. Proclamations under article 356(1) are bound to be placed under article 356(3) of the Constitution before each house of Parliament. Unfortunately, however, for this line of argument, there is not only nothing in article 356 to make a consideration by either House of Parliament a condition precedent to the exercise of the power of dissolution of a State Legislative Assembly by the President under article 356(1), but, on the other hand, article 356(3). makes it clear that the only effect of even a failure or refusal by either House of Parliament to approve the proclamation is that it ceases to operate after two months. Obviously, this means that it operates for at least two months. Hence, whatever is done in these two months cannot be held to be illegal for hat reason alone. The interpretation placed before us for acceptance is directly opposed to the language of the provisions of the Constitution. It has, therefore, to be rejected by us outright as quite unreasonable and unacceptable. It is true that the exercise of power under article 356 of the Constitution is subject to Parliamentary control. This means that it is subject to such control as the two Houses, out of which the Council of States really represents the State Assemblies, may be able to exercise during the period for which the proclamation lasts. But, the existence of such Parliamentary control, as a safeguard, cannot possibly nullify the legality of what is done in the period during which the Proclamation lasts.It was also contended by Mr. R. K. Garg that, unless the Parliament acts legislatively for the State Legislature, the incurring of any expenditure, by the Governor or anybody else after a Presidential Proclamation under article 356, would not be permissible in view of Article 357(1) (c) of the Constitution. After making such an assumption, we were asked to import an implied prohibition against a dissolution of a State Legislative Assembly unless and until both Houses of Parliament bad discussed and approved of it40. Reference was made to passages from State of Bihar v. Union of India] 2 S.C.R. 522.) and the United Provinces v. The Governor-General in Council. ([1939] F.C.R. 124.) It seems to me that the decision of this Court in State of Bihar and Union of India and Anr. (supra) was largely based upon the assumption t hat Article 131 was meant to cover the same area as s. 204 of the Government of India Act. Moreover, the learned Additional Solicitor General, appearing on behalf of the Union, did not press the argument that article 131 is confined to declaratory decrees in view of the fact that (as Mr. Seervai pointed out in the Constitutional Law of India, 2nd Edn. Vol. 11 at p. 1385) article 142 (1) of the Constitution provides for enforcement of decrees of this Court. The view expressed in the Bihar case (supra) seemed to have been affected considerably by the fact that there was no provision in the Government of India Act of 1935 for the enforcement of the decrees of the Federal Court, but Article 142(1) seems to have be en overlooked in that case.Article 300 of the Constitution provides, inter alia, that the Government of a State may sue or be sued by the name of the State. From this, Mr. Niren De wanted us to infer that there was no distinction between a State and the State Government as juristic entities. Even if there be some grounds for making a distinction between a States interests and rights and those of its Government or its members, I do not think that we need take a too restrictive or a hyper-technical view of the States rights to sue for any rights, actual or fancied, which the State Government chooses to take up on behalf of the State concerned in a suit under Article 131. Moreover as we have decided not to grant any reliefs after having heard detailed arguments and fully considered the merits of contentions advanced by both sides, I do not think that we need determine, on this occasion, the precise scope of a suit under Article 131. I prefer to base my judgment on other grounds. | 0 | 46,134 | 16,716 | ### Instruction:
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does not appertain to legal rights of the States concerned to satisfy the requirement of Article 131 of the Constitution. These suits are, therefore, not maintainable in law and on this ground they are liable to be dismissed. 79. With regard to the Writ Petitions I had the opportunity to go through the judgments of my brothers Bhagwati and Gupta and I entirely agree with their reasoning and conclusion. I am clearly of opinion that there is no violation of the fundamental rights guaranteed to the petitioners under Articles 19(1)(f) and 31 of the Constitution as a consequence of the threatened dissolution of the Legislative Assembly. the Writ Petitions are, therefore, not maintainable and are liable for rejection. 80. Since, however, the question of mala fides of the proposed action of the Home Minister was argued at length with a pointed focus on the ensuing Presidential, election, I should touch on the point. 81. It is submitted that these grounds, ex facie, are completely irrelevant and extraneous and even mala fide. Mr. Niren De referred to the decision of the Privy Council in King Emperor v. Benoari Lal Sarma and Others(72 I.A. 57, 64.) and read to us the following passage:It is to be observed that the section (72 of Government of India Act, 1935) does not require the Governor-General to state that there is an emergency, or what the emergency is either in the text of the ordinance o r at all, and assuming that he acts bona fide and in accordance with his statutory powers, it cannot rest with the courts to challenge his review that the emergency exists. 82. Relying on the above passage, Mr. De submits that this Court is entitled to examine whether the direction is mala fide or not. 83. The Additional Solicitor General has drawn our attention to Bhagat Singh and Others v. The King-Emperor(58 I.A. 169, 172.) which is a decision of the Privy Council followed in Benoari Lai Sarmas case (supra) He read to us the following passage A state of emergency is something that does not permit of any exact definition. If connotes a state of matters calling for drastic action, which is to be judged as such by some one. It is more than obvious that some one must be the Governor-General, and he alone. Any other view would render utterly inept the whole provision. Emergency demands immediate action, and that action is prescribed to be taken by the Governor- General. It is he alone who can promulgate the Ordnance. 84. The President in our Constitution is a constitution al head and is bound to act on the aid and advice of the Council of Ministers (Article 74). This was the position even before the amendment of Article 74(1) of the Constitution by the 42nd Amendment (See Shamsher Singh &Anr. v. State of Pun jab ([1975] 1 S.C.R. 814.). The position has been made absolutely explicit by the amendment of Article 74(1) by the Constitution 42nd Amendment which says there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advise. What was judicially interpreted even under the unamended Article 74(1) has now been given parliamentary recognition by the Constitution Amendment. There can, therefore, be no doubt that the decision under Article 356 of the Constitution which is made by the President is a decision of the Council of Ministers. Because certain reasons ate given in the letter of the Home Minister, it cannot be said that those will, be the only grounds which will weigh with the Council of Ministers when they finally take a decision when the advise has been rejected by the Chief Ministers. There are so many imponderables that may intervene between the time of the letter and the actual advice of the Council of Ministers to the President. There may be further developments or apprehension of developments which the Government may have to take not of and finally when the Council of Ministers decides and advises the President to issue a proclamation under Article 356, the Court will be barred from enquiring into the advice that was tendered by the Cabinet to the President (Article 74(2). Then again under Article 356(5), the satisfaction of the President in issuing the proclamation under Article 356(1) shall be final and conclusive and shall not be questioned in any court on, any ground. In the view I have taken, I am not required to consider in the matters be fore us whether Article 356(5) of the Constitution is ultra vires the Constitution or not. Even the Additional Solicitor General based his arguments on the very terms of Article 356(1) de hors Article 356(5) relying upon Bhagat Singhs case (supra) that the subjective satisfaction of the President is not justiciable. It is inview of this stand of the Union that Mr. De drew our attention to Benoari Lai Sarmas case (supra ) where the Privy Council seems to have indicated that the question of mala fides could be gone in to by the court. Mr. De submits that a mala fide order under Article 356 will be no order in the eye of law. 85. I am not prepared to say that this Court, which is the last recourse for the oppressed and the bewildered, will, for good, refuse to consider when there may be sufficient materials to establish that a proclamation under Article 356(1) is tainted with mala fides. I would, however, hasten to add that the grounds given in the Home Ministers letter cannot be any strength of imagination be held to be mala fide or extraneous or irrelevant. These ground will have reasonable nexus with the subject of a proclamation under Articl e 356(1) of the Constitution. The matter would have been entirely different if there were no proposal, pari passu, for an appeal to the electorate by holding elections to these Assemblies. 86.
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President cannot be inquired into. It is also clear beyond doubt that the amended article 74(1) of the Constitution, whose validity has not been challenged before us by any party, makes it obligatory on the President to act in accordance with the advice tendered by the Union Council of Ministers, to him through the Prime Minister. Nevertheless, if all the grounds of action taken under article 356(1) of the Constitution are disclosed to the public by the Union Government and its own disclosure of ground s reveals that a constitutionally or legally prohibited or extraneous or collateral purpose is sought to be achieved by a proclamation under article 356 of the Constitution, this Court will not shirk its duty to act in the manner in which the law may then oblige it to act. But, when we find that allegations made in the plaints and in the petitions before us relate, in substance, only to the sufficiency of the grounds of action under article 356(1) of the Constitution, and go no further, we cannot proceed further with the consideration of the plaints under Article 131 or the petitions under Article 32 of the Constitution.I would not like to leave certain other matters also argued before us untouched in this fairly comprehensive expression of our views. It was urged that the power of dissolution of a State Legislative Assembly, even if it could be assumed by the President under Article 356(1) of the Constitution, after a failure of the State Government to carry out a direction of the Union Government on the subject, could no+ be exercised unless and until the matter bad been placed before both the Houses of Parliament so that it bad been subjected to such control as either of the two Houses of Parliament may chose to exercise over it. Proclamations under article 356(1) are bound to be placed under article 356(3) of the Constitution before each house of Parliament. Unfortunately, however, for this line of argument, there is not only nothing in article 356 to make a consideration by either House of Parliament a condition precedent to the exercise of the power of dissolution of a State Legislative Assembly by the President under article 356(1), but, on the other hand, article 356(3). makes it clear that the only effect of even a failure or refusal by either House of Parliament to approve the proclamation is that it ceases to operate after two months. Obviously, this means that it operates for at least two months. Hence, whatever is done in these two months cannot be held to be illegal for hat reason alone. The interpretation placed before us for acceptance is directly opposed to the language of the provisions of the Constitution. It has, therefore, to be rejected by us outright as quite unreasonable and unacceptable. It is true that the exercise of power under article 356 of the Constitution is subject to Parliamentary control. This means that it is subject to such control as the two Houses, out of which the Council of States really represents the State Assemblies, may be able to exercise during the period for which the proclamation lasts. But, the existence of such Parliamentary control, as a safeguard, cannot possibly nullify the legality of what is done in the period during which the Proclamation lasts.It was also contended by Mr. R. K. Garg that, unless the Parliament acts legislatively for the State Legislature, the incurring of any expenditure, by the Governor or anybody else after a Presidential Proclamation under article 356, would not be permissible in view of Article 357(1) (c) of the Constitution. After making such an assumption, we were asked to import an implied prohibition against a dissolution of a State Legislative Assembly unless and until both Houses of Parliament bad discussed and approved of it40. Reference was made to passages from State of Bihar v. Union of India] 2 S.C.R. 522.) and the United Provinces v. The Governor-General in Council. ([1939] F.C.R. 124.) It seems to me that the decision of this Court in State of Bihar and Union of India and Anr. (supra) was largely based upon the assumption t hat Article 131 was meant to cover the same area as s. 204 of the Government of India Act. Moreover, the learned Additional Solicitor General, appearing on behalf of the Union, did not press the argument that article 131 is confined to declaratory decrees in view of the fact that (as Mr. Seervai pointed out in the Constitutional Law of India, 2nd Edn. Vol. 11 at p. 1385) article 142 (1) of the Constitution provides for enforcement of decrees of this Court. The view expressed in the Bihar case (supra) seemed to have been affected considerably by the fact that there was no provision in the Government of India Act of 1935 for the enforcement of the decrees of the Federal Court, but Article 142(1) seems to have be en overlooked in that case.Article 300 of the Constitution provides, inter alia, that the Government of a State may sue or be sued by the name of the State. From this, Mr. Niren De wanted us to infer that there was no distinction between a State and the State Government as juristic entities. Even if there be some grounds for making a distinction between a States interests and rights and those of its Government or its members, I do not think that we need take a too restrictive or a hyper-technical view of the States rights to sue for any rights, actual or fancied, which the State Government chooses to take up on behalf of the State concerned in a suit under Article 131. Moreover as we have decided not to grant any reliefs after having heard detailed arguments and fully considered the merits of contentions advanced by both sides, I do not think that we need determine, on this occasion, the precise scope of a suit under Article 131. I prefer to base my judgment on other grounds.
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Nagaland Public Service Commission Vs. State Of Nagaland & Ors | Kurian Joseph, J.1. Leave granted.2. The short dispute that arises for consideration in these two appeals is on the essential qualification for the post of Lecturer, Chemistry in the Higher Education Department in the State of Nagaland.3. The prescribed qualification is M.Sc. in the subject concerned. The appellant, in the connected matter, is only M.Sc. in Biochemistry. It is the contention of the appellants that Biochemistry is Chemistry for all purposes.4. We find it difficult to accept the submission. It may be seen from the advertisement itself for Item No. 10, that for the post of Lecturer in Chemistry, what is prescribed is only M.Sc. without any further description. It is a post in the Department of Information Technology and Technical Education. But for the post of Lecturer in Chemistry in Higher Education, the prescribed qualification, being M.Sc. in the subject concerned, namely, Chemistry itself, the appellant - Nagaland Public Service Commission is not right in completing selection based on the opinion sought from the expert that Biochemistry is Chemistry for all purposes.5. Qualification is something to be prescribed by the State Government, the appointing authority. The Commission is only to go by the qualification and it cannot improve upon that. | 0[ds]4. We find it difficult to accept the submission. It may be seen from the advertisement itself for Item No. 10, that for the post of Lecturer in Chemistry, what is prescribed is only M.Sc. without any further description. It is a post in the Department of Information Technology and Technical Education. But for the post of Lecturer in Chemistry in Higher Education, the prescribed qualification, being M.Sc. in the subject concerned, namely, Chemistry itself, the appellant - Nagaland Public Service Commission is not right in completing selection based on the opinion sought from the expert that Biochemistry is Chemistry for all purposes.5. Qualification is something to be prescribed by the State Government, the appointing authority. The Commission is only to go by the qualification and it cannot improve upon that.In case the appellant is otherwise eligible in terms of the fresh instructions issued by the State Government and in view of the mandatory reservation, we make it clear that it will be open to the State Government to relax the age of the appellant for the purpose of application. | 0 | 231 | 204 | ### Instruction:
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Kurian Joseph, J.1. Leave granted.2. The short dispute that arises for consideration in these two appeals is on the essential qualification for the post of Lecturer, Chemistry in the Higher Education Department in the State of Nagaland.3. The prescribed qualification is M.Sc. in the subject concerned. The appellant, in the connected matter, is only M.Sc. in Biochemistry. It is the contention of the appellants that Biochemistry is Chemistry for all purposes.4. We find it difficult to accept the submission. It may be seen from the advertisement itself for Item No. 10, that for the post of Lecturer in Chemistry, what is prescribed is only M.Sc. without any further description. It is a post in the Department of Information Technology and Technical Education. But for the post of Lecturer in Chemistry in Higher Education, the prescribed qualification, being M.Sc. in the subject concerned, namely, Chemistry itself, the appellant - Nagaland Public Service Commission is not right in completing selection based on the opinion sought from the expert that Biochemistry is Chemistry for all purposes.5. Qualification is something to be prescribed by the State Government, the appointing authority. The Commission is only to go by the qualification and it cannot improve upon that.
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4. We find it difficult to accept the submission. It may be seen from the advertisement itself for Item No. 10, that for the post of Lecturer in Chemistry, what is prescribed is only M.Sc. without any further description. It is a post in the Department of Information Technology and Technical Education. But for the post of Lecturer in Chemistry in Higher Education, the prescribed qualification, being M.Sc. in the subject concerned, namely, Chemistry itself, the appellant - Nagaland Public Service Commission is not right in completing selection based on the opinion sought from the expert that Biochemistry is Chemistry for all purposes.5. Qualification is something to be prescribed by the State Government, the appointing authority. The Commission is only to go by the qualification and it cannot improve upon that.In case the appellant is otherwise eligible in terms of the fresh instructions issued by the State Government and in view of the mandatory reservation, we make it clear that it will be open to the State Government to relax the age of the appellant for the purpose of application.
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Raghu Nath Vs. Competent Officer, Delhi & Ors | cancelling or varying the terms of the lease or before evicting any leases the Custodian must serve a show cause notice on such lessee and afford him a reasonable opportunity of being heard. If the custodian is satisfied on hearing the concerned lessee that he is not liable to eviction under a rent control Act in force in the State where the property is situate or has not contravened any of the provisions of the lease, he cannot cancel the lease nor can he evict the lessee except only as provided by clause 5 of that rule on the ground that such eviction is necessary or expedient for the preservation or proper administration or management of such property or for carrying out any other object of the Act. He therefore, cannot evict a tenant or an allottee on the ground that it is necessary to do so for the separation of an interest of a nonevacuee mortgagor as that would not be one of the purposes of the Administration Act.10. The result which emerges from the discussion of the relevant provisions of the two Acts and the rules thereunder made is (1) that though the Competent Officer must accept the mortgage amount when tendered by a mortgagor and the mortgage debt thereupon would be satisfied, he cannot exercise the power to redeem the mortgaged property and order the Custodian to deliver up its vacant possession to the mortgagor in the absence of any agreement between the mortgagor and the Custodian, and (2) that in exercising his Jurisdiction under Sec. 10 the Competent Officer cannot direct the Custodian to cancel or vary the terms of the leases or allotments made or granted by him firstly because he has no such power under Sec. 10 or any other provision of the Separation Act, and secondly, because such an order would amount to compelling the Custodian to act in a manner contrary to the provisions of the aforesaid Rule 14. The exercise of the power to redeem being subject to the rules, it would not be competent for the Competent Officer, by reason of Rule 11B (b), to order delivery of possession by the Custodian in the absence of an agreement between him and the mortgagor-claimant.11. In view of this position, the appellant could not have insisted that he would tender or pay the mortgage debt only against delivery of vacant possession of the property in the absence of any agreement between him and the Custodian. The only thing which the Competent Officer could do in the circumstances was to accept the mortgage amount whereupon interest would cease to run. It is not in dispute that the appellant, insisting as he was all throughout upon being given vacant and not merely symbolical possession, did not actually tender or make payment of the mortgage debt. The mortgage debt, therefore, remained outstanding. The mortgage also stood intact, and therefore, the only measure which the Competent Officer could adopt and which in fact he adopted was to order sale of the property and satisfy the mortgage debt from the sale proceeds thereof. The order which he passed and which was confirmed by the Appellate Officer was in the circumstances then prevailing validly and competently made. The appellants grievance against it, therefore could not be sustained (Cf. in this connection the position of an auction purchaser as decided in Ek Nawaz Khan v. The Competent Officer, AIR 1960 All 626 ).12. But it is conceded that since the passing of the said order the appellant has paid up the full mortgage amount and the Competent Officer has, as he was bound to do under Section 10, proviso, accepted that amount. Presumably that amount has been paid by him to the Custodian. Therefore, the mortgage debt is no longer outstanding. Though this event has happened after the impugned order was passed, we must in fairness take notice of the fact that the mortgage debt is no longer outstanding and the mortgaged property is now free from the mortgagees security, and therefore. from the interest vested in the Custodian It is true that the Competent Officer, as already stated, can adopt any of the three measures set out in Sec. 10 (b) of the Separation Act or adopt a combination of all or some of them, but as emerging from the discussion above, he cannot redeem the property and order delivery of vacant possession in the absence of an agreement between the Custodian and the appellant. That is quite clear. But the order of sale passed by him and confirmed by the Appellate Officer also cannot stand, firstly, because the mortgage debt now stands satisfied, and secondly because he can order sale only for satisfaction of the mortgage debt and for distribution of the sale proceeds thereof between the mortgagor and the mortgagee. There being now no question of the satisfaction of the mortgage debt since it now stands satisfied and the property being now freed from the mortgagees security, the order for sale cannot stand and cannot be allowed to stand. At the same time the Competent Officer cannot order the Custodian to deliver vacant possession although the appellant has paid the mortgage amount and the Competent Officer has accepted it in satisfaction of the mortgage debt. In view of Ss. 10 and 12 of the Administration Act, the powers and duties of the Custodian thereunder and under the rules made under that Act, the provisions of Sec. 10 of the Separation Act and Rule 11B of the rules made thereunder, the only thing that could be offered and given to the appellant was symbolical possession of the property. Such a result, no doubt, would be inconvenient, and may even appear to be harsh and unfair as the appellant would be driven to file proceedings for eviction of tenants and allottees now in possession of the property. (See All India Film Corporation Ltd. v. Raja Gyan Nath, Civil Appeals Nos. 2416 and 2417 of 1966, D/26-9-1969 (SC) ). | 1[ds]10. The result which emerges from the discussion of the relevant provisions of the two Acts and the rules thereunder made is (1) that though the Competent Officer must accept the mortgage amount when tendered by a mortgagor and the mortgage debt thereupon would be satisfied, he cannot exercise the power to redeem the mortgaged property and order the Custodian to deliver up its vacant possession to the mortgagor in the absence of any agreement between the mortgagor and the Custodian, and (2) that in exercising his Jurisdiction under Sec. 10 the Competent Officer cannot direct the Custodian to cancel or vary the terms of the leases or allotments made or granted by him firstly because he has no such power under Sec. 10 or any other provision of the Separation Act, and secondly, because such an order would amount to compelling the Custodian to act in a manner contrary to the provisions of the aforesaid Rule 14. The exercise of the power to redeem being subject to the rules, it would not be competent for the Competent Officer, by reason of Rule 11B (b), to order delivery of possession by the Custodian in the absence of an agreement between him and the mortgagor-claimant.11. In view of this position, the appellant could not have insisted that he would tender or pay the mortgage debt only against delivery of vacant possession of the property in the absence of any agreement between him and the Custodian. The only thing which the Competent Officer could do in the circumstances was to accept the mortgage amount whereupon interest would cease to run. It is not in dispute that the appellant, insisting as he was all throughout upon being given vacant and not merely symbolical possession, did not actually tender or make payment of the mortgage debt. The mortgage debt, therefore, remained outstanding. The mortgage also stood intact, and therefore, the only measure which the Competent Officer could adopt and which in fact he adopted was to order sale of the property and satisfy the mortgage debt from the sale proceeds thereof. The order which he passed and which was confirmed by the Appellate Officer was in the circumstances then prevailing validly and competently made. The appellants grievance against it, therefore could not be sustained (Cf. in this connection the position of an auction purchaser as decided in Ek Nawaz Khan v. The Competent Officer, AIR 1960 All 626 ).12. But it is conceded that since the passing of the said order the appellant has paid up the full mortgage amount and the Competent Officer has, as he was bound to do under Section 10, proviso, accepted that amount. Presumably that amount has been paid by him to the Custodian. Therefore, the mortgage debt is no longer outstanding. Though this event has happened after the impugned order was passed, we must in fairness take notice of the fact that the mortgage debt is no longer outstanding and the mortgaged property is now free from the mortgagees security, and therefore. from the interest vested in the Custodian It is true that the Competent Officer, as already stated, can adopt any of the three measures set out in Sec. 10 (b) of the Separation Act or adopt a combination of all or some of them, but as emerging from the discussion above, he cannot redeem the property and order delivery of vacant possession in the absence of an agreement between the Custodian and the appellant. That is quite clear. But the order of sale passed by him and confirmed by the Appellate Officer also cannot stand, firstly, because the mortgage debt now stands satisfied, and secondly because he can order sale only for satisfaction of the mortgage debt and for distribution of the sale proceeds thereof between the mortgagor and the mortgagee. There being now no question of the satisfaction of the mortgage debt since it now stands satisfied and the property being now freed from the mortgagees security, the order for sale cannot stand and cannot be allowed to stand. At the same time the Competent Officer cannot order the Custodian to deliver vacant possession although the appellant has paid the mortgage amount and the Competent Officer has accepted it in satisfaction of the mortgage debt. In view of Ss. 10 and 12 of the Administration Act, the powers and duties of the Custodian thereunder and under the rules made under that Act, the provisions of Sec. 10 of the Separation Act and Rule 11B of the rules made thereunder, the only thing that could be offered and given to the appellant was symbolical possession of the property. Such a result, no doubt, would be inconvenient, and may even appear to be harsh and unfair as the appellant would be driven to file proceedings for eviction of tenants and allottees now in possession of the property. (See All India Film Corporation Ltd. v. Raja Gyan Nath, Civil Appeals Nos. 2416 and 2417 of 1966, D/26-9-1969 (SC) ). | 1 | 5,126 | 922 | ### 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:
cancelling or varying the terms of the lease or before evicting any leases the Custodian must serve a show cause notice on such lessee and afford him a reasonable opportunity of being heard. If the custodian is satisfied on hearing the concerned lessee that he is not liable to eviction under a rent control Act in force in the State where the property is situate or has not contravened any of the provisions of the lease, he cannot cancel the lease nor can he evict the lessee except only as provided by clause 5 of that rule on the ground that such eviction is necessary or expedient for the preservation or proper administration or management of such property or for carrying out any other object of the Act. He therefore, cannot evict a tenant or an allottee on the ground that it is necessary to do so for the separation of an interest of a nonevacuee mortgagor as that would not be one of the purposes of the Administration Act.10. The result which emerges from the discussion of the relevant provisions of the two Acts and the rules thereunder made is (1) that though the Competent Officer must accept the mortgage amount when tendered by a mortgagor and the mortgage debt thereupon would be satisfied, he cannot exercise the power to redeem the mortgaged property and order the Custodian to deliver up its vacant possession to the mortgagor in the absence of any agreement between the mortgagor and the Custodian, and (2) that in exercising his Jurisdiction under Sec. 10 the Competent Officer cannot direct the Custodian to cancel or vary the terms of the leases or allotments made or granted by him firstly because he has no such power under Sec. 10 or any other provision of the Separation Act, and secondly, because such an order would amount to compelling the Custodian to act in a manner contrary to the provisions of the aforesaid Rule 14. The exercise of the power to redeem being subject to the rules, it would not be competent for the Competent Officer, by reason of Rule 11B (b), to order delivery of possession by the Custodian in the absence of an agreement between him and the mortgagor-claimant.11. In view of this position, the appellant could not have insisted that he would tender or pay the mortgage debt only against delivery of vacant possession of the property in the absence of any agreement between him and the Custodian. The only thing which the Competent Officer could do in the circumstances was to accept the mortgage amount whereupon interest would cease to run. It is not in dispute that the appellant, insisting as he was all throughout upon being given vacant and not merely symbolical possession, did not actually tender or make payment of the mortgage debt. The mortgage debt, therefore, remained outstanding. The mortgage also stood intact, and therefore, the only measure which the Competent Officer could adopt and which in fact he adopted was to order sale of the property and satisfy the mortgage debt from the sale proceeds thereof. The order which he passed and which was confirmed by the Appellate Officer was in the circumstances then prevailing validly and competently made. The appellants grievance against it, therefore could not be sustained (Cf. in this connection the position of an auction purchaser as decided in Ek Nawaz Khan v. The Competent Officer, AIR 1960 All 626 ).12. But it is conceded that since the passing of the said order the appellant has paid up the full mortgage amount and the Competent Officer has, as he was bound to do under Section 10, proviso, accepted that amount. Presumably that amount has been paid by him to the Custodian. Therefore, the mortgage debt is no longer outstanding. Though this event has happened after the impugned order was passed, we must in fairness take notice of the fact that the mortgage debt is no longer outstanding and the mortgaged property is now free from the mortgagees security, and therefore. from the interest vested in the Custodian It is true that the Competent Officer, as already stated, can adopt any of the three measures set out in Sec. 10 (b) of the Separation Act or adopt a combination of all or some of them, but as emerging from the discussion above, he cannot redeem the property and order delivery of vacant possession in the absence of an agreement between the Custodian and the appellant. That is quite clear. But the order of sale passed by him and confirmed by the Appellate Officer also cannot stand, firstly, because the mortgage debt now stands satisfied, and secondly because he can order sale only for satisfaction of the mortgage debt and for distribution of the sale proceeds thereof between the mortgagor and the mortgagee. There being now no question of the satisfaction of the mortgage debt since it now stands satisfied and the property being now freed from the mortgagees security, the order for sale cannot stand and cannot be allowed to stand. At the same time the Competent Officer cannot order the Custodian to deliver vacant possession although the appellant has paid the mortgage amount and the Competent Officer has accepted it in satisfaction of the mortgage debt. In view of Ss. 10 and 12 of the Administration Act, the powers and duties of the Custodian thereunder and under the rules made under that Act, the provisions of Sec. 10 of the Separation Act and Rule 11B of the rules made thereunder, the only thing that could be offered and given to the appellant was symbolical possession of the property. Such a result, no doubt, would be inconvenient, and may even appear to be harsh and unfair as the appellant would be driven to file proceedings for eviction of tenants and allottees now in possession of the property. (See All India Film Corporation Ltd. v. Raja Gyan Nath, Civil Appeals Nos. 2416 and 2417 of 1966, D/26-9-1969 (SC) ).
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10. The result which emerges from the discussion of the relevant provisions of the two Acts and the rules thereunder made is (1) that though the Competent Officer must accept the mortgage amount when tendered by a mortgagor and the mortgage debt thereupon would be satisfied, he cannot exercise the power to redeem the mortgaged property and order the Custodian to deliver up its vacant possession to the mortgagor in the absence of any agreement between the mortgagor and the Custodian, and (2) that in exercising his Jurisdiction under Sec. 10 the Competent Officer cannot direct the Custodian to cancel or vary the terms of the leases or allotments made or granted by him firstly because he has no such power under Sec. 10 or any other provision of the Separation Act, and secondly, because such an order would amount to compelling the Custodian to act in a manner contrary to the provisions of the aforesaid Rule 14. The exercise of the power to redeem being subject to the rules, it would not be competent for the Competent Officer, by reason of Rule 11B (b), to order delivery of possession by the Custodian in the absence of an agreement between him and the mortgagor-claimant.11. In view of this position, the appellant could not have insisted that he would tender or pay the mortgage debt only against delivery of vacant possession of the property in the absence of any agreement between him and the Custodian. The only thing which the Competent Officer could do in the circumstances was to accept the mortgage amount whereupon interest would cease to run. It is not in dispute that the appellant, insisting as he was all throughout upon being given vacant and not merely symbolical possession, did not actually tender or make payment of the mortgage debt. The mortgage debt, therefore, remained outstanding. The mortgage also stood intact, and therefore, the only measure which the Competent Officer could adopt and which in fact he adopted was to order sale of the property and satisfy the mortgage debt from the sale proceeds thereof. The order which he passed and which was confirmed by the Appellate Officer was in the circumstances then prevailing validly and competently made. The appellants grievance against it, therefore could not be sustained (Cf. in this connection the position of an auction purchaser as decided in Ek Nawaz Khan v. The Competent Officer, AIR 1960 All 626 ).12. But it is conceded that since the passing of the said order the appellant has paid up the full mortgage amount and the Competent Officer has, as he was bound to do under Section 10, proviso, accepted that amount. Presumably that amount has been paid by him to the Custodian. Therefore, the mortgage debt is no longer outstanding. Though this event has happened after the impugned order was passed, we must in fairness take notice of the fact that the mortgage debt is no longer outstanding and the mortgaged property is now free from the mortgagees security, and therefore. from the interest vested in the Custodian It is true that the Competent Officer, as already stated, can adopt any of the three measures set out in Sec. 10 (b) of the Separation Act or adopt a combination of all or some of them, but as emerging from the discussion above, he cannot redeem the property and order delivery of vacant possession in the absence of an agreement between the Custodian and the appellant. That is quite clear. But the order of sale passed by him and confirmed by the Appellate Officer also cannot stand, firstly, because the mortgage debt now stands satisfied, and secondly because he can order sale only for satisfaction of the mortgage debt and for distribution of the sale proceeds thereof between the mortgagor and the mortgagee. There being now no question of the satisfaction of the mortgage debt since it now stands satisfied and the property being now freed from the mortgagees security, the order for sale cannot stand and cannot be allowed to stand. At the same time the Competent Officer cannot order the Custodian to deliver vacant possession although the appellant has paid the mortgage amount and the Competent Officer has accepted it in satisfaction of the mortgage debt. In view of Ss. 10 and 12 of the Administration Act, the powers and duties of the Custodian thereunder and under the rules made under that Act, the provisions of Sec. 10 of the Separation Act and Rule 11B of the rules made thereunder, the only thing that could be offered and given to the appellant was symbolical possession of the property. Such a result, no doubt, would be inconvenient, and may even appear to be harsh and unfair as the appellant would be driven to file proceedings for eviction of tenants and allottees now in possession of the property. (See All India Film Corporation Ltd. v. Raja Gyan Nath, Civil Appeals Nos. 2416 and 2417 of 1966, D/26-9-1969 (SC) ).
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The State of Kerala & Ors Vs. M/s Joseph & Company | license to another person (limited to two rods) to fish in the river during the residue of the term. The consideration therein would not be relevant in the instant case. In the case, Cook vs. Shoesmith (1951) 1 KB-752, it was the case where the dwelling house was let to the tenant wherein, he agreed that he will not sublet. However, the tenant had sublet two rooms of the house due to which the landlord filed the suit for possession alleging breach of the agreement. The court relied on the dictum of Lord Elson in Church vs. Brown wherein it was held that the principle of an undertaking not to sublet the premise was not broken since the premise described the whole of what is demised and there are no words such as a tenant had agreed not to sublet any part of it. In that circumstance, it was held that there was no breach of the agreement. 29. In, Swarnamoyee Debya vs. Aferaddi and Ors. AIR 1932 Calcutta 787, it was a case where ejectment was sought for unauthorised transfer by the defendant which was contended to have broken the condition in the document creating the tenancy. In that circumstance, it was held that the usufructuary mortgage was not of the entire holding and upon the covenant in the lease, no forfeiture was incurred by the transaction. The question which was considered therein was with regard to the construction of the lease which had arisen in that case and a decision to that effect was taken. In the case, Keshab Chandra Sarkar and Ors. vs. Gopal Chandra Chanda AIR 1960 Calcutta 609, the plaintiff had sued for recovery of possession contending unauthorised transfer of the leased land without the consent of lessor which amounted to breach of condition of the lease. The general principles relating to forfeiture as had been laid down was taken note and in that circumstance by strictly construing the right of forfeiture against the lessor in the absence of express stipulation had arrived at the conclusion that the transfer made of the entire extent, though consent had been obtained to transfer a part would not amount to breach. Certain other decisions relied on by the learned senior counsel are also to the same effect and we see no need to refer to each of them. But, what is necessary to be taken note is that the general principles of equity as laid down in Grove vs. Portal (supra) has been the basis for the conclusion reached in almost all the noted cases. 30. In contradistinction to the facts which arose for consideration in the cited cases where essentially the dispute was inter-se between the private owners of the property and their lessees and the nature of transaction, in the instant case, the leased land is the property which belong to the government and the leasehold right has been auctioned so as to earn revenue for the state, which is to the interest of its citizens and one citizen or a group is permitted to exploit the land to the exclusion of all others. Additionally, such government property is located in an area notified as reserve forest. In such circumstance, when the lessee is given the benefit of such property and the breach of the condition imposed is alleged, the strict construction of the forfeiture clause against the lessor in all circumstances would not arise as otherwise it would render the clause in the lease deed otiose. The principle contained in Section 111(g) of the T.P. Act though noticed, the parties are governed by the terms in the contract and as such the lessee cannot claim benefit under the said provision. Further, as already noted the consideration under Section 111(g) is based on equitable principles which will have to be applied depending on the facts and circumstances obtained in each case. While applying the equitable principles, the maxim he who seeks equity must do equity cannot be lost sight of. It is said, a court will not assist a lessee in extricating himself or herself from the circumstances that he or she has created, in the name of equitable consideration. In the instant facts as already noted when public largesse is bestowed on certain terms and conditions, a term of the lease deed is to be strictly adhered to and when Clause 14 provides that the lessee shall not be entitled to sublet or assign his interest in the lease except with the previous permission in writing of the lessor, it does not matter as to whether the breach committed is by assigning a portion of the leased land or the whole when such interest of the lessee has been transferred without previous permission of the lessor. Further, in all the cases referred to by the learned senior counsel, the breach alleged was either of creating mortgage or subletting the property. In the instant case, despite being a lessee the respondent has executed an absolute sale deed in respect of the leased land which belongs to the government and such breach cannot be condoned. CIVIL APPEAL NO.5120/2021 @ SLP(C) No.9661/2017 AND CIVIL APPEAL NO.5119/2021 @ SLP(C) No.18760/2016 31. The Appellant-State of Kerala in both these appeals are assailing the interim orders passed by the learned single judge in W.P. No.35832/2015. The said order had been confirmed by the learned Division Bench through the orders dated 11.01.2016 and 25.01.2017. Considering that the learned single judge had made an interim arrangement protecting the interest of both the parties which will be subject to ultimate result in the writ petition and also taking note that this Court while directing notice in SLP No.9661/2017, on 21.04.2017 had directed the parties to maintain status quo as it existed on that day and the said order has continued till this day, it would be appropriate that the said position shall continue and the High Court shall dispose of the writ proceedings in accordance with law, if already not considered and disposed of. | 1[ds]11. Having noted the contention, we find that the said the lease deed dated 15.12.1979 would no doubt disclose that Mr. K.K. Joseph in his individual name is referred to as the lessee of the other part. The recital in the lease deed however depicts that the earlier transaction in favour of Mr. P.I. Joseph and the document executed by Mr. P.I Joseph in favour of Mr. K.K Joseph to assign the lease is referred in the document. In that backdrop, a reference to the sale deed dated 28.02.1974 by which the sale was made by Mr. P.I. Joseph to Mr. K.K. Joseph indicates that the purchaser Mr. K.K. Joseph has been described as the Managing Partner, M/s Joseph & Company, a registered partnership firm. The said aspect would ex-facie indicate that the contention of the appellant that M/s Joseph & Company had come into existence subsequently as a ploy to overcome and defeat the bar contained in Clause 14 to the lease deed cannot be accepted. Further, as already taken note, the learned Single Judge as also the learned Division Bench has referred to the various other documents more particularly at Exhibits P10, P11, P12, P13 and P16 to P20 in the writ proceeding records to indicate that the Government, for all intents and purposes had treated M/s. Joseph & Company as the lessee. Therefore, to the said extent on the first aspect, the same does not constitute breach. Hence the conclusion reached by the High Court on that aspect does not call for interference.13. From a perusal of the relevant clauses in the lease deed it is seen that clause 14 thereof provides that the lessee shall not be entitled to sublet or assign his interest in the said lease except with the previous permission in writing obtained from the lessor. In that backdrop, the breach alleged against the respondent is that the lessee has assigned the interest in the leased land to an extent of 50 acres in favour of Mr. Raghavan without the previous permission of the lessor. The fact that such sale has taken place cannot be in dispute nor is it in dispute. The said assignment has been made under the registered sale deed dated 16.12.1983.16. If in that context, Clause 12 is taken note, it indicates that the issue of notice is contemplated in the event of the lessee committing default and the liberty to terminate the lease is exercised. The concession provided is to rectify the default before the notice is issued. If there is failure of the lessee to remedy such default that may be reported to the lessor from time to time by the Chief Conservator of Forests. Before termination of the lease a notice is to be issued and be heard about the default if the default has not been remedied. The same would clearly indicate that the default referred to, the issue of notice there for and the fact that the same is based on the report to the lessor (State of Kerala) from Chief Conservator of Forests is that the rectification permitted is in respect of the default relating to deviation from the obligations contained in the covenants relating to maintaining the nature of the property and default should be of rectifiable nature. The Dictionary meaning of default is; failure to fulfil an obligation, while the meaning of breach is an act of breaking a law, agreement or code of conduct. If the said distinction is kept in view, the breach if committed by subletting or assigning as provided in Clause 14, the same would lead to its consequences and the liberty to remedy the same is not mandatory. All that Clause 12 signifies is that if default is reported and if such default is not remedied then termination can be made after issue of notice and hearing. The cause for termination will be the default and permitting to remedy the same is only an indulgence to be shown. Therefore, the learned Division Bench was not justified in its conclusion that the non-issue of notice and not providing opportunity to remedy the default is fatal. In the instant facts, the reading of the lease deed as a whole would indicate that the right reserved to the lessor under Clause 14 is independent of Clause 12 and if the breach of that nature occurs, it is irreversible and it will have to be taken to its logical conclusion unless the lessor waives the right thereunder.18. The contention of the learned senior counsel for the respondent that a question of law could be raised at any stage is well taken and we do not see the reason to refer to the precedents relied on that proposition. Even that be so, the provisions contained in Sections 111 and 112 of the T.P. Act though taken note, in our opinion, the same cannot be considered in abstract without reference to the factual foundation. So far as the contention that the lessee had continued to pay the lease rentals in respect of the entire property despite the sale of 50 acres to Mr. Raghavan, whether such acceptance of the lease rentals by the lessor was with knowledge of default by condoning the breach, is a question of fact which will have to be urged in the original proceedings and the material will have to be placed on record so as to enable the original authority to take a decision on that aspect and render a finding on fact so that the Court at a later stage in the process of judicial review can reassess the same and determine as to whether the benefit of Section 112 T.P.Act will be available. Therefore, in the instant case, the contention that the lease rentals were being paid in respect of the entire extent cannot be accepted outright as no contention was urged and details were not laid in the original proceedings. Further, in a matter of the present nature when the entire lease area measured vast extent of 246.26 acres and the allegation is of parting with the lease hold right of 50 acres from such lease area and in that circumstance when the lease rental in any event was being paid to the remaining extent of 196.26 acres, the lumpsum payment of lease rental cannot be taken advantage of to contend that the lease rental was continued to be paid and seek waiver of forfeiture.19. When there was breach providing the right to terminate the lease in respect of the entire leased land, even if the lease rental paid by the lessee has been accepted by the appellant-lessor, it has not been shown that the requirement of the conditions in the proviso to Section 112 of the T.P. Act is satisfied. In the present situation, the land is leased by the government and when the breach had occurred the competent authority had issued the notice and the proceedings was initiated. Once the proceedings had been initiated even if the lease rental was received the same is saved under the second proviso. Further the situation is also that the payment of the rental made to the government would in any event be accepted as different functions are performed by different offices and any amount tendered will be received. That cannot give any advantage to the lessee merely because the rent has been tendered in the government office and the same has been innocuously accepted without there being specific reference to waiver.20. On the question of waiver, it would be profitable to refer to the decision of this court in the case of Sarup Singh Gupta vs. S. Jagdish Singh and Others (2006) 4 SCC 205 wherein the contention relating to waiver due to acceptance of rent was considered, though in the context of Sections 111(h) and 113 of the T.P. Act, wherein it was held as hereunder: -6. Learned Senior Counsel also relied upon a decision of a learned Single Judge of the Calcutta High Court, reported in AIR 1926 (Calcutta) 763, wherein It was held that where rent is accepted after the notice to quit, whether before or after the suit has been filed, the landlord thereby shows an intention to treat the lease as subsisting and, therefore, where rent deposited with the Rent Controller under the Calcutta Rent Act is withdrawn even after the ejectment suit is filed, the notice to quit is waived. In our view, the principle laid down in the aforesaid judgment of the High Court is too widely stated, and cannot be said to be an accurate statement of law. A mere perusal of Section 113 leaves no room for doubt that in a given case, a notice given under Section 111, Clause (h), may be treated as having been waived, but the necessary condition is that there must be some act on the part of the person giving the notice evincing an intention to treat the lease as subsisting. Of course, the express or implied consent of the person to whom such notice is given must also be established. The question as to whether the person giving the notice has by his act shown an intention to treat the lease as subsisting is essentially a question of fact. In reaching a conclusion on this aspect of the matter, the Court must consider all relevant facts and circumstances, and the mere fact that rent has been tendered and accepted, cannot be determinative.7. A somewhat similar situation arose in the case in Shanti Prasad Devi v. Shankar Mahto. That was a case where the landlord accepted rent even on expiry of the period of lease. A submission was urged on behalf of the tenant in that case that Section 116, Transfer of Property Act was attracted and there was a deemed renewal, of the lease. Negativing the contention, this Court observed that mere acceptance of rent for the subsequent months in which the lessee continued to occupy the premise even, after the expiry of the period of the lease, cannot be said to be a conduct signifying his assent to the continuing of the lease even after the expiry of the lease period. Their Lordships noticed the conditions incorporated in the agreement itself, which provided for renewal of the lease and held that those conditions having not been fulfilled, the mere acceptance of rent after expiry of period of lease did not signify assent to the continuance of the lease.In that view, the waiver as contended by the learned senior counsel for the respondent-lessee is unsustainable.21. That apart, the contention that the lessee- M/s. Joseph & Company had continued in possession of the said extent of 50 acres even after sale and therefore there is no default cannot be accepted for more than one reason.22. A perusal of the extracted portion from the sale deed dated 16.12.1983 would indicate the outright nature of sale of a portion of the leased land. It is sold for a sale consideration despite knowing that the property belonging to the government is granted under lease. The recital in fact, categorically indicates that the absolute right and possession has been given and it has also been stated therein that henceforth the purchaser, Mr. Raghavan is to pay the lease rent directly to the government and all taxes to the government are also to be paid by him. Further, neither Mr. K.K. Joseph nor the partnership firm has retained any right over the property sold under that document. Therefore, the document itself would indicate the intention of the parties and also the fact that possession was parted without consent of the lessor which was a clear breach of Clause 14 in the lease deed.The said statement would clarify that the possession had been parted and it was only being indicated that on re- conveyance being made, the possession would come back to the lessee. Therefore, the contention put forth by the learned senior counsel for the respondent that the possession had not been parted and the lease rental was being paid by them cannot be accepted as a mitigating factor in the facts and circumstances of this case.24. Though an attempt is made to contend that an opportunity ought to have been granted to remedy the default in view of the provision contained in Clause 12 of the lease deed in which event the default would stand remedied, the same cannot come to the aid of the respondent for the reason stated supra. Further, factually also it is to be noted that except addressing the letter dated 26.06.1990, the lessee- M/s. Joseph & Company did not take any concrete steps to either cancel the sale deed or to physically indicate that the possession is back with the lessee and the transaction has been nullified. Be that as it may, even otherwise in the instant facts the breach was not of the nature which was contemplated for rectification as provided under Clause 12 of the lease deed. Therefore, it is too late in the day for the respondent to contend that there was non-compliance of Clause 12 before the right of the lessor to terminate the lease as provided under Clause 14 is exercised.26. Having noted the contention, firstly, a perusal of clause 14 no doubt does not state a part thereof as contended by the learned senior counsel. However, that does not mean that a breach committed in respect of a part of the leased land cannot be construed as breach and would disentitle the lessor to exercise the right thereunder. Secondly, Section 111(g) does not suggest that in respect of the lease as a whole, the forfeiture should be limited only to the portion regarding which the breach is alleged. The breach is of not adhering to the assurance given to lessor in respect of the property belonging to the lessor, be it the whole or a part of it. In this regard, the decision relied on in the case of Sh. Shiam Behari Lal Gour and Others vs. Madan Singh AIR (32) 1946 Allahabad 298 is a circumstance where the suit was decreed for a declaration that the lease rights of the defendants in the leased land have been determined and the plaintiff is entitled to possession.In that circumstance, the point which arose for consideration is, whether the plaintiff is in the events which have happened, entitled to such declaration and whether in that circumstance there has been forfeiture.No-doubt as contended by the learned senior counsel, the issue that was settled is that the law leans against forfeiture. Such consideration in the said suit was after noting the nature of right that was claimed to the property by the lessor wherein there was rival claims of succession to the property.27. In the case, A. Venkataramana Bhatta and Ors. vs. Krishna Bhatta and Ors AIR 1925 Madras 57, the High Court no doubt considered the case against forfeiture of the entire lease when there was partial alienation by taking a leaf from the construction adopted in England, based on the general principles of equity and the same was followed in India. In the said case, the equitable principle was applied in a circumstance where the lessee himself in fact was the owner of the property. He had mortgaged the same and had obtained lease of a portion of the mortgage property from his mortgagee. From such property which was obtained on lease, a portion thereof was again mortgaged by him to a different mortgagee which was termed as breach of the terms of lease. In that circumstance, the forfeiture was limited only to the portion which was mortgaged to a third-party mortgagee after obtaining on lease from the first mortgagee.29. In, Swarnamoyee Debya vs. Aferaddi and Ors. AIR 1932 Calcutta 787, it was a case where ejectment was sought for unauthorised transfer by the defendant which was contended to have broken the condition in the document creating the tenancy. In that circumstance, it was held that the usufructuary mortgage was not of the entire holding and upon the covenant in the lease, no forfeiture was incurred by the transaction. The question which was considered therein was with regard to the construction of the lease which had arisen in that case and a decision to that effect was taken. In the case, Keshab Chandra Sarkar and Ors. vs. Gopal Chandra Chanda AIR 1960 Calcutta 609, the plaintiff had sued for recovery of possession contending unauthorised transfer of the leased land without the consent of lessor which amounted to breach of condition of the lease. The general principles relating to forfeiture as had been laid down was taken note and in that circumstance by strictly construing the right of forfeiture against the lessor in the absence of express stipulation had arrived at the conclusion that the transfer made of the entire extent, though consent had been obtained to transfer a part would not amount to breach. Certain other decisions relied on by the learned senior counsel are also to the same effect and we see no need to refer to each of them. But, what is necessary to be taken note is that the general principles of equity as laid down in Grove vs. Portal (supra) has been the basis for the conclusion reached in almost all the noted cases.30. In contradistinction to the facts which arose for consideration in the cited cases where essentially the dispute was inter-se between the private owners of the property and their lessees and the nature of transaction, in the instant case, the leased land is the property which belong to the government and the leasehold right has been auctioned so as to earn revenue for the state, which is to the interest of its citizens and one citizen or a group is permitted to exploit the land to the exclusion of all others. Additionally, such government property is located in an area notified as reserve forest. In such circumstance, when the lessee is given the benefit of such property and the breach of the condition imposed is alleged, the strict construction of the forfeiture clause against the lessor in all circumstances would not arise as otherwise it would render the clause in the lease deed otiose. The principle contained in Section 111(g) of the T.P. Act though noticed, the parties are governed by the terms in the contract and as such the lessee cannot claim benefit under the said provision. Further, as already noted the consideration under Section 111(g) is based on equitable principles which will have to be applied depending on the facts and circumstances obtained in each case. While applying the equitable principles, the maxim he who seeks equity must do equity cannot be lost sight of. It is said, a court will not assist a lessee in extricating himself or herself from the circumstances that he or she has created, in the name of equitable consideration. In the instant facts as already noted when public largesse is bestowed on certain terms and conditions, a term of the lease deed is to be strictly adhered to and when Clause 14 provides that the lessee shall not be entitled to sublet or assign his interest in the lease except with the previous permission in writing of the lessor, it does not matter as to whether the breach committed is by assigning a portion of the leased land or the whole when such interest of the lessee has been transferred without previous permission of the lessor. Further, in all the cases referred to by the learned senior counsel, the breach alleged was either of creating mortgage or subletting the property. In the instant case, despite being a lessee the respondent has executed an absolute sale deed in respect of the leased land which belongs to the government and such breach cannot be condoned. | 1 | 7,282 | 3,566 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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license to another person (limited to two rods) to fish in the river during the residue of the term. The consideration therein would not be relevant in the instant case. In the case, Cook vs. Shoesmith (1951) 1 KB-752, it was the case where the dwelling house was let to the tenant wherein, he agreed that he will not sublet. However, the tenant had sublet two rooms of the house due to which the landlord filed the suit for possession alleging breach of the agreement. The court relied on the dictum of Lord Elson in Church vs. Brown wherein it was held that the principle of an undertaking not to sublet the premise was not broken since the premise described the whole of what is demised and there are no words such as a tenant had agreed not to sublet any part of it. In that circumstance, it was held that there was no breach of the agreement. 29. In, Swarnamoyee Debya vs. Aferaddi and Ors. AIR 1932 Calcutta 787, it was a case where ejectment was sought for unauthorised transfer by the defendant which was contended to have broken the condition in the document creating the tenancy. In that circumstance, it was held that the usufructuary mortgage was not of the entire holding and upon the covenant in the lease, no forfeiture was incurred by the transaction. The question which was considered therein was with regard to the construction of the lease which had arisen in that case and a decision to that effect was taken. In the case, Keshab Chandra Sarkar and Ors. vs. Gopal Chandra Chanda AIR 1960 Calcutta 609, the plaintiff had sued for recovery of possession contending unauthorised transfer of the leased land without the consent of lessor which amounted to breach of condition of the lease. The general principles relating to forfeiture as had been laid down was taken note and in that circumstance by strictly construing the right of forfeiture against the lessor in the absence of express stipulation had arrived at the conclusion that the transfer made of the entire extent, though consent had been obtained to transfer a part would not amount to breach. Certain other decisions relied on by the learned senior counsel are also to the same effect and we see no need to refer to each of them. But, what is necessary to be taken note is that the general principles of equity as laid down in Grove vs. Portal (supra) has been the basis for the conclusion reached in almost all the noted cases. 30. In contradistinction to the facts which arose for consideration in the cited cases where essentially the dispute was inter-se between the private owners of the property and their lessees and the nature of transaction, in the instant case, the leased land is the property which belong to the government and the leasehold right has been auctioned so as to earn revenue for the state, which is to the interest of its citizens and one citizen or a group is permitted to exploit the land to the exclusion of all others. Additionally, such government property is located in an area notified as reserve forest. In such circumstance, when the lessee is given the benefit of such property and the breach of the condition imposed is alleged, the strict construction of the forfeiture clause against the lessor in all circumstances would not arise as otherwise it would render the clause in the lease deed otiose. The principle contained in Section 111(g) of the T.P. Act though noticed, the parties are governed by the terms in the contract and as such the lessee cannot claim benefit under the said provision. Further, as already noted the consideration under Section 111(g) is based on equitable principles which will have to be applied depending on the facts and circumstances obtained in each case. While applying the equitable principles, the maxim he who seeks equity must do equity cannot be lost sight of. It is said, a court will not assist a lessee in extricating himself or herself from the circumstances that he or she has created, in the name of equitable consideration. In the instant facts as already noted when public largesse is bestowed on certain terms and conditions, a term of the lease deed is to be strictly adhered to and when Clause 14 provides that the lessee shall not be entitled to sublet or assign his interest in the lease except with the previous permission in writing of the lessor, it does not matter as to whether the breach committed is by assigning a portion of the leased land or the whole when such interest of the lessee has been transferred without previous permission of the lessor. Further, in all the cases referred to by the learned senior counsel, the breach alleged was either of creating mortgage or subletting the property. In the instant case, despite being a lessee the respondent has executed an absolute sale deed in respect of the leased land which belongs to the government and such breach cannot be condoned. CIVIL APPEAL NO.5120/2021 @ SLP(C) No.9661/2017 AND CIVIL APPEAL NO.5119/2021 @ SLP(C) No.18760/2016 31. The Appellant-State of Kerala in both these appeals are assailing the interim orders passed by the learned single judge in W.P. No.35832/2015. The said order had been confirmed by the learned Division Bench through the orders dated 11.01.2016 and 25.01.2017. Considering that the learned single judge had made an interim arrangement protecting the interest of both the parties which will be subject to ultimate result in the writ petition and also taking note that this Court while directing notice in SLP No.9661/2017, on 21.04.2017 had directed the parties to maintain status quo as it existed on that day and the said order has continued till this day, it would be appropriate that the said position shall continue and the High Court shall dispose of the writ proceedings in accordance with law, if already not considered and disposed of.
### Response:
1
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to the lessor, be it the whole or a part of it. In this regard, the decision relied on in the case of Sh. Shiam Behari Lal Gour and Others vs. Madan Singh AIR (32) 1946 Allahabad 298 is a circumstance where the suit was decreed for a declaration that the lease rights of the defendants in the leased land have been determined and the plaintiff is entitled to possession.In that circumstance, the point which arose for consideration is, whether the plaintiff is in the events which have happened, entitled to such declaration and whether in that circumstance there has been forfeiture.No-doubt as contended by the learned senior counsel, the issue that was settled is that the law leans against forfeiture. Such consideration in the said suit was after noting the nature of right that was claimed to the property by the lessor wherein there was rival claims of succession to the property.27. In the case, A. Venkataramana Bhatta and Ors. vs. Krishna Bhatta and Ors AIR 1925 Madras 57, the High Court no doubt considered the case against forfeiture of the entire lease when there was partial alienation by taking a leaf from the construction adopted in England, based on the general principles of equity and the same was followed in India. In the said case, the equitable principle was applied in a circumstance where the lessee himself in fact was the owner of the property. He had mortgaged the same and had obtained lease of a portion of the mortgage property from his mortgagee. From such property which was obtained on lease, a portion thereof was again mortgaged by him to a different mortgagee which was termed as breach of the terms of lease. In that circumstance, the forfeiture was limited only to the portion which was mortgaged to a third-party mortgagee after obtaining on lease from the first mortgagee.29. In, Swarnamoyee Debya vs. Aferaddi and Ors. AIR 1932 Calcutta 787, it was a case where ejectment was sought for unauthorised transfer by the defendant which was contended to have broken the condition in the document creating the tenancy. In that circumstance, it was held that the usufructuary mortgage was not of the entire holding and upon the covenant in the lease, no forfeiture was incurred by the transaction. The question which was considered therein was with regard to the construction of the lease which had arisen in that case and a decision to that effect was taken. In the case, Keshab Chandra Sarkar and Ors. vs. Gopal Chandra Chanda AIR 1960 Calcutta 609, the plaintiff had sued for recovery of possession contending unauthorised transfer of the leased land without the consent of lessor which amounted to breach of condition of the lease. The general principles relating to forfeiture as had been laid down was taken note and in that circumstance by strictly construing the right of forfeiture against the lessor in the absence of express stipulation had arrived at the conclusion that the transfer made of the entire extent, though consent had been obtained to transfer a part would not amount to breach. Certain other decisions relied on by the learned senior counsel are also to the same effect and we see no need to refer to each of them. But, what is necessary to be taken note is that the general principles of equity as laid down in Grove vs. Portal (supra) has been the basis for the conclusion reached in almost all the noted cases.30. In contradistinction to the facts which arose for consideration in the cited cases where essentially the dispute was inter-se between the private owners of the property and their lessees and the nature of transaction, in the instant case, the leased land is the property which belong to the government and the leasehold right has been auctioned so as to earn revenue for the state, which is to the interest of its citizens and one citizen or a group is permitted to exploit the land to the exclusion of all others. Additionally, such government property is located in an area notified as reserve forest. In such circumstance, when the lessee is given the benefit of such property and the breach of the condition imposed is alleged, the strict construction of the forfeiture clause against the lessor in all circumstances would not arise as otherwise it would render the clause in the lease deed otiose. The principle contained in Section 111(g) of the T.P. Act though noticed, the parties are governed by the terms in the contract and as such the lessee cannot claim benefit under the said provision. Further, as already noted the consideration under Section 111(g) is based on equitable principles which will have to be applied depending on the facts and circumstances obtained in each case. While applying the equitable principles, the maxim he who seeks equity must do equity cannot be lost sight of. It is said, a court will not assist a lessee in extricating himself or herself from the circumstances that he or she has created, in the name of equitable consideration. In the instant facts as already noted when public largesse is bestowed on certain terms and conditions, a term of the lease deed is to be strictly adhered to and when Clause 14 provides that the lessee shall not be entitled to sublet or assign his interest in the lease except with the previous permission in writing of the lessor, it does not matter as to whether the breach committed is by assigning a portion of the leased land or the whole when such interest of the lessee has been transferred without previous permission of the lessor. Further, in all the cases referred to by the learned senior counsel, the breach alleged was either of creating mortgage or subletting the property. In the instant case, despite being a lessee the respondent has executed an absolute sale deed in respect of the leased land which belongs to the government and such breach cannot be condoned.
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Madhavrao Narayanrao Patwardhan Vs. Ramkrishna Govind Bhanu & Others | Both the courts below have viewed the controversy under S. 14 of the Limitation Act, as if it was for the defendant to showmala fideson the part of the plaintiff when he instituted the previous suit and was carrying on the proceedings in that court. In our opinion, both the courts below have misdirected themselves on this question. Though they do not say so in terms, they appear to have applied the definition of good faith as contained in the General Clauses Act, to the effect that A thing shall be deemed to be done in good faith where it is in fact done honestly, whether it is done negligently or not. But the Indian Limitation Act contains its own definition of good faith to the effect that nothing shall be deemed to be done in good faith which is not done with due care and attention -(S. 2 (7)). We have, therefore, to see if the institution and prosecution of the suit in the Munsiffs court at Miraj, was done with due care and attention. We know that the plaint in the Tikoni suit filed by the same plaintiff in the same court, did contain a statement as to the value of the subject-matter, but it was conspicuous by its absence in the plaint in the suit as originally filed in the Munsiffs court at Miraj. All the facts alleged in the plaintiffs petition for the return of the plaint, were known to the plaintiff ever since the institution of the suit.Nothing fresh was discovered in 1940. On the other hand, we know definitely that the Tikoni suit had been dismissed by the trail court on merits. The suits were of an analogous character in the sense that the controversy was similar in both of them. The appellants contention that on the dismissal of the plaintiffs Tikoni suit in November, 1939, he, naturally, became apprehensive about the result of the other suit, and then moved the court for the return of the plaint on the ground of pecuniary jurisdiction, appears to be well-founded. The plaintiff knew all the time that the value of the properties involved in the suit, was much more than Rs. 5,000 which was the limit of the pecuniary jurisdiction of the Subordinate Judges court.Can an omission in the plaint to mention the value of the properties involved in the suit, be brought within the condition of due care and attention according to the meaning of and attention according to the meaning of good faith as understood in the Limitation Act? It has to be remembered that it is not one of those cases which usually arise upon a revision of the valuation as given in the plaint, on an objection raised by the defendant contesting the jurisdiction of the court to entertain the suit. Curiously enough, the defendant had not raised any objection in his written statement to the jurisdiction of the court to entertain the suit. Apparently, the plaintiff was hard put to it to discover reasons for having the case transferred to another court. The question is not whether the plaintiff did it dishonestly or that his acts or omission in this connection, weremala fide.On the other hand, the question is whether, given due care and attention, the plaintiff could have discovered the omission without having to wait for about 10 years or more.The trial court examined the plaintiffs allegation that the omission was due to his pleaders mistake. As that court observed he makes this contention with a view to shield himself behind a wrong legal advice. That court has answered the plaintiffs contention against him by observing that the plaintiff was not guided by any legal advice in this suit ; that the plaint was entirely written by him in both the suits, and that he himself conducted those suits in the trial court in a manner worthy of a senior counsel. The court, therefore, rightly came to the conclusion that the plaintiff himself was responsible for drafting the plaint and for presenting it in court, and that no pleader had any responsibility in the matter. No reason was adduced why, in these circumstances, the value of the subject-matter of the suit, was mentioned in the plaint in the Tikoni suit but not in the plaint in respect of the present suit. 8. There is another serious difficulty in the way of the plaintiff. He has not brought on the record of this case any evidence to show that he was prosecuting the previously instituted suit with due diligence as required by S. 14. He has not adduced in evidence the order-sheet or some equivalent evidence of the proceedings in the Sub-Judges court at Miraj, to show that in spite of his due diligence, the suit remained pending for over ten years in that court, before he thought of having the suit tried by a court of higher pecuniary jurisdiction. In our opinion, therefore, all the conditions necessary to bring the case within S. 14 have not been satisfied by the plaintiff.There could be no doubt about the legal position that the burden lay on the plaintiff to satisfy those conditions in order that he may entitle himself to the deduction of all that period between 31st January 1929, and 4th July 1940. It is also clear that the courts below were in error in expecting the contesting defendant to adduce evidence to the contrary. When the plaintiff has not satisfied the initial burden which lay upon him to bring his case within S. 14, the burden would not shift, if it ever shifted, to the defendant to show the contrary.In view of this conclusion, it is not necessary for us to pronounce upon the other contention raised on behalf of the appellants that, even after giving the benefit of S. 14, the suit is still barred under Art. 142 of the Limitation Act. This is a serious question which may have to be determined if and when it becomes necessary. | 1[ds]6. In our opinion, the appellants, contentions based on the provisions of S. 14 of the Limitation Act, are, and the decision of the courts below, granting thet the benefit of that section, must be reversed for the following reasons: Before the promulgation, on 1st January 1926, of the Proclamation by StateKarabhari,Miraj State, the law of limitation in that State, it is common ground, was that the plaintiff had the benefit of the period of 20 years as the period during which a suit for possession after dispossession, could be instituted. By that Proclamation, the Indian Limitation Act (IX of 1908) was made applicable to that State with effect from 1st February 1926, subject to this modification that all suits which would have been in time according to the old law of the State, but would have become barred by limitation as a result of the introduction of the Indian Limitation Act, could be filed upto 31st January 1929, by virtue of certain notification extending the last date for the institution of such suits. Hence the suit filed on that date in the Munsiffs court at Miraj, was admittedly within time, and was subject to the law of limitation under the Indian Limitation Act. When the plaint was returned by the Munsiffs court at Miraj, at the instance of the plaintiff himself on the ground of want of pecuniary jurisdiction, andto the court of the District Judge at Miraj on 4th July 1940, it was, on the face of it, barred by limitation, whether the period of limitation started to run in 1910 or 1915, unless the case is brought within S. 14 of the Limitation ActIt has to be remembered that it is not one of those cases which usually arise upon a revision of the valuation as given in the plaint, on an objection raised by the defendant contesting the jurisdiction of the court to entertain the suit. Curiously enough, the defendant had not raised any objection in his written statement to the jurisdiction of the court to entertain the suit. Apparently, the plaintiff was hard put to it to discover reasons for having the case transferred to another courtThe court, therefore, rightly came to the conclusion that the plaintiff himself was responsible for drafting the plaint and for presenting it in court, and that no pleader had any responsibility in the matter. No reason was adduced why, in these circumstances, the value of ther of the suit, was mentioned in the plaint in the Tikoni suit but not in the plaint in respect of the present suit8. There is another serious difficulty in the way of the plaintiff. He has not brought on the record of this case any evidence to show that he was prosecuting the previously instituted suit with due diligence as required by S. 14. He has not adduced in evidence thet or some equivalent evidence of the proceedings in thes court at Miraj, to show that in spite of his due diligence, the suit remained pending for over ten years in that court, before he thought of having the suit tried by a court of higher pecuniary jurisdiction. In our opinion, therefore, all the conditions necessary to bring the case within S. 14 have not been satisfied by the plaintiff.There could be no doubt about the legal position that the burden lay on the plaintiff to satisfy those conditions in order that he may entitle himself to the deduction of all that period between 31st January 1929, and 4th July 1940. It is also clear that the courts below were in error in expecting the contesting defendant to adduce evidence to the contrary. When the plaintiff has not satisfied the initial burden which lay upon him to bring his case within S. 14, the burden would not shift, if it ever shifted, to the defendant to show the contrary.In view of this conclusion, it is not necessary for us to pronounce upon the other contention raised on behalf of the appellants that, even after giving the benefit of S. 14, the suit is still barred under Art. 142 of the Limitation Act. This is a serious question which may have to be determined if and when it becomes necessary. | 1 | 3,161 | 778 | ### Instruction:
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Both the courts below have viewed the controversy under S. 14 of the Limitation Act, as if it was for the defendant to showmala fideson the part of the plaintiff when he instituted the previous suit and was carrying on the proceedings in that court. In our opinion, both the courts below have misdirected themselves on this question. Though they do not say so in terms, they appear to have applied the definition of good faith as contained in the General Clauses Act, to the effect that A thing shall be deemed to be done in good faith where it is in fact done honestly, whether it is done negligently or not. But the Indian Limitation Act contains its own definition of good faith to the effect that nothing shall be deemed to be done in good faith which is not done with due care and attention -(S. 2 (7)). We have, therefore, to see if the institution and prosecution of the suit in the Munsiffs court at Miraj, was done with due care and attention. We know that the plaint in the Tikoni suit filed by the same plaintiff in the same court, did contain a statement as to the value of the subject-matter, but it was conspicuous by its absence in the plaint in the suit as originally filed in the Munsiffs court at Miraj. All the facts alleged in the plaintiffs petition for the return of the plaint, were known to the plaintiff ever since the institution of the suit.Nothing fresh was discovered in 1940. On the other hand, we know definitely that the Tikoni suit had been dismissed by the trail court on merits. The suits were of an analogous character in the sense that the controversy was similar in both of them. The appellants contention that on the dismissal of the plaintiffs Tikoni suit in November, 1939, he, naturally, became apprehensive about the result of the other suit, and then moved the court for the return of the plaint on the ground of pecuniary jurisdiction, appears to be well-founded. The plaintiff knew all the time that the value of the properties involved in the suit, was much more than Rs. 5,000 which was the limit of the pecuniary jurisdiction of the Subordinate Judges court.Can an omission in the plaint to mention the value of the properties involved in the suit, be brought within the condition of due care and attention according to the meaning of and attention according to the meaning of good faith as understood in the Limitation Act? It has to be remembered that it is not one of those cases which usually arise upon a revision of the valuation as given in the plaint, on an objection raised by the defendant contesting the jurisdiction of the court to entertain the suit. Curiously enough, the defendant had not raised any objection in his written statement to the jurisdiction of the court to entertain the suit. Apparently, the plaintiff was hard put to it to discover reasons for having the case transferred to another court. The question is not whether the plaintiff did it dishonestly or that his acts or omission in this connection, weremala fide.On the other hand, the question is whether, given due care and attention, the plaintiff could have discovered the omission without having to wait for about 10 years or more.The trial court examined the plaintiffs allegation that the omission was due to his pleaders mistake. As that court observed he makes this contention with a view to shield himself behind a wrong legal advice. That court has answered the plaintiffs contention against him by observing that the plaintiff was not guided by any legal advice in this suit ; that the plaint was entirely written by him in both the suits, and that he himself conducted those suits in the trial court in a manner worthy of a senior counsel. The court, therefore, rightly came to the conclusion that the plaintiff himself was responsible for drafting the plaint and for presenting it in court, and that no pleader had any responsibility in the matter. No reason was adduced why, in these circumstances, the value of the subject-matter of the suit, was mentioned in the plaint in the Tikoni suit but not in the plaint in respect of the present suit. 8. There is another serious difficulty in the way of the plaintiff. He has not brought on the record of this case any evidence to show that he was prosecuting the previously instituted suit with due diligence as required by S. 14. He has not adduced in evidence the order-sheet or some equivalent evidence of the proceedings in the Sub-Judges court at Miraj, to show that in spite of his due diligence, the suit remained pending for over ten years in that court, before he thought of having the suit tried by a court of higher pecuniary jurisdiction. In our opinion, therefore, all the conditions necessary to bring the case within S. 14 have not been satisfied by the plaintiff.There could be no doubt about the legal position that the burden lay on the plaintiff to satisfy those conditions in order that he may entitle himself to the deduction of all that period between 31st January 1929, and 4th July 1940. It is also clear that the courts below were in error in expecting the contesting defendant to adduce evidence to the contrary. When the plaintiff has not satisfied the initial burden which lay upon him to bring his case within S. 14, the burden would not shift, if it ever shifted, to the defendant to show the contrary.In view of this conclusion, it is not necessary for us to pronounce upon the other contention raised on behalf of the appellants that, even after giving the benefit of S. 14, the suit is still barred under Art. 142 of the Limitation Act. This is a serious question which may have to be determined if and when it becomes necessary.
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6. In our opinion, the appellants, contentions based on the provisions of S. 14 of the Limitation Act, are, and the decision of the courts below, granting thet the benefit of that section, must be reversed for the following reasons: Before the promulgation, on 1st January 1926, of the Proclamation by StateKarabhari,Miraj State, the law of limitation in that State, it is common ground, was that the plaintiff had the benefit of the period of 20 years as the period during which a suit for possession after dispossession, could be instituted. By that Proclamation, the Indian Limitation Act (IX of 1908) was made applicable to that State with effect from 1st February 1926, subject to this modification that all suits which would have been in time according to the old law of the State, but would have become barred by limitation as a result of the introduction of the Indian Limitation Act, could be filed upto 31st January 1929, by virtue of certain notification extending the last date for the institution of such suits. Hence the suit filed on that date in the Munsiffs court at Miraj, was admittedly within time, and was subject to the law of limitation under the Indian Limitation Act. When the plaint was returned by the Munsiffs court at Miraj, at the instance of the plaintiff himself on the ground of want of pecuniary jurisdiction, andto the court of the District Judge at Miraj on 4th July 1940, it was, on the face of it, barred by limitation, whether the period of limitation started to run in 1910 or 1915, unless the case is brought within S. 14 of the Limitation ActIt has to be remembered that it is not one of those cases which usually arise upon a revision of the valuation as given in the plaint, on an objection raised by the defendant contesting the jurisdiction of the court to entertain the suit. Curiously enough, the defendant had not raised any objection in his written statement to the jurisdiction of the court to entertain the suit. Apparently, the plaintiff was hard put to it to discover reasons for having the case transferred to another courtThe court, therefore, rightly came to the conclusion that the plaintiff himself was responsible for drafting the plaint and for presenting it in court, and that no pleader had any responsibility in the matter. No reason was adduced why, in these circumstances, the value of ther of the suit, was mentioned in the plaint in the Tikoni suit but not in the plaint in respect of the present suit8. There is another serious difficulty in the way of the plaintiff. He has not brought on the record of this case any evidence to show that he was prosecuting the previously instituted suit with due diligence as required by S. 14. He has not adduced in evidence thet or some equivalent evidence of the proceedings in thes court at Miraj, to show that in spite of his due diligence, the suit remained pending for over ten years in that court, before he thought of having the suit tried by a court of higher pecuniary jurisdiction. In our opinion, therefore, all the conditions necessary to bring the case within S. 14 have not been satisfied by the plaintiff.There could be no doubt about the legal position that the burden lay on the plaintiff to satisfy those conditions in order that he may entitle himself to the deduction of all that period between 31st January 1929, and 4th July 1940. It is also clear that the courts below were in error in expecting the contesting defendant to adduce evidence to the contrary. When the plaintiff has not satisfied the initial burden which lay upon him to bring his case within S. 14, the burden would not shift, if it ever shifted, to the defendant to show the contrary.In view of this conclusion, it is not necessary for us to pronounce upon the other contention raised on behalf of the appellants that, even after giving the benefit of S. 14, the suit is still barred under Art. 142 of the Limitation Act. This is a serious question which may have to be determined if and when it becomes necessary.
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State Of Gujarat Vs. Sayed Mohd. Baquir El Edross | KOSHAL, J. 1. The sole respondent in this appeal died on the 10th December, 1978. He was also arraigned as an appellant in the connected appeal (Civil Appeal No. 2132 of 1977) in which an application was made on the 20th February 1979 stating the factum and the date of the demise. A copy of that application was delivered on the date last mentioned to the clerk of learned counsel for the appellant State, who, however, took no step to move the Court for having the legal representative s of the deceased respondent brought on the record in the present appeal till the 29th August, ]979 when an application was made for that purpose, but without being accompanied by any affidavit containing averments as to why the inordinate delay in filing the application should be condoned. An affidavit of the type just mentioned was filed in Court on 4th March, 198(). 2. It is common ground between the parties that on the death of the sole respondent to the appeal the right to sue survived to his legal representatives. No application having been made within 90 days of the death, the appeal abated on the 11th March. 1979 and an application for having the abatement set aside could have been made within the period of 60 days following that date. (Article 121 of the Limitation Act). The application actually made in that behalf was thus time-barred by more than 3 months and a half. Mr. Phadke, learned counsel for the appellant does not dispute this proposition. He urges. however, that the delay in making the application last mentioned should be condoned and the abatement of the appeal set aside. No sufficient cause, however, for the condonation of the delay is made out from any material on the record. As pointed out earlier, the clerk of the learned counsel for the appellant was served with a copy of the application dated 23rd February, 1979 on that date itself and no reason, good, bad or indifferent is assigned for the failure of that counsel right from the 20th February, 1979 to the 29th August, 1979 to move the Court till the 29th August, 1979 either for having the legal representatives of the deceased brought on the record or for having the abatement set aside after it had taken place. His knowledge of the death of the respondent must be attributed to the appellant State also and his negligence in not moving the Court in time must be deemed to be that of the appellant.Mr. Phadke also contended that he had a strong case for the acceptance of the appeal on merits and that the same should be regarded as a very good reason for the condonation of the delay. The contention is wholly without substance. The abatement stands in the way of the appeal being heard on merits which cannot, there fore, be looked into. 3. No grounds for the condonation of the delay having been made out we refuse to set aside the abatement. | 0[ds]It is common ground between the parties that on the death of the sole respondent to the appeal the right to sue survived to his legal representatives. No application having been made within 90 days of the death, the appeal abated on the 11th March. 1979 and an application for having the abatement set aside could have been made within the period of 60 days following that date. (Article 121 of the Limitation Act).The application actually made in that behalf was thusd by more than 3 months and a half. Mr. Phadke, learned counsel for the appellant does not dispute this. Heurges. however, that the delay in making the application last mentioned should be condoned and the abatement of the appeal set aside.No sufficient cause, however, for the condonation of the delay is made out from any material on the record. As pointed out earlier, the clerk of the learned counsel for the appellant was served with a copy of the application dated 23rd February, 1979 on that date itself and no reason, good, bad or indifferent is assigned for the failure of that counsel right from the 20th February, 1979 to the 29th August, 1979 to move the Court till the 29th August, 1979 either for having the legal representatives of the deceased brought on the record or for having the abatement set aside after it had taken place. His knowledge of the death of the respondent must be attributed to the appellant State also and his negligence in not moving the Court in time must be deemed to be that of the appellant.Mr. Phadke also contended that he had a strong case for the acceptance of the appeal on merits and that the same should be regarded as a very good reason for the condonation of the delay. The contention is wholly without substance. The abatement stands in the way of the appeal being heard on merits which cannot, there fore, be looked intoNo grounds for the condonation of the delay having been made out we refuse to set aside the abatement. | 0 | 557 | 378 | ### Instruction:
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KOSHAL, J. 1. The sole respondent in this appeal died on the 10th December, 1978. He was also arraigned as an appellant in the connected appeal (Civil Appeal No. 2132 of 1977) in which an application was made on the 20th February 1979 stating the factum and the date of the demise. A copy of that application was delivered on the date last mentioned to the clerk of learned counsel for the appellant State, who, however, took no step to move the Court for having the legal representative s of the deceased respondent brought on the record in the present appeal till the 29th August, ]979 when an application was made for that purpose, but without being accompanied by any affidavit containing averments as to why the inordinate delay in filing the application should be condoned. An affidavit of the type just mentioned was filed in Court on 4th March, 198(). 2. It is common ground between the parties that on the death of the sole respondent to the appeal the right to sue survived to his legal representatives. No application having been made within 90 days of the death, the appeal abated on the 11th March. 1979 and an application for having the abatement set aside could have been made within the period of 60 days following that date. (Article 121 of the Limitation Act). The application actually made in that behalf was thus time-barred by more than 3 months and a half. Mr. Phadke, learned counsel for the appellant does not dispute this proposition. He urges. however, that the delay in making the application last mentioned should be condoned and the abatement of the appeal set aside. No sufficient cause, however, for the condonation of the delay is made out from any material on the record. As pointed out earlier, the clerk of the learned counsel for the appellant was served with a copy of the application dated 23rd February, 1979 on that date itself and no reason, good, bad or indifferent is assigned for the failure of that counsel right from the 20th February, 1979 to the 29th August, 1979 to move the Court till the 29th August, 1979 either for having the legal representatives of the deceased brought on the record or for having the abatement set aside after it had taken place. His knowledge of the death of the respondent must be attributed to the appellant State also and his negligence in not moving the Court in time must be deemed to be that of the appellant.Mr. Phadke also contended that he had a strong case for the acceptance of the appeal on merits and that the same should be regarded as a very good reason for the condonation of the delay. The contention is wholly without substance. The abatement stands in the way of the appeal being heard on merits which cannot, there fore, be looked into. 3. No grounds for the condonation of the delay having been made out we refuse to set aside the abatement.
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It is common ground between the parties that on the death of the sole respondent to the appeal the right to sue survived to his legal representatives. No application having been made within 90 days of the death, the appeal abated on the 11th March. 1979 and an application for having the abatement set aside could have been made within the period of 60 days following that date. (Article 121 of the Limitation Act).The application actually made in that behalf was thusd by more than 3 months and a half. Mr. Phadke, learned counsel for the appellant does not dispute this. Heurges. however, that the delay in making the application last mentioned should be condoned and the abatement of the appeal set aside.No sufficient cause, however, for the condonation of the delay is made out from any material on the record. As pointed out earlier, the clerk of the learned counsel for the appellant was served with a copy of the application dated 23rd February, 1979 on that date itself and no reason, good, bad or indifferent is assigned for the failure of that counsel right from the 20th February, 1979 to the 29th August, 1979 to move the Court till the 29th August, 1979 either for having the legal representatives of the deceased brought on the record or for having the abatement set aside after it had taken place. His knowledge of the death of the respondent must be attributed to the appellant State also and his negligence in not moving the Court in time must be deemed to be that of the appellant.Mr. Phadke also contended that he had a strong case for the acceptance of the appeal on merits and that the same should be regarded as a very good reason for the condonation of the delay. The contention is wholly without substance. The abatement stands in the way of the appeal being heard on merits which cannot, there fore, be looked intoNo grounds for the condonation of the delay having been made out we refuse to set aside the abatement.
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Bishwanath And Anr Vs. Shri Thakur Radhaballabhji & Ors | can maintain a suit for eviction, did not arise for consideration in that case. That question falls to be decided on different considerations. 9. Three legal concepts are well settled : (1) An idol of a Hindu temple is a juridical person; (2) when there is a Shebait, ordinarily no person other than the Shebait can represent the idol; and (3) worshippers of an idol are its beneficiaries, though only in a spiritual sense. It has also been held that persons who go in only for the purpose of devotion have according to Hindu law and religion, a greater and deeper interest in temples than mere servants who serve there for some pecuniary advantage see Kalyana Venkataramana Ayyangar v. Kasturi Ranga Ayyangar, ILR 40 Mad 212 at p. 225: (AIR 1917 Mad 112 at p. 118). In the present case, the plaintiff is not only a mere worshipper but is found to have been assisting the 2nd defendant in the management of the temple. 10. The question is, can such a person represent the idol when the Shebait acts adversely to its interest and fails to take action to safeguard its interest. On principle we do not see any justification for denying such a right to the worshipper. An idol is in the position of a minor and when the person representing it leaves it in a lurch, a person interested in the worship of the idol can certainly be clothed with an ad hoc power of representation to protect its interest. It is a pragmatic, yet a legal solution to a difficult situation. Should it be held that a Shebait, who transferred the property, can only bring a suit for recovery, in most of the cases it will be an indirect approval of the dereliction of the Shebaits duty, for more often than not he will not admit his default and take steps to recover the property, apart from other technical pleas that may be open to the transferee in a suit. Should it be held that a worshipper can file only a suit for the removal of a Shebait and for the appointment of another in order to enable him to take steps to recover the property, such a procedure will be rather a prolonged and a complicated one and the interest of the idol may irreparably suffer. That is why decisions have permitted a worshipper in such circumstances to represent the idol and to recover the property for the idol. It has been held in a number of decisions that worshippers may file a suit praying for possession of a property on behalf of an endowment; see Radhabai v. Chimnaji, (1878) ILR 3 Bom 27, Zafaryab Ali v. Bakhtawar Singh, (1883) ILR 5 All 497 Chidambaranatha Thambirarn v. P. S. Nallasiva Mudaliar, 6 Mad LW 666 : (AIR 1918 Mad 464 ), Dasondhay v. Muhammad Abu Nasar, (1911) ILR 33 All 660 at p. 664: (AIR 1917 Mad 112) (FB), Radha Krishnaji v. Rameshwar Prasad Singh, AIR 1934 Pat 584 , Manmohan Haldar v. Dibbendu Prosad Roy, AIR 1949 Cal 199 . 11. There are two decisions of the Privy Council, namely, Pramatha Nath Mullick v. Pradyumna Kumar Mullick, 52 Ind App 245: (AIR 1925 PC 139 ) and Kanhaiya Lal v. Hamid Ali, 60 Ind App 263: (AIR 1933 PC 198 (1)), wherein the Board remanded the case to the High Court in order that the High Court might appoint a disinterested person to represent the idol. No doubt in both the cases no question of any deity filing a suit for its protection arose, but the decisions are authorities for the position that apart from a Shebait, under certain circumstances, the idol can be represented by disinterested persons. B. K. Mukherjea in his book "The Hindu Law of Religious and Charitable Trust" 2nd Edn., summarizes the legal position by way of the following propositions, among others, at p. 249 :"(1) An idol is a juristic person in whom the title to the properties of the endowment vests. But it is only in an ideal sense that the idol is the owner. It has to act through human agency, and that agent is the Shebait, who is, in law, the person entitled to take proceedings on its behalf. The personality of the idol might, therefore, be said to be merged in that of the Shebait. (2) Where, however, the Shebait refuses to act for the idol, or where the suit is to challenge the act of the Shebait himself as prejudicial to the interests of the idol, then there must be some other agency which must have the right to act for the idol. The law accordingly recognises a right in persons interested in the endowment to take proceedings on behalf of the idol." This view is justified by reason as well by decisions. 12. Two cases have been cited before us which took a contrary view. In Kunj Behari Chandra v. Shyam Chand Jiu, AIR 1938 Pat 384, it was held by Agarwala, J., that in the case of a public endowment, a part of the trust property which had been alienated by the Shebait or lost in consequence of his action could be recovered only in a suit instituted by a Shebait. The only remedy which the members of the public have, where the property had been altenated by a person who was a Shebait for the time being was to secure the removal of the Shebait by proceedings under S. 92 of the Code of Civil Procedure and then to secure the appointment of another Shebait who would then have authority to represent the idol in a suit to recover the idols properties. So too, a Division Bench of the Orissa High Court in Artatran Alekhagadi Brahma v. Sudersan Mohapatra. AIR 1954 Orissa 11, came to the same conclusion. For the reasons given above, with great respect, we hold that the said two decisions do not represent the correct law on the subject. | 0[ds]On the questions of fact, namely, whetherthe impugned transaction was binding on the idol and was supported by consideration,we do not think we would be justified to permit the appellant to question their correctness, because the said findings are concurrent and are based upon appreciation of the relevant evidence. We accept the said findings7. It is settled law that to invoke S.92 of theCode of Civil Procedure, 3 conditions have to be satisfied, namely, (i) the trust is created for public purposes of a charitable or religious nature, (ii) there was a breach of trust or a direction of Court is necessary in the administration of such a trust, and (iii) the relief claimed is one or other of the reliefs enumerated therein. If any of the 3 conditions is not satisfied, the suit falls outside the scope of the said section. A suit by an idol for a declaration of its title to property and for possession of the same from the defendant, who is in possession thereof under a void alienation, is not one of the reliefs found in S. 92 of theCode of Civil Procedure. That a suit for declaration that a property belongs to a trust is held to fall outside the scope of S. 92 of theCode of Civil Procedure by the Privy Council in Abdur Rahim v. Abu Mahomed Barkat Ali, 55 Ind App 96 : (AIR 1928 PC 16 ), and by this Court in Pragdasli Guru Bhagwandasji v. Ishwarlalbhai Narsibhai, 1932 SCR 513: (AIR 1952 SC 143 ), on the ground that a relief for declaration is not one of the reliefs enumerated in S. 92 of theCode of Civil Procedure. So too, for the same reason a suit for a declaration that certain properties belong to a trust and for possession thereof from the alienee has also been held to be not covered by the provisions of S. 92 of theCode of Civil Procedure: See Mukhda Mannudas Bairagi v. Chagan Kisan Bhawasar, ILR(1957) Bom 809 : (AIR 1959 Bom 491 ). Other decisions have reached the same result on a different ground, namely, that such a suit is one for the enforcement of a private right. It was held that a suit by an idol as a juristic person against persons who interfered unlawfully with the property of the idol was a suit for enforcement of its private right and was, therefore, not a suit to which S. 92 of theCode of Civil Procedure applied : See (Darshan La1 v. Shibji Mahraj Birajman, ILR 45 All 215 : (AIR 1923 All 120 ); and Madhavrao Anandrao v. Shri Omkareshvar Ghat, 31 Bom LR 192 : (AIR 1929 Bom 153 ). The present suit is filed by the idol for possession of its property from the person who is in illegal possession thereof and, therefore, it is a suit by the idol to enforce its private right.The suit also is for a declaration of the plaintiffs title and for possession thereof and is, therefore, not a suit for one of the reliefs mentioned in S. 92 of theCode of Civil Procedure. In either view, this is a suit outside the purview of S. 92 of the said Code and, therefore, the said section is not a bar to its maintainabilityThis was a case where the Shebait filed a suit for eviction from the dedicated property within three years after attaining majority and the Board held that, as he had the right to bring the suit for the protection of the dedicated property, S. 7 of the Limitation Act, 1877, would apply to him. The present question, namely, if a Shebait acts adversely to the interests of the idol whether the idol represented by a worshipper can maintain a suit for eviction, did not arise for consideration in that case. That question falls to be decided on different considerations9. Three legal concepts are well settled : (1) An idol of a Hindu temple is a juridical person; (2) when there is a Shebait, ordinarily no person other than the Shebait can represent the idol; and (3) worshippers of an idol are its beneficiaries, though only in a spiritual sense. It has also been held that persons who go in only for the purpose of devotion have according to Hindu law and religion, a greater and deeper interest in temples than mere servants who serve there for some pecuniary advantage see Kalyana Venkataramana Ayyangar v. Kasturi Ranga Ayyangar, ILR 40 Mad 212 at p. 225: (AIR 1917 Mad 112 at p. 118). In the present case, the plaintiff is not only a mere worshipper but is found to have been assisting the 2nd defendant in the management of the templeOn principle we do not see any justification for denying such a right to the worshipper. An idol is in the position of a minor and when the person representing it leaves it in a lurch, a person interested in the worship of the idol can certainly be clothed with an ad hoc power of representation to protect its interest. It is a pragmatic, yet a legal solution to a difficult situation. Should it be held that a Shebait, who transferred the property, can only bring a suit for recovery, in most of the cases it will be an indirect approval of the dereliction of the Shebaits duty, for more often than not he will not admit his default and take steps to recover the property, apart from other technical pleas that may be open to the transferee in a suit. Should it be held that a worshipper can file only a suit for the removal of a Shebait and for the appointment of another in order to enable him to take steps to recover the property, such a procedure will be rather a prolonged and a complicated one and the interest of the idol may irreparably suffer. That is why decisions have permitted a worshipper in such circumstances to represent the idol and to recover the property for the idol. It has been held in a number of decisions that worshippers may file a suit praying for possession of a property on behalf of an endowment; see Radhabai v. Chimnaji, (1878) ILR 3 Bom 27, Zafaryab Ali v. Bakhtawar Singh, (1883) ILR 5 All 497 Chidambaranatha Thambirarn v. P. S. Nallasiva Mudaliar, 6 Mad LW 666 : (AIR 1918 Mad 464 ), Dasondhay v. Muhammad Abu Nasar, (1911) ILR 33 All 660 at p. 664: (AIR 1917 Mad 112) (FB), Radha Krishnaji v. Rameshwar Prasad Singh, AIR 1934 Pat 584 , Manmohan Haldar v. Dibbendu Prosad Roy, AIR 1949 Cal 199 11. There are two decisions of the Privy Council, namely, Pramatha Nath Mullick v. Pradyumna Kumar Mullick, 52 Ind App 245: (AIR 1925 PC 139 ) and Kanhaiya Lal v. Hamid Ali, 60 Ind App 263: (AIR 1933 PC 198 (1)), wherein the Board remanded the case to the High Court in order that the High Court might appoint a disinterested person to represent the idol. No doubt in both the cases no question of any deity filing a suit for its protection arose, but the decisions are authorities for the position that apart from a Shebait, under certain circumstances, the idol can be represented by disinterested persons. B. K. Mukherjea in his book "The Hindu Law of Religious and Charitable Trust" 2nd Edn., summarizes the legal position by way of the following propositions, among others, at p. 249 :"(1) An idol is a juristic person in whom the title to the properties of the endowment vests. But it is only in an ideal sense that the idol is the owner. It has to act through human agency, and that agent is the Shebait, who is, in law, the person entitled to take proceedings on its behalf. The personality of the idol might, therefore, be said to be merged in that of the Shebait(2) Where, however, the Shebait refuses to act for the idol, or where the suit is to challenge the act of the Shebait himself as prejudicial to the interests of the idol, then there must be some other agency which must have the right to act for the idol. The law accordingly recognises a right in persons interested in the endowment to take proceedings on behalf of the idol."This view is justified by reason as well by decisions12. Two cases have been cited before us which took a contrary view. In Kunj Behari Chandra v. Shyam Chand Jiu, AIR 1938 Pat 384, it was held by Agarwala, J., that in the case of a public endowment, a part of the trust property which had been alienated by the Shebait or lost in consequence of his action could be recovered only in a suit instituted by a Shebait. The only remedy which the members of the public have, where the property had been altenated by a person who was a Shebait for the time being was to secure the removal of the Shebait by proceedings under S. 92 of theCode of Civil Procedure and then to secure the appointment of another Shebait who would then have authority to represent the idol in a suit to recover the idols properties. So too, a Division Bench of the Orissa High Court in Artatran Alekhagadi Brahma v. Sudersan Mohapatra. AIR 1954 Orissa 11, came to the same conclusion. For the reasons given above, with great respect, we hold that the said two decisions do not represent the correct law on the subject. | 0 | 2,883 | 1,780 | ### Instruction:
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can maintain a suit for eviction, did not arise for consideration in that case. That question falls to be decided on different considerations. 9. Three legal concepts are well settled : (1) An idol of a Hindu temple is a juridical person; (2) when there is a Shebait, ordinarily no person other than the Shebait can represent the idol; and (3) worshippers of an idol are its beneficiaries, though only in a spiritual sense. It has also been held that persons who go in only for the purpose of devotion have according to Hindu law and religion, a greater and deeper interest in temples than mere servants who serve there for some pecuniary advantage see Kalyana Venkataramana Ayyangar v. Kasturi Ranga Ayyangar, ILR 40 Mad 212 at p. 225: (AIR 1917 Mad 112 at p. 118). In the present case, the plaintiff is not only a mere worshipper but is found to have been assisting the 2nd defendant in the management of the temple. 10. The question is, can such a person represent the idol when the Shebait acts adversely to its interest and fails to take action to safeguard its interest. On principle we do not see any justification for denying such a right to the worshipper. An idol is in the position of a minor and when the person representing it leaves it in a lurch, a person interested in the worship of the idol can certainly be clothed with an ad hoc power of representation to protect its interest. It is a pragmatic, yet a legal solution to a difficult situation. Should it be held that a Shebait, who transferred the property, can only bring a suit for recovery, in most of the cases it will be an indirect approval of the dereliction of the Shebaits duty, for more often than not he will not admit his default and take steps to recover the property, apart from other technical pleas that may be open to the transferee in a suit. Should it be held that a worshipper can file only a suit for the removal of a Shebait and for the appointment of another in order to enable him to take steps to recover the property, such a procedure will be rather a prolonged and a complicated one and the interest of the idol may irreparably suffer. That is why decisions have permitted a worshipper in such circumstances to represent the idol and to recover the property for the idol. It has been held in a number of decisions that worshippers may file a suit praying for possession of a property on behalf of an endowment; see Radhabai v. Chimnaji, (1878) ILR 3 Bom 27, Zafaryab Ali v. Bakhtawar Singh, (1883) ILR 5 All 497 Chidambaranatha Thambirarn v. P. S. Nallasiva Mudaliar, 6 Mad LW 666 : (AIR 1918 Mad 464 ), Dasondhay v. Muhammad Abu Nasar, (1911) ILR 33 All 660 at p. 664: (AIR 1917 Mad 112) (FB), Radha Krishnaji v. Rameshwar Prasad Singh, AIR 1934 Pat 584 , Manmohan Haldar v. Dibbendu Prosad Roy, AIR 1949 Cal 199 . 11. There are two decisions of the Privy Council, namely, Pramatha Nath Mullick v. Pradyumna Kumar Mullick, 52 Ind App 245: (AIR 1925 PC 139 ) and Kanhaiya Lal v. Hamid Ali, 60 Ind App 263: (AIR 1933 PC 198 (1)), wherein the Board remanded the case to the High Court in order that the High Court might appoint a disinterested person to represent the idol. No doubt in both the cases no question of any deity filing a suit for its protection arose, but the decisions are authorities for the position that apart from a Shebait, under certain circumstances, the idol can be represented by disinterested persons. B. K. Mukherjea in his book "The Hindu Law of Religious and Charitable Trust" 2nd Edn., summarizes the legal position by way of the following propositions, among others, at p. 249 :"(1) An idol is a juristic person in whom the title to the properties of the endowment vests. But it is only in an ideal sense that the idol is the owner. It has to act through human agency, and that agent is the Shebait, who is, in law, the person entitled to take proceedings on its behalf. The personality of the idol might, therefore, be said to be merged in that of the Shebait. (2) Where, however, the Shebait refuses to act for the idol, or where the suit is to challenge the act of the Shebait himself as prejudicial to the interests of the idol, then there must be some other agency which must have the right to act for the idol. The law accordingly recognises a right in persons interested in the endowment to take proceedings on behalf of the idol." This view is justified by reason as well by decisions. 12. Two cases have been cited before us which took a contrary view. In Kunj Behari Chandra v. Shyam Chand Jiu, AIR 1938 Pat 384, it was held by Agarwala, J., that in the case of a public endowment, a part of the trust property which had been alienated by the Shebait or lost in consequence of his action could be recovered only in a suit instituted by a Shebait. The only remedy which the members of the public have, where the property had been altenated by a person who was a Shebait for the time being was to secure the removal of the Shebait by proceedings under S. 92 of the Code of Civil Procedure and then to secure the appointment of another Shebait who would then have authority to represent the idol in a suit to recover the idols properties. So too, a Division Bench of the Orissa High Court in Artatran Alekhagadi Brahma v. Sudersan Mohapatra. AIR 1954 Orissa 11, came to the same conclusion. For the reasons given above, with great respect, we hold that the said two decisions do not represent the correct law on the subject.
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### Explanation:
1877, would apply to him. The present question, namely, if a Shebait acts adversely to the interests of the idol whether the idol represented by a worshipper can maintain a suit for eviction, did not arise for consideration in that case. That question falls to be decided on different considerations9. Three legal concepts are well settled : (1) An idol of a Hindu temple is a juridical person; (2) when there is a Shebait, ordinarily no person other than the Shebait can represent the idol; and (3) worshippers of an idol are its beneficiaries, though only in a spiritual sense. It has also been held that persons who go in only for the purpose of devotion have according to Hindu law and religion, a greater and deeper interest in temples than mere servants who serve there for some pecuniary advantage see Kalyana Venkataramana Ayyangar v. Kasturi Ranga Ayyangar, ILR 40 Mad 212 at p. 225: (AIR 1917 Mad 112 at p. 118). In the present case, the plaintiff is not only a mere worshipper but is found to have been assisting the 2nd defendant in the management of the templeOn principle we do not see any justification for denying such a right to the worshipper. An idol is in the position of a minor and when the person representing it leaves it in a lurch, a person interested in the worship of the idol can certainly be clothed with an ad hoc power of representation to protect its interest. It is a pragmatic, yet a legal solution to a difficult situation. Should it be held that a Shebait, who transferred the property, can only bring a suit for recovery, in most of the cases it will be an indirect approval of the dereliction of the Shebaits duty, for more often than not he will not admit his default and take steps to recover the property, apart from other technical pleas that may be open to the transferee in a suit. Should it be held that a worshipper can file only a suit for the removal of a Shebait and for the appointment of another in order to enable him to take steps to recover the property, such a procedure will be rather a prolonged and a complicated one and the interest of the idol may irreparably suffer. That is why decisions have permitted a worshipper in such circumstances to represent the idol and to recover the property for the idol. It has been held in a number of decisions that worshippers may file a suit praying for possession of a property on behalf of an endowment; see Radhabai v. Chimnaji, (1878) ILR 3 Bom 27, Zafaryab Ali v. Bakhtawar Singh, (1883) ILR 5 All 497 Chidambaranatha Thambirarn v. P. S. Nallasiva Mudaliar, 6 Mad LW 666 : (AIR 1918 Mad 464 ), Dasondhay v. Muhammad Abu Nasar, (1911) ILR 33 All 660 at p. 664: (AIR 1917 Mad 112) (FB), Radha Krishnaji v. Rameshwar Prasad Singh, AIR 1934 Pat 584 , Manmohan Haldar v. Dibbendu Prosad Roy, AIR 1949 Cal 199 11. There are two decisions of the Privy Council, namely, Pramatha Nath Mullick v. Pradyumna Kumar Mullick, 52 Ind App 245: (AIR 1925 PC 139 ) and Kanhaiya Lal v. Hamid Ali, 60 Ind App 263: (AIR 1933 PC 198 (1)), wherein the Board remanded the case to the High Court in order that the High Court might appoint a disinterested person to represent the idol. No doubt in both the cases no question of any deity filing a suit for its protection arose, but the decisions are authorities for the position that apart from a Shebait, under certain circumstances, the idol can be represented by disinterested persons. B. K. Mukherjea in his book "The Hindu Law of Religious and Charitable Trust" 2nd Edn., summarizes the legal position by way of the following propositions, among others, at p. 249 :"(1) An idol is a juristic person in whom the title to the properties of the endowment vests. But it is only in an ideal sense that the idol is the owner. It has to act through human agency, and that agent is the Shebait, who is, in law, the person entitled to take proceedings on its behalf. The personality of the idol might, therefore, be said to be merged in that of the Shebait(2) Where, however, the Shebait refuses to act for the idol, or where the suit is to challenge the act of the Shebait himself as prejudicial to the interests of the idol, then there must be some other agency which must have the right to act for the idol. The law accordingly recognises a right in persons interested in the endowment to take proceedings on behalf of the idol."This view is justified by reason as well by decisions12. Two cases have been cited before us which took a contrary view. In Kunj Behari Chandra v. Shyam Chand Jiu, AIR 1938 Pat 384, it was held by Agarwala, J., that in the case of a public endowment, a part of the trust property which had been alienated by the Shebait or lost in consequence of his action could be recovered only in a suit instituted by a Shebait. The only remedy which the members of the public have, where the property had been altenated by a person who was a Shebait for the time being was to secure the removal of the Shebait by proceedings under S. 92 of theCode of Civil Procedure and then to secure the appointment of another Shebait who would then have authority to represent the idol in a suit to recover the idols properties. So too, a Division Bench of the Orissa High Court in Artatran Alekhagadi Brahma v. Sudersan Mohapatra. AIR 1954 Orissa 11, came to the same conclusion. For the reasons given above, with great respect, we hold that the said two decisions do not represent the correct law on the subject.
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New India Insurance Company Vs. Bhagwati Devi and Others | 1. In this appeal, the correctness of the decision of a two-member Bench a of this Court reported in New India Assurance Co. Ltd. v. Ram Dayal requires to be tested 2. The facts giving rise to the appeal are minimal. The appellant-insurance company sold a policy at about 4 p.m. on 17-2-1989. Undeniably, it had been bought at a time when an accident pertaining to the vehicle insured had already taken place at about 9 a.m. the same day. The fatal accident occurring thereby gave rise to a claim for damages before the Motor Accident Claims Tribunal. The same was allowed on the strength of the decision of this Court aforementioned, correctness of which has been challenged. The said decision proceeded on the legal fiction that when a policy is taken on a particular date, its effectiveness would start from the commencement of that date which is from the previous midnight. The accident taking place at any time during the day would be covered by the policy. Later a three-member Bench of this Court in National Insurance Co. Ltd. v. Jikubhai Nathuji Dabhi has taken the view that when there is a special contract mentioning in the policy the time when it was bought, it would be operative from that time and not fictionally from the previous midnight. In the said case, the policy had been bought at about 4 p.m. on the day of the accident and, thus, was not allowed to be operative from midnight; the accident having occurred around 11 a.m. on that date. The principle deduced is thus clear that should there be no contract to the contrary, an insurance policy becomes operative from the previous midnight, when bought during the day following. However, in case there is mention of a specific time for its purchase then a special contract to the contrary comes into being and the policy would be effective from the mentioned time. The law on this aspect has been put to rest by this Court. There is, thus, nothing further for us to deliberate upon | 1[ds]However, in case there is mention of a specific time for its purchase then a special contract to the contrary comes into being and the policy would be effective from the mentioned time. The law on this aspect has been put to rest by this Court. There is, thus, nothing further for us to deliberate upon | 1 | 372 | 65 | ### Instruction:
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1. In this appeal, the correctness of the decision of a two-member Bench a of this Court reported in New India Assurance Co. Ltd. v. Ram Dayal requires to be tested 2. The facts giving rise to the appeal are minimal. The appellant-insurance company sold a policy at about 4 p.m. on 17-2-1989. Undeniably, it had been bought at a time when an accident pertaining to the vehicle insured had already taken place at about 9 a.m. the same day. The fatal accident occurring thereby gave rise to a claim for damages before the Motor Accident Claims Tribunal. The same was allowed on the strength of the decision of this Court aforementioned, correctness of which has been challenged. The said decision proceeded on the legal fiction that when a policy is taken on a particular date, its effectiveness would start from the commencement of that date which is from the previous midnight. The accident taking place at any time during the day would be covered by the policy. Later a three-member Bench of this Court in National Insurance Co. Ltd. v. Jikubhai Nathuji Dabhi has taken the view that when there is a special contract mentioning in the policy the time when it was bought, it would be operative from that time and not fictionally from the previous midnight. In the said case, the policy had been bought at about 4 p.m. on the day of the accident and, thus, was not allowed to be operative from midnight; the accident having occurred around 11 a.m. on that date. The principle deduced is thus clear that should there be no contract to the contrary, an insurance policy becomes operative from the previous midnight, when bought during the day following. However, in case there is mention of a specific time for its purchase then a special contract to the contrary comes into being and the policy would be effective from the mentioned time. The law on this aspect has been put to rest by this Court. There is, thus, nothing further for us to deliberate upon
### Response:
1
### Explanation:
However, in case there is mention of a specific time for its purchase then a special contract to the contrary comes into being and the policy would be effective from the mentioned time. The law on this aspect has been put to rest by this Court. There is, thus, nothing further for us to deliberate upon
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Epari Chinna Krishna Moorthy & Another Vs. State of Orissa & Others | confine the benefit of the said exemption only to persons who actually produce gold ornaments or employ artisans for that purpose. We do not see how any question of legislative incompetence can come in the present discussion. And, if the State Government was given the power either to grant or withdraw the exemption, that cannot possibly affect the legislatures competence to make any provision in that behalf either prospectively or retrospectively. Therefore, there is no substance in the argument that the retrospective operation of S. 2 of the impugned Act is invalid.8. Then, Mr. Sastri contends that this provision is discriminatory and as such, contravenes the equality before the law guaranteed by Art. 14. This argument is also misconceived. It is not seriously disputed that the petitioners belong to the class or traders or shopkeepers who are like commission agents. They give gold to the artisans, pay the artisans their labour charges and when the ornaments are thus produced, they charge commission before they are sold to the customers. In such a case, it is not easy to understand how this class of traders can be said to belong to the same class of persons who produce gold ornaments themselves or run manufactories where artisans are engaged for producing them. The counter-affidavit filed on behalf of the respondent State has also averred that the petitioners sometimes sell goods manufactured by firms outside the State of Orissa and in no case had they manufactured ornaments themselves. Whether the gold which they give to the artisans is their own or is supplied to them by customers is not a matter of any significance, because what is important in this, connection is that they are not directly concerned with the production of ornaments, and admittedly, they do not produce the said ornaments themselves. Therefore, the persons who get the benefit of the exemption notification as a result of the provisions of S. 2 of the impugned Act cannot be said to belong to the same class as that of the petitioners, and if that is so, the main argument on the basis of Art. 14 does not subsist.9. Besides, one of the objects of the impugned Act appears to be to make it clear that the legislature intends to benefit the goldsmiths who actually make gold ornaments and that object can be carried out only if exemption is granted to persons who keep in their continuous employment artisans who produce gold ornaments. If a person produces gold ornaments himself and if a person employs artisans to produce ornaments for him, they fall within the protection of the exemption. In the case of the petitioners, however, they do not keep any artisans in their continuous employment, and so, if the legislature thought it was not necessary to give them the benefit of the exemption, it cannot be said that the classification made by the legislature has no rational connection with the object intended to be achieved by it. This argument assumes that the petitioners belong to the same class as the persons to whom the benefit of the exemption is available. But as we have already stated, these two categories are distinct and there is no sameness or similarity between them.10. It was also suggested by Mr. Sastri that the result of the impugned provision is to deny the benefit of the exemption to the poorer classes of persons who are engaged in the business of manufacturing gold ornaments, and in that connection, he has commented on the fact that the notification gives the benefit of the exemption to persons who run manufactories but it denies that benefit to persons who carry on the work of producing gold ornaments on a smaller scale, and so, are unable to run a manufactory. This argument is fallacious. The notification as interpreted by S. 2 of the impugned Act benefits the artisans who produce ornaments themselves and that obviously covers a very large section of independent artisans engaged in the trade. The notification also benefits persons who run manufactories and that ensures the continuous employment of artisans. That is why it seems to us that the main object of granting exemption can be said to be achieved by holding that manufacturer means either a manufacturer properly so called or one who engages artisans to manufacture gold ornaments.11. Mr. Sastri also urged that the retrospective operation of the impugned section should be struck down as unconstitutional, because it imposes an unreasonable restriction on the petitioners fundamental right under Art. 19(1) (g). It is true that in considering the question as to whether legislative power to pass an Act retrospectively has been reasonably exercised or not, it is relevant to enquire how the retrospective operation operates. But it would be difficult to accept the argument that because the retrospective operation may operate harshly in some cases, therefore, the legislation itself is invalid. Besides in the present case, the retrospective operation does not spread over a very long period either. Incidentally, it is not clear from the record that the petitioners did not recover sales tax from their customers when they sold the gold ornaments to them. The counter-affidavit filed by the respondent State alleges that even where sales-tax has not been charged separately the price charged included sales-tax because it was the usual practice of every registered dealer doing similar business to collect sales-tax either by showing it as such separately and thereby claiming deduction of the sales-tax from the gross turnover to arrive at the taxable turnover shown separately or by including it in the price and thereby collecting it as a part of the price charged. In any event, we do not think that in the circumstances of this case it would be possible to hold that by making the provision of S. 2 of the impugned Act retrospective the legislature has imposed a restriction on the petitioners fundamental right under Art. 19(1)(g) which is not reasonable and is not in the interest of the general public. | 0[ds]It is obvious that if the State Government which is the delegate of the legislature can withdraw the exemption granted by it, the legislature cannot be denied such right. But it is urged that once exemption was validly granted; the legislature cannot withdraw it retrospectively, because that would be invalidating the notification itself. We are not impressed by this argument. What the legislature has purported to do by S. 2 of the impugned Act is to make the intention of the notification clear. Section 2 in substance declares that the intention of the delegate in issuing the notification granting exemption was to confine the benefit of the said exemption only to persons who actually produce gold ornaments or employ artisans for that purpose. We do not see how any question of legislative incompetence can come in the present discussion. And, if the State Government was given the power either to grant or withdraw the exemption, that cannot possibly affect the legislatures competence to make any provision in that behalf either prospectively or retrospectively. Therefore, there is no substance in the argument that the retrospective operation of S. 2 of the impugned Act isargument is fallacious. The notification as interpreted by S. 2 of the impugned Act benefits the artisans who produce ornaments themselves and that obviously covers a very large section of independent artisans engaged in the trade. The notification also benefits persons who run manufactories and that ensures the continuous employment of artisans. That is why it seems to us that the main object of granting exemption can be said to be achieved by holding that manufacturer means either a manufacturer properly so called or one who engages artisans to manufacture goldis true that in considering the question as to whether legislative power to pass an Act retrospectively has been reasonably exercised or not, it is relevant to enquire how the retrospective operation operates. But it would be difficult to accept the argument that because the retrospective operation may operate harshly in some cases, therefore, the legislation itself is invalid. Besides in the present case, the retrospective operation does not spread over a very long period either. Incidentally, it is not clear from the record that the petitioners did not recover sales tax from their customers when they sold the gold ornaments to them. The counter-affidavit filed by the respondent State alleges that even where sales-tax has not been charged separately the price charged included sales-tax because it was the usual practice of every registered dealer doing similar business to collect sales-tax either by showing it as such separately and thereby claiming deduction of the sales-tax from the gross turnover to arrive at the taxable turnover shown separately or by including it in the price and thereby collecting it as a part of the price charged. In any event, we do not think that in the circumstances of this case it would be possible to hold that by making the provision of S. 2 of the impugned Act retrospective the legislature has imposed a restriction on the petitioners fundamental right under Art. 19(1)(g) which is not reasonable and is not in the interest of the general public. | 0 | 2,463 | 570 | ### Instruction:
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confine the benefit of the said exemption only to persons who actually produce gold ornaments or employ artisans for that purpose. We do not see how any question of legislative incompetence can come in the present discussion. And, if the State Government was given the power either to grant or withdraw the exemption, that cannot possibly affect the legislatures competence to make any provision in that behalf either prospectively or retrospectively. Therefore, there is no substance in the argument that the retrospective operation of S. 2 of the impugned Act is invalid.8. Then, Mr. Sastri contends that this provision is discriminatory and as such, contravenes the equality before the law guaranteed by Art. 14. This argument is also misconceived. It is not seriously disputed that the petitioners belong to the class or traders or shopkeepers who are like commission agents. They give gold to the artisans, pay the artisans their labour charges and when the ornaments are thus produced, they charge commission before they are sold to the customers. In such a case, it is not easy to understand how this class of traders can be said to belong to the same class of persons who produce gold ornaments themselves or run manufactories where artisans are engaged for producing them. The counter-affidavit filed on behalf of the respondent State has also averred that the petitioners sometimes sell goods manufactured by firms outside the State of Orissa and in no case had they manufactured ornaments themselves. Whether the gold which they give to the artisans is their own or is supplied to them by customers is not a matter of any significance, because what is important in this, connection is that they are not directly concerned with the production of ornaments, and admittedly, they do not produce the said ornaments themselves. Therefore, the persons who get the benefit of the exemption notification as a result of the provisions of S. 2 of the impugned Act cannot be said to belong to the same class as that of the petitioners, and if that is so, the main argument on the basis of Art. 14 does not subsist.9. Besides, one of the objects of the impugned Act appears to be to make it clear that the legislature intends to benefit the goldsmiths who actually make gold ornaments and that object can be carried out only if exemption is granted to persons who keep in their continuous employment artisans who produce gold ornaments. If a person produces gold ornaments himself and if a person employs artisans to produce ornaments for him, they fall within the protection of the exemption. In the case of the petitioners, however, they do not keep any artisans in their continuous employment, and so, if the legislature thought it was not necessary to give them the benefit of the exemption, it cannot be said that the classification made by the legislature has no rational connection with the object intended to be achieved by it. This argument assumes that the petitioners belong to the same class as the persons to whom the benefit of the exemption is available. But as we have already stated, these two categories are distinct and there is no sameness or similarity between them.10. It was also suggested by Mr. Sastri that the result of the impugned provision is to deny the benefit of the exemption to the poorer classes of persons who are engaged in the business of manufacturing gold ornaments, and in that connection, he has commented on the fact that the notification gives the benefit of the exemption to persons who run manufactories but it denies that benefit to persons who carry on the work of producing gold ornaments on a smaller scale, and so, are unable to run a manufactory. This argument is fallacious. The notification as interpreted by S. 2 of the impugned Act benefits the artisans who produce ornaments themselves and that obviously covers a very large section of independent artisans engaged in the trade. The notification also benefits persons who run manufactories and that ensures the continuous employment of artisans. That is why it seems to us that the main object of granting exemption can be said to be achieved by holding that manufacturer means either a manufacturer properly so called or one who engages artisans to manufacture gold ornaments.11. Mr. Sastri also urged that the retrospective operation of the impugned section should be struck down as unconstitutional, because it imposes an unreasonable restriction on the petitioners fundamental right under Art. 19(1) (g). It is true that in considering the question as to whether legislative power to pass an Act retrospectively has been reasonably exercised or not, it is relevant to enquire how the retrospective operation operates. But it would be difficult to accept the argument that because the retrospective operation may operate harshly in some cases, therefore, the legislation itself is invalid. Besides in the present case, the retrospective operation does not spread over a very long period either. Incidentally, it is not clear from the record that the petitioners did not recover sales tax from their customers when they sold the gold ornaments to them. The counter-affidavit filed by the respondent State alleges that even where sales-tax has not been charged separately the price charged included sales-tax because it was the usual practice of every registered dealer doing similar business to collect sales-tax either by showing it as such separately and thereby claiming deduction of the sales-tax from the gross turnover to arrive at the taxable turnover shown separately or by including it in the price and thereby collecting it as a part of the price charged. In any event, we do not think that in the circumstances of this case it would be possible to hold that by making the provision of S. 2 of the impugned Act retrospective the legislature has imposed a restriction on the petitioners fundamental right under Art. 19(1)(g) which is not reasonable and is not in the interest of the general public.
### Response:
0
### Explanation:
It is obvious that if the State Government which is the delegate of the legislature can withdraw the exemption granted by it, the legislature cannot be denied such right. But it is urged that once exemption was validly granted; the legislature cannot withdraw it retrospectively, because that would be invalidating the notification itself. We are not impressed by this argument. What the legislature has purported to do by S. 2 of the impugned Act is to make the intention of the notification clear. Section 2 in substance declares that the intention of the delegate in issuing the notification granting exemption was to confine the benefit of the said exemption only to persons who actually produce gold ornaments or employ artisans for that purpose. We do not see how any question of legislative incompetence can come in the present discussion. And, if the State Government was given the power either to grant or withdraw the exemption, that cannot possibly affect the legislatures competence to make any provision in that behalf either prospectively or retrospectively. Therefore, there is no substance in the argument that the retrospective operation of S. 2 of the impugned Act isargument is fallacious. The notification as interpreted by S. 2 of the impugned Act benefits the artisans who produce ornaments themselves and that obviously covers a very large section of independent artisans engaged in the trade. The notification also benefits persons who run manufactories and that ensures the continuous employment of artisans. That is why it seems to us that the main object of granting exemption can be said to be achieved by holding that manufacturer means either a manufacturer properly so called or one who engages artisans to manufacture goldis true that in considering the question as to whether legislative power to pass an Act retrospectively has been reasonably exercised or not, it is relevant to enquire how the retrospective operation operates. But it would be difficult to accept the argument that because the retrospective operation may operate harshly in some cases, therefore, the legislation itself is invalid. Besides in the present case, the retrospective operation does not spread over a very long period either. Incidentally, it is not clear from the record that the petitioners did not recover sales tax from their customers when they sold the gold ornaments to them. The counter-affidavit filed by the respondent State alleges that even where sales-tax has not been charged separately the price charged included sales-tax because it was the usual practice of every registered dealer doing similar business to collect sales-tax either by showing it as such separately and thereby claiming deduction of the sales-tax from the gross turnover to arrive at the taxable turnover shown separately or by including it in the price and thereby collecting it as a part of the price charged. In any event, we do not think that in the circumstances of this case it would be possible to hold that by making the provision of S. 2 of the impugned Act retrospective the legislature has imposed a restriction on the petitioners fundamental right under Art. 19(1)(g) which is not reasonable and is not in the interest of the general public.
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JASWANT SINGH Vs. JASPAL SINGH | MOHAN M. SHANTANAGOUDAR, J.1. The judgment dated 27.10.2009 passed by the High Court of Punjab and Haryana at Chandigarh in RSA No. 3609 of 1998 (O&M) is called into question in this appeal by the unsuccessful defendants.2. The brief facts leading to this appeal are that Jaspal Singh, Plaintiff No.1 in the present suit, i.e. O.S. No. 388 of 1986 (Respondent No.1 herein), had been residing in West Germany (as it then was) and had authorised Kidar Singh son of Hem Raj to do all acts and to file or defend any suit regarding the suit property vide special power of attorney. The present suit was filed by Kidar Singh on behalf of Plaintiff No. 1 for declaration that the decree dated 29.07.1983 in Civil Suit No. 18 of 1983 titled as Harbhajan Singh & Ors. v. Jaspal Singh, decided by the Sub-Judge, II nd Class, Panipat, holding Defendant Nos. 1 to 3 in the present suit (the appellants herein) to be the owners in possession of the suit land, was illegal, null and void, and not binding on Plaintiff No. 1, and that the registered sale deed dated 05.06.1984 in respect of the suit land executed by Plaintiff No. 1 in favour of Defendant Nos. 4 to 10 in the present suit is legal and binding on all persons including Defendant Nos. 1 to 3. The consequential relief of injunction was also sought for. Though Plaintiff No. 1 at some point got the present suit dismissed as withdrawn, Defendant Nos. 4 to 10 were later transposed as plaintiffs, and Plaintiff No. 9 impleaded, and proceedings in the suit continued. The Trial Court decreed the suit. The decree of the Trial Court was confirmed by the First Appellate Court as well as by the Second Appellate Court. This appeal is presented before us as against the concurrent findings of three courts.3. All the Courts have concurrently concluded that the judgment and decree dated 29.07.1983 passed in Civil Suit No.18 of 1983 by the Sub-Judge, II nd Class, Panipat is illegal and does not bind the plaintiffs (the respondents herein). The Courts have held that the same is a collusive decree between the plaintiffs and the defendants in the said suit.4. Mr. Vinay Navare, learned senior counsel for the appellants, and Mr. Brijender Chahar, learned senior counsel appearing for the respondents, have taken us through the entire material on record and argued in support of their respective cases.5. All the three Courts, on facts, have rightly concluded that the judgment and decree passed in Civil Suit No. 18 of 1983 was illegal, and hence not binding on the plaintiffs. A collusive decree was obtained by the plaintiffs in Civil Suit No. 18 of 1983 (Defendant Nos. 1 to 3 in the present suit) by agreeing to deposit part of the pre-emption money in certain pre-emption suits filed by Jaspal Singh (Plaintiff No. 1 in the present suit), in lieu of acquiring rights in the suit property. Thus, the decree created new rights in the suit property in favour of Defendant Nos. 1 to 3, virtually amounting to a sale deed, and seems to have been used as a mode to transfer property without a valid sale deed. It is also found that Plaintiff No. 1 Jaspal Singh had appeared in the said suit voluntarily, without the issuance of summons to him, and on the date of appearance, hurriedly admitted the entire case of the plaintiffs therein, consequent to which the suit was decreed. Despite such collusive decree, the suit property continued to be in the name of the original owner, Plaintiff No. 1 Jaspal Singh, who also continued to be in possession thereof. Plaintiff Nos. 2 to 9 in the present suit, who had purchased the suit property from Plaintiff No. 1 vide sale deed dated 05.06.1984, were held to be bona fide purchasers for valuable consideration. This was also in light of the circumstance that the mutation pursuant to the judgment and decree dated 29.7.1983 was sanctioned after the execution of the sale deed by Plaintiff No. 1 in favour of Plaintiff Nos. 2 to 9. Possession of the suit property had also been handed over to Plaintiff Nos. 2 to 9, but it seems that during the pendency of the matter they were dispossessed of the same by virtue of an order passed by the Executive Magistrate. We do not find any valid reason to disagree with the reasons and conclusions arrived at by the Courts below. | 0[ds]5. All the three Courts, on facts, have rightly concluded that the judgment and decree passed in Civil Suit No. 18 of 1983 was illegal, and hence not binding on the plaintiffs. A collusive decree was obtained by the plaintiffs in Civil Suit No. 18 of 1983 (Defendant Nos. 1 to 3 in the present suit) by agreeing to deposit part of the pre-emption money in certain pre-emption suits filed by Jaspal Singh (Plaintiff No. 1 in the present suit), in lieu of acquiring rights in the suit property. Thus, the decree created new rights in the suit property in favour of Defendant Nos. 1 to 3, virtually amounting to a sale deed, and seems to have been used as a mode to transfer property without a valid sale deed. It is also found that Plaintiff No. 1 Jaspal Singh had appeared in the said suit voluntarily, without the issuance of summons to him, and on the date of appearance, hurriedly admitted the entire case of the plaintiffs therein, consequent to which the suit was decreed. Despite such collusive decree, the suit property continued to be in the name of the original owner, Plaintiff No. 1 Jaspal Singh, who also continued to be in possession thereof. Plaintiff Nos. 2 to 9 in the present suit, who had purchased the suit property from Plaintiff No. 1 vide sale deed dated 05.06.1984, were held to be bona fide purchasers for valuable consideration. This was also in light of the circumstance that the mutation pursuant to the judgment and decree dated 29.7.1983 was sanctioned after the execution of the sale deed by Plaintiff No. 1 in favour of Plaintiff Nos. 2 to 9. Possession of the suit property had also been handed over to Plaintiff Nos. 2 to 9, but it seems that during the pendency of the matter they were dispossessed of the same by virtue of an order passed by the Executive Magistrate. We do not find any valid reason to disagree with the reasons and conclusions arrived at by the Courts below. | 0 | 850 | 389 | ### 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:
MOHAN M. SHANTANAGOUDAR, J.1. The judgment dated 27.10.2009 passed by the High Court of Punjab and Haryana at Chandigarh in RSA No. 3609 of 1998 (O&M) is called into question in this appeal by the unsuccessful defendants.2. The brief facts leading to this appeal are that Jaspal Singh, Plaintiff No.1 in the present suit, i.e. O.S. No. 388 of 1986 (Respondent No.1 herein), had been residing in West Germany (as it then was) and had authorised Kidar Singh son of Hem Raj to do all acts and to file or defend any suit regarding the suit property vide special power of attorney. The present suit was filed by Kidar Singh on behalf of Plaintiff No. 1 for declaration that the decree dated 29.07.1983 in Civil Suit No. 18 of 1983 titled as Harbhajan Singh & Ors. v. Jaspal Singh, decided by the Sub-Judge, II nd Class, Panipat, holding Defendant Nos. 1 to 3 in the present suit (the appellants herein) to be the owners in possession of the suit land, was illegal, null and void, and not binding on Plaintiff No. 1, and that the registered sale deed dated 05.06.1984 in respect of the suit land executed by Plaintiff No. 1 in favour of Defendant Nos. 4 to 10 in the present suit is legal and binding on all persons including Defendant Nos. 1 to 3. The consequential relief of injunction was also sought for. Though Plaintiff No. 1 at some point got the present suit dismissed as withdrawn, Defendant Nos. 4 to 10 were later transposed as plaintiffs, and Plaintiff No. 9 impleaded, and proceedings in the suit continued. The Trial Court decreed the suit. The decree of the Trial Court was confirmed by the First Appellate Court as well as by the Second Appellate Court. This appeal is presented before us as against the concurrent findings of three courts.3. All the Courts have concurrently concluded that the judgment and decree dated 29.07.1983 passed in Civil Suit No.18 of 1983 by the Sub-Judge, II nd Class, Panipat is illegal and does not bind the plaintiffs (the respondents herein). The Courts have held that the same is a collusive decree between the plaintiffs and the defendants in the said suit.4. Mr. Vinay Navare, learned senior counsel for the appellants, and Mr. Brijender Chahar, learned senior counsel appearing for the respondents, have taken us through the entire material on record and argued in support of their respective cases.5. All the three Courts, on facts, have rightly concluded that the judgment and decree passed in Civil Suit No. 18 of 1983 was illegal, and hence not binding on the plaintiffs. A collusive decree was obtained by the plaintiffs in Civil Suit No. 18 of 1983 (Defendant Nos. 1 to 3 in the present suit) by agreeing to deposit part of the pre-emption money in certain pre-emption suits filed by Jaspal Singh (Plaintiff No. 1 in the present suit), in lieu of acquiring rights in the suit property. Thus, the decree created new rights in the suit property in favour of Defendant Nos. 1 to 3, virtually amounting to a sale deed, and seems to have been used as a mode to transfer property without a valid sale deed. It is also found that Plaintiff No. 1 Jaspal Singh had appeared in the said suit voluntarily, without the issuance of summons to him, and on the date of appearance, hurriedly admitted the entire case of the plaintiffs therein, consequent to which the suit was decreed. Despite such collusive decree, the suit property continued to be in the name of the original owner, Plaintiff No. 1 Jaspal Singh, who also continued to be in possession thereof. Plaintiff Nos. 2 to 9 in the present suit, who had purchased the suit property from Plaintiff No. 1 vide sale deed dated 05.06.1984, were held to be bona fide purchasers for valuable consideration. This was also in light of the circumstance that the mutation pursuant to the judgment and decree dated 29.7.1983 was sanctioned after the execution of the sale deed by Plaintiff No. 1 in favour of Plaintiff Nos. 2 to 9. Possession of the suit property had also been handed over to Plaintiff Nos. 2 to 9, but it seems that during the pendency of the matter they were dispossessed of the same by virtue of an order passed by the Executive Magistrate. We do not find any valid reason to disagree with the reasons and conclusions arrived at by the Courts below.
### Response:
0
### Explanation:
5. All the three Courts, on facts, have rightly concluded that the judgment and decree passed in Civil Suit No. 18 of 1983 was illegal, and hence not binding on the plaintiffs. A collusive decree was obtained by the plaintiffs in Civil Suit No. 18 of 1983 (Defendant Nos. 1 to 3 in the present suit) by agreeing to deposit part of the pre-emption money in certain pre-emption suits filed by Jaspal Singh (Plaintiff No. 1 in the present suit), in lieu of acquiring rights in the suit property. Thus, the decree created new rights in the suit property in favour of Defendant Nos. 1 to 3, virtually amounting to a sale deed, and seems to have been used as a mode to transfer property without a valid sale deed. It is also found that Plaintiff No. 1 Jaspal Singh had appeared in the said suit voluntarily, without the issuance of summons to him, and on the date of appearance, hurriedly admitted the entire case of the plaintiffs therein, consequent to which the suit was decreed. Despite such collusive decree, the suit property continued to be in the name of the original owner, Plaintiff No. 1 Jaspal Singh, who also continued to be in possession thereof. Plaintiff Nos. 2 to 9 in the present suit, who had purchased the suit property from Plaintiff No. 1 vide sale deed dated 05.06.1984, were held to be bona fide purchasers for valuable consideration. This was also in light of the circumstance that the mutation pursuant to the judgment and decree dated 29.7.1983 was sanctioned after the execution of the sale deed by Plaintiff No. 1 in favour of Plaintiff Nos. 2 to 9. Possession of the suit property had also been handed over to Plaintiff Nos. 2 to 9, but it seems that during the pendency of the matter they were dispossessed of the same by virtue of an order passed by the Executive Magistrate. We do not find any valid reason to disagree with the reasons and conclusions arrived at by the Courts below.
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Corn Products Company India Limited Vs. Union of India | exclude condiments and spices such as yeast, salt, pepper, baking powder and turmeric, but in a wider sense, it includes everything that goes into the preparation of food proper to make it more palatable and digestible. The Supreme Court the referred to the meaning of the expression in Websters International Dictionary and then Justice Vivian Bose in his inimitable style observed: -"so far as "food" is concerned, it can be used in a wide as well as a narrow sense and, in my opinion, much must depend upon the context and background. Even in a popular sense, when one asks another, "have your had your food", one means the composite preparations which normally go to constitute a meal-curry and rice, sweetmeats, pudding, cooked vegetables and so forth. One does not usually think separately of the different preparations which enter into their making, of the various condiments and spices and vitamins, any more than one would think of separating in his mind the purely nutritive elements of what is eaten from their non-nutritive adjuncts. The proof of the pudding is, as it were, in the eating, and if the effect of eating what would otherwise be palatable and digestible and, therefore, nutritive is to bring on indigestion to a stomach unaccustomed to such unspiced fare, the answer must. I think, be that however nutritive a product may be in one form it can scarcely be classed as nutritive if the only result of eating it is to produce the opposite effect; and if the essence of the definition is the nutritive element, then the commodity in question must cease to be food, within the strict meaning of the definition, to that particular class of persons, without the addition of the spices which make it nutritive. Put more colloquially, "one mans food is another mans poison. " I refer to this not for the sake of splitting hairs but to show undesirability of such a mode of approach. The problem must, I think, be solved in a common sense way."( 4 ) BAKING powder is a product formulated from various edible ingredients such as edible maize, starch special, soda bicarb and sodium aluminium sulphate. The finished product is marketed by the company in their brand name rex in different packings. Baking powder is extensively used in bakery preparations like biscuits, breads and also in Indian preparations like pakoda, idli, samosa, gulab jamun, etc. The use of baking powder makes the preparation light and crisp and adds consistency to the formulation and improves the taste. As observed by the Supreme Court, the problem must be solved in a commonsense way and the Court should ascertain as to how the expression baking powder is understood in common parlance. We have no hesitation in observing that any housewife would treat baking powder as a food preparation and in trade parlance baking powder is sold and known as a food preparation. The Legislature had clearly made distinction between the expressions food products and food preparations and, therefore, the submission of Mr. Desai, learned counsel for the revenue, that baking powder should not be treated as food preparation because baking powder is not consumed as a food item cannot be accepted. The expression food preparations need not include every item which is consumed as a food product. For illustration, Item No. vi of the schedule to the exemption notification refers to grain mill products. Now, by no stretch of imagination, it can be suggested that aata which is grain mill product can be consumed as a food product, but aata would certainly attract the expression food preparations because aata is used for the purpose of baking bread or preparing roti. In our judgment, Item No. 1 of the schedule to the exemption notification gives an inclusive definition of food products and food preparations and bare perusal of the same makes it clear that even though the item cannot be consumed as a food, still the exemption would be available if the item falls under the entry food preparations. Mr. Desai relied upon decision of the Allahabad High Court in Ashok Griha Udyog Kendra Pvt. Ltd. v. Collector of Central Excise and Customs [1982 (10) E. L. T. 309] to urge that spices are neither food products nor food preparations even though spices are used in preparation of human food for the sake of giving flavour and taste to it. The Allahabad High Court did not assign any reasons for coming to this conclusion, but merely referred to the decision of a single judge of the Andhra Pradesh High Court in Brooke Bond India Limited v. Union of India and Ors. [1980 (6) E. L. T. 65] and where it was held that coffee-chicory-blend was neither a food product nor a food preparation but is merely a beverage. We are unable, with respect, to share the view of the Allahabad High Court. It is not possible to hold that spices which are used in preparation of human food are not food preparations as understood in the exemption notification. Mr. Desai submitted that the question to be posed is whether spices and baking powder can be consumed and would constitute a meal. In our judgment, the question posed is misconceived. The question should be whether baking powder is a food preparation and which is a crucial ingredient in preparation of food products. It is not correct to suggest that unless the item can be consumed as a part of the meal, the same would not fall under the expression food preparations. The acceptance of the submission of Mr. Desai would lead to very curious result and would make the expression food preparations in the exemption notification redundant. It is well-settled rule of interpretation that no expression or part of it should be made redundant while interpreting an expression. In our judgment, baking powder would clearly fall within the expression food preparations and, therefore, the manufacture of baking powder is entitled to claim exemption under notification dated March 1, 1975. | 1[ds]( 4 ) BAKING powder is a product formulated from various edible ingredients such as edible maize, starch special, soda bicarb and sodium aluminium sulphate. The finished product is marketed by the company in their brand name rex in different packings. Baking powder is extensively used in bakery preparations like biscuits, breads and also in Indian preparations like pakoda, idli, samosa, gulab jamun, etc. The use of baking powder makes the preparation light and crisp and adds consistency to the formulation and improves the taste. As observed by the Supreme Court, the problem must be solved in a commonsense way and the Court should ascertain as to how the expression baking powder is understood in common parlance. We have no hesitation in observing that any housewife would treat baking powder as a food preparation and in trade parlance baking powder is sold and known as a food preparation. The Legislature had clearly made distinction between the expressions food products and food preparations and, therefore, the submission of Mr. Desai, learned counsel for the revenue, that baking powder should not be treated as food preparation because baking powder is not consumed as a food item cannot be accepted. The expression food preparations need not include every item which is consumed as a food product. For illustration, Item No. vi of the schedule to the exemption notification refers to grain mill products. Now, by no stretch of imagination, it can be suggested that aata which is grain mill product can be consumed as a food product, but aata would certainly attract the expression food preparations because aata is used for the purpose of baking bread or preparing roti. In our judgment, Item No. 1 of the schedule to the exemption notification gives an inclusive definition of food products and food preparations and bare perusal of the same makes it clear that even though the item cannot be consumed as a food, still the exemption would be available if the item falls under the entry food preparations. Mr. Desai relied upon decision of the Allahabad High Court in Ashok Griha Udyog Kendra Pvt. Ltd. v. Collector of Central Excise and Customs [1982 (10) E. L. T. 309] to urge that spices are neither food products nor food preparations even though spices are used in preparation of human food for the sake of giving flavour and taste to it. The Allahabad High Court did not assign any reasons for coming to this conclusion, but merely referred to the decision of a single judge of the Andhra Pradesh High Court in Brooke Bond India Limited v. Union of India and Ors. [1980 (6) E. L. T. 65] and where it was held thatwas neither a food product nor a food preparation but is merely a beverage. We are unable, with respect, to share the view of the Allahabad High Court. It is not possible to hold that spices which are used in preparation of human food are not food preparations as understood in the exemption notification. Mr. Desai submitted that the question to be posed is whether spices and baking powder can be consumed and would constitute a meal. In our judgment, the question posed is misconceived. The question should be whether baking powder is a food preparation and which is a crucial ingredient in preparation of food products. It is not correct to suggest that unless the item can be consumed as a part of the meal, the same would not fall under the expression food preparations. The acceptance of the submission of Mr. Desai would lead to very curious result and would make the expression food preparations in the exemption notification redundant. It isrule of interpretation that no expression or part of it should be made redundant while interpreting an expression. In our judgment, baking powder would clearly fall within the expression food preparations and, therefore, the manufacture of baking powder is entitled to claim exemption under notification dated March 1, 1975. | 1 | 2,081 | 726 | ### 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:
exclude condiments and spices such as yeast, salt, pepper, baking powder and turmeric, but in a wider sense, it includes everything that goes into the preparation of food proper to make it more palatable and digestible. The Supreme Court the referred to the meaning of the expression in Websters International Dictionary and then Justice Vivian Bose in his inimitable style observed: -"so far as "food" is concerned, it can be used in a wide as well as a narrow sense and, in my opinion, much must depend upon the context and background. Even in a popular sense, when one asks another, "have your had your food", one means the composite preparations which normally go to constitute a meal-curry and rice, sweetmeats, pudding, cooked vegetables and so forth. One does not usually think separately of the different preparations which enter into their making, of the various condiments and spices and vitamins, any more than one would think of separating in his mind the purely nutritive elements of what is eaten from their non-nutritive adjuncts. The proof of the pudding is, as it were, in the eating, and if the effect of eating what would otherwise be palatable and digestible and, therefore, nutritive is to bring on indigestion to a stomach unaccustomed to such unspiced fare, the answer must. I think, be that however nutritive a product may be in one form it can scarcely be classed as nutritive if the only result of eating it is to produce the opposite effect; and if the essence of the definition is the nutritive element, then the commodity in question must cease to be food, within the strict meaning of the definition, to that particular class of persons, without the addition of the spices which make it nutritive. Put more colloquially, "one mans food is another mans poison. " I refer to this not for the sake of splitting hairs but to show undesirability of such a mode of approach. The problem must, I think, be solved in a common sense way."( 4 ) BAKING powder is a product formulated from various edible ingredients such as edible maize, starch special, soda bicarb and sodium aluminium sulphate. The finished product is marketed by the company in their brand name rex in different packings. Baking powder is extensively used in bakery preparations like biscuits, breads and also in Indian preparations like pakoda, idli, samosa, gulab jamun, etc. The use of baking powder makes the preparation light and crisp and adds consistency to the formulation and improves the taste. As observed by the Supreme Court, the problem must be solved in a commonsense way and the Court should ascertain as to how the expression baking powder is understood in common parlance. We have no hesitation in observing that any housewife would treat baking powder as a food preparation and in trade parlance baking powder is sold and known as a food preparation. The Legislature had clearly made distinction between the expressions food products and food preparations and, therefore, the submission of Mr. Desai, learned counsel for the revenue, that baking powder should not be treated as food preparation because baking powder is not consumed as a food item cannot be accepted. The expression food preparations need not include every item which is consumed as a food product. For illustration, Item No. vi of the schedule to the exemption notification refers to grain mill products. Now, by no stretch of imagination, it can be suggested that aata which is grain mill product can be consumed as a food product, but aata would certainly attract the expression food preparations because aata is used for the purpose of baking bread or preparing roti. In our judgment, Item No. 1 of the schedule to the exemption notification gives an inclusive definition of food products and food preparations and bare perusal of the same makes it clear that even though the item cannot be consumed as a food, still the exemption would be available if the item falls under the entry food preparations. Mr. Desai relied upon decision of the Allahabad High Court in Ashok Griha Udyog Kendra Pvt. Ltd. v. Collector of Central Excise and Customs [1982 (10) E. L. T. 309] to urge that spices are neither food products nor food preparations even though spices are used in preparation of human food for the sake of giving flavour and taste to it. The Allahabad High Court did not assign any reasons for coming to this conclusion, but merely referred to the decision of a single judge of the Andhra Pradesh High Court in Brooke Bond India Limited v. Union of India and Ors. [1980 (6) E. L. T. 65] and where it was held that coffee-chicory-blend was neither a food product nor a food preparation but is merely a beverage. We are unable, with respect, to share the view of the Allahabad High Court. It is not possible to hold that spices which are used in preparation of human food are not food preparations as understood in the exemption notification. Mr. Desai submitted that the question to be posed is whether spices and baking powder can be consumed and would constitute a meal. In our judgment, the question posed is misconceived. The question should be whether baking powder is a food preparation and which is a crucial ingredient in preparation of food products. It is not correct to suggest that unless the item can be consumed as a part of the meal, the same would not fall under the expression food preparations. The acceptance of the submission of Mr. Desai would lead to very curious result and would make the expression food preparations in the exemption notification redundant. It is well-settled rule of interpretation that no expression or part of it should be made redundant while interpreting an expression. In our judgment, baking powder would clearly fall within the expression food preparations and, therefore, the manufacture of baking powder is entitled to claim exemption under notification dated March 1, 1975.
### Response:
1
### Explanation:
( 4 ) BAKING powder is a product formulated from various edible ingredients such as edible maize, starch special, soda bicarb and sodium aluminium sulphate. The finished product is marketed by the company in their brand name rex in different packings. Baking powder is extensively used in bakery preparations like biscuits, breads and also in Indian preparations like pakoda, idli, samosa, gulab jamun, etc. The use of baking powder makes the preparation light and crisp and adds consistency to the formulation and improves the taste. As observed by the Supreme Court, the problem must be solved in a commonsense way and the Court should ascertain as to how the expression baking powder is understood in common parlance. We have no hesitation in observing that any housewife would treat baking powder as a food preparation and in trade parlance baking powder is sold and known as a food preparation. The Legislature had clearly made distinction between the expressions food products and food preparations and, therefore, the submission of Mr. Desai, learned counsel for the revenue, that baking powder should not be treated as food preparation because baking powder is not consumed as a food item cannot be accepted. The expression food preparations need not include every item which is consumed as a food product. For illustration, Item No. vi of the schedule to the exemption notification refers to grain mill products. Now, by no stretch of imagination, it can be suggested that aata which is grain mill product can be consumed as a food product, but aata would certainly attract the expression food preparations because aata is used for the purpose of baking bread or preparing roti. In our judgment, Item No. 1 of the schedule to the exemption notification gives an inclusive definition of food products and food preparations and bare perusal of the same makes it clear that even though the item cannot be consumed as a food, still the exemption would be available if the item falls under the entry food preparations. Mr. Desai relied upon decision of the Allahabad High Court in Ashok Griha Udyog Kendra Pvt. Ltd. v. Collector of Central Excise and Customs [1982 (10) E. L. T. 309] to urge that spices are neither food products nor food preparations even though spices are used in preparation of human food for the sake of giving flavour and taste to it. The Allahabad High Court did not assign any reasons for coming to this conclusion, but merely referred to the decision of a single judge of the Andhra Pradesh High Court in Brooke Bond India Limited v. Union of India and Ors. [1980 (6) E. L. T. 65] and where it was held thatwas neither a food product nor a food preparation but is merely a beverage. We are unable, with respect, to share the view of the Allahabad High Court. It is not possible to hold that spices which are used in preparation of human food are not food preparations as understood in the exemption notification. Mr. Desai submitted that the question to be posed is whether spices and baking powder can be consumed and would constitute a meal. In our judgment, the question posed is misconceived. The question should be whether baking powder is a food preparation and which is a crucial ingredient in preparation of food products. It is not correct to suggest that unless the item can be consumed as a part of the meal, the same would not fall under the expression food preparations. The acceptance of the submission of Mr. Desai would lead to very curious result and would make the expression food preparations in the exemption notification redundant. It isrule of interpretation that no expression or part of it should be made redundant while interpreting an expression. In our judgment, baking powder would clearly fall within the expression food preparations and, therefore, the manufacture of baking powder is entitled to claim exemption under notification dated March 1, 1975.
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Salim Vs. State Of West Bengal | February were closed days and he was during the particular period "extremely busy" due to "heavy rush of work." This explanation was accepted by the Court as satisfactory. In coming to the conclusion that there was no violation of the requirement that the report should be made forthwith, the Constitution Bench relied on Joglekars case 1956 SCR 653 = (AIR 1957 SC 28 ) and on the following passage which occurred in Maxwells 11th edition at page 341:When a statute requires that something shall be done "forthwith", or "immediately" or even "instantly", it should probably be understood as allowing a reasonable time for doing it."10. Thus, forthwith does not connote a precise time and even if the statute under consideration requires that the report shall be made forthwith, its terms shall have been complied with if the report is made without avoidable or unreasonable delay.11. In Hillingdon London Borough Council v. Cutler, (1968) 1 QB 124 at p. 135 Harman L. J. while holding that the concept of forthwith does not exclude the allowance of a reasonable time for doing the act, qualified his formulation by adding the rider "provided that no harm is done." Applying that test, no prejudice has been caused to the petitioner by the late making of the report. The State Government could approve the detention any time before June 25, the order having been passed on June 13. The report was made to the State Government on June 15 which still left to it a margin of about 10, days to consider the merits of the order. It cannot be said that the delay in making the report left to the State Government insufficient time to consider whether the order of detention should be approved. The order was in fact approved on June 21, much before the expiry of the statutory period of 12 days.12. The District Magistrate, it must be stated, has not explained in his affidavit why he did not report the fact of detention to the State Government promptly. The order is dated June 13 and if not on the 15th itself, he should have in normal circumstances made his report on the 14th. Such remissness on the part of detaining authorities is not to be encouraged but it ought to be stated that counsel for the State Government had asked for an adjournment to enable the District Magistrate to file a supplementary affidavit for explaining the delay. We did not grant the adjournment, as we were inclined to the view that the interval between the date of the order and the date of the report is not so long as to require an explanation on oath. The date on which the order was passed may, even according to the petitioners counsel, be left out of the reckoning. That accounts for the 13th. The report was made on the 15th and there is some authority for the proposition that an act may be taken as done "at the first moment of the day on which it was performed" (See Maxwell, 12th Ed. pp. 331-312). That takes care of the 15th. All that can therefore be said is that there was one days delay in making the report. We are not inclined to dismiss as untrue the oral explanation offered on behalf of the District Magistrate that he could not make the report on the 14th due to administrative difficulties. As it cannot be said that the District Magistrate had slept over the order or was "lounging supinely" over it and since the explanation of one days delay may be accepted as reasonable, there is no violation of the requirement that the report to the State Government shall be made forthwith.13. A few other contentions were raised on behalf of the petitioner but we see no substance in any one of them. It is contended that Section 3 (4) has been violated because the State Government did not make a report to the Central Government within 7 days of the date of the order of detention. The short answer to this contention is that the period of 7 days has to be reckoned from the date on which the State Government approved order and not from the date on which the District Magistrate passed the order. If the order were made by the State Government the report would have been required to be made to the Central Government within 7 days of the date of the order; but the order in the instant case was approved and not made by the State Government. It was then said that there was no proximity between the incidents leading to the detention and the order of detention as there was a gap of about 4 months in between The explanation of the interval is that the petitioner was being prosecuted and an order of discharge had to be obtained on June 17, 1972. The order of detention was passed 4 days before the order of discharge was passed. It is next contended that the State Government having rejected the petitioners representation the very next day that it was received, it must be held that it did not apply its mind to the representation. We do not suppose that the length of time which a decision takes necessarily reflects the care or openness brought to bear upon it. The answer to yet another contention that the entire material which influenced the subjective satisfaction of the Magistrate in passing the order of detention was not supplied to the petitioner is that according to the counter-affidavit of the District Magistrate, nothing apart from what is stated in the grounds and the particulars was taken into account while passing the order of detention. The last submission that the petitioner could have been prosecuted for the acts attributed to him has been answered by this Court in numerous cases by saying that the availability of an alternate remedy is not by itself an effective answer to the validity of the detention. | 0[ds]It is an established rule of construction that unless the language of the statute is ambiguous, the words used by the legislature ought to be given their plain, literal meaning. But it is equally important that by no rule of construction may the words of a statute be so interpreted as to bring about absurd situations in practice. The stranglehold of stark literalness has therefore to be avoided in order to give a rational meaning and content to the language used in the statute. Thus, though the word forthwith cannot be construed so as to permit indolence or laxity on the part-of the officer charged with the duty of reporting the detention to the State Government, reasonable allowance has to be made for unavoidable delays, always remembering that the detaining authority must explain any long delay by pointing out circumstances due to which the report to the State Government could not be made with the greatest promptitude.Thus, forthwith does not connote a precise time and even if the statute under consideration requires that the report shall be made forthwith, its terms shall have been complied with if the report is made without avoidable or unreasonable delay.The District Magistrate, it must be stated, has not explained in his affidavit why he did not report the fact of detention to the State Government promptly. The order is dated June 13 and if not on the 15th itself, he should have in normal circumstances made his report on the 14th. Such remissness on the part of detaining authorities is not to be encouraged but it ought to be stated that counsel for the State Government had asked for an adjournment to enable the District Magistrate to file a supplementary affidavit for explaining the delay. We did not grant the adjournment, as we were inclined to the view that the interval between the date of the order and the date of the report is not so long as to require an explanation on oath. The date on which the order was passed may, even according to the petitioners counsel, be left out of the reckoning. That accounts for the 13th. The report was made on the 15th and there is some authority for the proposition that an act may be taken as done "at the first moment of the day on which it was performed"That takes care of the 15th. All that can therefore be said is that there was one days delay in making the report. We are not inclined to dismiss as untrue the oral explanation offered on behalf of the District Magistrate that he could not make the report on the 14th due to administrative difficulties. As it cannot be said that the District Magistrate had slept over the order or was "lounging supinely" over it and since the explanation of one days delay may be accepted as reasonable, there is no violation of the requirement that the report to the State Government shall be madedo not suppose that the length of time which a decision takes necessarily reflects the care or openness brought to bear upon it. The answer to yet another contention that the entire material which influenced the subjective satisfaction of the Magistrate in passing the order of detention was not supplied to the petitioner is that according to the counter-affidavit of the District Magistrate, nothing apart from what is stated in the grounds and the particulars was taken into account while passing the order oflast submission that the petitioner could have been prosecuted for the acts attributed to him has been answered by this Court in numerous cases by saying that the availability of an alternate remedy is not by itself an effective answer to the validity of the detention. | 0 | 2,985 | 663 | ### 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:
February were closed days and he was during the particular period "extremely busy" due to "heavy rush of work." This explanation was accepted by the Court as satisfactory. In coming to the conclusion that there was no violation of the requirement that the report should be made forthwith, the Constitution Bench relied on Joglekars case 1956 SCR 653 = (AIR 1957 SC 28 ) and on the following passage which occurred in Maxwells 11th edition at page 341:When a statute requires that something shall be done "forthwith", or "immediately" or even "instantly", it should probably be understood as allowing a reasonable time for doing it."10. Thus, forthwith does not connote a precise time and even if the statute under consideration requires that the report shall be made forthwith, its terms shall have been complied with if the report is made without avoidable or unreasonable delay.11. In Hillingdon London Borough Council v. Cutler, (1968) 1 QB 124 at p. 135 Harman L. J. while holding that the concept of forthwith does not exclude the allowance of a reasonable time for doing the act, qualified his formulation by adding the rider "provided that no harm is done." Applying that test, no prejudice has been caused to the petitioner by the late making of the report. The State Government could approve the detention any time before June 25, the order having been passed on June 13. The report was made to the State Government on June 15 which still left to it a margin of about 10, days to consider the merits of the order. It cannot be said that the delay in making the report left to the State Government insufficient time to consider whether the order of detention should be approved. The order was in fact approved on June 21, much before the expiry of the statutory period of 12 days.12. The District Magistrate, it must be stated, has not explained in his affidavit why he did not report the fact of detention to the State Government promptly. The order is dated June 13 and if not on the 15th itself, he should have in normal circumstances made his report on the 14th. Such remissness on the part of detaining authorities is not to be encouraged but it ought to be stated that counsel for the State Government had asked for an adjournment to enable the District Magistrate to file a supplementary affidavit for explaining the delay. We did not grant the adjournment, as we were inclined to the view that the interval between the date of the order and the date of the report is not so long as to require an explanation on oath. The date on which the order was passed may, even according to the petitioners counsel, be left out of the reckoning. That accounts for the 13th. The report was made on the 15th and there is some authority for the proposition that an act may be taken as done "at the first moment of the day on which it was performed" (See Maxwell, 12th Ed. pp. 331-312). That takes care of the 15th. All that can therefore be said is that there was one days delay in making the report. We are not inclined to dismiss as untrue the oral explanation offered on behalf of the District Magistrate that he could not make the report on the 14th due to administrative difficulties. As it cannot be said that the District Magistrate had slept over the order or was "lounging supinely" over it and since the explanation of one days delay may be accepted as reasonable, there is no violation of the requirement that the report to the State Government shall be made forthwith.13. A few other contentions were raised on behalf of the petitioner but we see no substance in any one of them. It is contended that Section 3 (4) has been violated because the State Government did not make a report to the Central Government within 7 days of the date of the order of detention. The short answer to this contention is that the period of 7 days has to be reckoned from the date on which the State Government approved order and not from the date on which the District Magistrate passed the order. If the order were made by the State Government the report would have been required to be made to the Central Government within 7 days of the date of the order; but the order in the instant case was approved and not made by the State Government. It was then said that there was no proximity between the incidents leading to the detention and the order of detention as there was a gap of about 4 months in between The explanation of the interval is that the petitioner was being prosecuted and an order of discharge had to be obtained on June 17, 1972. The order of detention was passed 4 days before the order of discharge was passed. It is next contended that the State Government having rejected the petitioners representation the very next day that it was received, it must be held that it did not apply its mind to the representation. We do not suppose that the length of time which a decision takes necessarily reflects the care or openness brought to bear upon it. The answer to yet another contention that the entire material which influenced the subjective satisfaction of the Magistrate in passing the order of detention was not supplied to the petitioner is that according to the counter-affidavit of the District Magistrate, nothing apart from what is stated in the grounds and the particulars was taken into account while passing the order of detention. The last submission that the petitioner could have been prosecuted for the acts attributed to him has been answered by this Court in numerous cases by saying that the availability of an alternate remedy is not by itself an effective answer to the validity of the detention.
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It is an established rule of construction that unless the language of the statute is ambiguous, the words used by the legislature ought to be given their plain, literal meaning. But it is equally important that by no rule of construction may the words of a statute be so interpreted as to bring about absurd situations in practice. The stranglehold of stark literalness has therefore to be avoided in order to give a rational meaning and content to the language used in the statute. Thus, though the word forthwith cannot be construed so as to permit indolence or laxity on the part-of the officer charged with the duty of reporting the detention to the State Government, reasonable allowance has to be made for unavoidable delays, always remembering that the detaining authority must explain any long delay by pointing out circumstances due to which the report to the State Government could not be made with the greatest promptitude.Thus, forthwith does not connote a precise time and even if the statute under consideration requires that the report shall be made forthwith, its terms shall have been complied with if the report is made without avoidable or unreasonable delay.The District Magistrate, it must be stated, has not explained in his affidavit why he did not report the fact of detention to the State Government promptly. The order is dated June 13 and if not on the 15th itself, he should have in normal circumstances made his report on the 14th. Such remissness on the part of detaining authorities is not to be encouraged but it ought to be stated that counsel for the State Government had asked for an adjournment to enable the District Magistrate to file a supplementary affidavit for explaining the delay. We did not grant the adjournment, as we were inclined to the view that the interval between the date of the order and the date of the report is not so long as to require an explanation on oath. The date on which the order was passed may, even according to the petitioners counsel, be left out of the reckoning. That accounts for the 13th. The report was made on the 15th and there is some authority for the proposition that an act may be taken as done "at the first moment of the day on which it was performed"That takes care of the 15th. All that can therefore be said is that there was one days delay in making the report. We are not inclined to dismiss as untrue the oral explanation offered on behalf of the District Magistrate that he could not make the report on the 14th due to administrative difficulties. As it cannot be said that the District Magistrate had slept over the order or was "lounging supinely" over it and since the explanation of one days delay may be accepted as reasonable, there is no violation of the requirement that the report to the State Government shall be madedo not suppose that the length of time which a decision takes necessarily reflects the care or openness brought to bear upon it. The answer to yet another contention that the entire material which influenced the subjective satisfaction of the Magistrate in passing the order of detention was not supplied to the petitioner is that according to the counter-affidavit of the District Magistrate, nothing apart from what is stated in the grounds and the particulars was taken into account while passing the order oflast submission that the petitioner could have been prosecuted for the acts attributed to him has been answered by this Court in numerous cases by saying that the availability of an alternate remedy is not by itself an effective answer to the validity of the detention.
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Wilfred D'Souza Vs. Francis Menino Jesus Ferrao | the time of counting of votes after the poll, can be taken into account in proceedings to challenge the validity of the election of the returned candidate provided certain conditions are fulfilled. We agree with the learned counsel for the parties in this respect, and find that this position of law is supported by two English decisions, Borough of St. Andrews(4 Omelly &Hardcastle 32, ) and The Stepney Division of the Borough of Tower Homlets(Omelly &Hardcastle 34.) as also by two Indian decisions, Kalicharan Singh v. Ramcharitar Rai Yadava &Ors(5 E.L.R, 98.) and A.K. Subbarava Gounder v. G. Palanisami Gounder &Ors.(11 E.LR. 251.) Before, however, a tendered ballot paper can be taken into account during the proceedings of election petition, evidence would have to be led on the following two points:"(1) The person who cast the initial vote as a voter on a particular serial number in the electoral roll was someone other than the genuine voter mentioned at that number.(2) It was such genuine voter who marked t he tendered ballot paper."11. So far as the first point is concerned, the evidence of the genuine voter that he had not cast such initial vote would normally and in the absence of any circumstance casting doubt regarding its veracity be sufficient. Once the above two points are proved, the following consequences would follow:"(a) The court would exclude the vote initially cast by the person other than the genuine voter from the number of votes of the candidate in whose favour it was cast; and(b) The court would further take into account the tendered ballot paper in favour of the candidate in whose favour it is duly marked."It may also be mentioned that the proper occasion for scrutinising tendered ballot papers would normally arise only when the difference between the number of votes polled by the candidate declared elected and his nearest rival is s o small that there is a possibility of that difference being wiped out and the result of election being thus materially affected if the court takes into account the tendered ballot papers and excludes from consideration the corresponding votes which were cast by persons other than the genuine voters.The present election petition would have to be decided in the light of the legal position set out above.12. We have been taken through the evidence on record and are of the view that the evidence of the two witnesses examined by the appellant is sufficient to prove that their evidence relates to tendered ballot papers. Each of these witnesses has deposed that when she arrived at the polling booth, she was told that someone else had cast her vote. When these witnesses persisted that they had not cast their votes, each of them was supplied with a paper which she marked. Both the witnesses were emphatic that they had not. put their votes in the ballot box and that they handed them over to the persons present at the polling booth. A very significant circumstance which shows that the evidence of these witnesses relates to tendered ballot papers and not to the ordinary ballot paper is the fact that there is actual reference to them in Form No. 15 which relates to list of tendered votes. The packet containing Form No. 15, it needs to be mentioned, was opened after the close of the evidence of these two witnesses. The name of Joaquina Rodrigues is mentioned in Form No. 15. The fact that the name mentioned in the electoral roll is Rodrigues Joaquina Domingos and not Joaquina Rodrigues is not very material because the name of the father of the witness is Domingos. So far as Vina Fernandes (PW 2) is concerned, Form No. 15 does not mention her name but only gives the serial number of the tendered ballot paper. The counterfoil of the tendered ballot paper however, makes it clear that it relates to serial No. 244 of electoral roll, part No. 12. The said serial number of the electoral roll pertains to Vina Fernandes. It appears that some of the formalities which were required to be observed in connection with tendered ballot papers were not complied with by the presiding officer, e.g., he did not note on the back of the counterfoil of the tendered ballot paper that it related to tendered ballot paper. The parties, however, cannot be made to. suffer because of any such omission on the part of the presiding officer. The evidence of the two witnesses examined on behalf of the appellant can also not be discarded on the ground that the y have not deposed about their having affixed two thumb impressions instead of one thumb impression. As mentioned above, the reference to those two voters in Form No. 15 relating to tendered ballot papers goes a long way to show that it were these two witnesses who marked the tendered ballot papers. Their evidence also shows that they did not cast the initial votes which were cast in their names.Learned Judicial Commissioner in this case did not record any evidence on behalf of the respondents and proceeded to decide the cast after the evidence of the witnesses of the appellant had been recorded and after the box containing the relevant necessary papers had been opened and those papers were examined. In view of the fact that the appellant has adduced prima facie proof in respect of two of the tendered ballot papers, the Judicial Commissioner, in our opinion, should now call upon the respondent to adduce his evidence. The evidence of the respondent would be confined not merely to the two tendere ballot papers in respect of which the appellant has adduced evidence but can also relate to some or all of the other eight tendered ballot papers in respect of which the appellant has not adduced any evidence After the said evidence is examined, learned Judicial Commissioner would decide the matter in the light of the legal position relating to tendered ballot papers as set out above.13. | 1[ds]The fact that the name mentioned in the electoral roll is Rodrigues Joaquina Domingos and not Joaquina Rodrigues is not very material because the name of the father of the witness is Domingos. So far as Vina Fernandes (PW 2) is concerned, Form No. 15 does not mention her name but only gives the serial number of the tendered ballot paper. The counterfoil of the tendered ballot paper however, makes it clear that it relates to serial No. 244 of electoral roll, part No. 12. The said serial number of the electoral roll pertains to Vina Fernandes. It appears that some of the formalities which were required to be observed in connection with tendered ballot papers were not complied with by the presiding officer, e.g., he did not note on the back of the counterfoil of the tendered ballot paper that it related to tendered ballot paper. The parties, however, cannot be made to. suffer because of any such omission on the part of the presiding officer. The evidence of the two witnesses examined on behalf of the appellant can also not be discarded on the ground that the y have not deposed about their having affixed two thumb impressions instead of one thumb impression. As mentioned above, the reference to those two voters in Form No. 15 relating to tendered ballot papers goes a long way to show that it were these two witnesses who marked the tendered ballot papers. Their evidence also shows that they did not cast the initial votes which were cast in their names.Learned Judicial Commissioner in this case did not record any evidence on behalf of the respondents and proceeded to decide the cast after the evidence of the witnesses of the appellant had been recorded and after the box containing the relevant necessary papers had been opened and those papers were examined. In view of the fact that the appellant has adduced prima facie proof in respect of two of the tendered ballot papers, the Judicial Commissioner, in our opinion, should now call upon the respondent to adduce his evidence. The evidence of the respondent would be confined not merely to the two tendere ballot papers in respect of which the appellant has adduced evidence but can also relate to some or all of the other eight tendered ballot papers in respect of which the appellant has not adduced any evidence After the said evidence is examined, learned Judicial Commissioner would decide the matter in the light of the legal position relating to tendered ballot papers as set out above.above.12. We have been taken through the evidence on record and are of the view that the evidence of the two witnesses examined by the appellant is sufficient to prove that their evidence relates to tendered ballot papers. Each of these witnesses has deposed that when she arrived at the polling booth, she was told that someone else had cast her vote. When these witnesses persisted that they had not cast their votes, each of them was supplied with a paper which she marked. Both the witnesses were emphatic that they had not. put their votes in the ballot box and that they handed them over to the persons present at the polling booth. A very significant circumstance which shows that the evidence of these witnesses relates to tendered ballot papers and not to the ordinary ballot paper is the fact that there is actual reference to them in Form No. 15 which relates to list of tendered votes. The packet containing Form No. 15, it needs to be mentioned, was opened after the close of the evidence of these two witnesses. The name of Joaquina Rodrigues is mentioned in Form No. 15.The fact that the name mentioned in the electoral roll is Rodrigues Joaquina Domingos and not Joaquina Rodrigues is not very material because the name of the father of the witness is Domingos. So far as Vina Fernandes (PW 2) is concerned, Form No. 15 does not mention her name but only gives the serial number of the tendered ballot paper. The counterfoil of the tendered ballot paper however, makes it clear that it relates to serial No. 244 of electoral roll, part No. 12. The said serial number of the electoral roll pertains to Vina Fernandes. It appears that some of the formalities which were required to be observed in connection with tendered ballot papers were not complied with by the presiding officer, e.g., he did not note on the back of the counterfoil of the tendered ballot paper that it related to tendered ballot paper. The parties, however, cannot be made to. suffer because of any such omission on the part of the presiding officer. The evidence of the two witnesses examined on behalf of the appellant can also not be discarded on the ground that the y have not deposed about their having affixed two thumb impressions instead of one thumb impression. As mentioned above, the reference to those two voters in Form No. 15 relating to tendered ballot papers goes a long way to show that it were these two witnesses who marked the tendered ballot papers. Their evidence also shows that they did not cast the initial votes which were cast in their names.Learned Judicial Commissioner in this case did not record any evidence on behalf of the respondents and proceeded to decide the cast after the evidence of the witnesses of the appellant had been recorded and after the box containing the relevant necessary papers had been opened and those papers were examined. In view of the fact that the appellant has adduced prima facie proof in respect of two of the tendered ballot papers, the Judicial Commissioner, in our opinion, should now call upon the respondent to adduce his evidence. The evidence of the respondent would be confined not merely to the two tendere ballot papers in respect of which the appellant has adduced evidence but can also relate to some or all of the other eight tendered ballot papers in respect of which the appellant has not adduced any evidence After the said evidence is examined, learned Judicial Commissioner would decide the matter in the light of the legal position relating to tendered ballot papers as set out above. | 1 | 3,385 | 1,125 | ### 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 time of counting of votes after the poll, can be taken into account in proceedings to challenge the validity of the election of the returned candidate provided certain conditions are fulfilled. We agree with the learned counsel for the parties in this respect, and find that this position of law is supported by two English decisions, Borough of St. Andrews(4 Omelly &Hardcastle 32, ) and The Stepney Division of the Borough of Tower Homlets(Omelly &Hardcastle 34.) as also by two Indian decisions, Kalicharan Singh v. Ramcharitar Rai Yadava &Ors(5 E.L.R, 98.) and A.K. Subbarava Gounder v. G. Palanisami Gounder &Ors.(11 E.LR. 251.) Before, however, a tendered ballot paper can be taken into account during the proceedings of election petition, evidence would have to be led on the following two points:"(1) The person who cast the initial vote as a voter on a particular serial number in the electoral roll was someone other than the genuine voter mentioned at that number.(2) It was such genuine voter who marked t he tendered ballot paper."11. So far as the first point is concerned, the evidence of the genuine voter that he had not cast such initial vote would normally and in the absence of any circumstance casting doubt regarding its veracity be sufficient. Once the above two points are proved, the following consequences would follow:"(a) The court would exclude the vote initially cast by the person other than the genuine voter from the number of votes of the candidate in whose favour it was cast; and(b) The court would further take into account the tendered ballot paper in favour of the candidate in whose favour it is duly marked."It may also be mentioned that the proper occasion for scrutinising tendered ballot papers would normally arise only when the difference between the number of votes polled by the candidate declared elected and his nearest rival is s o small that there is a possibility of that difference being wiped out and the result of election being thus materially affected if the court takes into account the tendered ballot papers and excludes from consideration the corresponding votes which were cast by persons other than the genuine voters.The present election petition would have to be decided in the light of the legal position set out above.12. We have been taken through the evidence on record and are of the view that the evidence of the two witnesses examined by the appellant is sufficient to prove that their evidence relates to tendered ballot papers. Each of these witnesses has deposed that when she arrived at the polling booth, she was told that someone else had cast her vote. When these witnesses persisted that they had not cast their votes, each of them was supplied with a paper which she marked. Both the witnesses were emphatic that they had not. put their votes in the ballot box and that they handed them over to the persons present at the polling booth. A very significant circumstance which shows that the evidence of these witnesses relates to tendered ballot papers and not to the ordinary ballot paper is the fact that there is actual reference to them in Form No. 15 which relates to list of tendered votes. The packet containing Form No. 15, it needs to be mentioned, was opened after the close of the evidence of these two witnesses. The name of Joaquina Rodrigues is mentioned in Form No. 15. The fact that the name mentioned in the electoral roll is Rodrigues Joaquina Domingos and not Joaquina Rodrigues is not very material because the name of the father of the witness is Domingos. So far as Vina Fernandes (PW 2) is concerned, Form No. 15 does not mention her name but only gives the serial number of the tendered ballot paper. The counterfoil of the tendered ballot paper however, makes it clear that it relates to serial No. 244 of electoral roll, part No. 12. The said serial number of the electoral roll pertains to Vina Fernandes. It appears that some of the formalities which were required to be observed in connection with tendered ballot papers were not complied with by the presiding officer, e.g., he did not note on the back of the counterfoil of the tendered ballot paper that it related to tendered ballot paper. The parties, however, cannot be made to. suffer because of any such omission on the part of the presiding officer. The evidence of the two witnesses examined on behalf of the appellant can also not be discarded on the ground that the y have not deposed about their having affixed two thumb impressions instead of one thumb impression. As mentioned above, the reference to those two voters in Form No. 15 relating to tendered ballot papers goes a long way to show that it were these two witnesses who marked the tendered ballot papers. Their evidence also shows that they did not cast the initial votes which were cast in their names.Learned Judicial Commissioner in this case did not record any evidence on behalf of the respondents and proceeded to decide the cast after the evidence of the witnesses of the appellant had been recorded and after the box containing the relevant necessary papers had been opened and those papers were examined. In view of the fact that the appellant has adduced prima facie proof in respect of two of the tendered ballot papers, the Judicial Commissioner, in our opinion, should now call upon the respondent to adduce his evidence. The evidence of the respondent would be confined not merely to the two tendere ballot papers in respect of which the appellant has adduced evidence but can also relate to some or all of the other eight tendered ballot papers in respect of which the appellant has not adduced any evidence After the said evidence is examined, learned Judicial Commissioner would decide the matter in the light of the legal position relating to tendered ballot papers as set out above.13.
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does not mention her name but only gives the serial number of the tendered ballot paper. The counterfoil of the tendered ballot paper however, makes it clear that it relates to serial No. 244 of electoral roll, part No. 12. The said serial number of the electoral roll pertains to Vina Fernandes. It appears that some of the formalities which were required to be observed in connection with tendered ballot papers were not complied with by the presiding officer, e.g., he did not note on the back of the counterfoil of the tendered ballot paper that it related to tendered ballot paper. The parties, however, cannot be made to. suffer because of any such omission on the part of the presiding officer. The evidence of the two witnesses examined on behalf of the appellant can also not be discarded on the ground that the y have not deposed about their having affixed two thumb impressions instead of one thumb impression. As mentioned above, the reference to those two voters in Form No. 15 relating to tendered ballot papers goes a long way to show that it were these two witnesses who marked the tendered ballot papers. Their evidence also shows that they did not cast the initial votes which were cast in their names.Learned Judicial Commissioner in this case did not record any evidence on behalf of the respondents and proceeded to decide the cast after the evidence of the witnesses of the appellant had been recorded and after the box containing the relevant necessary papers had been opened and those papers were examined. In view of the fact that the appellant has adduced prima facie proof in respect of two of the tendered ballot papers, the Judicial Commissioner, in our opinion, should now call upon the respondent to adduce his evidence. The evidence of the respondent would be confined not merely to the two tendere ballot papers in respect of which the appellant has adduced evidence but can also relate to some or all of the other eight tendered ballot papers in respect of which the appellant has not adduced any evidence After the said evidence is examined, learned Judicial Commissioner would decide the matter in the light of the legal position relating to tendered ballot papers as set out above.above.12. We have been taken through the evidence on record and are of the view that the evidence of the two witnesses examined by the appellant is sufficient to prove that their evidence relates to tendered ballot papers. Each of these witnesses has deposed that when she arrived at the polling booth, she was told that someone else had cast her vote. When these witnesses persisted that they had not cast their votes, each of them was supplied with a paper which she marked. Both the witnesses were emphatic that they had not. put their votes in the ballot box and that they handed them over to the persons present at the polling booth. A very significant circumstance which shows that the evidence of these witnesses relates to tendered ballot papers and not to the ordinary ballot paper is the fact that there is actual reference to them in Form No. 15 which relates to list of tendered votes. The packet containing Form No. 15, it needs to be mentioned, was opened after the close of the evidence of these two witnesses. The name of Joaquina Rodrigues is mentioned in Form No. 15.The fact that the name mentioned in the electoral roll is Rodrigues Joaquina Domingos and not Joaquina Rodrigues is not very material because the name of the father of the witness is Domingos. So far as Vina Fernandes (PW 2) is concerned, Form No. 15 does not mention her name but only gives the serial number of the tendered ballot paper. The counterfoil of the tendered ballot paper however, makes it clear that it relates to serial No. 244 of electoral roll, part No. 12. The said serial number of the electoral roll pertains to Vina Fernandes. It appears that some of the formalities which were required to be observed in connection with tendered ballot papers were not complied with by the presiding officer, e.g., he did not note on the back of the counterfoil of the tendered ballot paper that it related to tendered ballot paper. The parties, however, cannot be made to. suffer because of any such omission on the part of the presiding officer. The evidence of the two witnesses examined on behalf of the appellant can also not be discarded on the ground that the y have not deposed about their having affixed two thumb impressions instead of one thumb impression. As mentioned above, the reference to those two voters in Form No. 15 relating to tendered ballot papers goes a long way to show that it were these two witnesses who marked the tendered ballot papers. Their evidence also shows that they did not cast the initial votes which were cast in their names.Learned Judicial Commissioner in this case did not record any evidence on behalf of the respondents and proceeded to decide the cast after the evidence of the witnesses of the appellant had been recorded and after the box containing the relevant necessary papers had been opened and those papers were examined. In view of the fact that the appellant has adduced prima facie proof in respect of two of the tendered ballot papers, the Judicial Commissioner, in our opinion, should now call upon the respondent to adduce his evidence. The evidence of the respondent would be confined not merely to the two tendere ballot papers in respect of which the appellant has adduced evidence but can also relate to some or all of the other eight tendered ballot papers in respect of which the appellant has not adduced any evidence After the said evidence is examined, learned Judicial Commissioner would decide the matter in the light of the legal position relating to tendered ballot papers as set out above.
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Rajesh Kohli Vs. High Court Of J.&K. | to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job." 20. In the case of Krishnadevaraya Education Trust v. L.A. Balakrishna reported in (2001) 9 SCC 319 , the services of respondent-Assistant Professor were terminated on the ground that his on the job proficiency was not upto the mark. This Court held that merely a mention in the order by the employer that the services of the employee are not found to be satisfactory would not tantamount to the order being a stigmatic one. This Court held in para 5 thus: - "5. There can be no manner of doubt that the employer is entitled to engage the services of a person on probation. During the period of probation, the suitability of the recruit/appointee has to be seen. If his services are not satisfactory which means that he is not suitable for the job, then the employer has a right to terminate the services as a reason thereof. If the termination during probationary period is without any reason, perhaps such an order would be sought to be challenged on the ground of being arbitrary. Therefore, normally services of an employee on probation would be terminated, when he is found not to be suitable for the job for which he was engaged, without assigning any reason. If the order on the face of it states that his services are being terminated because his performance is not satisfactory, the employer runs the risk of the allegation being made that the order itself casts a stigma. We do not say that such a contention will succeed. Normally, therefore, it is preferred that the order itself does not mention the reason why the services are being terminated."6. If such an order is challenged, the employer will have to indicate the grounds on which the services of a probationer were terminated. Mere fact that in response to the challenge the employer states that the services were not satisfactory would not ipso facto mean that the services of the probationer were being terminated by way of punishment. The probationer is on test and if the services are found not to be satisfactory, the employer has, in terms of the letter of appointment, the right to terminate the services." 21. In the case of Chaitanya Prakash v. H. Omkarappa reported in (2010) 2 SCC 623 , the services of respondent were terminated by the appellant company. During the period of probation, his services were not found to be satisfactory and he was also given letters for improvement of his services and his period of service was also extended and ultimately company terminated him. Court after referring to a series of cases held that the impugned order of termination of respondent is not stigmatic. 22. In the case of State of Punjab v. Bhagwan Singh reported in (2002) 9 SCC 636 this Court at paragraphs 4 & 5 held as follows: - "4. ............................. In our view, when a probationer is discharged during the period of probation and if for the purpose of discharge, a particular assessment of his work is to be made, and the authorities referred to such an assessment of his work, while passing the order of discharge, that cannot be held to amount to stigma.5. The other sentence in the impugned order is, that the performance of the officer on the whole was "not satisfactory". Even that does not amount to any stigma." 23. In the present case, the order of termination is a fall out of his unsatisfactory service adjudged on the basis of his overall performance and the manner in which he conducted himself. Such satisfaction even if recorded that his service is unsatisfactory would not make the order stigmatic or punitive as sought to be submitted by the petitioner. On the basis of the aforesaid resolution, the matter was referred to the State Government for issuing necessary orders.24. One of the issues that were raised by the petitioner was that he was granted two increments during the period of two and a half years of his service. Therefore the stand taken by the respondents that his service was unsatisfactory is belied according to the petitioner because of the aforesaid action even on the part of the respondents impliedly accepting the position that his service was satisfactory.25. The aforesaid submission of the petitioner is devoid of any merit in view of the fact that since the petitioner was continuing in service, therefore, the case for granting increment was required to be considered which was so granted. The mere granting of yearly increments would not in any manner indicate that after completion of the probation period the full court of the High Court was not competent to scrutinize his records and on the basis thereof take a decision as to whether or not his service should be confirmed or dispensed with or whether his probation period should be extended. The High Court has a solemn duty to consider and appreciate the service of a judicial officer before confirming him in service. The district judiciary is the bedrock of our judicial system and is positioned at the primary level of entry to the doors of justice. In providing the opportunity of access to justice to the people of the country, the judicial officers who are entrusted with the task of adjudication must officiate in a manner that is becoming of their position and responsibility towards society.26. Upright and honest judicial officers are needed not only to bolster the image of the judiciary in the eyes of litigants, but also to sustain the culture of integrity, virtue and ethics among judges. The publics perception of the judiciary matters just as much as its role in dispute resolution. The credibility of the entire judiciary is often undermined by isolated acts of transgression by a few members of the Bench, and therefore it is imperative to maintain a high benchmark of honesty, accountability and good conduct. | 0[ds]12. The petitioner was temporarily appointed as District & Sessions Judge on 24.08.2000 and therefore completed his initial period of probation of two years on 23.08.2002. Thereafter his matter was placed on the administrative side before the full court of the High Court in its meeting held on 26.04.2003 for the purpose of confirmation of his service or otherwise or for extension of probationary period. The full court on consideration of the records of the petitioner held that his service was not found to be satisfactory and therefore, his probation period would not be extended and accordingly the full court recommended that the services of the petitioner be dispensed with. At this stage, it may also be noted that when by the order dated 03.07.2003 the service of the petitioner was terminated, the period of probation of the petitioner was extended for the period from 24.08.2000 to 05.05.2003, the date on which a follow-up order was issued by the High Court to the State Government recommending his case for termination. Finally by the order dated 03.07.2003, the service of the petitioner was terminated.13. Since the rule permits probation to be extended for another one year and since there was no order of confirmation passed by the respondents confirming his service, the petitioner would be deemed to be continuing on probation immediately after his expiry of the initial two years of probation. In this regard, we may refer to the case of Satya Narayan Athya v. High Court of M.P. reported in (1996) 1 SCC 560 in which a judicial officer was not given any confirmation letter even after the completion of his two years of probation period. The rules in the said case provided for the extension of initial two years of probation period for a further period of two years. This Court in that case held at Paragraphs 3 & 5 that :......................A reading thereof would clearly indicate that every candidate appointed to the cadre shall undergo training initially for a period of six months before he is appointed on probation for a period of two years. On his completion of two years of probation, it may be open to the High Court either to confirm or extend the probation. At the end of the probation period, if he is not confirmed on being found unfit, it may be extended for a further period not exceeding two years. It is seen that though there is no order of extension, it must be deemed that he was continued on probation for an extended period of two years. On completion of two years, he must not be deemed to be confirmed automatically. There is no order of confirmation. Until the order is passed, he must be deemed to continue on probation.5. Under these circumstances, the High Court was justified in discharging the petitioner from service during the period of his probation. It is not necessary that there should be a charge and an enquiry on his conduct since the petitioner is only on probation and during the period of probation, it would be open to the High Court to consider whether he is suitable for confirmation or should be discharged from service.During the period of probation an employee remains under watch and his service and his conduct is under scrutiny. Around the time of completion of the probationary period, an assessment is made of his work and conduct during the period of probation and on such assessment a decision is taken as to whether or not his service is satisfactory and also whether or not on the basis of his service and track record his service should be confirmed or extended for further scrutiny of his service if such extension is permissible or whether his service should be dispensed with and terminated. The services rendered by a judicial officer during probation are assessed not solely on the basis of judicial performance, but also on the probity as to how one has conducted himself.15. The aforesaid resolution taken by the full court on its administrative side clearly indicates that the matter regarding his confirmation or otherwise or extension of his probation period for another one year was considered by the full court but since his service was not found to be satisfactory on consideration of the records, therefore, the full court decided not to confirm him in service and to dispense with his service and accordingly recommended for dispensation of his service. On the basis of the aforesaid recommendation of the High Court, an order was passed by the Government of Jammu & Kashmir dispensing with the service of the petitioner.16. These facts clearly prove and establish that the order of termination of service of the petitioner was not issued by the Jammu & Kashmir High Court but it only recommended his termination as his service was not found to be satisfactory. The aforesaid recommendation was accepted by the Government which finally ordered the termination of his service. The aforesaid order was an order of the competent authority and issued by the Government of Jammu & Kashmir. Since the said order was issued by the competent authority, it was a valid order and should be treated as such, although it was specifically not issued in the name of the Governor.In the present case, the order of termination is a fall out of his unsatisfactory service adjudged on the basis of his overall performance and the manner in which he conducted himself. Such satisfaction even if recorded that his service is unsatisfactory would not make the order stigmatic or punitive as sought to be submitted by the petitioner. On the basis of the aforesaid resolution, the matter was referred to the State Government for issuing necessary orders.24. One of the issues that were raised by the petitioner was that he was granted two increments during the period of two and a half years of his service. Therefore the stand taken by the respondents that his service was unsatisfactory is belied according to the petitioner because of the aforesaid action even on the part of the respondents impliedly accepting the position that his service was satisfactory.25. The aforesaid submission of the petitioner is devoid of any merit in view of the fact that since the petitioner was continuing in service, therefore, the case for granting increment was required to be considered which was so granted. The mere granting of yearly increments would not in any manner indicate that after completion of the probation period the full court of the High Court was not competent to scrutinize his records and on the basis thereof take a decision as to whether or not his service should be confirmed or dispensed with or whether his probation period should be extended. The High Court has a solemn duty to consider and appreciate the service of a judicial officer before confirming him in service. The district judiciary is the bedrock of our judicial system and is positioned at the primary level of entry to the doors of justice. In providing the opportunity of access to justice to the people of the country, the judicial officers who are entrusted with the task of adjudication must officiate in a manner that is becoming of their position and responsibility towards society.26. Upright and honest judicial officers are needed not only to bolster the image of the judiciary in the eyes of litigants, but also to sustain the culture of integrity, virtue and ethics among judges. The publics perception of the judiciary matters just as much as its role in dispute resolution. The credibility of the entire judiciary is often undermined by isolated acts of transgression by a few members of the Bench, and therefore it is imperative to maintain a high benchmark of honesty, accountability and good conduct | 0 | 4,506 | 1,373 | ### 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:
to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job." 20. In the case of Krishnadevaraya Education Trust v. L.A. Balakrishna reported in (2001) 9 SCC 319 , the services of respondent-Assistant Professor were terminated on the ground that his on the job proficiency was not upto the mark. This Court held that merely a mention in the order by the employer that the services of the employee are not found to be satisfactory would not tantamount to the order being a stigmatic one. This Court held in para 5 thus: - "5. There can be no manner of doubt that the employer is entitled to engage the services of a person on probation. During the period of probation, the suitability of the recruit/appointee has to be seen. If his services are not satisfactory which means that he is not suitable for the job, then the employer has a right to terminate the services as a reason thereof. If the termination during probationary period is without any reason, perhaps such an order would be sought to be challenged on the ground of being arbitrary. Therefore, normally services of an employee on probation would be terminated, when he is found not to be suitable for the job for which he was engaged, without assigning any reason. If the order on the face of it states that his services are being terminated because his performance is not satisfactory, the employer runs the risk of the allegation being made that the order itself casts a stigma. We do not say that such a contention will succeed. Normally, therefore, it is preferred that the order itself does not mention the reason why the services are being terminated."6. If such an order is challenged, the employer will have to indicate the grounds on which the services of a probationer were terminated. Mere fact that in response to the challenge the employer states that the services were not satisfactory would not ipso facto mean that the services of the probationer were being terminated by way of punishment. The probationer is on test and if the services are found not to be satisfactory, the employer has, in terms of the letter of appointment, the right to terminate the services." 21. In the case of Chaitanya Prakash v. H. Omkarappa reported in (2010) 2 SCC 623 , the services of respondent were terminated by the appellant company. During the period of probation, his services were not found to be satisfactory and he was also given letters for improvement of his services and his period of service was also extended and ultimately company terminated him. Court after referring to a series of cases held that the impugned order of termination of respondent is not stigmatic. 22. In the case of State of Punjab v. Bhagwan Singh reported in (2002) 9 SCC 636 this Court at paragraphs 4 & 5 held as follows: - "4. ............................. In our view, when a probationer is discharged during the period of probation and if for the purpose of discharge, a particular assessment of his work is to be made, and the authorities referred to such an assessment of his work, while passing the order of discharge, that cannot be held to amount to stigma.5. The other sentence in the impugned order is, that the performance of the officer on the whole was "not satisfactory". Even that does not amount to any stigma." 23. In the present case, the order of termination is a fall out of his unsatisfactory service adjudged on the basis of his overall performance and the manner in which he conducted himself. Such satisfaction even if recorded that his service is unsatisfactory would not make the order stigmatic or punitive as sought to be submitted by the petitioner. On the basis of the aforesaid resolution, the matter was referred to the State Government for issuing necessary orders.24. One of the issues that were raised by the petitioner was that he was granted two increments during the period of two and a half years of his service. Therefore the stand taken by the respondents that his service was unsatisfactory is belied according to the petitioner because of the aforesaid action even on the part of the respondents impliedly accepting the position that his service was satisfactory.25. The aforesaid submission of the petitioner is devoid of any merit in view of the fact that since the petitioner was continuing in service, therefore, the case for granting increment was required to be considered which was so granted. The mere granting of yearly increments would not in any manner indicate that after completion of the probation period the full court of the High Court was not competent to scrutinize his records and on the basis thereof take a decision as to whether or not his service should be confirmed or dispensed with or whether his probation period should be extended. The High Court has a solemn duty to consider and appreciate the service of a judicial officer before confirming him in service. The district judiciary is the bedrock of our judicial system and is positioned at the primary level of entry to the doors of justice. In providing the opportunity of access to justice to the people of the country, the judicial officers who are entrusted with the task of adjudication must officiate in a manner that is becoming of their position and responsibility towards society.26. Upright and honest judicial officers are needed not only to bolster the image of the judiciary in the eyes of litigants, but also to sustain the culture of integrity, virtue and ethics among judges. The publics perception of the judiciary matters just as much as its role in dispute resolution. The credibility of the entire judiciary is often undermined by isolated acts of transgression by a few members of the Bench, and therefore it is imperative to maintain a high benchmark of honesty, accountability and good conduct.
### Response:
0
### Explanation:
further period of two years. This Court in that case held at Paragraphs 3 & 5 that :......................A reading thereof would clearly indicate that every candidate appointed to the cadre shall undergo training initially for a period of six months before he is appointed on probation for a period of two years. On his completion of two years of probation, it may be open to the High Court either to confirm or extend the probation. At the end of the probation period, if he is not confirmed on being found unfit, it may be extended for a further period not exceeding two years. It is seen that though there is no order of extension, it must be deemed that he was continued on probation for an extended period of two years. On completion of two years, he must not be deemed to be confirmed automatically. There is no order of confirmation. Until the order is passed, he must be deemed to continue on probation.5. Under these circumstances, the High Court was justified in discharging the petitioner from service during the period of his probation. It is not necessary that there should be a charge and an enquiry on his conduct since the petitioner is only on probation and during the period of probation, it would be open to the High Court to consider whether he is suitable for confirmation or should be discharged from service.During the period of probation an employee remains under watch and his service and his conduct is under scrutiny. Around the time of completion of the probationary period, an assessment is made of his work and conduct during the period of probation and on such assessment a decision is taken as to whether or not his service is satisfactory and also whether or not on the basis of his service and track record his service should be confirmed or extended for further scrutiny of his service if such extension is permissible or whether his service should be dispensed with and terminated. The services rendered by a judicial officer during probation are assessed not solely on the basis of judicial performance, but also on the probity as to how one has conducted himself.15. The aforesaid resolution taken by the full court on its administrative side clearly indicates that the matter regarding his confirmation or otherwise or extension of his probation period for another one year was considered by the full court but since his service was not found to be satisfactory on consideration of the records, therefore, the full court decided not to confirm him in service and to dispense with his service and accordingly recommended for dispensation of his service. On the basis of the aforesaid recommendation of the High Court, an order was passed by the Government of Jammu & Kashmir dispensing with the service of the petitioner.16. These facts clearly prove and establish that the order of termination of service of the petitioner was not issued by the Jammu & Kashmir High Court but it only recommended his termination as his service was not found to be satisfactory. The aforesaid recommendation was accepted by the Government which finally ordered the termination of his service. The aforesaid order was an order of the competent authority and issued by the Government of Jammu & Kashmir. Since the said order was issued by the competent authority, it was a valid order and should be treated as such, although it was specifically not issued in the name of the Governor.In the present case, the order of termination is a fall out of his unsatisfactory service adjudged on the basis of his overall performance and the manner in which he conducted himself. Such satisfaction even if recorded that his service is unsatisfactory would not make the order stigmatic or punitive as sought to be submitted by the petitioner. On the basis of the aforesaid resolution, the matter was referred to the State Government for issuing necessary orders.24. One of the issues that were raised by the petitioner was that he was granted two increments during the period of two and a half years of his service. Therefore the stand taken by the respondents that his service was unsatisfactory is belied according to the petitioner because of the aforesaid action even on the part of the respondents impliedly accepting the position that his service was satisfactory.25. The aforesaid submission of the petitioner is devoid of any merit in view of the fact that since the petitioner was continuing in service, therefore, the case for granting increment was required to be considered which was so granted. The mere granting of yearly increments would not in any manner indicate that after completion of the probation period the full court of the High Court was not competent to scrutinize his records and on the basis thereof take a decision as to whether or not his service should be confirmed or dispensed with or whether his probation period should be extended. The High Court has a solemn duty to consider and appreciate the service of a judicial officer before confirming him in service. The district judiciary is the bedrock of our judicial system and is positioned at the primary level of entry to the doors of justice. In providing the opportunity of access to justice to the people of the country, the judicial officers who are entrusted with the task of adjudication must officiate in a manner that is becoming of their position and responsibility towards society.26. Upright and honest judicial officers are needed not only to bolster the image of the judiciary in the eyes of litigants, but also to sustain the culture of integrity, virtue and ethics among judges. The publics perception of the judiciary matters just as much as its role in dispute resolution. The credibility of the entire judiciary is often undermined by isolated acts of transgression by a few members of the Bench, and therefore it is imperative to maintain a high benchmark of honesty, accountability and good conduct
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TELANGANA JUDGES ASSOCIATION Vs. UNION OF INDIA | We see no force in this argument because chances of promotion are not conditions of service. It is enough in this connection to refer to the State of Orissa v. Durga Charan Dass (A.I.R. 1966 SC 1547) . 55. To the similar effect is judgment of this Court in Mohammad Shujat Ali and Others Vs. Union of India and Others, in which in Para 15, following has been held: 15. In the first place, it is not correct to say that there was any variation in the condition of service in regard to promotion applicable to nongraduate Supervisors from the erstwhile State of Hyderabad immediately prior to November 1, 1956. It is true that a rule which confers a right of actual promotion or a right to be considered for promotion is a rule prescribing a condition of service. This proposition can no longer be disputed in view of several pronouncements of this Court on the point and particularly the decision in Mohammad Bhakar v. Y. Krishna Reddy1 where this Court, speaking through Mitter, J., said: Any rule which affects the promotion of a person relates to his condition of service. But when we speak of a right to be considered for promotion, we must not confuse it with mere chance of promotion - the latter would certainly not be a condition of service. This Court pointed out in State of Mysore v. G.B. Purohit, (1967) 1 SLR 753 that though a right to be considered for promotion is a condition of service, mere chances of promotion are not. A rule which merely affects chances of promotion cannot be regarded as varying a condition of service. What happened in State of Mysore v. G.B. Purohit was that the district wise seniority of Sanitary Inspectors was changed to State wise seniority and as a result of this change, the respondents went down in seniority and became very junior. This, it was urged, affected their chances of promotion which were protected under the proviso to Section 115 subsection (7). This contention was negatived and Wanchoo, J. as he then was, 50 speaking on behalf of this Court observed: It is said on behalf of the respondents that as their chances of promotion have been affected their conditions of service have been changed to their disadvantage. We see no force in this argument because chances of promotion are not conditions of service. Now, here in the present case, all that happened as a result of the application of the Andhra Rules and the enactment of the Andhra Pradesh Rules was that the number of posts of Assistant Engineers available to nongraduate Supervisors from the erstwhile Hyderabad State for promotion, was reduced: originally it was fifty per cent, then it became thirtythree and onethird per cent, then one in eighteen and ultimately one in twentyfour. The right to be considered for promotion was not affected but the chances of promotion were severely reduced. This did not constitute variation in the condition of service applicable immediately prior to November 1, 1956 and the proviso to Section 115 subsection (7) was not attracted. This view is completely supported by the decision of a Constitution Bench of this Court in Ramchandra Shankar Deodhar v. The State of Maharashtra, (1974) 1 SCC 317. 56. The petitioners submission that High Court has modified the guidelines for accepting option without there being any valid reason and further no valid reasons have been indicated by the High Court for modifying the guidelines. In this context, it is relevant to notice that the draft guidelines, which were initially circulated by the High Court on 26.02.2016 has in the first sentence stated the allocation shall be done in the order of seniority as available on 02.06.2014. The second sentence read Preference shall be given first to those who have applied for the State in which the District declared by them at the time of entering service falls. The above draft guidelines has only been amplified retaining the initial concept of accepting option on the basis of seniority. Both the concept as noted above are now reflected in modified guidelines as guideline No. 5(1) and 5(2) as extracted above. Thus, the argument of the petitioners that guidelines have been substantially changed by the High Court without there being any reason cannot be accepted. The substance of the guidelines are same, which were initially contained in the draft guidelines and modified guidelines. It was the DoPT, which has proposed guidelines, where content clause 5.2 was 5.1 of modified guidelines were proposed as 5.1 was 5.2, which was not accepted by the High Court and Full Court reiterated their earlier principle, which was initially encapsuled in draft guidelines. 57. We, during course of the submissions, had asked Shri Venkatramani, learned senior counsel appearing for the High Court to give a chart indicating the details of options and chart showing details of Judicial Officers working in both the States of Andhra Pradesh and Telangana from 02.06.2014 and the acceptance position of their option. Detailed chart has been submitted by the High Court, which indicate that all Judicial Officers belonging to territorial area of Telangana region 52 have been allocated Telangana State and the option of all the Judicial Officers, who have opted for Telangana State have been accepted. A list of all officers belonging to District Judge Cadre; Civil Judge Senior Division cadre and Civil Judge, Junior Division cadre has been submitted, which indicate all officers, who have opted for Telangana State have been allocated Telangana State. 58. All the Judicial Officers belonging to Telangana State having opted and allocated the Telangana State, practically, we do not find any error in the operation of guidelines finalised by the High Court. 59. In view of foregoing discussions, we are of the view that modified guidelines as submitted by the High Court vide letter dated 08.07.2017, which has been accepted by DoPT does not suffer from any illegality or error. The above guidelines is to be accepted and approved. | 0[ds]38. It is true that Section 77 contemplates allotment of State after consideration of option received by an officer but for interpreting Section 77 and Section 80, the existing constitutional scheme that control of Judicial Officer is 33 vested in the High Court can neither be ignored nor given a go by. From the facts on record, it does appear that Department of Personnel and Training has understood the provisions in such manner and has communicated to the High Court to submit a list after taking options from the officers. The reply affidavit filed by Union of India also clearly indicates that stand taken by Union of India is that allocation/distribution of District Judges and Judicial Officers belonging to subordinate judiciary had been carried out under the aegis and supervision of the respective High Courts, on earlier occasions when the reorganisation enactment was passed. Paragraph 10 of the reply affidavit filed by the Union of India is extracted as follows:10. It is most humbly submitted that in so far as the allocation of subordinate judicial officers between the two States in question are concerned, it is necessary to set out factual position and background facts. It is submitted that even on earlier occasions of passing of Reorganisation enactments, the task of allocation/distribution of District Judges and judicial officers belonging to the subordinate judiciary – had been carried out under the aegis and supervision of the respective High Courts. For example, in the case of Reorganization of the State of Madhya Pradesh, State of Uttar Pradesh as well as State of Bihar, such process had been followed for the allocation/distribution of District Judges and judicial officers belonging to the subordinate judiciary39. We thus are of the view that for preparing guidelines for allocation of the Judicial officers, the views of the High Court are not to be ignored and the Union of India, Department of Personnel & Training, has rightly given due weight to the views of the High Court for allocation. However, the scheme of Act, 2014 indicates that final allocation Order is to be issued as per the statutory provisions, by the Central Government. The coverage of Section 77 is Every person who immediately before the appointed day is serving on substantive basis in connection with the affairs of the existing State of Andhra Pradesh... The coverage of Section 77 is in very wide term which includes every person who is serving in connection with the affairs of the existing State. There can be no denial that Judicial Officers working in the Subordinate Judiciary are serving in connection with the affairs of the existing State. Thus, there cannot be any denial that Section 77 also clearly covers the subordinate judiciary of the State and final allocation Order has to be issued by the Central Government after due consultation with the High Court40. We are thus of the view that High Court in preparing draft guidelines and thereafter issuing modified guidelines for allocation of cadre of Judicial Officers was well within its jurisdiction and its views required due weight in giving 35 effect to the provisions of Section 77 of the Act42. Section 80 expressly indicates that in carrying excise by the Central Government as contemplated under Section 77, there has to be fair and equal treatment to all persons affected by the provisions of Part VIII of the Act. The guidelines for allocation of cadre should ensure fair and equal treatment to all persons affected and they should also conform the equality clause as enshrined in Article 14 of the Indian Constitution48. Article 371D having been held by this Court not to be applicable to Judicial Service, arguments based on Article 371D cannot help the petitioner. In this context, one of the submissions raised by the petitioners was that Kamalanathan Committee while framing guidelines for allocation of members of Civil Service has taken into consideration the local area or local cadre etc. No exception can be taken to the guidelines finalised by Kamalanathan Committee for allocation of cadre of members of Civil Services of the State, other than Judicial Service, taking clue from Article 371D. Petitioners have referred to guideline No. 18(f) of the Kamalanathan Committee determining principles guiding allocations read with guideline No. 18(n), which also read with the Andhra Pradesh Public Employment Order, 1975 gives preference in allocation to those who have opted and who are local candidates to be allocated to that State in which they are local candidates. The said order dated 29.10.1975 issued under Article 371D has been relied49. For the reasons already indicated above, the guidelines formulated by Kamalanathan Committee in context of other Civil Services are not relevant nor any support can be taken on the basis of said guidelines51. The nativity for public employment runs counter to the fundamental right guaranteed under Article 16(2) except when it is provided by a Parliamentary Law as per exception carved out in Article 16(3) of the Constitution of India. No Parliamentary Law is relied by the petitioner, which provides residence as an eligibility to the employment in Judicial Service. In Act, 2014, there is no provision, which expressly provides for allotment of the State on the basis of place of birth or residence. Sections 77, 78 and 79 of the Act do not refer to allotment on the basis of place of birth. When for entering into Judicial Service, no condition can be put regarding residence of particular area for allocation of a State, consequent to Act, 2014, nativity cannot be sole basis, as is contended by the petitioner. It is true that the State of Telangana stand formed to realise the democratic aspirations of the people of Telangana. We have noticed the Statement of Objects and Reasons of Act, 2014, which clearly establish that the creation of a separate State of Telangana is for the betterment of the social, economic, political and other aspirations of the people of that region, which contemplated allocation of separate State of Telangana. The entire Statement of Objects and Reasons does not indicate that with respect to public employment, nativity is to play a dominant role. It is true that Judicial Officers belonging to Telangana territorial area may have desired or expectation to choose or to opt for their cadre in Telangana area, which is a legitimate aspiration, but giving predominance to nativity only is not spelled from any statutory provision or scheme54. When a Judicial Officer has been given a right of option 47 to choose either of the successor State, right of option has to be given same meaning and content. Right of option can be defeated only when there is some impediment in accepting the option. The seniority of a Judicial Officer is a first criteria for accepting the option. The seniority in a service is a valuable right of an employee or officer. In service jurisprudence, several benefits and perquisites are attached to the seniority. The petitioners are asking that option be accepted not on the basis of seniority but only on the basis of nativity, i.e. those who are senior even if they opt the State option, their option should not be selected and option of those should be first accepted, who are natives of Telangana. The petitioners apprehension is that in event option of senior officers are accepted and they are posted in State of Telangana, the future prospects of promotion of the petitioners shall be marred. Whether the officers, who in the seniority list, which was prevalent on the date of formation of new State, i.e. on 02.06.2014 where senior should loose their seniority or their seniority cannot be said to play any role on account of formation of two successor States is the question to be answered. The aspiration of petitioners that no senior officer, should come to State of Telangana, which may mar their prospect of promotion is neither in accord with the con48 stitutional scheme nor as per ethos of culture of this country. The modified guidelines submitted by the High Court and accepted by the DoPT itself at second place give preference to nativity. Thus, the High Court while formulating the guidelines has tried to balance the right of option of each Judicial Officer56. The petitioners submission that High Court has modified the guidelines for accepting option without there being any valid reason and further no valid reasons have been indicated by the High Court for modifying the guidelines. In this context, it is relevant to notice that the draft guidelines, which were initially circulated by the High Court on 26.02.2016 has in the first sentence stated the allocation shall be done in the order of seniority as available on 02.06.2014The second sentence read Preference shall be given first to those who have applied for the State in which the District declared by them at the time of entering service falls. The above draft guidelines has only been amplified retaining the initial concept of accepting option on the basis of seniority. Both the concept as noted above are now reflected in modified guidelines as guideline No. 5(1) and 5(2) as extracted above. Thus, the argument of the petitioners that guidelines have been substantially changed by the High Court without there being any reason cannot be accepted. The substance of the guidelines are same, which were initially contained in the draft guidelines and modified guidelines. It was the DoPT, which has proposed guidelines, where content clause 5.2 was 5.1 of modified guidelines were proposed as 5.1 was 5.2, which was not accepted by the High Court and Full Court reiterated their earlier principle, which was initially encapsuled in draft guidelines57. We, during course of the submissions, had asked Shri Venkatramani, learned senior counsel appearing for the High Court to give a chart indicating the details of options and chart showing details of Judicial Officers working in both the States of Andhra Pradesh and Telangana from 02.06.2014 and the acceptance position of their option. Detailed chart has been submitted by the High Court, which indicate that all Judicial Officers belonging to territorial area of Telangana region 52 have been allocated Telangana State and the option of all the Judicial Officers, who have opted for Telangana State have been accepted. A list of all officers belonging to District Judge Cadre; Civil Judge Senior Division cadre and Civil Judge, Junior Division cadre has been submitted, which indicate all officers, who have opted for Telangana State have been allocated Telangana State58. All the Judicial Officers belonging to Telangana State having opted and allocated the Telangana State, practically, we do not find any error in the operation of guidelines finalised by the High Court59. In view of foregoing discussions, we are of the view that modified guidelines as submitted by the High Court vide letter dated 08.07.2017, which has been accepted by DoPT does not suffer from any illegality or error. The above guidelines is to be accepted and approved. | 0 | 13,801 | 1,979 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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We see no force in this argument because chances of promotion are not conditions of service. It is enough in this connection to refer to the State of Orissa v. Durga Charan Dass (A.I.R. 1966 SC 1547) . 55. To the similar effect is judgment of this Court in Mohammad Shujat Ali and Others Vs. Union of India and Others, in which in Para 15, following has been held: 15. In the first place, it is not correct to say that there was any variation in the condition of service in regard to promotion applicable to nongraduate Supervisors from the erstwhile State of Hyderabad immediately prior to November 1, 1956. It is true that a rule which confers a right of actual promotion or a right to be considered for promotion is a rule prescribing a condition of service. This proposition can no longer be disputed in view of several pronouncements of this Court on the point and particularly the decision in Mohammad Bhakar v. Y. Krishna Reddy1 where this Court, speaking through Mitter, J., said: Any rule which affects the promotion of a person relates to his condition of service. But when we speak of a right to be considered for promotion, we must not confuse it with mere chance of promotion - the latter would certainly not be a condition of service. This Court pointed out in State of Mysore v. G.B. Purohit, (1967) 1 SLR 753 that though a right to be considered for promotion is a condition of service, mere chances of promotion are not. A rule which merely affects chances of promotion cannot be regarded as varying a condition of service. What happened in State of Mysore v. G.B. Purohit was that the district wise seniority of Sanitary Inspectors was changed to State wise seniority and as a result of this change, the respondents went down in seniority and became very junior. This, it was urged, affected their chances of promotion which were protected under the proviso to Section 115 subsection (7). This contention was negatived and Wanchoo, J. as he then was, 50 speaking on behalf of this Court observed: It is said on behalf of the respondents that as their chances of promotion have been affected their conditions of service have been changed to their disadvantage. We see no force in this argument because chances of promotion are not conditions of service. Now, here in the present case, all that happened as a result of the application of the Andhra Rules and the enactment of the Andhra Pradesh Rules was that the number of posts of Assistant Engineers available to nongraduate Supervisors from the erstwhile Hyderabad State for promotion, was reduced: originally it was fifty per cent, then it became thirtythree and onethird per cent, then one in eighteen and ultimately one in twentyfour. The right to be considered for promotion was not affected but the chances of promotion were severely reduced. This did not constitute variation in the condition of service applicable immediately prior to November 1, 1956 and the proviso to Section 115 subsection (7) was not attracted. This view is completely supported by the decision of a Constitution Bench of this Court in Ramchandra Shankar Deodhar v. The State of Maharashtra, (1974) 1 SCC 317. 56. The petitioners submission that High Court has modified the guidelines for accepting option without there being any valid reason and further no valid reasons have been indicated by the High Court for modifying the guidelines. In this context, it is relevant to notice that the draft guidelines, which were initially circulated by the High Court on 26.02.2016 has in the first sentence stated the allocation shall be done in the order of seniority as available on 02.06.2014. The second sentence read Preference shall be given first to those who have applied for the State in which the District declared by them at the time of entering service falls. The above draft guidelines has only been amplified retaining the initial concept of accepting option on the basis of seniority. Both the concept as noted above are now reflected in modified guidelines as guideline No. 5(1) and 5(2) as extracted above. Thus, the argument of the petitioners that guidelines have been substantially changed by the High Court without there being any reason cannot be accepted. The substance of the guidelines are same, which were initially contained in the draft guidelines and modified guidelines. It was the DoPT, which has proposed guidelines, where content clause 5.2 was 5.1 of modified guidelines were proposed as 5.1 was 5.2, which was not accepted by the High Court and Full Court reiterated their earlier principle, which was initially encapsuled in draft guidelines. 57. We, during course of the submissions, had asked Shri Venkatramani, learned senior counsel appearing for the High Court to give a chart indicating the details of options and chart showing details of Judicial Officers working in both the States of Andhra Pradesh and Telangana from 02.06.2014 and the acceptance position of their option. Detailed chart has been submitted by the High Court, which indicate that all Judicial Officers belonging to territorial area of Telangana region 52 have been allocated Telangana State and the option of all the Judicial Officers, who have opted for Telangana State have been accepted. A list of all officers belonging to District Judge Cadre; Civil Judge Senior Division cadre and Civil Judge, Junior Division cadre has been submitted, which indicate all officers, who have opted for Telangana State have been allocated Telangana State. 58. All the Judicial Officers belonging to Telangana State having opted and allocated the Telangana State, practically, we do not find any error in the operation of guidelines finalised by the High Court. 59. In view of foregoing discussions, we are of the view that modified guidelines as submitted by the High Court vide letter dated 08.07.2017, which has been accepted by DoPT does not suffer from any illegality or error. The above guidelines is to be accepted and approved.
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in Article 16(3) of the Constitution of India. No Parliamentary Law is relied by the petitioner, which provides residence as an eligibility to the employment in Judicial Service. In Act, 2014, there is no provision, which expressly provides for allotment of the State on the basis of place of birth or residence. Sections 77, 78 and 79 of the Act do not refer to allotment on the basis of place of birth. When for entering into Judicial Service, no condition can be put regarding residence of particular area for allocation of a State, consequent to Act, 2014, nativity cannot be sole basis, as is contended by the petitioner. It is true that the State of Telangana stand formed to realise the democratic aspirations of the people of Telangana. We have noticed the Statement of Objects and Reasons of Act, 2014, which clearly establish that the creation of a separate State of Telangana is for the betterment of the social, economic, political and other aspirations of the people of that region, which contemplated allocation of separate State of Telangana. The entire Statement of Objects and Reasons does not indicate that with respect to public employment, nativity is to play a dominant role. It is true that Judicial Officers belonging to Telangana territorial area may have desired or expectation to choose or to opt for their cadre in Telangana area, which is a legitimate aspiration, but giving predominance to nativity only is not spelled from any statutory provision or scheme54. When a Judicial Officer has been given a right of option 47 to choose either of the successor State, right of option has to be given same meaning and content. Right of option can be defeated only when there is some impediment in accepting the option. The seniority of a Judicial Officer is a first criteria for accepting the option. The seniority in a service is a valuable right of an employee or officer. In service jurisprudence, several benefits and perquisites are attached to the seniority. The petitioners are asking that option be accepted not on the basis of seniority but only on the basis of nativity, i.e. those who are senior even if they opt the State option, their option should not be selected and option of those should be first accepted, who are natives of Telangana. The petitioners apprehension is that in event option of senior officers are accepted and they are posted in State of Telangana, the future prospects of promotion of the petitioners shall be marred. Whether the officers, who in the seniority list, which was prevalent on the date of formation of new State, i.e. on 02.06.2014 where senior should loose their seniority or their seniority cannot be said to play any role on account of formation of two successor States is the question to be answered. The aspiration of petitioners that no senior officer, should come to State of Telangana, which may mar their prospect of promotion is neither in accord with the con48 stitutional scheme nor as per ethos of culture of this country. The modified guidelines submitted by the High Court and accepted by the DoPT itself at second place give preference to nativity. Thus, the High Court while formulating the guidelines has tried to balance the right of option of each Judicial Officer56. The petitioners submission that High Court has modified the guidelines for accepting option without there being any valid reason and further no valid reasons have been indicated by the High Court for modifying the guidelines. In this context, it is relevant to notice that the draft guidelines, which were initially circulated by the High Court on 26.02.2016 has in the first sentence stated the allocation shall be done in the order of seniority as available on 02.06.2014The second sentence read Preference shall be given first to those who have applied for the State in which the District declared by them at the time of entering service falls. The above draft guidelines has only been amplified retaining the initial concept of accepting option on the basis of seniority. Both the concept as noted above are now reflected in modified guidelines as guideline No. 5(1) and 5(2) as extracted above. Thus, the argument of the petitioners that guidelines have been substantially changed by the High Court without there being any reason cannot be accepted. The substance of the guidelines are same, which were initially contained in the draft guidelines and modified guidelines. It was the DoPT, which has proposed guidelines, where content clause 5.2 was 5.1 of modified guidelines were proposed as 5.1 was 5.2, which was not accepted by the High Court and Full Court reiterated their earlier principle, which was initially encapsuled in draft guidelines57. We, during course of the submissions, had asked Shri Venkatramani, learned senior counsel appearing for the High Court to give a chart indicating the details of options and chart showing details of Judicial Officers working in both the States of Andhra Pradesh and Telangana from 02.06.2014 and the acceptance position of their option. Detailed chart has been submitted by the High Court, which indicate that all Judicial Officers belonging to territorial area of Telangana region 52 have been allocated Telangana State and the option of all the Judicial Officers, who have opted for Telangana State have been accepted. A list of all officers belonging to District Judge Cadre; Civil Judge Senior Division cadre and Civil Judge, Junior Division cadre has been submitted, which indicate all officers, who have opted for Telangana State have been allocated Telangana State58. All the Judicial Officers belonging to Telangana State having opted and allocated the Telangana State, practically, we do not find any error in the operation of guidelines finalised by the High Court59. In view of foregoing discussions, we are of the view that modified guidelines as submitted by the High Court vide letter dated 08.07.2017, which has been accepted by DoPT does not suffer from any illegality or error. The above guidelines is to be accepted and approved.
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Air India Corporation, Bombay Vs. V. A. Rebellow & Anr | a colourable exercise of the power under Regulation 48, the real object of the appellant being essentially to punish the complainant for misconduct.16. No doubt, the position of the industrial workman is different from that of a Government servant because an industrial employer cannot "hire and fire" his workman on the basis of an unfettered right under the contract of employment, that right now being subject to industrial adjudication : and there is also on the other hand no provision of the Constitution like Arts. 310 and 311 requiring consideration in the case of industrial workmen. We are here only concerned with the question whether the impugned action of termination of the complainants services is for misconduct as contemplated by Ss. 33(1)(b) or S. 33(2)(b). While considering this question it is open to the complainant to urge that reliance on Regulation 48 is not bona fide, it being a colourable exercise of the right conferred by that regulation. He has in fact raised this argument and it is this aspect which concerns us in this case. Let us now scrutinise the present record for examining the position from this aspect.17. Now, the true position, as it appear to be clear from the record of this case, is that the complainants services were terminated under Regulation 48 by paying his salary for 30 days in lieu of notice. The order does not suggest any misconduct on the part of the complainant and indeed it is not possible to hold this order to be based on any conceivable misconduct. The form of this order is no doubt not decisive and attending circumstances are open for consideration, though motive for the order, if not mala fide, is not open to question. The further written statement which the appellant was directed to file and which was filed without prejudice discloses the fact that the appellant had lost of confidence in the complainant and this loss of confidence was due to a grave suspicion regarding the complainants private conduct and behaviour with air-hostesses employed by the appellant.18. Regulation 48 which has been set out earlier as its plain language show does not lay down or contemplate any defined essential pre-requisite for invoking its operation. Action under this regulation can be validly taken by the employer at his sweet will without assigning any reason. He is not bound to disclose why he does not want to continue in service the employee concerned. It may be conceded that an employer must always have some reason for terminating the services of his employee. Such reasons apart from misconduct may, inter alia, be want of full satisfaction with his overall suitability in the job assigned to the employee concerned. The fact that the employer is not fully satisfied with the overall result of the performance of his duties by his employee does not necessarily imply misconduct on his part. The only thing that remains to be seen is if in this case the impugned order is mala fide. The record merely discloses that the appellant had suspicion about the complainants suitability for the job in which he was employed and this led to loss of confidence in him with the result that his services were terminated under Regulation 48. In our view, loss of confidence in such circumstances cannot be considered to be mala fide. We are unable to conceive of any rational challenge to the bona fides of the employer in making the impugned order in the above background. The complainant, it may be remembered, had to deal with air-hostesses in the performance of his duties and if the appellant was not fully satisfied beyond suspicion about his general conduct and behaviour while dealing with them it cannot be said that loss of confidence was not bona fide. Once bona fide loss of confidence is affirmed the impugned order must be considered to be immune from challenge. The opinion formed by the employer about the suitability of his employee for the job assigned to him even though erroneous, if bona fide, is in our opinion final and not subject to review by the industrial adjudication. Such opinion may legitimately induce the employer to terminate the employees services; but such termination can on no rational grounds be considered to be for misconduct and must, therefore, be held to be permissible and immune from challenge.19. The decision in the case of Management of U. M. Dutt & Co. v. Workmen of U. M. Dutt & Co., (1962) Supp. 2 S.C.R. 822, relied upon by the complainants learned counsel is of no assistance to him. There one S employed by the management as a cross-cutter in the saw mill was asked to show cause why his services should not be terminated on account of grave indiscipline and misconduct and he denied the allegations of fact. He was thereafter informed about a departmental enquiry to be held against him and was suspended pending enquiry. Purporting to act under Rule 18(a) of the Standing Orders, the appellant-terminated the services of S without holding any departmental enquiry. On reference of the dispute to the Industrial Tribunal this action was held not to be bona fide but a colourable exercise of the power conferred under Rule 18(a) of the Standing Orders and since no attempt was made before it to defend such action by proving the alleged misconduct, it passed an order for reinstatement of S. Quite clearly the facts there are not parallel to the facts before us. The facts there are materially different.20. We have proceeded on the assumption that the reason stated in the further written statement filed without prejudice pursuant to the direction of the Labour Court could be taken into account. We, however, must not be understood to express any opinion on its propriety either way.21. In our opinion the Central Government Labour Court, Bombay, was for the reasons foregoing, not right in holding that the complainant was guilty of misconduct and that his services were terminated for that reason. | 1[ds]11. We should like first to deal with the applicability of Ss.33 and 33A of the Act on the assumption that the complainant was a workman and also as such interested in a pending industrialthe case before us we are concerned only with the ban imposed against orders of discharge or punishment as contemplated by cl. (b) of the twoThere are no allegations of alteration of the complainants terms of service. It is not necessary for us to decide whether the present case is governed by(2) because the relevant clause in both theis couched in similar language and we do not find any difference in the essential scope and purpose of these twoas far as the controversy before us is concerned. It is noteworthy that the ban is imposed only in regard to action taken for misconduct whether connected or unconnected with the dispute. The employer is, therefore, free to take action against his workmen if it is not based on any misconduct on their part.It is in the background of the purpose and scope of S. 33(1) and (2) that we have to consider whether the action taken against the complainant is hit by either of these twoWe have seen the forms and the language of the impugned order. On its face the language does not show that the complainants services were terminated because of any misconduct. Prima facie, therefore, the impugned order is not an order discharging or punishing the complainant for any misconduct.Now, the true position, as it appear to be clear from the record of this case, is that the complainants services were terminated under Regulation 48 by paying his salary for 30 days in lieu of notice. The order does not suggest any misconduct on the part of the complainant and indeed it is not possible to hold this order to be based on any conceivable misconduct. The form of this order is no doubt not decisive and attending circumstances are open for consideration, though motive for the order, if not mala fide, is not open to question. The further written statement which the appellant was directed to file and which was filed without prejudice discloses the fact that the appellant had lost of confidence in the complainant and this loss of confidence was due to a grave suspicion regarding the complainants private conduct and behaviour withemployed by the appellant.18. Regulation 48 which has been set out earlier as its plain language show does not lay down or contemplate any defined essentialfor invoking its operation. Action under this regulation can be validly taken by the employer at his sweet will without assigning any reason. He is not bound to disclose why he does not want to continue in service the employee concerned. It may be conceded that an employer must always have some reason for terminating the services of his employee. Such reasons apart from misconduct may, inter alia, be want of full satisfaction with his overall suitability in the job assigned to the employee concerned. The fact that the employer is not fully satisfied with the overall result of the performance of his duties by his employee does not necessarily imply misconduct on his part. The only thing that remains to be seen is if in this case the impugned order is mala fide. The record merely discloses that the appellant had suspicion about the complainants suitability for the job in which he was employed and this led to loss of confidence in him with the result that his services were terminated under Regulation 48. In our view, loss of confidence in such circumstances cannot be considered to be mala fide. We are unable to conceive of any rational challenge to the bona fides of the employer in making the impugned order in the above background. The complainant, it may be remembered, had to deal within the performance of his duties and if the appellant was not fully satisfied beyond suspicion about his general conduct and behaviour while dealing with them it cannot be said that loss of confidence was not bona fide. Once bona fide loss of confidence is affirmed the impugned order must be considered to be immune from challenge. The opinion formed by the employer about the suitability of his employee for the job assigned to him even though erroneous, if bona fide, is in our opinion final and not subject to review by the industrial adjudication. Such opinion may legitimately induce the employer to terminate the employees services; but such termination can on no rational grounds be considered to be for misconduct and must, therefore, be held to be permissible and immune from challenge.19. The decision in the case of Management of U. M. Dutt & Co. v. Workmen of U. M. Dutt & Co., (1962) Supp. 2 S.C.R. 822, relied upon by the complainants learned counsel is of no assistance toWe have proceeded on the assumption that the reason stated in the further written statement filed without prejudice pursuant to the direction of the Labour Court could be taken into account. We, however, must not be understood to express any opinion on its propriety either way.21. In our opinion the Central Government Labour Court, Bombay, was for the reasons foregoing, not right in holding that the complainant was guilty of misconduct and that his services were terminated for that reason. | 1 | 6,068 | 966 | ### Instruction:
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a colourable exercise of the power under Regulation 48, the real object of the appellant being essentially to punish the complainant for misconduct.16. No doubt, the position of the industrial workman is different from that of a Government servant because an industrial employer cannot "hire and fire" his workman on the basis of an unfettered right under the contract of employment, that right now being subject to industrial adjudication : and there is also on the other hand no provision of the Constitution like Arts. 310 and 311 requiring consideration in the case of industrial workmen. We are here only concerned with the question whether the impugned action of termination of the complainants services is for misconduct as contemplated by Ss. 33(1)(b) or S. 33(2)(b). While considering this question it is open to the complainant to urge that reliance on Regulation 48 is not bona fide, it being a colourable exercise of the right conferred by that regulation. He has in fact raised this argument and it is this aspect which concerns us in this case. Let us now scrutinise the present record for examining the position from this aspect.17. Now, the true position, as it appear to be clear from the record of this case, is that the complainants services were terminated under Regulation 48 by paying his salary for 30 days in lieu of notice. The order does not suggest any misconduct on the part of the complainant and indeed it is not possible to hold this order to be based on any conceivable misconduct. The form of this order is no doubt not decisive and attending circumstances are open for consideration, though motive for the order, if not mala fide, is not open to question. The further written statement which the appellant was directed to file and which was filed without prejudice discloses the fact that the appellant had lost of confidence in the complainant and this loss of confidence was due to a grave suspicion regarding the complainants private conduct and behaviour with air-hostesses employed by the appellant.18. Regulation 48 which has been set out earlier as its plain language show does not lay down or contemplate any defined essential pre-requisite for invoking its operation. Action under this regulation can be validly taken by the employer at his sweet will without assigning any reason. He is not bound to disclose why he does not want to continue in service the employee concerned. It may be conceded that an employer must always have some reason for terminating the services of his employee. Such reasons apart from misconduct may, inter alia, be want of full satisfaction with his overall suitability in the job assigned to the employee concerned. The fact that the employer is not fully satisfied with the overall result of the performance of his duties by his employee does not necessarily imply misconduct on his part. The only thing that remains to be seen is if in this case the impugned order is mala fide. The record merely discloses that the appellant had suspicion about the complainants suitability for the job in which he was employed and this led to loss of confidence in him with the result that his services were terminated under Regulation 48. In our view, loss of confidence in such circumstances cannot be considered to be mala fide. We are unable to conceive of any rational challenge to the bona fides of the employer in making the impugned order in the above background. The complainant, it may be remembered, had to deal with air-hostesses in the performance of his duties and if the appellant was not fully satisfied beyond suspicion about his general conduct and behaviour while dealing with them it cannot be said that loss of confidence was not bona fide. Once bona fide loss of confidence is affirmed the impugned order must be considered to be immune from challenge. The opinion formed by the employer about the suitability of his employee for the job assigned to him even though erroneous, if bona fide, is in our opinion final and not subject to review by the industrial adjudication. Such opinion may legitimately induce the employer to terminate the employees services; but such termination can on no rational grounds be considered to be for misconduct and must, therefore, be held to be permissible and immune from challenge.19. The decision in the case of Management of U. M. Dutt & Co. v. Workmen of U. M. Dutt & Co., (1962) Supp. 2 S.C.R. 822, relied upon by the complainants learned counsel is of no assistance to him. There one S employed by the management as a cross-cutter in the saw mill was asked to show cause why his services should not be terminated on account of grave indiscipline and misconduct and he denied the allegations of fact. He was thereafter informed about a departmental enquiry to be held against him and was suspended pending enquiry. Purporting to act under Rule 18(a) of the Standing Orders, the appellant-terminated the services of S without holding any departmental enquiry. On reference of the dispute to the Industrial Tribunal this action was held not to be bona fide but a colourable exercise of the power conferred under Rule 18(a) of the Standing Orders and since no attempt was made before it to defend such action by proving the alleged misconduct, it passed an order for reinstatement of S. Quite clearly the facts there are not parallel to the facts before us. The facts there are materially different.20. We have proceeded on the assumption that the reason stated in the further written statement filed without prejudice pursuant to the direction of the Labour Court could be taken into account. We, however, must not be understood to express any opinion on its propriety either way.21. In our opinion the Central Government Labour Court, Bombay, was for the reasons foregoing, not right in holding that the complainant was guilty of misconduct and that his services were terminated for that reason.
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11. We should like first to deal with the applicability of Ss.33 and 33A of the Act on the assumption that the complainant was a workman and also as such interested in a pending industrialthe case before us we are concerned only with the ban imposed against orders of discharge or punishment as contemplated by cl. (b) of the twoThere are no allegations of alteration of the complainants terms of service. It is not necessary for us to decide whether the present case is governed by(2) because the relevant clause in both theis couched in similar language and we do not find any difference in the essential scope and purpose of these twoas far as the controversy before us is concerned. It is noteworthy that the ban is imposed only in regard to action taken for misconduct whether connected or unconnected with the dispute. The employer is, therefore, free to take action against his workmen if it is not based on any misconduct on their part.It is in the background of the purpose and scope of S. 33(1) and (2) that we have to consider whether the action taken against the complainant is hit by either of these twoWe have seen the forms and the language of the impugned order. On its face the language does not show that the complainants services were terminated because of any misconduct. Prima facie, therefore, the impugned order is not an order discharging or punishing the complainant for any misconduct.Now, the true position, as it appear to be clear from the record of this case, is that the complainants services were terminated under Regulation 48 by paying his salary for 30 days in lieu of notice. The order does not suggest any misconduct on the part of the complainant and indeed it is not possible to hold this order to be based on any conceivable misconduct. The form of this order is no doubt not decisive and attending circumstances are open for consideration, though motive for the order, if not mala fide, is not open to question. The further written statement which the appellant was directed to file and which was filed without prejudice discloses the fact that the appellant had lost of confidence in the complainant and this loss of confidence was due to a grave suspicion regarding the complainants private conduct and behaviour withemployed by the appellant.18. Regulation 48 which has been set out earlier as its plain language show does not lay down or contemplate any defined essentialfor invoking its operation. Action under this regulation can be validly taken by the employer at his sweet will without assigning any reason. He is not bound to disclose why he does not want to continue in service the employee concerned. It may be conceded that an employer must always have some reason for terminating the services of his employee. Such reasons apart from misconduct may, inter alia, be want of full satisfaction with his overall suitability in the job assigned to the employee concerned. The fact that the employer is not fully satisfied with the overall result of the performance of his duties by his employee does not necessarily imply misconduct on his part. The only thing that remains to be seen is if in this case the impugned order is mala fide. The record merely discloses that the appellant had suspicion about the complainants suitability for the job in which he was employed and this led to loss of confidence in him with the result that his services were terminated under Regulation 48. In our view, loss of confidence in such circumstances cannot be considered to be mala fide. We are unable to conceive of any rational challenge to the bona fides of the employer in making the impugned order in the above background. The complainant, it may be remembered, had to deal within the performance of his duties and if the appellant was not fully satisfied beyond suspicion about his general conduct and behaviour while dealing with them it cannot be said that loss of confidence was not bona fide. Once bona fide loss of confidence is affirmed the impugned order must be considered to be immune from challenge. The opinion formed by the employer about the suitability of his employee for the job assigned to him even though erroneous, if bona fide, is in our opinion final and not subject to review by the industrial adjudication. Such opinion may legitimately induce the employer to terminate the employees services; but such termination can on no rational grounds be considered to be for misconduct and must, therefore, be held to be permissible and immune from challenge.19. The decision in the case of Management of U. M. Dutt & Co. v. Workmen of U. M. Dutt & Co., (1962) Supp. 2 S.C.R. 822, relied upon by the complainants learned counsel is of no assistance toWe have proceeded on the assumption that the reason stated in the further written statement filed without prejudice pursuant to the direction of the Labour Court could be taken into account. We, however, must not be understood to express any opinion on its propriety either way.21. In our opinion the Central Government Labour Court, Bombay, was for the reasons foregoing, not right in holding that the complainant was guilty of misconduct and that his services were terminated for that reason.
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M.P. Davis Vs. Commissioner of Agricultural Income Tax | his agent. The remuneration provided for the appellants brother was out of the profits and none was payable if there was a loss and the High Court was wrong in thinking that the appellants brother was entitled to his remuneration whether there was profit or not. But as stated in section 6 of the Act earlier mentioned, the sharing of profits or the provision for payment of remuneration contingent upon the making of profits or varying with the profits, does not itself create a partnership. It is possible to provide for remuneration of a servant contingent upon the making of and varying with, profits. Then again the instrument makes no provision as to how losses are to be dealt with, and the complicated manner in which the profits are to be shared under its terms would seem to make it impossible for the losses to be shared in the same manner. If it was intended to create a real partnership, one would have thought that some provision would have been made for the sharing of the loss, especially as the share of the profit going to the appellant is immensely large compared with the share going to his brother.In our view, taking all the circumstances of the case, especially the conduct of the parties, together with the important terms of the document, it cannot be said that it was intended to bring about the relation of partnership.4. Mr. Rajagopala Sastri has referred us to some decisions in support of his argument that even if some special powers are conferred on one of the partners that does not necessarily negative the existence of the relationship of partners between them. We would, therefore, refer briefly to these decisions. In re Ambalal Sarabhai, AIR 1924 Bom 182 , the High Court of Bombay has held"that the fact that the control of the business is kept with one partner and that he has certain extra rights as a major partner does not in any sense negative the partnership according to law. It is open to two partners to allow the business of partnership to be conducted by one of the partners."This was a case in which Ambalal Sarabhai and his wife had agreed to become partners; and the case of the department was that the agreement between the parties did not satisfy the requirements of S. 239 of the Indian Contract Act. The Court rejected this contention though it observed that the document produced by the parties was an unusual document between husband and wife and that it was difficult to accept the idea that they may have become the partners in law. Even so, on the construction of the relevant clauses of the document, the Court upheld the assessees plea. Similarly, in Raghunandan Nanu Kothare v. Hormasjee Bezonjee Bamjee, ILR 51 Bom 342: (AIR 1927 Bom 187 ) after construing an agreement of partnership between two solicitors the High Court reversed the trial courts finding that the defendant was not a partner but was an agent of the plaintiff, and came to the conclusion that the agreement made the defendant a partner of the plaintiff. Under this agreement, in lieu of his share of profits the defendant was entitled to receive Rs. 500 per month and was not to be responsible for any losses or liabilities of the firm. The main reason which appears to have weighed with the High Court in upholding the plea of partnership was that it was"almost absurd to think that two experienced solicitors of our High Court should enter into a formal agreement to become partners and then, so far as the outside world goes and so far as the correspondence between them goes, act as partners for six years and give the usual notices of dissolution and yet to be told at the end that they were entirely mistaken as to their true legal position, and that they did not know the elementary principles which go to constitute a partnership, although that was a matter on which they would presumably be advising their clients frequently."It was thus an extreme case where the status and the profession of the parties and their conduct spread over a long period were wholly inconsistent with the plea raised by the defendant that he was not a partner of the plaintiff.Besides, the usefulness of precedents which only construe documents is naturally limited.5. One of the reasons given by the High Court in support of its conclusion is that the junior partner had no proprietary interest in the estate which has been contributed by the senior partner as capital of the firm. Mr. Rajagopala Sastri challenges the correctness of this view. He contends that the estate belonging to the senior partner has become the capital of the firm and whatever liabilities can be enforced against the capital of a firm would be enforceable in law against the asset in question. In support of this contention, reference has been made to the decision of Robinson v. Ashton, (1875) 20 Eq 25 where it has been held that in the absence of any special agreement the mill which belonged to R., one of the partners, and the value of which was credited in the books of partnership as capital of the firm was an asset of the partnership. But the main point which impressed the High Court was the distinctly inferior position assigned to the junior partner in the management of the estate which has been contributed by the senior partner at the capital the firm; and that, in our opinion, lends strong support to the final conclusion of the High Court. We would also point out, as we have earlier stated, that the Kaimabetta Estate never became the capital of the partnership.6. We have carefully considered all the relevant clauses in the agreement and we are unable to hold that the High Court was in error in holding that the two brothers did not become partners in the true legal sense of the term. | 0[ds]3. In the light of the facts stated in the preceding paragraph we proceed to examine the document. It is naturally desccribed as an agreement of partnership, but it does not in our opinion contain any decisive term to show that the relationship created by it was one of partnership. The capital of the firm has been stated to be the Kaimbetta Estate, the property of the appellant.But express provision has been made in it that the appellants brother, the other purported partner, would not be entitled to contribute anything towards capital and that he would have no power to charge or encumber or in any other manner, deal with, that Estate. It has been provided that on dissolution, the capital, that is, the Estate, would go back to the appellant.This would indicate that it was not intended that the appellants brother would have any interest in the Estate, and the use of the word capital is not, in our opinion, enough on the facts of this case to create an interest in the Estate in the appellants brother.Then again the document provides that the appellants brother would employ himself diligently in carrying on the business. No provision has been made whether the appellant himself would be bound to do any work for the firm, and it would appear that the intention was that he was free to work or not to work, as he liked.This would indicate that the appellant was the master and his brother, the servant.The same inference follows from another term in the deed which requires the appellants brother to maintain the accounts and expressly gives the appellant a privilege to look into them and ask questions relating thereto. The appellants brother is specifically prevented from advancing any moneys to the partnership though a partner would normally have the right to advance moneys to the partnership if the situation required it. Another very important term is that which provides that the appellants brother would submit the annual estimates of expenditure to be incurred in the business and that the appellant would pass it.This would show that the control was in the appellant and the brother had no real hand in the management of the business. We think that these provisions taken along with the conduct of the parties to the instrument earlier mentioned, clearly indicate that it was not the intention of the parties to bring about the relationship of partners but only to continue under the cloak of a partnership theand real relationship, namely, that between a master and his servant. The powers that are given by the document to the appellants brother are such as a master would give to his servant in connection with his business or a principal to his agent. The remuneration provided for the appellants brother was out of the profits and none was payable if there was a loss and the High Court was wrong in thinking that the appellants brother was entitled to his remuneration whether there was profit or not. But as stated in section 6 of the Act earlier mentioned, the sharing of profits or the provision for payment of remuneration contingent upon the making of profits or varying with the profits, does not itself create a partnership. It is possible to provide for remuneration of a servant contingent upon the making of and varying with, profits. Then again the instrument makes no provision as to how losses are to be dealt with, and the complicated manner in which the profits are to be shared under its terms would seem to make it impossible for the losses to be shared in the same manner. If it was intended to create a real partnership, one would have thought that some provision would have been made for the sharing of the loss, especially as the share of the profit going to the appellant is immensely large compared with the share going to his brother.In our view, taking all the circumstances of the case, especially the conduct of the parties, together with the important terms of the document, it cannot be said that it was intended to bring about the relation of partnership.e of the reasons given by the High Court in support of its conclusion is that the junior partner had no proprietary interest in the estate which has been contributed by the senior partner as capital of the firm. Mr. Rajagopala Sastri challenges the correctness of this view. He contends that the estate belonging to the senior partner has become the capital of the firm and whatever liabilities can be enforced against the capital of a firm would be enforceable in law against the asset in question. In support of this contention, reference has been made to the decision of Robinson v. Ashton, (1875) 20 Eq 25 where it has been held that in the absence of any special agreement the mill which belonged to R., one of the partners, and the value of which was credited in the books of partnership as capital of the firm was an asset of the partnership.But the main point which impressed the High Court was the distinctly inferior position assigned to the junior partner in the management of the estate which has been contributed by the senior partner at the capital the firm; and that, in our opinion, lends strong support to the final conclusion of the High Court. We would also point out, as we have earlier stated, that the Kaimabetta Estate never became the capital of the partnership.6. We have carefully considered all the relevant clauses in the agreement and we are unable to hold that the High Court was in error in holding that the two brothers did not become partners in the true legal sense of the term. | 0 | 2,352 | 1,027 | ### 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:
his agent. The remuneration provided for the appellants brother was out of the profits and none was payable if there was a loss and the High Court was wrong in thinking that the appellants brother was entitled to his remuneration whether there was profit or not. But as stated in section 6 of the Act earlier mentioned, the sharing of profits or the provision for payment of remuneration contingent upon the making of profits or varying with the profits, does not itself create a partnership. It is possible to provide for remuneration of a servant contingent upon the making of and varying with, profits. Then again the instrument makes no provision as to how losses are to be dealt with, and the complicated manner in which the profits are to be shared under its terms would seem to make it impossible for the losses to be shared in the same manner. If it was intended to create a real partnership, one would have thought that some provision would have been made for the sharing of the loss, especially as the share of the profit going to the appellant is immensely large compared with the share going to his brother.In our view, taking all the circumstances of the case, especially the conduct of the parties, together with the important terms of the document, it cannot be said that it was intended to bring about the relation of partnership.4. Mr. Rajagopala Sastri has referred us to some decisions in support of his argument that even if some special powers are conferred on one of the partners that does not necessarily negative the existence of the relationship of partners between them. We would, therefore, refer briefly to these decisions. In re Ambalal Sarabhai, AIR 1924 Bom 182 , the High Court of Bombay has held"that the fact that the control of the business is kept with one partner and that he has certain extra rights as a major partner does not in any sense negative the partnership according to law. It is open to two partners to allow the business of partnership to be conducted by one of the partners."This was a case in which Ambalal Sarabhai and his wife had agreed to become partners; and the case of the department was that the agreement between the parties did not satisfy the requirements of S. 239 of the Indian Contract Act. The Court rejected this contention though it observed that the document produced by the parties was an unusual document between husband and wife and that it was difficult to accept the idea that they may have become the partners in law. Even so, on the construction of the relevant clauses of the document, the Court upheld the assessees plea. Similarly, in Raghunandan Nanu Kothare v. Hormasjee Bezonjee Bamjee, ILR 51 Bom 342: (AIR 1927 Bom 187 ) after construing an agreement of partnership between two solicitors the High Court reversed the trial courts finding that the defendant was not a partner but was an agent of the plaintiff, and came to the conclusion that the agreement made the defendant a partner of the plaintiff. Under this agreement, in lieu of his share of profits the defendant was entitled to receive Rs. 500 per month and was not to be responsible for any losses or liabilities of the firm. The main reason which appears to have weighed with the High Court in upholding the plea of partnership was that it was"almost absurd to think that two experienced solicitors of our High Court should enter into a formal agreement to become partners and then, so far as the outside world goes and so far as the correspondence between them goes, act as partners for six years and give the usual notices of dissolution and yet to be told at the end that they were entirely mistaken as to their true legal position, and that they did not know the elementary principles which go to constitute a partnership, although that was a matter on which they would presumably be advising their clients frequently."It was thus an extreme case where the status and the profession of the parties and their conduct spread over a long period were wholly inconsistent with the plea raised by the defendant that he was not a partner of the plaintiff.Besides, the usefulness of precedents which only construe documents is naturally limited.5. One of the reasons given by the High Court in support of its conclusion is that the junior partner had no proprietary interest in the estate which has been contributed by the senior partner as capital of the firm. Mr. Rajagopala Sastri challenges the correctness of this view. He contends that the estate belonging to the senior partner has become the capital of the firm and whatever liabilities can be enforced against the capital of a firm would be enforceable in law against the asset in question. In support of this contention, reference has been made to the decision of Robinson v. Ashton, (1875) 20 Eq 25 where it has been held that in the absence of any special agreement the mill which belonged to R., one of the partners, and the value of which was credited in the books of partnership as capital of the firm was an asset of the partnership. But the main point which impressed the High Court was the distinctly inferior position assigned to the junior partner in the management of the estate which has been contributed by the senior partner at the capital the firm; and that, in our opinion, lends strong support to the final conclusion of the High Court. We would also point out, as we have earlier stated, that the Kaimabetta Estate never became the capital of the partnership.6. We have carefully considered all the relevant clauses in the agreement and we are unable to hold that the High Court was in error in holding that the two brothers did not become partners in the true legal sense of the term.
### Response:
0
### Explanation:
3. In the light of the facts stated in the preceding paragraph we proceed to examine the document. It is naturally desccribed as an agreement of partnership, but it does not in our opinion contain any decisive term to show that the relationship created by it was one of partnership. The capital of the firm has been stated to be the Kaimbetta Estate, the property of the appellant.But express provision has been made in it that the appellants brother, the other purported partner, would not be entitled to contribute anything towards capital and that he would have no power to charge or encumber or in any other manner, deal with, that Estate. It has been provided that on dissolution, the capital, that is, the Estate, would go back to the appellant.This would indicate that it was not intended that the appellants brother would have any interest in the Estate, and the use of the word capital is not, in our opinion, enough on the facts of this case to create an interest in the Estate in the appellants brother.Then again the document provides that the appellants brother would employ himself diligently in carrying on the business. No provision has been made whether the appellant himself would be bound to do any work for the firm, and it would appear that the intention was that he was free to work or not to work, as he liked.This would indicate that the appellant was the master and his brother, the servant.The same inference follows from another term in the deed which requires the appellants brother to maintain the accounts and expressly gives the appellant a privilege to look into them and ask questions relating thereto. The appellants brother is specifically prevented from advancing any moneys to the partnership though a partner would normally have the right to advance moneys to the partnership if the situation required it. Another very important term is that which provides that the appellants brother would submit the annual estimates of expenditure to be incurred in the business and that the appellant would pass it.This would show that the control was in the appellant and the brother had no real hand in the management of the business. We think that these provisions taken along with the conduct of the parties to the instrument earlier mentioned, clearly indicate that it was not the intention of the parties to bring about the relationship of partners but only to continue under the cloak of a partnership theand real relationship, namely, that between a master and his servant. The powers that are given by the document to the appellants brother are such as a master would give to his servant in connection with his business or a principal to his agent. The remuneration provided for the appellants brother was out of the profits and none was payable if there was a loss and the High Court was wrong in thinking that the appellants brother was entitled to his remuneration whether there was profit or not. But as stated in section 6 of the Act earlier mentioned, the sharing of profits or the provision for payment of remuneration contingent upon the making of profits or varying with the profits, does not itself create a partnership. It is possible to provide for remuneration of a servant contingent upon the making of and varying with, profits. Then again the instrument makes no provision as to how losses are to be dealt with, and the complicated manner in which the profits are to be shared under its terms would seem to make it impossible for the losses to be shared in the same manner. If it was intended to create a real partnership, one would have thought that some provision would have been made for the sharing of the loss, especially as the share of the profit going to the appellant is immensely large compared with the share going to his brother.In our view, taking all the circumstances of the case, especially the conduct of the parties, together with the important terms of the document, it cannot be said that it was intended to bring about the relation of partnership.e of the reasons given by the High Court in support of its conclusion is that the junior partner had no proprietary interest in the estate which has been contributed by the senior partner as capital of the firm. Mr. Rajagopala Sastri challenges the correctness of this view. He contends that the estate belonging to the senior partner has become the capital of the firm and whatever liabilities can be enforced against the capital of a firm would be enforceable in law against the asset in question. In support of this contention, reference has been made to the decision of Robinson v. Ashton, (1875) 20 Eq 25 where it has been held that in the absence of any special agreement the mill which belonged to R., one of the partners, and the value of which was credited in the books of partnership as capital of the firm was an asset of the partnership.But the main point which impressed the High Court was the distinctly inferior position assigned to the junior partner in the management of the estate which has been contributed by the senior partner at the capital the firm; and that, in our opinion, lends strong support to the final conclusion of the High Court. We would also point out, as we have earlier stated, that the Kaimabetta Estate never became the capital of the partnership.6. We have carefully considered all the relevant clauses in the agreement and we are unable to hold that the High Court was in error in holding that the two brothers did not become partners in the true legal sense of the term.
|
LOK PRAHARI THROUGH ITS GENERAL SECRETARY Vs. THE STATE OF UTTAR PRADESH | State of Punjab and another vs. Brijeshwar Singh Chahal and another 15 .33. Paragraph 23 and 35 of Kumari Shrilekha (supra) may be extracted with profit only to notice the absolute clarity in carrying forward the principle laid down by Hon. Bhagwati J., in Royappa (supra). ?23. Thus, in a case like the present, if it is shown that the impugned State action is arbitrary and, therefore, violative of Article 14 of the Constitution, there can be no impediment in striking down the impugned act irrespective of the question whether an additional right, contractual or statutory, if any, is also available to the aggrieved persons. …………35. It is now too well settled that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 of the Constitution and basic to the rule of law, the system which governs us. Arbitrariness is the very negation of the rule of law. Satisfaction of this basic test in every State action is sine qua non to its validity and in this respect, the State cannot claim comparison with a private individual even in the field of contract. This distinction between the State and a private individual in the field of contract has to be borne in the 13 (2002) 2 SCC 188 14 (1991) 1 SCC 212 15 (2016) 6 SCC 1 mind.? 34. The?final?culmination is in Shayara Bano vs. Union of India and others 16 where two members of the Bench (Hon?ble R.F. Nariman and Uday Umesh Lalit, JJ.) wrote as follows: ?101. It will be noticed that a Constitution Bench of this Court in Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India stated that it was settled law that subordinate legislation can be challenged on any of the grounds available for challenge against plenary legislation. This being the case, there is no rational distinction between the two types of legislation when it comes to this ground of challenge under Article 14. The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14.? 35. The above view received support of a third member of the Constitution Bench (Hon?ble Kurian Joseph, J.) 16 (2017) 9 SCC 1 36. In the light of the above views the allocation of government bungalows to constitutional functionaries enumerated in Section 4(3) of the 1981 Act after such functionaries demit public office(s) would be clearly subject to judicial review on the touchstone of Article 14 of the Constitution of India. This is particularly so as such bungalows constitute public property which by itself is scarce and meant for use of current holders of public offices. The above is manifested by the institution of Section 4-A in the 1981 Act by the Amendment Act of 1997 (Act 8 of 1997). The questions relating to allocation of such property, therefore, undoubtedly, are questions of public character and, therefore, the same would be amenable for being adjudicated on the touchstone of reasonable classification as well as arbitrariness.37. The present petitioner, as already noticed in the opening paragraphs of this judgment, had earlier approached this Court under Article 32 of the Constitution challenging the validity of the 1997 Rules. Not only the said writ petition was entertained but the 1997 Rules were, in fact, struck down. In doing so, this Court had, inter alia, considered the validity of the 1997 Rules in the light of Article 14 of the Constitution of India. The insertion of Section 4(3) by the 2016 Amendment as a substantive provision of the statute when the 1997 Rules to the same effect were declared invalid by the Court would require the curing of the invalidity found by this Court in the matter of allotment of government accommodation to former Chief Ministers. The defect found earlier persists. The impugned legislation, therefore, can very well be construed to be an attempt to overreach the judgment of this Court in Lok Prahari (supra).38. Natural resources, public lands and the public goods like government bungalows/official residence are public property that belongs to the people of the country. The ‘Doctrine of Equality? which emerges from the concepts of justice, fairness must guide the State in the distribution/allocation of the same. The Chief Minister, once he/she demits the office, is at par with the common citizen, though by virtue of the office held, he/she may be entitled to security and other protocols. But allotment of government bungalow, to be occupied during his/her lifetime, would not be guided by the constitutional principle of equality.39. Undoubtedly, Section 4(3) of the 1981 Act would have the effect of creating a separate class of citizens for conferment of benefits by way of distribution of public property on the basis of the previous public office held by them. Once such persons demit the public office earlier held by them there is nothing to distinguish them from the common man. The public office held by them becomes a matter of history and, therefore, cannot form the basis of a reasonable classification to categorize previous holders of public office as a special category of persons entitled to the benefit of special privileges. The test of reasonable classification, therefore, has to fail. Not only that the legislation i.e. Section 4(3) of the 1981 Act recognizing former holders of public office as a special class of citizens, viewed in the aforesaid context, would appear to be arbitrary and discriminatory thereby violating the equality clause. It is a legislative exercise based on irrelevant and legally unacceptable considerations, unsupported by any constitutional sanctity. | 1[ds]27. Coming back to the issue in hand a brief look at the contentions advanced may be appropriate at this stage.The State of Uttar Pradesh has sought to defeat the writ petition by contending that the same being under Article 32 of the Constitution of India a direct infringement of the fundamental rights of the petitioner must be established which is nowhere apparent even on a close scrutiny. The writ petition, therefore, is not maintainable. Alternatively, it has been argued that infringement of the equality clause under Article 14 of the Constitution of India is a far cry as there is an intelligible differentia to justify a separate and exclusive treatment to former Chief Ministers who form a class of their own.While it is true that Article 32 of the Constitution is to be invoked for enforcement of the fundamental rights of a citizen or a non citizen, as may be, and there must be a violation or infringement thereof we have moved away from the theory of infringement of the fundamental rights of an individual citizen or non citizen to one of infringement of rights of a class. In fact, the above transformation is the foundation of what had developed as an independent and innovative stream of jurisprudence called?Public Interest Litigation?or class actionThough evolved much earlier, a Solemn affirmation of the aforesaid principle is to be found in paragraph 48 of the report in Vineet Narain (supra) which would be eminently worthy of recapitulation and, therefore, is extracted below:In view of the common perception shared by everyone including the Government of India and the Independent Review Committee (IRC) of the need for insulation of the CBI from extraneous influence of any kind, it is imperative that some action is urgently taken to prevent the continuance of this situation with a view to ensure proper implementation of the rule of law. This is the need of equality guaranteed in the Constitution. The right to equality in a situation like this is that of the Indian polity and not merely of a few individuals. The powers conferred on this Court by the Constitution are ample to remedy this defect and to ensure enforcement of the concept of equality.?9. Along with the aforesaid shift in the judicial thinking there has been an equally important shift from the classical test (classification test) for the purpose of enquiry with regard to infringement of the equality clause under Article 14 of the Constitution of India to, what may be termed, a more dynamic test of arbitrariness. The shift which depicts two different dimensions of a challenge on the anvil of Article 14 is best demonstrated by a comparative reading of the judgments of this Court in the case of Budhan Choudhry and others vs. State ofand E.P. Royappa vs. State of Tamil Nadu and another.In the light of the above views the allocation of government bungalows to constitutional functionaries enumerated in Section 4(3) of the 1981 Act after such functionaries demit public office(s) would be clearly subject to judicial review on the touchstone of Article 14 of the Constitution of India. This is particularly so as such bungalows constitute public property which by itself is scarce and meant for use of current holders of public offices. The above is manifested by the institution of Section 4-A in the 1981 Act by the Amendment Act of 1997 (Act 8 of 1997). The questions relating to allocation of such property, therefore, undoubtedly, are questions of public character and, therefore, the same would be amenable for being adjudicated on the touchstone of reasonable classification as well as arbitrariness.37. The present petitioner, as already noticed in the opening paragraphs of this judgment, had earlier approached this Court under Article 32 of the Constitution challenging the validity of the 1997 Rules. Not only the said writ petition was entertained but the 1997 Rules were, in fact, struck down. In doing so, this Court had, inter alia, considered the validity of the 1997 Rules in the light of Article 14 of the Constitution of IndiaThe insertion of Section 4(3) by the 2016 Amendment as a substantive provision of the statute when the 1997 Rules to the same effect were declared invalid by the Court would require the curing of the invalidity found by this Court in the matter of allotment of government accommodation to former Chief Ministers. The defect found earlier persists. The impugned legislation, therefore, can very well be construed to be an attempt to overreach the judgment of this Court in Lok Prahari (supra).38. Natural resources, public lands and the public goods like government bungalows/official residence are public property that belongs to the people of the country. The ‘Doctrine of Equality? which emerges from the concepts of justice, fairness must guide the State in the distribution/allocation of the same. The Chief Minister, once he/she demits the office, is at par with the common citizen, though by virtue of the office held, he/she may be entitled to security and other protocols. But allotment of government bungalow, to be occupied during his/her lifetime, would not be guided by the constitutional principle of equality.39. Undoubtedly, Section 4(3) of the 1981 Act would have the effect of creating a separate class of citizens for conferment of benefits by way of distribution of public property on the basis of the previous public office held by them. Once such persons demit the public office earlier held by them there is nothing to distinguish them from the common man. The public office held by them becomes a matter of history and, therefore, cannot form the basis of a reasonable classification to categorize previous holders of public office as a special category of persons entitled to the benefit of special privileges. The test of reasonable classification, therefore, has to fail. Not only that the legislation i.e. Section 4(3) of the 1981 Act recognizing former holders of public office as a special class of citizens, viewed in the aforesaid context, would appear to be arbitrary and discriminatory thereby violating the equality clause. It is a legislative exercise based on irrelevant and legally unacceptable considerations, unsupported by any constitutional sanctity. | 1 | 7,076 | 1,134 | ### 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:
State of Punjab and another vs. Brijeshwar Singh Chahal and another 15 .33. Paragraph 23 and 35 of Kumari Shrilekha (supra) may be extracted with profit only to notice the absolute clarity in carrying forward the principle laid down by Hon. Bhagwati J., in Royappa (supra). ?23. Thus, in a case like the present, if it is shown that the impugned State action is arbitrary and, therefore, violative of Article 14 of the Constitution, there can be no impediment in striking down the impugned act irrespective of the question whether an additional right, contractual or statutory, if any, is also available to the aggrieved persons. …………35. It is now too well settled that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 of the Constitution and basic to the rule of law, the system which governs us. Arbitrariness is the very negation of the rule of law. Satisfaction of this basic test in every State action is sine qua non to its validity and in this respect, the State cannot claim comparison with a private individual even in the field of contract. This distinction between the State and a private individual in the field of contract has to be borne in the 13 (2002) 2 SCC 188 14 (1991) 1 SCC 212 15 (2016) 6 SCC 1 mind.? 34. The?final?culmination is in Shayara Bano vs. Union of India and others 16 where two members of the Bench (Hon?ble R.F. Nariman and Uday Umesh Lalit, JJ.) wrote as follows: ?101. It will be noticed that a Constitution Bench of this Court in Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India stated that it was settled law that subordinate legislation can be challenged on any of the grounds available for challenge against plenary legislation. This being the case, there is no rational distinction between the two types of legislation when it comes to this ground of challenge under Article 14. The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14.? 35. The above view received support of a third member of the Constitution Bench (Hon?ble Kurian Joseph, J.) 16 (2017) 9 SCC 1 36. In the light of the above views the allocation of government bungalows to constitutional functionaries enumerated in Section 4(3) of the 1981 Act after such functionaries demit public office(s) would be clearly subject to judicial review on the touchstone of Article 14 of the Constitution of India. This is particularly so as such bungalows constitute public property which by itself is scarce and meant for use of current holders of public offices. The above is manifested by the institution of Section 4-A in the 1981 Act by the Amendment Act of 1997 (Act 8 of 1997). The questions relating to allocation of such property, therefore, undoubtedly, are questions of public character and, therefore, the same would be amenable for being adjudicated on the touchstone of reasonable classification as well as arbitrariness.37. The present petitioner, as already noticed in the opening paragraphs of this judgment, had earlier approached this Court under Article 32 of the Constitution challenging the validity of the 1997 Rules. Not only the said writ petition was entertained but the 1997 Rules were, in fact, struck down. In doing so, this Court had, inter alia, considered the validity of the 1997 Rules in the light of Article 14 of the Constitution of India. The insertion of Section 4(3) by the 2016 Amendment as a substantive provision of the statute when the 1997 Rules to the same effect were declared invalid by the Court would require the curing of the invalidity found by this Court in the matter of allotment of government accommodation to former Chief Ministers. The defect found earlier persists. The impugned legislation, therefore, can very well be construed to be an attempt to overreach the judgment of this Court in Lok Prahari (supra).38. Natural resources, public lands and the public goods like government bungalows/official residence are public property that belongs to the people of the country. The ‘Doctrine of Equality? which emerges from the concepts of justice, fairness must guide the State in the distribution/allocation of the same. The Chief Minister, once he/she demits the office, is at par with the common citizen, though by virtue of the office held, he/she may be entitled to security and other protocols. But allotment of government bungalow, to be occupied during his/her lifetime, would not be guided by the constitutional principle of equality.39. Undoubtedly, Section 4(3) of the 1981 Act would have the effect of creating a separate class of citizens for conferment of benefits by way of distribution of public property on the basis of the previous public office held by them. Once such persons demit the public office earlier held by them there is nothing to distinguish them from the common man. The public office held by them becomes a matter of history and, therefore, cannot form the basis of a reasonable classification to categorize previous holders of public office as a special category of persons entitled to the benefit of special privileges. The test of reasonable classification, therefore, has to fail. Not only that the legislation i.e. Section 4(3) of the 1981 Act recognizing former holders of public office as a special class of citizens, viewed in the aforesaid context, would appear to be arbitrary and discriminatory thereby violating the equality clause. It is a legislative exercise based on irrelevant and legally unacceptable considerations, unsupported by any constitutional sanctity.
### Response:
1
### Explanation:
State of Uttar Pradesh has sought to defeat the writ petition by contending that the same being under Article 32 of the Constitution of India a direct infringement of the fundamental rights of the petitioner must be established which is nowhere apparent even on a close scrutiny. The writ petition, therefore, is not maintainable. Alternatively, it has been argued that infringement of the equality clause under Article 14 of the Constitution of India is a far cry as there is an intelligible differentia to justify a separate and exclusive treatment to former Chief Ministers who form a class of their own.While it is true that Article 32 of the Constitution is to be invoked for enforcement of the fundamental rights of a citizen or a non citizen, as may be, and there must be a violation or infringement thereof we have moved away from the theory of infringement of the fundamental rights of an individual citizen or non citizen to one of infringement of rights of a class. In fact, the above transformation is the foundation of what had developed as an independent and innovative stream of jurisprudence called?Public Interest Litigation?or class actionThough evolved much earlier, a Solemn affirmation of the aforesaid principle is to be found in paragraph 48 of the report in Vineet Narain (supra) which would be eminently worthy of recapitulation and, therefore, is extracted below:In view of the common perception shared by everyone including the Government of India and the Independent Review Committee (IRC) of the need for insulation of the CBI from extraneous influence of any kind, it is imperative that some action is urgently taken to prevent the continuance of this situation with a view to ensure proper implementation of the rule of law. This is the need of equality guaranteed in the Constitution. The right to equality in a situation like this is that of the Indian polity and not merely of a few individuals. The powers conferred on this Court by the Constitution are ample to remedy this defect and to ensure enforcement of the concept of equality.?9. Along with the aforesaid shift in the judicial thinking there has been an equally important shift from the classical test (classification test) for the purpose of enquiry with regard to infringement of the equality clause under Article 14 of the Constitution of India to, what may be termed, a more dynamic test of arbitrariness. The shift which depicts two different dimensions of a challenge on the anvil of Article 14 is best demonstrated by a comparative reading of the judgments of this Court in the case of Budhan Choudhry and others vs. State ofand E.P. Royappa vs. State of Tamil Nadu and another.In the light of the above views the allocation of government bungalows to constitutional functionaries enumerated in Section 4(3) of the 1981 Act after such functionaries demit public office(s) would be clearly subject to judicial review on the touchstone of Article 14 of the Constitution of India. This is particularly so as such bungalows constitute public property which by itself is scarce and meant for use of current holders of public offices. The above is manifested by the institution of Section 4-A in the 1981 Act by the Amendment Act of 1997 (Act 8 of 1997). The questions relating to allocation of such property, therefore, undoubtedly, are questions of public character and, therefore, the same would be amenable for being adjudicated on the touchstone of reasonable classification as well as arbitrariness.37. The present petitioner, as already noticed in the opening paragraphs of this judgment, had earlier approached this Court under Article 32 of the Constitution challenging the validity of the 1997 Rules. Not only the said writ petition was entertained but the 1997 Rules were, in fact, struck down. In doing so, this Court had, inter alia, considered the validity of the 1997 Rules in the light of Article 14 of the Constitution of IndiaThe insertion of Section 4(3) by the 2016 Amendment as a substantive provision of the statute when the 1997 Rules to the same effect were declared invalid by the Court would require the curing of the invalidity found by this Court in the matter of allotment of government accommodation to former Chief Ministers. The defect found earlier persists. The impugned legislation, therefore, can very well be construed to be an attempt to overreach the judgment of this Court in Lok Prahari (supra).38. Natural resources, public lands and the public goods like government bungalows/official residence are public property that belongs to the people of the country. The ‘Doctrine of Equality? which emerges from the concepts of justice, fairness must guide the State in the distribution/allocation of the same. The Chief Minister, once he/she demits the office, is at par with the common citizen, though by virtue of the office held, he/she may be entitled to security and other protocols. But allotment of government bungalow, to be occupied during his/her lifetime, would not be guided by the constitutional principle of equality.39. Undoubtedly, Section 4(3) of the 1981 Act would have the effect of creating a separate class of citizens for conferment of benefits by way of distribution of public property on the basis of the previous public office held by them. Once such persons demit the public office earlier held by them there is nothing to distinguish them from the common man. The public office held by them becomes a matter of history and, therefore, cannot form the basis of a reasonable classification to categorize previous holders of public office as a special category of persons entitled to the benefit of special privileges. The test of reasonable classification, therefore, has to fail. Not only that the legislation i.e. Section 4(3) of the 1981 Act recognizing former holders of public office as a special class of citizens, viewed in the aforesaid context, would appear to be arbitrary and discriminatory thereby violating the equality clause. It is a legislative exercise based on irrelevant and legally unacceptable considerations, unsupported by any constitutional sanctity.
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P.K. Narayanan Raja Vs. Ambika and Ors | Abhay Manohar Sapre, J.1. This appeal is directed against the final judgment and order dated 23.12.2004 passed by the Madras High Court (Madurai Bench) in Second Appeal No. 19 of 1995 whereby the High Court allowed the second appeal and set aside the order of the lower Appellate Court.2. It is not necessary to set out the entire facts of the case in detail except to the extent necessary for the disposal of the appeal.3. The Appellant is the Plaintiff and the Respondents are the Defendants. The Appellant and the Respondents are members of one family and are thus related to one another.4. The suit out of which this appeal arises was for a declaration and permanent injunction in relation to certain immovable properties as specified in the plaint, which are alleged to belong to members of the family. The Respondents contested the suit.5. By judgment/decree dated 29.04.1991 in O.S. No. 236 of 1989, the Trial Court dismissed the Appellants suit. The Appellant felt aggrieved and filed first appeal before the District Judge. By judgment/decree dated 07.03.1994, the first Appellate Court allowed the Plaintiffs appeal and decreed the suit. The Defendants felt aggrieved and filed second appeal before the High Court. By impugned order, the High Court allowed the appeal and dismissed the suit giving rise to filing of the appeal by way of special leave before this Court by the Plaintiff.6. At the outset, learned Counsel appearing for the parties stated and brought to our notice that one civil suit being OS No. 46/1986 is pending between the Appellant and the Respondents in the Court of Subordinate Judge of Srivilliputur (TN). This suit i.e., O.S. No. 46/1986 is for partition of several properties belonging to the members of the family, who are also parties to the present appeal.7. If that be the position then, in our opinion, the property, which is subject matter of this appeal, should also necessarily be subjected to its adjudication in OS No. 46/1986 along with other properties. In any event, in our view, it would be just and proper that all properties belonging to or claim to belonging to the family or/and its members though denied by the parties against each other should be made subject matter of one civil suit rather than two civil suits.8. It is for this reason, we do not consider it proper to express any opinion on the rights of the parties so far as the suit property in question is concerned and grant liberty to the parties of this appeal to amend their pleadings in OS No. 46/1986 in relation to the suit property in question in addition to the properties which are already part of OS No. 46/1986 so that the concerned Trial Court will be able to decide the rights of the parties in relation to the entire properties including the one in question in this appeal. | 1[ds]7. If that be the position then, in our opinion, the property, which is subject matter of this appeal, should also necessarily be subjected to its adjudication in OS No. 46/1986 along with other properties. In any event, in our view, it would be just and proper that all properties belonging to or claim to belonging to the family or/and its members though denied by the parties against each other should be made subject matter of one civil suit rather than two civil suits8. It is for this reason, we do not consider it proper to express any opinion on the rights of the parties so far as the suit property in question is concerned and grant liberty to the parties of this appeal to amend their pleadings in OS No. 46/1986 in relation to the suit property in question in addition to the properties which are already part of OS No. 46/1986 so that the concerned Trial Court will be able to decide the rights of the parties in relation to the entire properties including the one in question in this appeal. | 1 | 526 | 201 | ### Instruction:
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Abhay Manohar Sapre, J.1. This appeal is directed against the final judgment and order dated 23.12.2004 passed by the Madras High Court (Madurai Bench) in Second Appeal No. 19 of 1995 whereby the High Court allowed the second appeal and set aside the order of the lower Appellate Court.2. It is not necessary to set out the entire facts of the case in detail except to the extent necessary for the disposal of the appeal.3. The Appellant is the Plaintiff and the Respondents are the Defendants. The Appellant and the Respondents are members of one family and are thus related to one another.4. The suit out of which this appeal arises was for a declaration and permanent injunction in relation to certain immovable properties as specified in the plaint, which are alleged to belong to members of the family. The Respondents contested the suit.5. By judgment/decree dated 29.04.1991 in O.S. No. 236 of 1989, the Trial Court dismissed the Appellants suit. The Appellant felt aggrieved and filed first appeal before the District Judge. By judgment/decree dated 07.03.1994, the first Appellate Court allowed the Plaintiffs appeal and decreed the suit. The Defendants felt aggrieved and filed second appeal before the High Court. By impugned order, the High Court allowed the appeal and dismissed the suit giving rise to filing of the appeal by way of special leave before this Court by the Plaintiff.6. At the outset, learned Counsel appearing for the parties stated and brought to our notice that one civil suit being OS No. 46/1986 is pending between the Appellant and the Respondents in the Court of Subordinate Judge of Srivilliputur (TN). This suit i.e., O.S. No. 46/1986 is for partition of several properties belonging to the members of the family, who are also parties to the present appeal.7. If that be the position then, in our opinion, the property, which is subject matter of this appeal, should also necessarily be subjected to its adjudication in OS No. 46/1986 along with other properties. In any event, in our view, it would be just and proper that all properties belonging to or claim to belonging to the family or/and its members though denied by the parties against each other should be made subject matter of one civil suit rather than two civil suits.8. It is for this reason, we do not consider it proper to express any opinion on the rights of the parties so far as the suit property in question is concerned and grant liberty to the parties of this appeal to amend their pleadings in OS No. 46/1986 in relation to the suit property in question in addition to the properties which are already part of OS No. 46/1986 so that the concerned Trial Court will be able to decide the rights of the parties in relation to the entire properties including the one in question in this appeal.
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7. If that be the position then, in our opinion, the property, which is subject matter of this appeal, should also necessarily be subjected to its adjudication in OS No. 46/1986 along with other properties. In any event, in our view, it would be just and proper that all properties belonging to or claim to belonging to the family or/and its members though denied by the parties against each other should be made subject matter of one civil suit rather than two civil suits8. It is for this reason, we do not consider it proper to express any opinion on the rights of the parties so far as the suit property in question is concerned and grant liberty to the parties of this appeal to amend their pleadings in OS No. 46/1986 in relation to the suit property in question in addition to the properties which are already part of OS No. 46/1986 so that the concerned Trial Court will be able to decide the rights of the parties in relation to the entire properties including the one in question in this appeal.
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Mohinder Singh Vs. Delhi Administration | Vaidialingam, J.1. The only question that arises for consideration in this appeal by special leave is whether the award of sentence of death is justified. As special leave has been restricted only to the question of sentence, we will only refer to the facts bearing on the same.2. The appellant and one Gian Singh, P. W. 12, were working as carpenters in partnership for more than two years with different timber merchants in Delhi. They worked for some time under Santokh Singh, the deceased, before they went over to work under P. W. 13. A dispute arose between the appellant and P.W. 12 regarding the sharing of the remuneration due to them from P.W. 13. The matter was referred to the arbitration of the deceased, who made an award regarding the wages payable to the appellant and P.W. 12 by P.W. 13. P.W. 13 made the payment according to the award on April 16, 1970. The appellant appears to have been dissatisfied with the award made by the deceased. On April 17, 1970, at about 4.10 P.M. he mentioned to P.W. 12 that if Santokh Singh does not pay the amounts due to him, he, the accused, will murder him. P.W. 12 conveyed this threat of the accused to P.W. 1, the brother of Santokh Singh. P.W. 1 conveyed the same to his brother, Santokh Singh, but the latter did not pay any serious attention to this threat.3. According to the prosecution, on April 18, 1970, at about 3-45 P. M., when Santokh Singh was in his timber depot, the accused went to his shop and stabbed him indiscriminately as a result of which Santokh Singh sustained serious injuries and died. Though the appellant had given a confessional statement to the Magistrate, he retracted the same and pleaded alibi in the Sessions Court. The appellant was arrested on April 19, 1970, in his village. The post mortem certificate issued by the Doctor P.W. 21, shows that as many as sixteen injuries were found on the dead body of the deceased. According to the Doctor, injuries Nos. 1 to 3 singly and all other injuries collectively could have caused death in the ordinary course of nature. The learned Sessions Judge has accepted the evidence of the prosecution witnesses and rejected the plea of alibi set up by the accused. The learned Sessions Judge imposed the sentence of death on the ground that the appellant is guilty of a premeditated and cold blooded murder and that there were no extenuating circumstances in his favour. The High Court has agreed with this reasoning of the trial Court. After consideration of the various circumstances, we are satisfied that both the learned Sessions Judge and the High Court have acted properly in awarding the death sentence. That the murder is premeditated and cold blooded, is clear from the evidence of P.W. 12 to whom the appellant had stated one day earlier of his intention to do away with Santokh Singh. The evidence of P.W. 12 is corroborated by the evidence of P.W. 1. The deceased was unarmed at that time and the position in which he was found by the witnesses, immediately after the occurrence, clearly shows that he could not at all have been the aggressor. He was found in a sitting posture bleeding profusely. The number of injuries found on the body of the deceased shows that the appellant had inflicted as many as sixteen injuries on an unarmed and defenceless person. The various injuries on the hands and palms of the deceased indicate that the latter must have been desperately trying to save his life by attempting to ward off the blows with his hands. All these circumstances clearly shows that the act of the appellant is a cold blooded one and that the murder committed by him was brutal in nature. Under the circumstances, the award of the death sentence was perfectly justified. We see no merit on the appeal which is accordingly dismissed. | 0[ds]After consideration of the various circumstances, we are satisfied that both the learned Sessions Judge and the High Court have acted properly in awarding the death sentence. That the murder is premeditated and cold blooded, is clear from the evidence of P.W. 12 to whom the appellant had stated one day earlier of his intention to do away with Santokh Singh. The evidence of P.W. 12 is corroborated by the evidence of P.W. 1. The deceased was unarmed at that time and the position in which he was found by the witnesses, immediately after the occurrence, clearly shows that he could not at all have been the aggressor. He was found in a sitting posture bleeding profusely. The number of injuries found on the body of the deceased shows that the appellant had inflicted as many as sixteen injuries on an unarmed and defenceless person. The various injuries on the hands and palms of the deceased indicate that the latter must have been desperately trying to save his life by attempting to ward off the blows with his hands. All these circumstances clearly shows that the act of the appellant is a cold blooded one and that the murder committed by him was brutal in nature. Under the circumstances, the award of the death sentence was perfectly justified. We see no merit on the appeal which is accordingly dismissed. | 0 | 738 | 251 | ### Instruction:
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Vaidialingam, J.1. The only question that arises for consideration in this appeal by special leave is whether the award of sentence of death is justified. As special leave has been restricted only to the question of sentence, we will only refer to the facts bearing on the same.2. The appellant and one Gian Singh, P. W. 12, were working as carpenters in partnership for more than two years with different timber merchants in Delhi. They worked for some time under Santokh Singh, the deceased, before they went over to work under P. W. 13. A dispute arose between the appellant and P.W. 12 regarding the sharing of the remuneration due to them from P.W. 13. The matter was referred to the arbitration of the deceased, who made an award regarding the wages payable to the appellant and P.W. 12 by P.W. 13. P.W. 13 made the payment according to the award on April 16, 1970. The appellant appears to have been dissatisfied with the award made by the deceased. On April 17, 1970, at about 4.10 P.M. he mentioned to P.W. 12 that if Santokh Singh does not pay the amounts due to him, he, the accused, will murder him. P.W. 12 conveyed this threat of the accused to P.W. 1, the brother of Santokh Singh. P.W. 1 conveyed the same to his brother, Santokh Singh, but the latter did not pay any serious attention to this threat.3. According to the prosecution, on April 18, 1970, at about 3-45 P. M., when Santokh Singh was in his timber depot, the accused went to his shop and stabbed him indiscriminately as a result of which Santokh Singh sustained serious injuries and died. Though the appellant had given a confessional statement to the Magistrate, he retracted the same and pleaded alibi in the Sessions Court. The appellant was arrested on April 19, 1970, in his village. The post mortem certificate issued by the Doctor P.W. 21, shows that as many as sixteen injuries were found on the dead body of the deceased. According to the Doctor, injuries Nos. 1 to 3 singly and all other injuries collectively could have caused death in the ordinary course of nature. The learned Sessions Judge has accepted the evidence of the prosecution witnesses and rejected the plea of alibi set up by the accused. The learned Sessions Judge imposed the sentence of death on the ground that the appellant is guilty of a premeditated and cold blooded murder and that there were no extenuating circumstances in his favour. The High Court has agreed with this reasoning of the trial Court. After consideration of the various circumstances, we are satisfied that both the learned Sessions Judge and the High Court have acted properly in awarding the death sentence. That the murder is premeditated and cold blooded, is clear from the evidence of P.W. 12 to whom the appellant had stated one day earlier of his intention to do away with Santokh Singh. The evidence of P.W. 12 is corroborated by the evidence of P.W. 1. The deceased was unarmed at that time and the position in which he was found by the witnesses, immediately after the occurrence, clearly shows that he could not at all have been the aggressor. He was found in a sitting posture bleeding profusely. The number of injuries found on the body of the deceased shows that the appellant had inflicted as many as sixteen injuries on an unarmed and defenceless person. The various injuries on the hands and palms of the deceased indicate that the latter must have been desperately trying to save his life by attempting to ward off the blows with his hands. All these circumstances clearly shows that the act of the appellant is a cold blooded one and that the murder committed by him was brutal in nature. Under the circumstances, the award of the death sentence was perfectly justified. We see no merit on the appeal which is accordingly dismissed.
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0
### Explanation:
After consideration of the various circumstances, we are satisfied that both the learned Sessions Judge and the High Court have acted properly in awarding the death sentence. That the murder is premeditated and cold blooded, is clear from the evidence of P.W. 12 to whom the appellant had stated one day earlier of his intention to do away with Santokh Singh. The evidence of P.W. 12 is corroborated by the evidence of P.W. 1. The deceased was unarmed at that time and the position in which he was found by the witnesses, immediately after the occurrence, clearly shows that he could not at all have been the aggressor. He was found in a sitting posture bleeding profusely. The number of injuries found on the body of the deceased shows that the appellant had inflicted as many as sixteen injuries on an unarmed and defenceless person. The various injuries on the hands and palms of the deceased indicate that the latter must have been desperately trying to save his life by attempting to ward off the blows with his hands. All these circumstances clearly shows that the act of the appellant is a cold blooded one and that the murder committed by him was brutal in nature. Under the circumstances, the award of the death sentence was perfectly justified. We see no merit on the appeal which is accordingly dismissed.
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Silla Chandra Sekharam Vs. Ramchandra Sahu | the expression subsequently to the sale or lease be given the meaning subsequently to the actual sale or lease.16. The sections preceding S. 18 deal with specific performance of contracts in general and therefore use the expression party to a contract. Section 18 deals with the cases of contracts to sell or let and therefore appropriately uses the simple word vendor or lessor with respect to the party contracting to sell or let and purchaser or lessee with respect to the party agreeing to purchase or take the property on lease. There is no incongruity in using such expression so long as one knows to whom those expression refer. In fact the word purchaser or lessee can be appropriately applied to persons agreeing to purchase or take the property on lease.17. In this connection reference may also be made to the provisions of cl. (d) of S. 18 which uses the words vendor or lessor and provides that where the vendor or lessor sues for specific performance of the contract and the suit is dismissed on the ground of his imperfect title, the defendant has a right to a return of his deposit ....... and to a lien for such deposit, ...... on the interest of the vendor or lessor in the property agreed to be sold or let. It is clear that the words vendor or lessor in this clause refer to the person contracting to sell or let the property and who did not perform his part of the contract.18. Section 25 of the Act also uses the expression vendor or lessor who has not actually sold or leased the property. It provides inter alia that a contract for the sale or letting of property cannot be specifically enforced in favour of the vendor or lessor who comes within the provisions of cls. (a) to (c) of the section. The provisions of S. 27A also use the expression lessor and lessee in connection with provisions relating to the contract to let when actually no lease is executed.19. There may be another reason for using the expression sale or lease in cl. (a) of S. 18. Section 13 and illustration (a) read;"13. Notwithstanding anything contained in S. 56 of the Indian Contract Act, a contract is not wholly impossible of performance because a portion of its subject matter, existing at its date, has ceased to exist at the time of the performance.Illustrations(a) A, contracts to sell a house to B, for a lakh of rupees. The day after the contract is made, the house is destroyed by a cyclone. B. may be compelled to perform his part of the contract by paying the purchase-money.x x x x x"20. In Pollock and Mullas Specific Relief Act, 8th edition, under S. 13, is a note:"Illustration (a) assumes that a contract for the sale of a house does, of itself, transfer the beneficial interest in the house to the purchaser, and make him owner in equity in the English phrase. This was also the law here before the Transfer of Property Act, 1882 came into force. By S. 54 of that Act it is provided that a contract for the sale of immovable property does not, of itself, create any interest in or charge on such property. By S. 55 (5) it is enacted that the risk of destruction is borne by the purchaser only from the date when the ownership appears to pass on execution of a proper conveyance by the vendor (see S. 55(1) (d)). It would, therefore, seem that the illustration cannot now be applied where the Transfer of Property Act is in force."21. It may be that just as illustration (a) to S. 13 continues in the Act, the expression sale or lease continued in cl. (a) of S. 18 as at the time cl. (a) of S. 18 was originally enacted some sort of beneficial interest had passed to the person agreeing to purchase the property by the mere agreement to sell, arrived at between the parties.22. It has also been urged for the respondent that cl. (a) of S. 18 of the Act applies only when the person contracting to sell or let has imperfect title to the property and not when he is not entitled to the property as is the case in this suit, as Ramchandra had no title to half the house. We do not consider it necessary to decide this question as we are of opinion that it cannot be said that Ramchandra had no interest in half the house. He had interest in the entire house and so had his mother, though in case of actual partition the interest of each would have been fixed at half. If Ramchandra was not competent to pass title with respect to the entire house during the lifetime of his mother, he can be said to have imperfect title to it.23. We are, therefore, of opinion that on the death of the mother, Ramchandra obtained title to and interest in the portion of the house which on a private partition subsequent to the contract to sell had taken place between Ramchandra and his mother and that therefore he has to make good his contract out of the property he acquired subsequent to the contract to sell.24. It has been submitted for the respondent that it need not be taken for granted that Ramchandra got title to the property which belonged to his mother as it might be that the mother had executed some will. No such allegation appears to have been made before the High Court where it was urged that Ramchandra had acquired title to that portion of the house. It was in view of this allegation that the appellant did not argue the appeal on the basis of the ground that had been taken in the memorandum of appeal, the ground being that Ramchandra had agreed to sell for reasons of legal necessity. We, therefore, do not consider any force in this contention. | 1[ds]14. The expression in cl. (a) of S. 18 should preferably be construed in a way so that there will be no overlapping between the provisions of this clause and of S. 43 of the Transfer of Property Act, as ordinarily the legislature does not intend to make duplicate provisions for similar situations.15. The use of the words vendor or lessor in cl. (a) is no definite pointer to the conclusion that the expression subsequently to the sale or lease be given the meaning subsequently to the actual sale or lease.16. The sections preceding S. 18 deal with specific performance of contracts in general and therefore use the expression party to a contract. Section 18 deals with the cases of contracts to sell or let and therefore appropriately uses the simple word vendor or lessor with respect to the party contracting to sell or let and purchaser or lessee with respect to the party agreeing to purchase or take the property on lease. There is no incongruity in using such expression so long as one knows to whom those expression refer. In fact the word purchaser or lessee can be appropriately applied to persons agreeing to purchase or take the property ondo not consider it necessary to decide this question as we are of opinion that it cannot be said that Ramchandra had no interest in half the house. He had interest in the entire house and so had his mother, though in case of actual partition the interest of each would have been fixed at half. If Ramchandra was not competent to pass title with respect to the entire house during the lifetime of his mother, he can be said to have imperfect title to it.23. We are, therefore, of opinion that on the death of the mother, Ramchandra obtained title to and interest in the portion of the house which on a private partition subsequent to the contract to sell had taken place between Ramchandra and his mother and that therefore he has to make good his contract out of the property he acquired subsequent to the contract tosuch allegation appears to have been made before the High Court where it was urged that Ramchandra had acquired title to that portion of the house. It was in view of this allegation that the appellant did not argue the appeal on the basis of the ground that had been taken in the memorandum of appeal, the ground being that Ramchandra had agreed to sell for reasons of legal necessity. We, therefore, do not consider any force in this contention.was in view of this allegation that the appellant did not argue the appeal on the basis of the ground that had been taken in the memorandum of appeal, the ground being that Ramchandra had agreed to sell for reasons of legal necessity. We, therefore, do not consider any force in this contention. | 1 | 3,574 | 518 | ### Instruction:
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the expression subsequently to the sale or lease be given the meaning subsequently to the actual sale or lease.16. The sections preceding S. 18 deal with specific performance of contracts in general and therefore use the expression party to a contract. Section 18 deals with the cases of contracts to sell or let and therefore appropriately uses the simple word vendor or lessor with respect to the party contracting to sell or let and purchaser or lessee with respect to the party agreeing to purchase or take the property on lease. There is no incongruity in using such expression so long as one knows to whom those expression refer. In fact the word purchaser or lessee can be appropriately applied to persons agreeing to purchase or take the property on lease.17. In this connection reference may also be made to the provisions of cl. (d) of S. 18 which uses the words vendor or lessor and provides that where the vendor or lessor sues for specific performance of the contract and the suit is dismissed on the ground of his imperfect title, the defendant has a right to a return of his deposit ....... and to a lien for such deposit, ...... on the interest of the vendor or lessor in the property agreed to be sold or let. It is clear that the words vendor or lessor in this clause refer to the person contracting to sell or let the property and who did not perform his part of the contract.18. Section 25 of the Act also uses the expression vendor or lessor who has not actually sold or leased the property. It provides inter alia that a contract for the sale or letting of property cannot be specifically enforced in favour of the vendor or lessor who comes within the provisions of cls. (a) to (c) of the section. The provisions of S. 27A also use the expression lessor and lessee in connection with provisions relating to the contract to let when actually no lease is executed.19. There may be another reason for using the expression sale or lease in cl. (a) of S. 18. Section 13 and illustration (a) read;"13. Notwithstanding anything contained in S. 56 of the Indian Contract Act, a contract is not wholly impossible of performance because a portion of its subject matter, existing at its date, has ceased to exist at the time of the performance.Illustrations(a) A, contracts to sell a house to B, for a lakh of rupees. The day after the contract is made, the house is destroyed by a cyclone. B. may be compelled to perform his part of the contract by paying the purchase-money.x x x x x"20. In Pollock and Mullas Specific Relief Act, 8th edition, under S. 13, is a note:"Illustration (a) assumes that a contract for the sale of a house does, of itself, transfer the beneficial interest in the house to the purchaser, and make him owner in equity in the English phrase. This was also the law here before the Transfer of Property Act, 1882 came into force. By S. 54 of that Act it is provided that a contract for the sale of immovable property does not, of itself, create any interest in or charge on such property. By S. 55 (5) it is enacted that the risk of destruction is borne by the purchaser only from the date when the ownership appears to pass on execution of a proper conveyance by the vendor (see S. 55(1) (d)). It would, therefore, seem that the illustration cannot now be applied where the Transfer of Property Act is in force."21. It may be that just as illustration (a) to S. 13 continues in the Act, the expression sale or lease continued in cl. (a) of S. 18 as at the time cl. (a) of S. 18 was originally enacted some sort of beneficial interest had passed to the person agreeing to purchase the property by the mere agreement to sell, arrived at between the parties.22. It has also been urged for the respondent that cl. (a) of S. 18 of the Act applies only when the person contracting to sell or let has imperfect title to the property and not when he is not entitled to the property as is the case in this suit, as Ramchandra had no title to half the house. We do not consider it necessary to decide this question as we are of opinion that it cannot be said that Ramchandra had no interest in half the house. He had interest in the entire house and so had his mother, though in case of actual partition the interest of each would have been fixed at half. If Ramchandra was not competent to pass title with respect to the entire house during the lifetime of his mother, he can be said to have imperfect title to it.23. We are, therefore, of opinion that on the death of the mother, Ramchandra obtained title to and interest in the portion of the house which on a private partition subsequent to the contract to sell had taken place between Ramchandra and his mother and that therefore he has to make good his contract out of the property he acquired subsequent to the contract to sell.24. It has been submitted for the respondent that it need not be taken for granted that Ramchandra got title to the property which belonged to his mother as it might be that the mother had executed some will. No such allegation appears to have been made before the High Court where it was urged that Ramchandra had acquired title to that portion of the house. It was in view of this allegation that the appellant did not argue the appeal on the basis of the ground that had been taken in the memorandum of appeal, the ground being that Ramchandra had agreed to sell for reasons of legal necessity. We, therefore, do not consider any force in this contention.
### Response:
1
### Explanation:
14. The expression in cl. (a) of S. 18 should preferably be construed in a way so that there will be no overlapping between the provisions of this clause and of S. 43 of the Transfer of Property Act, as ordinarily the legislature does not intend to make duplicate provisions for similar situations.15. The use of the words vendor or lessor in cl. (a) is no definite pointer to the conclusion that the expression subsequently to the sale or lease be given the meaning subsequently to the actual sale or lease.16. The sections preceding S. 18 deal with specific performance of contracts in general and therefore use the expression party to a contract. Section 18 deals with the cases of contracts to sell or let and therefore appropriately uses the simple word vendor or lessor with respect to the party contracting to sell or let and purchaser or lessee with respect to the party agreeing to purchase or take the property on lease. There is no incongruity in using such expression so long as one knows to whom those expression refer. In fact the word purchaser or lessee can be appropriately applied to persons agreeing to purchase or take the property ondo not consider it necessary to decide this question as we are of opinion that it cannot be said that Ramchandra had no interest in half the house. He had interest in the entire house and so had his mother, though in case of actual partition the interest of each would have been fixed at half. If Ramchandra was not competent to pass title with respect to the entire house during the lifetime of his mother, he can be said to have imperfect title to it.23. We are, therefore, of opinion that on the death of the mother, Ramchandra obtained title to and interest in the portion of the house which on a private partition subsequent to the contract to sell had taken place between Ramchandra and his mother and that therefore he has to make good his contract out of the property he acquired subsequent to the contract tosuch allegation appears to have been made before the High Court where it was urged that Ramchandra had acquired title to that portion of the house. It was in view of this allegation that the appellant did not argue the appeal on the basis of the ground that had been taken in the memorandum of appeal, the ground being that Ramchandra had agreed to sell for reasons of legal necessity. We, therefore, do not consider any force in this contention.was in view of this allegation that the appellant did not argue the appeal on the basis of the ground that had been taken in the memorandum of appeal, the ground being that Ramchandra had agreed to sell for reasons of legal necessity. We, therefore, do not consider any force in this contention.
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S.M. Sharmila Vs. National Insurance Co.Ltd. & Others | owner of a vehicle and her workmen had been injured in an accident while they were travelling in a vehicle owned by the appellant. As the concerned respondent workmen had suffered injuries in an accident arising out of and in the course of their employment on 3rd April, 1998, they had filed cases claiming compensation before the Commissioner for Workmens Compensation, Madurai.3. After hearing the concerned parties and upon perusal of the record, the Commissioner for Workmens Compensation, Madurai awarded compensation to the concerned workmen holding that the vehicle involved in the accident, which was owned by the appellant, was insured with respondent-National Insurance Company Ltd. at the time when the accident had taken place and, therefore, the Insurance Company was saddled with the liability to make payment of compensation to the respondent workmen.4. Being aggrieved by the compensation awarded by the Commissioner of Workmens Compensation to the respondent workmen, the Insurance Company had filed CMA Nos. 559-563 of 2003 and CMP Nos.4586-4590 of 2003 in the High Court of Judicature at Madras.5. After hearing the concerned parties, the High Court reversed the findings of the Commissioner for Workmens Compensation and came to a conclusion that the vehicle involved in the accident was not insured with National Insurance Company Ltd. on the date of the accident and, therefore, the Insurance Company was absolved from its liability to make payment of compensation to the respondent workmen and the present appellant, owner of the vehicle, was saddled with the liability of paying compensation to the respondent workmen.6. The issue which has arisen in all these appeals is whether on the date of the accident, the vehicle in question was insured with National Insurance Company Ltd. 7. It is an admitted fact that the accident had taken place on 3rd April, 1998. 8. Case of the appellant-owner before the Commissioner for Workmens Compensation was that the vehicle in question had been insured with the respondent, Insurance Company for a period commencing from 14th May, 1997 to 13th May, 1998 and believing the aforestated submission to be correct, the Commissioner had directed that compensation be paid by the Insurance Company. 9. The aforestated finding arrived at by the Commissioner had not been accepted by the High Court as the High Court came to the conclusion that the vehicle in question was insured for a period commencing from 3rd March, 1997 to 2nd March, 1998 and, therefore, the vehicle was not insured on the date when the accident had taken place. 10. The learned counsel appearing for the appellant-owner of vehicle submitted that the aforesaid finding arrived at by the High Court is not correct for the reason that the vehicle was insured for a year commencing from 14th May, 1997 to 13th May, 1998. He referred to the evidence which had been adduced before the Commissioner. He drew our attention to the cover note given to the appellant by the Development Officer of the respondent Insurance Company (Exhibit R1) showing that the vehicle in question was insured from 14th May, 1997 to 13th May, 1998. He submitted that as the aforestated evidence was accepted by the Commissioner, there was no reason for the High Court to interfere with the said finding and, therefore, the appeals filed by the appellant deserved to be accepted.11. On the other hand, Mr. Gupta, learned counsel appearing for the respondent-Insurance Company vehemently submitted that for the reasons recorded in the judgment, the High Court had rightly accepted that the vehicle in question was insured for a year commencing from 3rd March, 1997 to 2nd March, 1998. He drew our attention to the fact that the amount of premium was paid in cash on 3rd March, 1997 and the said fact was duly recorded in the premium register, a copy of which had been exhibited as Exhibit R2-7. He further submitted that as per postage book of the Insurance Company, the insurance policy had been dispatched on 25th March, 1997. He submitted that in normal circumstances, upon receipt of cash by way of premium, cover note is sent to the concerned person and after about a fortnight, insurance policy is sent to the concerned person. He further drew our attention to a copy of cover note which had been issued by the Insurance Company stating the fact that premium was paid in cash on 3rd March, 1997.12. Upon hearing the concerned counsel and upon perusal of the relevant evidence contained in the paper book, we are of the view that the findings arrived at by the High Court need not be disturbed. 13. Whether the vehicle in question was insured at the time of accident i.e. on 3rd April, 1998 is a question of fact. After appreciating the evidence, the High Court came to the conclusion that the vehicle in question was not insured on 3rd April, 1998 and the vehicle in question had been insured for a period commencing from 3rd March, 1997 to 2nd March, 1998. The High Court has recorded sound reasons for coming to the said conclusion after carefully appreciating the evidence adduced before the Commissioner. Postage book of the Insurance Company shows that the insurance policy was dispatched on 25th March, 1997. This clearly denotes that the policy was taken prior to 25th March, 1997 and, therefore, the High Court rightly believed the version of the Insurance Company. This fact rules out the possibility of the vehicle being insured on 3rd April, 1998 as submitted on behalf of the respondent workmen and the appellant. Moreover, the cover note relied upon by the respondent workmen was not found to be genuine by the High Court. We are, therefore, in agreement with the view expressed by the High Court.14. Looking to the facts of the case, in our opinion, no legal issue is involved in these appeals and there is no reason to interfere with the findings arrived at by the High Court, which appear to be just and proper. 7 15. For the aforestated reasons, we | 0[ds]13. Whether the vehicle in question was insured at the time of accident i.e. on 3rd April, 1998 is a question of fact. After appreciating the evidence, the High Court came to the conclusion that the vehicle in question was not insured on 3rd April, 1998 and the vehicle in question had been insured for a period commencing from 3rd March, 1997 to 2nd March, 1998. The High Court has recorded sound reasons for coming to the said conclusion after carefully appreciating the evidence adduced before the Commissioner. Postage book of the Insurance Company shows that the insurance policy was dispatched on 25th March, 1997. This clearly denotes that the policy was taken prior to 25th March, 1997 and, therefore, the High Court rightly believed the version of the Insurance Company. This fact rules out the possibility of the vehicle being insured on 3rd April, 1998 as submitted on behalf of the respondent workmen and the appellant. Moreover, the cover note relied upon by the respondent workmen was not found to be genuine by the High Court. We are, therefore, in agreement with the view expressed by the High Court. | 0 | 1,149 | 217 | ### 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:
owner of a vehicle and her workmen had been injured in an accident while they were travelling in a vehicle owned by the appellant. As the concerned respondent workmen had suffered injuries in an accident arising out of and in the course of their employment on 3rd April, 1998, they had filed cases claiming compensation before the Commissioner for Workmens Compensation, Madurai.3. After hearing the concerned parties and upon perusal of the record, the Commissioner for Workmens Compensation, Madurai awarded compensation to the concerned workmen holding that the vehicle involved in the accident, which was owned by the appellant, was insured with respondent-National Insurance Company Ltd. at the time when the accident had taken place and, therefore, the Insurance Company was saddled with the liability to make payment of compensation to the respondent workmen.4. Being aggrieved by the compensation awarded by the Commissioner of Workmens Compensation to the respondent workmen, the Insurance Company had filed CMA Nos. 559-563 of 2003 and CMP Nos.4586-4590 of 2003 in the High Court of Judicature at Madras.5. After hearing the concerned parties, the High Court reversed the findings of the Commissioner for Workmens Compensation and came to a conclusion that the vehicle involved in the accident was not insured with National Insurance Company Ltd. on the date of the accident and, therefore, the Insurance Company was absolved from its liability to make payment of compensation to the respondent workmen and the present appellant, owner of the vehicle, was saddled with the liability of paying compensation to the respondent workmen.6. The issue which has arisen in all these appeals is whether on the date of the accident, the vehicle in question was insured with National Insurance Company Ltd. 7. It is an admitted fact that the accident had taken place on 3rd April, 1998. 8. Case of the appellant-owner before the Commissioner for Workmens Compensation was that the vehicle in question had been insured with the respondent, Insurance Company for a period commencing from 14th May, 1997 to 13th May, 1998 and believing the aforestated submission to be correct, the Commissioner had directed that compensation be paid by the Insurance Company. 9. The aforestated finding arrived at by the Commissioner had not been accepted by the High Court as the High Court came to the conclusion that the vehicle in question was insured for a period commencing from 3rd March, 1997 to 2nd March, 1998 and, therefore, the vehicle was not insured on the date when the accident had taken place. 10. The learned counsel appearing for the appellant-owner of vehicle submitted that the aforesaid finding arrived at by the High Court is not correct for the reason that the vehicle was insured for a year commencing from 14th May, 1997 to 13th May, 1998. He referred to the evidence which had been adduced before the Commissioner. He drew our attention to the cover note given to the appellant by the Development Officer of the respondent Insurance Company (Exhibit R1) showing that the vehicle in question was insured from 14th May, 1997 to 13th May, 1998. He submitted that as the aforestated evidence was accepted by the Commissioner, there was no reason for the High Court to interfere with the said finding and, therefore, the appeals filed by the appellant deserved to be accepted.11. On the other hand, Mr. Gupta, learned counsel appearing for the respondent-Insurance Company vehemently submitted that for the reasons recorded in the judgment, the High Court had rightly accepted that the vehicle in question was insured for a year commencing from 3rd March, 1997 to 2nd March, 1998. He drew our attention to the fact that the amount of premium was paid in cash on 3rd March, 1997 and the said fact was duly recorded in the premium register, a copy of which had been exhibited as Exhibit R2-7. He further submitted that as per postage book of the Insurance Company, the insurance policy had been dispatched on 25th March, 1997. He submitted that in normal circumstances, upon receipt of cash by way of premium, cover note is sent to the concerned person and after about a fortnight, insurance policy is sent to the concerned person. He further drew our attention to a copy of cover note which had been issued by the Insurance Company stating the fact that premium was paid in cash on 3rd March, 1997.12. Upon hearing the concerned counsel and upon perusal of the relevant evidence contained in the paper book, we are of the view that the findings arrived at by the High Court need not be disturbed. 13. Whether the vehicle in question was insured at the time of accident i.e. on 3rd April, 1998 is a question of fact. After appreciating the evidence, the High Court came to the conclusion that the vehicle in question was not insured on 3rd April, 1998 and the vehicle in question had been insured for a period commencing from 3rd March, 1997 to 2nd March, 1998. The High Court has recorded sound reasons for coming to the said conclusion after carefully appreciating the evidence adduced before the Commissioner. Postage book of the Insurance Company shows that the insurance policy was dispatched on 25th March, 1997. This clearly denotes that the policy was taken prior to 25th March, 1997 and, therefore, the High Court rightly believed the version of the Insurance Company. This fact rules out the possibility of the vehicle being insured on 3rd April, 1998 as submitted on behalf of the respondent workmen and the appellant. Moreover, the cover note relied upon by the respondent workmen was not found to be genuine by the High Court. We are, therefore, in agreement with the view expressed by the High Court.14. Looking to the facts of the case, in our opinion, no legal issue is involved in these appeals and there is no reason to interfere with the findings arrived at by the High Court, which appear to be just and proper. 7 15. For the aforestated reasons, we
### Response:
0
### Explanation:
13. Whether the vehicle in question was insured at the time of accident i.e. on 3rd April, 1998 is a question of fact. After appreciating the evidence, the High Court came to the conclusion that the vehicle in question was not insured on 3rd April, 1998 and the vehicle in question had been insured for a period commencing from 3rd March, 1997 to 2nd March, 1998. The High Court has recorded sound reasons for coming to the said conclusion after carefully appreciating the evidence adduced before the Commissioner. Postage book of the Insurance Company shows that the insurance policy was dispatched on 25th March, 1997. This clearly denotes that the policy was taken prior to 25th March, 1997 and, therefore, the High Court rightly believed the version of the Insurance Company. This fact rules out the possibility of the vehicle being insured on 3rd April, 1998 as submitted on behalf of the respondent workmen and the appellant. Moreover, the cover note relied upon by the respondent workmen was not found to be genuine by the High Court. We are, therefore, in agreement with the view expressed by the High Court.
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Dilip Vs. Rekha | Not only had the wife pleaded the aforesaid facts, but the wife had also pleaded that the husband had misappropriated a sum of Rs.7,500/- that was received by her towards the sale of her TVS Scooty and had mis-utilized a sum of Rs.17,000/- that was required to be utilised for the purchase of her Honda-Activa.The wife has finally admitted in her cross-examination that though the husband had harassed her, she was ready to cohabit with him. This statement could be made only if there was a compulsion on the wife to stay with the husband. Such a statement should not have been made by the wife when she had filed the petition for restitution of conjugal rights. Most of the statements made by the wife in the petition have been falsified by her evidence in the cross-examination. The husband wanted to change the wife every four years was falsified as this was the second marriage of the husband and the first marriage of the husband lasted more than 13 years. The wife had also admitted that she had no property in her name and that the husband was earning much more than her. She had further admitted in her cross-examination that both the husband and the wife contributed for the household expenses. If that be so, the claim of the wife that the husband had married her for the purpose of grabbing her money, was false. The case of the wife that the entire household expenses were borne by her was also falsified by her, in the cross-examination that the husband and wife contributed towards the household expenses. It is also difficult to believe the case of the wife that the husband had threatened the wife that he would murder her two daughters from the first marriage as if it was so, the wife would have never approached the Family Court with a prayer for restitution of conjugal rights.13. The Family Court, however, did not consider the entire evidence tendered by the parties on record. The Family Court recorded the reasons only in a couple of paragraphs of the short judgment that is challenged in this Family Court Appeal. The Family Court has rejected the entire evidence of the husband in regard to the acts of cruelty by the wife only on the ground that the husband had not adduced the evidence of independent witness that had reliable knowledge or information in regard to the acts of cruelty including his allegation in respect of witchcraft being practised by the wife. The Family Court erroneously observed that the case of the husband that the wife scratched his cheek and he suffered a bleeding injury was false and he did not produce any medical evidence to that effect. No husband whose cheek has been clawed and who suffers an injury due to the act of her wife would approach the Doctor and secure a medical certificate for the same. The entire evidence of the husband is lightly brushed aside solely on the ground that the husband had not examined independent witnesses and had not produced medical certificate. The observations of the Family Court to the aforesaid effect are incorrect. In fact, the wife had not examined any witness in support of her case. The husband had examined two independent witnesses, namely, Allem Mohd. from his locality, who had personal knowledge about the nature of the husband and wife and the Bank Supervisor who deposed that the husband had secured a loan from the Bank. In fact, it was necessary for the wife to have examined some witnesses to prove that the husband was behaving badly with her, that he threw the hot water from the bath room, that he was regularly shouting loudly and was switching off the lights from the room in which the daughters from her first husband were studying.The wife could have examined one of her daughters who were of marriage age to tender evidence in the Court in respect of at least switching off the lights when they were studying. However, the wife did not examine any witness in support of her case, apart from herself. The Family Court erroneously disbelieved the evidence of Aleem Mohd. solely on the ground that he was residing in the same locality and was the friend of the husband. In fact, a person from the same locality only could tender evidence on the facts involved in the case. Merely because Aleem Mohd. was the friend of the husband, his evidence could not have been lightly brushed aside. The Family Court did not consider that the wife had painted a very dark picture of her husband and despite that she was seeking a decree for restitution of conjugal rights. The Family Court observed that there was no concrete reason for the parties to live separately. On the basis of the pleadings of the parties, both the husband and the wife, it was necessary for the Family Court to hold that there were several justifiable reasons for the parties to live separately. The statement of wife that though the husband had behaved badly with her and had harassed her, she is ready to join his company cannot be enough for granting a decree for restitution of conjugal rights. On a perusal of entire evidence on record, we are clearly of the view that it is necessary to hold that the husband had not withdrawn from the company of the wife without any just and reasonable excuse. In the circumstances of the case, it was not possible for a middle aged parties to stay under one roof and the parties had separated. The Family Court ought not have granted a decree for restitution of conjugal rights in favour of the wife without considering the entire evidence on record. Neither is the evidence considered by the Family Court nor is it discussed in detail. We are firmly of the view that the Family Court was not justified in granting a decree for restitution of conjugal rights. | 1[ds]The wife could have examined one of her daughters who were of marriage age to tender evidence in the Court in respect of at least switching off the lights when they were studying. However, the wife did not examine any witness in support of her case, apart from herself. The Family Court erroneously disbelieved the evidence of Aleem Mohd. solely on the ground that he was residing in the same locality and was the friend of the husband. In fact, a person from the same locality only could tender evidence on the facts involved in the case. Merely because Aleem Mohd. was the friend of the husband, his evidence could not have been lightly brushed aside. The Family Court did not consider that the wife had painted a very dark picture of her husband and despite that she was seeking a decree for restitution of conjugal rights. The Family Court observed that there was no concrete reason for the parties to live separately. On the basis of the pleadings of the parties, both the husband and the wife, it was necessary for the Family Court to hold that there were several justifiable reasons for the parties to live separately. The statement of wife that though the husband had behaved badly with her and had harassed her, she is ready to join his company cannot be enough for granting a decree for restitution of conjugal rights. On a perusal of entire evidence on record, we are clearly of the view that it is necessary to hold that the husband had not withdrawn from the company of the wife without any just and reasonable excuse. In the circumstances of the case, it was not possible for a middle aged parties to stay under one roof and the parties had separated. The Family Court ought not have granted a decree for restitution of conjugal rights in favour of the wife without considering the entire evidence on record. Neither is the evidence considered by the Family Court nor is it discussed in detail. We are firmly of the view that the Family Court was not justified in granting a decree for restitution of conjugal rights. | 1 | 4,649 | 391 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
Not only had the wife pleaded the aforesaid facts, but the wife had also pleaded that the husband had misappropriated a sum of Rs.7,500/- that was received by her towards the sale of her TVS Scooty and had mis-utilized a sum of Rs.17,000/- that was required to be utilised for the purchase of her Honda-Activa.The wife has finally admitted in her cross-examination that though the husband had harassed her, she was ready to cohabit with him. This statement could be made only if there was a compulsion on the wife to stay with the husband. Such a statement should not have been made by the wife when she had filed the petition for restitution of conjugal rights. Most of the statements made by the wife in the petition have been falsified by her evidence in the cross-examination. The husband wanted to change the wife every four years was falsified as this was the second marriage of the husband and the first marriage of the husband lasted more than 13 years. The wife had also admitted that she had no property in her name and that the husband was earning much more than her. She had further admitted in her cross-examination that both the husband and the wife contributed for the household expenses. If that be so, the claim of the wife that the husband had married her for the purpose of grabbing her money, was false. The case of the wife that the entire household expenses were borne by her was also falsified by her, in the cross-examination that the husband and wife contributed towards the household expenses. It is also difficult to believe the case of the wife that the husband had threatened the wife that he would murder her two daughters from the first marriage as if it was so, the wife would have never approached the Family Court with a prayer for restitution of conjugal rights.13. The Family Court, however, did not consider the entire evidence tendered by the parties on record. The Family Court recorded the reasons only in a couple of paragraphs of the short judgment that is challenged in this Family Court Appeal. The Family Court has rejected the entire evidence of the husband in regard to the acts of cruelty by the wife only on the ground that the husband had not adduced the evidence of independent witness that had reliable knowledge or information in regard to the acts of cruelty including his allegation in respect of witchcraft being practised by the wife. The Family Court erroneously observed that the case of the husband that the wife scratched his cheek and he suffered a bleeding injury was false and he did not produce any medical evidence to that effect. No husband whose cheek has been clawed and who suffers an injury due to the act of her wife would approach the Doctor and secure a medical certificate for the same. The entire evidence of the husband is lightly brushed aside solely on the ground that the husband had not examined independent witnesses and had not produced medical certificate. The observations of the Family Court to the aforesaid effect are incorrect. In fact, the wife had not examined any witness in support of her case. The husband had examined two independent witnesses, namely, Allem Mohd. from his locality, who had personal knowledge about the nature of the husband and wife and the Bank Supervisor who deposed that the husband had secured a loan from the Bank. In fact, it was necessary for the wife to have examined some witnesses to prove that the husband was behaving badly with her, that he threw the hot water from the bath room, that he was regularly shouting loudly and was switching off the lights from the room in which the daughters from her first husband were studying.The wife could have examined one of her daughters who were of marriage age to tender evidence in the Court in respect of at least switching off the lights when they were studying. However, the wife did not examine any witness in support of her case, apart from herself. The Family Court erroneously disbelieved the evidence of Aleem Mohd. solely on the ground that he was residing in the same locality and was the friend of the husband. In fact, a person from the same locality only could tender evidence on the facts involved in the case. Merely because Aleem Mohd. was the friend of the husband, his evidence could not have been lightly brushed aside. The Family Court did not consider that the wife had painted a very dark picture of her husband and despite that she was seeking a decree for restitution of conjugal rights. The Family Court observed that there was no concrete reason for the parties to live separately. On the basis of the pleadings of the parties, both the husband and the wife, it was necessary for the Family Court to hold that there were several justifiable reasons for the parties to live separately. The statement of wife that though the husband had behaved badly with her and had harassed her, she is ready to join his company cannot be enough for granting a decree for restitution of conjugal rights. On a perusal of entire evidence on record, we are clearly of the view that it is necessary to hold that the husband had not withdrawn from the company of the wife without any just and reasonable excuse. In the circumstances of the case, it was not possible for a middle aged parties to stay under one roof and the parties had separated. The Family Court ought not have granted a decree for restitution of conjugal rights in favour of the wife without considering the entire evidence on record. Neither is the evidence considered by the Family Court nor is it discussed in detail. We are firmly of the view that the Family Court was not justified in granting a decree for restitution of conjugal rights.
### Response:
1
### Explanation:
The wife could have examined one of her daughters who were of marriage age to tender evidence in the Court in respect of at least switching off the lights when they were studying. However, the wife did not examine any witness in support of her case, apart from herself. The Family Court erroneously disbelieved the evidence of Aleem Mohd. solely on the ground that he was residing in the same locality and was the friend of the husband. In fact, a person from the same locality only could tender evidence on the facts involved in the case. Merely because Aleem Mohd. was the friend of the husband, his evidence could not have been lightly brushed aside. The Family Court did not consider that the wife had painted a very dark picture of her husband and despite that she was seeking a decree for restitution of conjugal rights. The Family Court observed that there was no concrete reason for the parties to live separately. On the basis of the pleadings of the parties, both the husband and the wife, it was necessary for the Family Court to hold that there were several justifiable reasons for the parties to live separately. The statement of wife that though the husband had behaved badly with her and had harassed her, she is ready to join his company cannot be enough for granting a decree for restitution of conjugal rights. On a perusal of entire evidence on record, we are clearly of the view that it is necessary to hold that the husband had not withdrawn from the company of the wife without any just and reasonable excuse. In the circumstances of the case, it was not possible for a middle aged parties to stay under one roof and the parties had separated. The Family Court ought not have granted a decree for restitution of conjugal rights in favour of the wife without considering the entire evidence on record. Neither is the evidence considered by the Family Court nor is it discussed in detail. We are firmly of the view that the Family Court was not justified in granting a decree for restitution of conjugal rights.
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Small Scale Industrial Manufactures Association (Regd.) Vs. Union of India and others | moratorium period. 30.2 As per the provisions of the DMA 2005, the responsibilities and functions of the discharge of functions by the NDMA would be confined to Section 6 of the Act. However, on-ground disaster management and relief measures shall have to be undertaken by the Central Ministries and the State Government Ministries depending upon the need of the disaster and only in a case where the NDMA is satisfied that the reliefs which are already announced are not sufficient and/or no steps are taken at all with respect to the reliefs mentioned in Section 13, the National Authority may recommend the reliefs in repayment of loans etc. Therefore, it cannot be said that the National Authority has failed to perform its duty as cast under Section 13 of the Act. 30.3 At this stage, it is required to be noted and so stated in the affidavit dated 31.08.2020 filed on behalf of the Union of India that NDMA also took cognizance of the issues being dealt with by the RBI and sent its views and recommendations given by O.M. dated 28.08.2020 and the NDMA also opined that RBI may consider granting further reliefs, as deemed appropriate, after considering and taking into account the financial relief packages issued by the Ministry of Finance, as well as, other relief measures that have already been issued/declared by the RBI itself. The views and recommendations of the NDMA were communicated to the RBI vide letter dated 31.08.2020. Therefore, it cannot be said that the NDMA has not stepped into at all. It is to be noted that even as per Section 13 of the Act, the National Authority may and recommend relief in repayment of loans or grant of fresh loans to the persons affected by disaster on such concessional terms as may be appropriate. Thereafter, as per the views and recommendations of the NDMA, RBI has come out with Resolution framework and on the basis of the same the lenders/bankers after getting the approval of their Board of Directors have come out with the policies. Thus, from the above, it cannot be said that NDMA has failed to perform its duty cast under Section 13 of the Act. From the above, it also cannot be said that there is no National Plan in existence at all. 31. Now so far as the charging of penal interest/interest on interest/compound interest during the moratorium period is concerned, it stands absolutely on a different footing. At this stage, it is required to be noted that in fact the Central Government has come out with a policy decision subsequently by which it is decided not to charge the interest on interest on the loans up to Rs. 2 crores. However, such relief is restricted to the following categories: (i) MSME loans up to Rs.2 crore (ii) Education loans up to Rs.2 crore (iii) Housing loans up to Rs.2 crore (iv) Consumer durable loans up to Rs.2 crore (v) Credit card dues up to Rs.2 crore (vi) Auto loans up to Rs.2 crore (vii) Personal loans to professionals up to Rs. 2 crore (viii) Consumption loans up to Rs.2 crore There is no justification shown to restrict the relief of not charging interest on interest with respect to the loans up to Rs. 2 crores only and that too restricted to the aforesaid categories. What are the basis to restrict it to Rs. 2 crores are not forthcoming. Therefore, as such, there is no rational to restrict such relief with respect to loans up to Rs. 2 crores only. Even otherwise, it is required to be noted that the scheme dated 23.10.2020 granting relief/benefit of waiver of compound interest/interest on interest contains eligibility criteria and it provides that any borrower whose aggregate of all facilities with lending institution is more than Rs. 2 crores (sanctioned limit or outstanding amount) will not be eligible for ex-gratia payment under the said scheme. Therefore, if the total exposure of the loan at the grant of the sanction is more than Rs. 2 crores, the borrower will be ineligible irrespective of the actual outstanding. For Example, if the borrower has been sanctioned a loan of Rs. 5 crores and has availed of the same, even though he might have repaid substantially bringing down the principal amount of less than Rs. 2 crores as on 29.02.2020, but because of the sanction of the loan amount of more than Rs. 2 crores, he will be ineligible. It also further provides that the outstanding amount should not be exceeded to Rs. 2 crores and for this purpose aggregate of all facilities with the lending institution will be reckoned. Therefore, if a borrower, for example, MSME Category has availed and has outstanding of business loan of Rs. 1.99 crores and also has dues of its credit card of Rs. 1.10 lakhs, thereby making the aggregate to Rs. 2.10 crores, it stands ineligible. Therefore, the aforesaid conditions would be arbitrary and discriminatory. 31.1 Even otherwise, it is required to be noted that compound interest/interest on interest shall be chargeable on deliberate/willful default by the borrower to pay the installments due and payable. Therefore, it is in the nature of a penal interest. By notification dated 27.03.2020, the Government has provided the deferment of the installments due and payable during the moratorium period. Once the payment of installment is deferred as per circular dated 27.03.2020, non-payment of the installment during the moratorium period cannot be said to be willful and therefore there is no justification to charge the interest on interest/compound interest/penal interest for the period during the moratorium. Therefore, we are of the opinion that there shall not be any charge of interest on interest/compound interest/penal interest for the period during the moratorium from any of the borrowers and whatever the amount is recovered by way of interest on interest/compound interest/penal interest for the period during the moratorium, the same shall be refunded and to be adjusted/given credit in the next instalment of the loan account. | 0[ds]14. In catena of decisions and time and again this Court has considered the limited scope of judicial review in economic policy matters. From various decisions of this Court, this Court has consistently observed and held as under:i) The Court will not debate academic matters or concern itself with intricacies of trade and commerce;ii) It is neither within the domain of the courts nor the scope of judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are the courts inclined to strike down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical. Wisdom and advisability of economic policy are ordinarily not amenable to judicial review;iii) Economic and fiscal regulatory measures are a field where Judges should encroach upon very warily as Judges are not experts in these matters.14.1 In R.K. Garg (supra), it has been observed and held that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion etc. It is further observed that the legislature should be allowed some play in the joints, because it has to deal with complex problems which do not admit of solution through any doctrinaire or strait-jacket formula and this particularly true in case of legislation dealing with economic matters.14.2 In the case of Arun Kumar Agrawal (supra), this Court had an occasion to consider the following observations made the Supreme Court of the United States in the case of Metropolis Theatre Co. v. Chicago, 57 L Ed 730: 228 US 61 (1913):…The problems of Government are practical ones and may justify, if they do not require, rough accommodation, illogical, if may be, and unscientific. But even such criticism should not be hastily expressed. What is the best is not always discernible; the wisdom of any choice may be disputed or condemned. Mere errors of Government are not subject to our judicial review. It is only its palpably arbitrary exercises which can be declared void…14.5 In the case of Peerless General Finance and Investment Co. Ltd. (supra), it is observed and held by this Court that the function of the Court is to see that lawful authority is not abused but not to appropriate to itself the task entrusted to that authority. It is further observed that a public body invested with statutory powers must take care not to exceed or abuse its power. It must keep within the limits of the authority committed to it. It must act in good faith and it must act reasonably. Courts are not to interfere with economic policy which is the function of experts. It is not the function of the courts to sit in judgment over matters of economic policy and it must necessarily be left to the expert bodies. In such matters even experts can seriously and doubtlessly differ. Courts cannot be expected to decide them without even the aid of experts.It is further observed that it is not the function of the Court to amend and lay down some other directions. The function of the court is not to advise in matters relating to financial and economic policies for which bodies like RBI are fully competent. The court can only strike down some or entire directions issued by the RBI in case the court is satisfied that the directions were wholly unreasonable or in violative of any provisions of the Constitution or any statute. It would be hazardous and risky for the courts to tread an unknown path and should leave such task to the expert bodies. This Court has repeatedly said that matters of economic policy ought to be left to the government.14.6 In the case of Narmada Bachao Andolan (supra), in paras 229 & 233, it is observed and held as under:229. It is now well settled that the courts, in the exercise of their jurisdiction, will not transgress into the field of policy decision. Whether to have an infrastructural project or not and what is the type of project to be undertaken and how it has to be executed, are part of policy-making process and the courts are ill- equipped to adjudicate on a policy decision so undertaken. The court, no doubt, has a duty to see that in the undertaking of a decision, no law is violated and peoples fundamental rights are not transgressed upon except to the extent permissible under the Constitution.233. At the same time, in exercise of its enormous power the court should not be called upon to or undertake governmental duties or functions. The courts cannot run the Government nor can the administration indulge in abuse or non-use of power and get away with it. The essence of judicial review is a constitutional fundamental. The role of the higher judiciary under the Constitution casts on it a great obligation as the sentinel to defend the values of the Constitution and the rights of Indians. The courts must, therefore, act within their judicial permissible limitations to uphold the rule of law and harness their power in public interest. It is precisely for this reason that it has been consistently held by this Court that in matters of policy the court will not interfere. When there is a valid law requiring the Government to act in a particular manner the court ought not to, without striking down the law, give any direction which is not in accordance with law. In other words, the court itself is not above the law.14.7 In Prag Ice & Oil Mills (supra), this Court observed as under:We do not think that it is the function of the Court to set in judgment over such matters of economic policy as must necessarily be left to the government of the day to decide. Many of them are matters of prediction of ultimate results on which even experts can seriously err and doubtlessly differ. Courts can certainly not be expected to decide them without even the aid of experts.14.8 In P.T.R Exports (Madras) P. Ltd. (supra), this Court observed as under:In matters of economic policy, it is settled law that the Court gives a large leeway to the executive and the legislature-Government would take diverse factors for formulating the policy in the overall larger interest of the economy of the country-The Court therefore would prefer to allow free play to the Government to evolve fiscal policy in the public interest and to act upon the same.15. What is best in the national economy and in what manner and to what extent the financial reliefs/packages be formulated, offered and implemented is ultimately to be decided by the Government and RBI on the aid and advise of the experts. The same is a matter for decision exclusively within the province of the Central Government. Such matters do not ordinarily attract the power of judicial review. Merely because some class/sector may not be agreeable and/or satisfied with such packages/policy decisions, the courts, in exercise of the power of judicial review, do not ordinarily interfere with the policy decisions, unless such policy could be faulted on the ground of mala fide, arbitrariness, unfairness etc.It is the cardinal principle that it is not within the legitimate domain of the court to determine whether a particular policy decision can be served better by adopting any policy different from what has been laid down and to strike down as unreasonable merely on the ground that the policy enunciated does not meet with the approval of the court in regard to its efficaciousness for implementation of the object and purpose of such policy decision.22. With the limited scope of judicial review on the policy decisions affecting the economy and/or it might have financial implications on the economy of the country, the reliefs and submissions stated hereinabove are required to be considered. Whether there shall be a waiver of interest during the moratorium period or whether there shall be sector-wise relief packages and/or RBI should have issued directions which are sector specific and addressing such sector specific issues and/or whether the moratorium period should be extended beyond 31.08.2020 or the last date for invocation of the resolution mechanism, namely, 31.12.2020 provided in the 6.8.2020 circular should be extended are all in the realm of the policy decisions. Not only that, if such reliefs are granted, it would seriously affect the banking sectors and it would have far reaching financial implications on the economy of the country.23. Now so far as the relief sought of waiver of interest during the moratorium period is concerned, it is required to be noted that the bankers/lenders have to pay the interest to the depositors and their liability to pay the interest on the deposits continue even during the moratorium period. There shall be administrative expenses also required to be borne by the bankers/lenders. Continue payment of interest to depositors is not only one of the most essential banking activities but it shall be a huge responsibility owed by the banks to crores and crores of small depositors, pensioners etc. surviving on the interest from their deposits. There may be several welfare funds schemes, category specific and sector specific which might be surviving and are implemented on the strength of the interest generated from their deposits. All such welfare funds would depend on the income generated from their deposits for the survival of their members. Therefore, to grant such a relief of total waiver of interest during the moratorium period would have a far-reaching financial implication in the economy of the country as well as the lenders/banks. Therefore, when a conscious decision has been taken not to waive the interest during the moratorium period and a policy decision has been taken to give relief to the borrowers by deferring the payment of installments and so many other reliefs are offered by the RBI and thereafter by the bankers independently considering the Report submitted by Kamath Committee consisting of experts, the interference of the court is not called for.24. Now so far as the submission on behalf of the petitioners that the RBI should have issued directions which are sector specific and addressing such sector specific issues is concerned, at the outset, it is required to be noted that as such the Committee headed by Shri K.V. Kamath had gone into such sector specific issues and gave its recommendations. The recommendations of the Kamath Committee have been substantially accepted by the RBI in its circular dated 7.9.2020 which provides for separate threshold for 26 sectors including power, real estate and construction. Even otherwise, it is required to be noted that every sector might have suffered differently and therefore it will not be possible to provide sector specific/sector-wise reliefs. The petitioners cannot pray for sector specific relief by either waiver of interest or restructuring by way of present proceedings under Article 32 of the Constitution of India and the question of such financial stress management measures requires examination and consideration of several financial parameters and its impact.25. Now so far as the submission on behalf of the petitioners that as per the notifications/circulars/reliefs offered by the RBI and/or Finance Department of the Union of India ultimately it is left to the bankers and it should not have been left to the bankers and the Government/RBI must intervene and provide further reliefs is concerned, at the outset, it is required to be noted that as such the bankers are commercial entities and since the customer profile, organizational structure and spread of each lending institution is widely different from others, each lending institution is best placed to assess the requirements of its customers and therefore, the discretion was left to the lending institutions concerned. Any borrowing arrangement is a commercial contract between the lender and the borrower. RBI and/or the Union of India can provide for broad guidelines while recommending to give the reliefs.26. Now so far as the submission on behalf of the petitioners that the relief packages which are offered by the UOI/RBI/Bankers/Lenders are not sufficient and some better and/or more reliefs should be offered is concerned, it is not within the judicial scope of the courts to issue such directions. No mandamus can be issued to grant some more reliefs/packages. As observed hereinabove, the court cannot interfere with the economic policy decisions on the ground that either they are not sufficient or efficacious and/or some more reliefs should have been granted. The Government might have their own priorities and the Government has to spend in various fields and in the present case like health, medicine, providing food etc. Even as per the case of the Union of India and so stated in the counter filed on behalf of the Union of India and the RBI, so many policies have been announced to mitigate the impact of Covid-19 pandemic, which are referred to hereinabove.As can be seen that as such the Central Government has already given various reliefs and by providing various reliefs, they have already expanded huge financial burden. It is required to be noted that pandemic has caused stress to large and small businesses and the individuals who have lost jobs and livelihoods. By and large, everybody has suffered due to lockdown due to Covid-19 pandemic. Even the Government has also suffered due to non-recovery of GST. From the counter filed on behalf of the Central Government, it appears that the Government has announced and offered Garib Kalyan Package and Aatma Nirbhar Package. The Garib Kalyan Package was for Rs.1.70 lakh crores, involving free food grains, pulses, gas cylinders and cash payment to women, poor senior citizens and farmers. It is reported that more than 42 crore poor people received financial assistance of Rs. 65,454 crores under the said package. The Government has also come out with Aatma Nirbhar Package which was for Rs. 20 lakh crores, involving support to MSMEs, Non-Banking Finance Companies, agriculture, sectors allied to agriculture, contractors, street vendors, State Governments, relief in provident fund contribution, extension of subsidy on home loans etc. Therefore, it cannot be said that the Central Government and/or the RBI have not done anything and/or have not offered any reliefs whatsoever. While offering the financial relief packages, the financial constraint and/or financial burden on the government is also required to be considered and borne in mind, which can be considered by the experts and the government and the courts have not expertise to assess the financial burden.From the various steps/measures/policy decisions/packages declared by the Union of India/RBI and the bankers, it cannot be said that the UOI and/or the RBI have not at all addressed the issues related to the impact of Covid-19 on the borrowers. As such, none of the petitioners have specifically challenged the various circulars/policy decisions taken by the UOI/RBI. From the submissions made by the learned counsel appearing for the respective parties, it appears that the borrowers want something more than the reliefs announced. Merely, since the reliefs announced by the UOI/RBI ither may not be suiting the desires of the borrowers, the reliefs/policy decisions related to Covid-19 cannot be said to be arbitrary and/or violative of Article 14 of the Constitution of India. It cannot be said that any of the fundamental rights guaranteed under the Constitution are infringed and/or violated. Economic decisions are required to be taken keeping the larger economic scenario in mind.27. Similarly, the relief sought that the moratorium period should be extended and/or the last date for invocation of the resolution mechanism namely 31.12.2020 provided under the 06.08.2020 circular should be extended are all in the realm of policy decisions. Even otherwise, almost five months were available to eligible borrowers when circular dated 6.8.2020 was notified providing for a separate resolution mechanism for Covid- 19 related stressed assets. Therefore, sufficient time was given to invoke the resolution mechanism.Therefore, the petitioners shall not be entitled to any reliefs, namely,(i) total waiver of interest during the moratorium period;(ii) to extend the period of moratorium;(iii) to extend the period for invocation of the resolution mechanism, namely 31.12.2020 provided under the 6.8.2020 circular;(iv) that there shall be sector-wise reliefs provided by the RBI; and(v) that the Central Government/RBI must provide for some further reliefs over and above the relief packages already offered which, as observed hereinabove, can be said to be in the realm of the economic policy decisions and for the reasons stated hereinabove and as observed hereinabove granting of any such reliefs would have a far-reaching financial implication on the economy of the country. It appears, whatever best can be offered has been offered for the different fields and to the common people as well as those persons who are affected due to Covid-10 pandemic. However, the relief/prayer not to charge the penal interest/interest on interest/compound interest during the moratorium period is concerned, it stands on different footing which shall be dealt with hereinbelow.28. Now so far as the submission of Shri Sibbal, learned Senior Advocate that there is no National Plan drawn up for the disaster management due to Covid-19 pandemic and that NDMA has not performed its duty under the DMA 2005 is concerned, to appreciate the above, the relevant provisions of DMA 2005 are required to be referred to and considered.29. From the aforesaid, it can be said that the DMA 2005 is a complete code in itself and different functions and responsibilities by different authorities to be performed at different levels are provided. As per Sections 35 and 36 of the Act, it shall be the responsibility of the Ministry or the Department of the Government of India to take measures necessary for prevention of disaster, mitigation, preparedness and capacity-building which shall include to allocate funds for measures for preparation of disaster, mitigation, capacity-building and preparedness.Therefore, on conjoint reading of the relevant provisions of the DMA 2005, which are referred to hereinabove, it cannot be said that the functions of all the Ministries are to be discharged by the NDMA which should take decision qua the area in each Ministry. It also cannot be said that the functions of the Ministries will stand transferred to the NDMA and will have to be discharged by the NDMA either directly or indirectly for the purpose of disaster management. Various Ministries under the Central Government have to take various relief measures within their respective spheres for remedying the effects of the disaster. From the pleadings, it is borne out that in fact there is already a National Disaster Management Plan prepared even prior to the Covid-19 pandemic. Under the National Plan, there is a National Disaster Management Institutional Mechanism, which is reproduced hereinabove. The said plan also envisages nodal ministries for management of different disasters. For example, if the disaster is due to drought, Ministry of Agriculture and Farmers Welfare would be the nodal agency; if the disaster is due to floods, Ministry of Housing and Urban Affairs would be the nodal agency and if the disaster is due to biological emergencies, the Ministry of Health and Welfare would be the nodal agency. The disaster due to Covid-19 pandemic would fall under disaster due to biological emergencies. However, it appears that Covid-19 pandemic disaster is of such a nature that it could not be confined to one nodal ministry and whatever measures/reliefs are required to be taken/given are provided by every Ministry in each and every day needed. Therefore, various reliefs/packages are provided by different Ministries, such as, Ministry of Railways, Ministry of Finance, Ministry of Health and Family Welfare etc. It also appears that even considering the very nature of the pandemic which would have PAN-India impact, empowered groups were constituted by the National Disaster Management Authority. Therefore, when there is already in existence a National Plan, which might have been prepared even prior to the Covid-19 pandemic, it cannot be said that there is no National Plan by the NDMA at all. National Plan would be for a long term and even with respect to disaster to happen in future. For every disaster, there shall not be a new National Plan. National Plan would be comprehensive in nature which is already there in existence. Therefore, the submission of Shri Sibbal, learned Senior Advocate that there is no National Plan at all and therefore the NDMA has failed to perform its duty cannot be accepted.30. Now so far as the submission on behalf of the learned counsel for the respective petitioners that the NDMA has failed to perform its duty cast under Section 13 of the Act is concerned, at the outset, it is required to be noted that the word used in Section 13 is may and not shall. As per the settled proposition of law, while interpreting a particular provision, the language used is to be read as it is. On a fair reading of Section 13, it appears that the legislature has deliberately used the word may. This may is used after considering the object and purpose of the Act as a whole as well as the role to be placed by the Central Government through different ministries, role to be placed by the State Government, role to be played by the District Authority at the district level. In the present case, the Ministry of Finance and the RBI have already come out with different packages/reliefs in repayment of loans or grant of fresh loans to the persons affected by disaster.30.1 Even the Central Government through Ministry of Finance and the RBI has taken various steps for granting reliefs to the disaster affected borrowers. The Central Government has announced the Garib Kalyan Package for Rs.2.00 lakh crores, involving free food grains, pulses, gas cylinders and cash payment to women, poor senior citizens and farmers; Aatma Nirbhar Package for various sectors like power sector, real estate sector, MSME sector. The Central Government also promulgated Emergency Credit-Linked Guarantee Scheme of Rs. 3 lakh crores providing additional credit at lower rate of interest, with 100% Government Guarantee and no fresh collateral. The scheme has been extended with higher financial limits to 27 Covid-19 impacted sectors including restaurant and hotel sectors. The Central Government has also granted Rs. 20,000 crores Subordinate Debt with partial credit guarantee for over two lakhs stressed MSME units including from hospitality sector. The Central Government has also granted Rs. 50,000 crores Fund of Funds for providing growth equity to MSMEs. The Central Government has also come out with a new definition of MSMEs for improving turnover caps for better access of schemes/benefits. There are other reliefs also announced by the Central Government. The Central Government has also declared the moratorium from March to August, 2020. The proceedings under the IBC are also suspended during the moratorium period.30.2 As per the provisions of the DMA 2005, the responsibilities and functions of the discharge of functions by the NDMA would be confined to Section 6 of the Act. However, on-ground disaster management and relief measures shall have to be undertaken by the Central Ministries and the State Government Ministries depending upon the need of the disaster and only in a case where the NDMA is satisfied that the reliefs which are already announced are not sufficient and/or no steps are taken at all with respect to the reliefs mentioned in Section 13, the National Authority may recommend the reliefs in repayment of loans etc. Therefore, it cannot be said that the National Authority has failed to perform its duty as cast under Section 13 of the Act.30.3 At this stage, it is required to be noted and so stated in the affidavit dated 31.08.2020 filed on behalf of the Union of India that NDMA also took cognizance of the issues being dealt with by the RBI and sent its views and recommendations given by O.M. dated 28.08.2020 and the NDMA also opined that RBI may consider granting further reliefs, as deemed appropriate, after considering and taking into account the financial relief packages issued by the Ministry of Finance, as well as, other relief measures that have already been issued/declared by the RBI itself. The views and recommendations of the NDMA were communicated to the RBI vide letter dated 31.08.2020. Therefore, it cannot be said that the NDMA has not stepped into at all. It is to be noted that even as per Section 13 of the Act, the National Authority may and recommend relief in repayment of loans or grant of fresh loans to the persons affected by disaster on such concessional terms as may be appropriate. Thereafter, as per the views and recommendations of the NDMA, RBI has come out with Resolution framework and on the basis of the same the lenders/bankers after getting the approval of their Board of Directors have come out with the policies. Thus, from the above, it cannot be said that NDMA has failed to perform its duty cast under Section 13 of the Act. From the above, it also cannot be said that there is no National Plan in existence at all.31. Now so far as the charging of penal interest/interest on interest/compound interest during the moratorium period is concerned, it stands absolutely on a different footing. At this stage, it is required to be noted that in fact the Central Government has come out with a policy decision subsequently by which it is decided not to charge the interest on interest on the loans up to Rs. 2 crores. However, such relief is restricted to the following categories:(i) MSME loans up to Rs.2 crore(ii) Education loans up to Rs.2 crore(iii) Housing loans up to Rs.2 crore(iv) Consumer durable loans up to Rs.2 crore(v) Credit card dues up to Rs.2 crore(vi) Auto loans up to Rs.2 crore(vii) Personal loans to professionals up to Rs. 2 crore(viii) Consumption loans up to Rs.2 croreThere is no justification shown to restrict the relief of not charging interest on interest with respect to the loans up to Rs. 2 crores only and that too restricted to the aforesaid categories. What are the basis to restrict it to Rs. 2 crores are not forthcoming. Therefore, as such, there is no rational to restrict such relief with respect to loans up to Rs. 2 crores only. Even otherwise, it is required to be noted that the scheme dated 23.10.2020 granting relief/benefit of waiver of compound interest/interest on interest contains eligibility criteria and it provides that any borrower whose aggregate of all facilities with lending institution is more than Rs. 2 crores (sanctioned limit or outstanding amount) will not be eligible for ex-gratia payment under the said scheme. Therefore, if the total exposure of the loan at the grant of the sanction is more than Rs. 2 crores, the borrower will be ineligible irrespective of the actual outstanding. For Example, if the borrower has been sanctioned a loan of Rs. 5 crores and has availed of the same, even though he might have repaid substantially bringing down the principal amount of less than Rs. 2 crores as on 29.02.2020, but because of the sanction of the loan amount of more than Rs. 2 crores, he will be ineligible. It also further provides that the outstanding amount should not be exceeded to Rs. 2 crores and for this purpose aggregate of all facilities with the lending institution will be reckoned. Therefore, if a borrower, for example, MSME Category has availed and has outstanding of business loan of Rs. 1.99 crores and also has dues of its credit card of Rs. 1.10 lakhs, thereby making the aggregate to Rs. 2.10 crores, it stands ineligible. Therefore, the aforesaid conditions would be arbitrary and discriminatory.31.1 Even otherwise, it is required to be noted that compound interest/interest on interest shall be chargeable on deliberate/willful default by the borrower to pay the installments due and payable. Therefore, it is in the nature of a penal interest. By notification dated 27.03.2020, the Government has provided the deferment of the installments due and payable during the moratorium period. Once the payment of installment is deferred as per circular dated 27.03.2020, non-payment of the installment during the moratorium period cannot be said to be willful and therefore there is no justification to charge the interest on interest/compound interest/penal interest for the period during the moratorium. Therefore, we are of the opinion that there shall not be any charge of interest on interest/compound interest/penal interest for the period during the moratorium from any of the borrowers and whatever the amount is recovered by way of interest on interest/compound interest/penal interest for the period during the moratorium, the same shall be refunded and to be adjusted/given credit in the next instalment of the loan account. | 0 | 30,845 | 5,228 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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moratorium period. 30.2 As per the provisions of the DMA 2005, the responsibilities and functions of the discharge of functions by the NDMA would be confined to Section 6 of the Act. However, on-ground disaster management and relief measures shall have to be undertaken by the Central Ministries and the State Government Ministries depending upon the need of the disaster and only in a case where the NDMA is satisfied that the reliefs which are already announced are not sufficient and/or no steps are taken at all with respect to the reliefs mentioned in Section 13, the National Authority may recommend the reliefs in repayment of loans etc. Therefore, it cannot be said that the National Authority has failed to perform its duty as cast under Section 13 of the Act. 30.3 At this stage, it is required to be noted and so stated in the affidavit dated 31.08.2020 filed on behalf of the Union of India that NDMA also took cognizance of the issues being dealt with by the RBI and sent its views and recommendations given by O.M. dated 28.08.2020 and the NDMA also opined that RBI may consider granting further reliefs, as deemed appropriate, after considering and taking into account the financial relief packages issued by the Ministry of Finance, as well as, other relief measures that have already been issued/declared by the RBI itself. The views and recommendations of the NDMA were communicated to the RBI vide letter dated 31.08.2020. Therefore, it cannot be said that the NDMA has not stepped into at all. It is to be noted that even as per Section 13 of the Act, the National Authority may and recommend relief in repayment of loans or grant of fresh loans to the persons affected by disaster on such concessional terms as may be appropriate. Thereafter, as per the views and recommendations of the NDMA, RBI has come out with Resolution framework and on the basis of the same the lenders/bankers after getting the approval of their Board of Directors have come out with the policies. Thus, from the above, it cannot be said that NDMA has failed to perform its duty cast under Section 13 of the Act. From the above, it also cannot be said that there is no National Plan in existence at all. 31. Now so far as the charging of penal interest/interest on interest/compound interest during the moratorium period is concerned, it stands absolutely on a different footing. At this stage, it is required to be noted that in fact the Central Government has come out with a policy decision subsequently by which it is decided not to charge the interest on interest on the loans up to Rs. 2 crores. However, such relief is restricted to the following categories: (i) MSME loans up to Rs.2 crore (ii) Education loans up to Rs.2 crore (iii) Housing loans up to Rs.2 crore (iv) Consumer durable loans up to Rs.2 crore (v) Credit card dues up to Rs.2 crore (vi) Auto loans up to Rs.2 crore (vii) Personal loans to professionals up to Rs. 2 crore (viii) Consumption loans up to Rs.2 crore There is no justification shown to restrict the relief of not charging interest on interest with respect to the loans up to Rs. 2 crores only and that too restricted to the aforesaid categories. What are the basis to restrict it to Rs. 2 crores are not forthcoming. Therefore, as such, there is no rational to restrict such relief with respect to loans up to Rs. 2 crores only. Even otherwise, it is required to be noted that the scheme dated 23.10.2020 granting relief/benefit of waiver of compound interest/interest on interest contains eligibility criteria and it provides that any borrower whose aggregate of all facilities with lending institution is more than Rs. 2 crores (sanctioned limit or outstanding amount) will not be eligible for ex-gratia payment under the said scheme. Therefore, if the total exposure of the loan at the grant of the sanction is more than Rs. 2 crores, the borrower will be ineligible irrespective of the actual outstanding. For Example, if the borrower has been sanctioned a loan of Rs. 5 crores and has availed of the same, even though he might have repaid substantially bringing down the principal amount of less than Rs. 2 crores as on 29.02.2020, but because of the sanction of the loan amount of more than Rs. 2 crores, he will be ineligible. It also further provides that the outstanding amount should not be exceeded to Rs. 2 crores and for this purpose aggregate of all facilities with the lending institution will be reckoned. Therefore, if a borrower, for example, MSME Category has availed and has outstanding of business loan of Rs. 1.99 crores and also has dues of its credit card of Rs. 1.10 lakhs, thereby making the aggregate to Rs. 2.10 crores, it stands ineligible. Therefore, the aforesaid conditions would be arbitrary and discriminatory. 31.1 Even otherwise, it is required to be noted that compound interest/interest on interest shall be chargeable on deliberate/willful default by the borrower to pay the installments due and payable. Therefore, it is in the nature of a penal interest. By notification dated 27.03.2020, the Government has provided the deferment of the installments due and payable during the moratorium period. Once the payment of installment is deferred as per circular dated 27.03.2020, non-payment of the installment during the moratorium period cannot be said to be willful and therefore there is no justification to charge the interest on interest/compound interest/penal interest for the period during the moratorium. Therefore, we are of the opinion that there shall not be any charge of interest on interest/compound interest/penal interest for the period during the moratorium from any of the borrowers and whatever the amount is recovered by way of interest on interest/compound interest/penal interest for the period during the moratorium, the same shall be refunded and to be adjusted/given credit in the next instalment of the loan account.
### Response:
0
### Explanation:
to August, 2020. The proceedings under the IBC are also suspended during the moratorium period.30.2 As per the provisions of the DMA 2005, the responsibilities and functions of the discharge of functions by the NDMA would be confined to Section 6 of the Act. However, on-ground disaster management and relief measures shall have to be undertaken by the Central Ministries and the State Government Ministries depending upon the need of the disaster and only in a case where the NDMA is satisfied that the reliefs which are already announced are not sufficient and/or no steps are taken at all with respect to the reliefs mentioned in Section 13, the National Authority may recommend the reliefs in repayment of loans etc. Therefore, it cannot be said that the National Authority has failed to perform its duty as cast under Section 13 of the Act.30.3 At this stage, it is required to be noted and so stated in the affidavit dated 31.08.2020 filed on behalf of the Union of India that NDMA also took cognizance of the issues being dealt with by the RBI and sent its views and recommendations given by O.M. dated 28.08.2020 and the NDMA also opined that RBI may consider granting further reliefs, as deemed appropriate, after considering and taking into account the financial relief packages issued by the Ministry of Finance, as well as, other relief measures that have already been issued/declared by the RBI itself. The views and recommendations of the NDMA were communicated to the RBI vide letter dated 31.08.2020. Therefore, it cannot be said that the NDMA has not stepped into at all. It is to be noted that even as per Section 13 of the Act, the National Authority may and recommend relief in repayment of loans or grant of fresh loans to the persons affected by disaster on such concessional terms as may be appropriate. Thereafter, as per the views and recommendations of the NDMA, RBI has come out with Resolution framework and on the basis of the same the lenders/bankers after getting the approval of their Board of Directors have come out with the policies. Thus, from the above, it cannot be said that NDMA has failed to perform its duty cast under Section 13 of the Act. From the above, it also cannot be said that there is no National Plan in existence at all.31. Now so far as the charging of penal interest/interest on interest/compound interest during the moratorium period is concerned, it stands absolutely on a different footing. At this stage, it is required to be noted that in fact the Central Government has come out with a policy decision subsequently by which it is decided not to charge the interest on interest on the loans up to Rs. 2 crores. However, such relief is restricted to the following categories:(i) MSME loans up to Rs.2 crore(ii) Education loans up to Rs.2 crore(iii) Housing loans up to Rs.2 crore(iv) Consumer durable loans up to Rs.2 crore(v) Credit card dues up to Rs.2 crore(vi) Auto loans up to Rs.2 crore(vii) Personal loans to professionals up to Rs. 2 crore(viii) Consumption loans up to Rs.2 croreThere is no justification shown to restrict the relief of not charging interest on interest with respect to the loans up to Rs. 2 crores only and that too restricted to the aforesaid categories. What are the basis to restrict it to Rs. 2 crores are not forthcoming. Therefore, as such, there is no rational to restrict such relief with respect to loans up to Rs. 2 crores only. Even otherwise, it is required to be noted that the scheme dated 23.10.2020 granting relief/benefit of waiver of compound interest/interest on interest contains eligibility criteria and it provides that any borrower whose aggregate of all facilities with lending institution is more than Rs. 2 crores (sanctioned limit or outstanding amount) will not be eligible for ex-gratia payment under the said scheme. Therefore, if the total exposure of the loan at the grant of the sanction is more than Rs. 2 crores, the borrower will be ineligible irrespective of the actual outstanding. For Example, if the borrower has been sanctioned a loan of Rs. 5 crores and has availed of the same, even though he might have repaid substantially bringing down the principal amount of less than Rs. 2 crores as on 29.02.2020, but because of the sanction of the loan amount of more than Rs. 2 crores, he will be ineligible. It also further provides that the outstanding amount should not be exceeded to Rs. 2 crores and for this purpose aggregate of all facilities with the lending institution will be reckoned. Therefore, if a borrower, for example, MSME Category has availed and has outstanding of business loan of Rs. 1.99 crores and also has dues of its credit card of Rs. 1.10 lakhs, thereby making the aggregate to Rs. 2.10 crores, it stands ineligible. Therefore, the aforesaid conditions would be arbitrary and discriminatory.31.1 Even otherwise, it is required to be noted that compound interest/interest on interest shall be chargeable on deliberate/willful default by the borrower to pay the installments due and payable. Therefore, it is in the nature of a penal interest. By notification dated 27.03.2020, the Government has provided the deferment of the installments due and payable during the moratorium period. Once the payment of installment is deferred as per circular dated 27.03.2020, non-payment of the installment during the moratorium period cannot be said to be willful and therefore there is no justification to charge the interest on interest/compound interest/penal interest for the period during the moratorium. Therefore, we are of the opinion that there shall not be any charge of interest on interest/compound interest/penal interest for the period during the moratorium from any of the borrowers and whatever the amount is recovered by way of interest on interest/compound interest/penal interest for the period during the moratorium, the same shall be refunded and to be adjusted/given credit in the next instalment of the loan account.
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DINA NATH (D) BY LRS Vs. SUBHASH CHAND SAINI | Rent Controller passed an order dated 21 st April, 2008 directing the appellants to deposit arrears of rent from 1st November, 2007 to April, 2008 and to continue to pay future rent @ Rs. 66/- p.m. by the 15 th of each succeeding month. It is not in dispute that the appellants had complied with the order of deposit of arrears on 21 st April, 2008. In fact, they paid ten months advance rent in addition to arrears from November, 2007 to April, 2008 in compliance of the order dated 21st April, 2008.26. The second limb which in fact has been missed at all the three stages is that in addition to the arrears of rent i.e. from November, 2007 to April, 2008, the appellants paid an amount equivalent to ten months? advance rent, although there was neither any legal obligation to do so nor was any direction issued by the Rent Controller for making such payment. It is not disputed that the additional rent paid by the appellants of ten months advance rent did not represent any admitted liability, and the fact is that the additional rent of ten months which was paid by the appellants over the period from 1st November, 2007 to April, 2008 was neither adjusted against future rent nor was it refunded to the appellants.27. It may be relevant to note that although the respondents- landlord have claimed arrears for the period 1 st January 2007 to October 2007, but that was disputed by the appellants as it revealed from the order dated 21st April, 2008, but as we are examining the question regarding striking of defence because of non-compliance of the order passed by the Rent Controller in exercise of his power under Section 15(1) of Act, 1958, the arrear in terms of order dated 21st April, 2008 was to be paid from November, 2007 to April, 2008 and additional rent of ten months paid on 21st April, 2008 was indeed to be adjusted by the respondents towards future rent for the period commencing from 1 st May, 2008 and it was the only legal option and having that excess amount being acknowledged by the respondents- landlord, the same must have been, in absence of a direction from the Court, be deemed to have been received and held by the respondents- landlord for the benefit of the appellants-tenants and adjustment of such excess amount against future liability in that view is the only possible and legally valid method of appropriation of that amount. Viewed thus, the amount paid by the appellants on 21st April, 2008 covered the period of future rent commencing from May 2008 to February, 2009(ten months).28. The further limb of the factual matrix is also indisputed from the record that after adjustment of the rent paid upto February, 2009, the monthly rent deposited on 27 th June, 2008 of one month and 17th December, 2008 for five months will cover the period till 31st August, 2009. That means, the appellants have paid advance rent upto 31 st August, 2009. Not only that, the further two deposits made by them, first on 1st May, 2009 and second on 5th May, 2009, if these payments would have been taken into consideration, the appellants discharged the entire rent liability commencing from 1st September, 2009. The rent which was paid/deposited by the appellants on 21st April, 2008 followed with 27th June, 2008, 17th December, 2008, 1 st May, 2009 and 5th May, 2009 is not in dispute and that covers the rent for a period of one year and nine months commencing from 1st September, 2009.29. It clearly manifests from record that on the date of the order passed by the Rent Controller dated 21st April, 2008 itself, the entire arrears as directed to be deposited by the appellants stood paid and also on the date of the order passed by the Rent Controller striking out his defence, rent for the entire intervening period and even beyond had been paid and what it appears is that suitable reconciliation and adjustments were required to be made against the months for which rent was payable but what cannot be disputed is that the amount which the appellants were called upon to pay and what they have, pursuant to the directions of the Rent Controller was paid/deposited at all relevant point of time in excess of what was payable to the landlord. In the given circumstances, the charge of contumacious failure and deliberate default in making payment levelled against the appellants-tenants is, therefore, ill founded.30. The question is whether the tenants were guilty of contumacious conduct in withholding such payment. While answering that question, the amount of rent payable for the demised premises may be a factor which cannot be brushed aside, but the facts and circumstances of the case on hand, do not suggest any negligence, defiance or contumacious non-payment of the amount payable to the landlord to warrant the taking of that ?exceptional step? which is bound to render the tenant defenceless in his contest against the respondents-landlord.31. In our opinion, the decision of the Rent Controller and confirmed by the Single Judge of the High Court of Delhi under the impugned judgment upholding the decision of striking out of the defence of the appellants which certainly entails adverse consequences in depriving of taking their defence and to contest the eviction application filed by the respondents-landlord has not been exercised judiciously and with circumspection and for the aforesaid reasons, the impugned judgment is unsustainable and deserves to be set aside.32. It appears that the eviction application was filed by the respondents in the year 2007 and almost 12 years have rolled by and the matter could not be proceeded because of the pendency of the proceedings in this Court, we consider it appropriate to observe that the Rent Controller/Competent Authority may proceed with the matter and decide the pending eviction application expeditiously on merits but in no case later than one year in accordance with law. | 1[ds]16. Broadly speaking, the perusal of Act, 1952 with Act, 1958 shows primarily the followingSection 13(5) of the Act, 1952 was meant to safeguard the interest of the landlord only. Section 15(1) of the Act, 1958 is meant primarily by way of benefit to the tenant who gets another opportunity to avoid his eviction by complying with the order passed under Section 15(1). The tenant also by complying with the order passed under Section 15(1) avoids the consequence of his default of payment or tender before filing of the petition.(ii) Under Section 13(5) of the Act 1952, in case of default, the Court was bound to strike out the defence whereas under Section 15(7) of the Act 1958, in case of default in compliance with the order passed under Section 15(1) or Section 15(2), the Controller has a discretion to strike out the defence and it is always open to be examined on the facts and circumstances of each case.(iii) Under the Act, 1958 by complying with the order under Section 15(1), the tenant can defeat the eviction application, whereas under the Act 1952, the tenant did not have this advantage even if he complied with the order under Section 13(5) of the Act 1952.The inevitable result on comparison of Section 13(5) of the Act, 1952 and Section 15(7) of Act, 1958 be that the Court would not be bound to strike out the defence against ejectment in case of default in payment of rent in compliance to the order passed under Section 15(1) of the Act, 1958 and it is always open to the Controller to examine the facts of each case while exercising its discretion which obviously has to be judicious in approach and with circumspection.Subsequent decisions rendered on the subject also recognises that mere failure to pay rent on the part of the tenant is not enough to justify an order striking out the defence. It is only a wilful failure or deliberate default or volitional of non-performance that can call for the exercise of the extraordinary power vested in the Court. More importantly, the plentitude of the discretionary power of the Court under Section 15(7) of the Act, 1958 is with the Rent Controller whether or not to strike out the defence, needless to say that the effect of striking out the defence under Section 15(7) of Act, 1958 is that the tenant be deprived of the protection available to him under Section 14 and it is imperative that such power vested with the Rent Controller under Section 15(7) of the Act, 1958 must be exercised with due care and. Coming to the case on hand, there are distinct aspects from which the question of default in payment of rent has to be viewed. In the first instance, the question is whether the arrears which the Court determined and directed the appellant to pay were paid. The answer indeed is in the affirmative. The Rent Controller passed an order dated 21 st April, 2008 directing the appellants to deposit arrears of rent from 1st November, 2007 to April, 2008 and to continue to pay future rent @ Rs. 66/- p.m. by the 15 th of each succeeding month. It is not in dispute that the appellants had complied with the order of deposit of arrears on 21 st April, 2008. In fact, they paid ten months advance rent in addition to arrears from November, 2007 to April, 2008 in compliance of the order dated 21st April, 2008.26. The second limb which in fact has been missed at all the three stages is that in addition to the arrears of rent i.e. from November, 2007 to April, 2008, the appellants paid an amount equivalent to ten months? advance rent, although there was neither any legal obligation to do so nor was any direction issued by the Rent Controller for making such payment. It is not disputed that the additional rent paid by the appellants of ten months advance rent did not represent any admitted liability, and the fact is that the additional rent of ten months which was paid by the appellants over the period from 1st November, 2007 to April, 2008 was neither adjusted against future rent nor was it refunded to the appellants.27. It may be relevant to note that although the respondents- landlord have claimed arrears for the period 1 st January 2007 to October 2007, but that was disputed by the appellants as it revealed from the order dated 21st April, 2008, but as we are examining the question regarding striking of defence because of non-compliance of the order passed by the Rent Controller in exercise of his power under Section 15(1) of Act, 1958, the arrear in terms of order dated 21st April, 2008 was to be paid from November, 2007 to April, 2008 and additional rent of ten months paid on 21st April, 2008 was indeed to be adjusted by the respondents towards future rent for the period commencing from 1 st May, 2008 and it was the only legal option and having that excess amount being acknowledged by the respondents- landlord, the same must have been, in absence of a direction from the Court, be deemed to have been received and held by the respondents- landlord for the benefit of the appellants-tenants and adjustment of such excess amount against future liability in that view is the only possible and legally valid method of appropriation of that amount. Viewed thus, the amount paid by the appellants on 21st April, 2008 covered the period of future rent commencing from May 2008 to February, 2009(ten months).28. The further limb of the factual matrix is also indisputed from the record that after adjustment of the rent paid upto February, 2009, the monthly rent deposited on 27 th June, 2008 of one month and 17th December, 2008 for five months will cover the period till 31st August, 2009. That means, the appellants have paid advance rent upto 31 st August, 2009. Not only that, the further two deposits made by them, first on 1st May, 2009 and second on 5th May, 2009, if these payments would have been taken into consideration, the appellants discharged the entire rent liability commencing from 1st September, 2009. The rent which was paid/deposited by the appellants on 21st April, 2008 followed with 27th June, 2008, 17th December, 2008, 1 st May, 2009 and 5th May, 2009 is not in dispute and that covers the rent for a period of one year and nine months commencing from 1st September, 2009.29. It clearly manifests from record that on the date of the order passed by the Rent Controller dated 21st April, 2008 itself, the entire arrears as directed to be deposited by the appellants stood paid and also on the date of the order passed by the Rent Controller striking out his defence, rent for the entire intervening period and even beyond had been paid and what it appears is that suitable reconciliation and adjustments were required to be made against the months for which rent was payable but what cannot be disputed is that the amount which the appellants were called upon to pay and what they have, pursuant to the directions of the Rent Controller was paid/deposited at all relevant point of time in excess of what was payable to the landlord. In the given circumstances, the charge of contumacious failure and deliberate default in making payment levelled against the appellants-tenants is, therefore, ill founded.30. The question is whether the tenants were guilty of contumacious conduct in withholding such payment. While answering that question, the amount of rent payable for the demised premises may be a factor which cannot be brushed aside, but the facts and circumstances of the case on hand, do not suggest any negligence, defiance or contumacious non-payment of the amount payable to the landlord to warrant the taking of that ?exceptional step? which is bound to render the tenant defenceless in his contest against the respondents-landlord.31. In our opinion, the decision of the Rent Controller and confirmed by the Single Judge of the High Court of Delhi under the impugned judgment upholding the decision of striking out of the defence of the appellants which certainly entails adverse consequences in depriving of taking their defence and to contest the eviction application filed by the respondents-landlord has not been exercised judiciously and with circumspection and for the aforesaid reasons, the impugned judgment is unsustainable and deserves to be set aside.32. It appears that the eviction application was filed by the respondents in the year 2007 and almost 12 years have rolled by and the matter could not be proceeded because of the pendency of the proceedings in this Court, we consider it appropriate to observe that the Rent Controller/Competent Authority may proceed with the matter and decide the pending eviction application expeditiously on merits but in no case later than one year in accordance with law.It clearly emerges from the exposition of law that power vested under Section 15(7) of the Act, 1958 is discretionary and not mandatory and depends on contumacious or deliberate default and must be construed harmoniously so as to balance the rights and obligations of the tenant and the landlord and the power under Section 15(7) of Act, 1958 being an exception to be exercised with due care and circumspection. | 1 | 4,920 | 1,754 | ### 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:
Rent Controller passed an order dated 21 st April, 2008 directing the appellants to deposit arrears of rent from 1st November, 2007 to April, 2008 and to continue to pay future rent @ Rs. 66/- p.m. by the 15 th of each succeeding month. It is not in dispute that the appellants had complied with the order of deposit of arrears on 21 st April, 2008. In fact, they paid ten months advance rent in addition to arrears from November, 2007 to April, 2008 in compliance of the order dated 21st April, 2008.26. The second limb which in fact has been missed at all the three stages is that in addition to the arrears of rent i.e. from November, 2007 to April, 2008, the appellants paid an amount equivalent to ten months? advance rent, although there was neither any legal obligation to do so nor was any direction issued by the Rent Controller for making such payment. It is not disputed that the additional rent paid by the appellants of ten months advance rent did not represent any admitted liability, and the fact is that the additional rent of ten months which was paid by the appellants over the period from 1st November, 2007 to April, 2008 was neither adjusted against future rent nor was it refunded to the appellants.27. It may be relevant to note that although the respondents- landlord have claimed arrears for the period 1 st January 2007 to October 2007, but that was disputed by the appellants as it revealed from the order dated 21st April, 2008, but as we are examining the question regarding striking of defence because of non-compliance of the order passed by the Rent Controller in exercise of his power under Section 15(1) of Act, 1958, the arrear in terms of order dated 21st April, 2008 was to be paid from November, 2007 to April, 2008 and additional rent of ten months paid on 21st April, 2008 was indeed to be adjusted by the respondents towards future rent for the period commencing from 1 st May, 2008 and it was the only legal option and having that excess amount being acknowledged by the respondents- landlord, the same must have been, in absence of a direction from the Court, be deemed to have been received and held by the respondents- landlord for the benefit of the appellants-tenants and adjustment of such excess amount against future liability in that view is the only possible and legally valid method of appropriation of that amount. Viewed thus, the amount paid by the appellants on 21st April, 2008 covered the period of future rent commencing from May 2008 to February, 2009(ten months).28. The further limb of the factual matrix is also indisputed from the record that after adjustment of the rent paid upto February, 2009, the monthly rent deposited on 27 th June, 2008 of one month and 17th December, 2008 for five months will cover the period till 31st August, 2009. That means, the appellants have paid advance rent upto 31 st August, 2009. Not only that, the further two deposits made by them, first on 1st May, 2009 and second on 5th May, 2009, if these payments would have been taken into consideration, the appellants discharged the entire rent liability commencing from 1st September, 2009. The rent which was paid/deposited by the appellants on 21st April, 2008 followed with 27th June, 2008, 17th December, 2008, 1 st May, 2009 and 5th May, 2009 is not in dispute and that covers the rent for a period of one year and nine months commencing from 1st September, 2009.29. It clearly manifests from record that on the date of the order passed by the Rent Controller dated 21st April, 2008 itself, the entire arrears as directed to be deposited by the appellants stood paid and also on the date of the order passed by the Rent Controller striking out his defence, rent for the entire intervening period and even beyond had been paid and what it appears is that suitable reconciliation and adjustments were required to be made against the months for which rent was payable but what cannot be disputed is that the amount which the appellants were called upon to pay and what they have, pursuant to the directions of the Rent Controller was paid/deposited at all relevant point of time in excess of what was payable to the landlord. In the given circumstances, the charge of contumacious failure and deliberate default in making payment levelled against the appellants-tenants is, therefore, ill founded.30. The question is whether the tenants were guilty of contumacious conduct in withholding such payment. While answering that question, the amount of rent payable for the demised premises may be a factor which cannot be brushed aside, but the facts and circumstances of the case on hand, do not suggest any negligence, defiance or contumacious non-payment of the amount payable to the landlord to warrant the taking of that ?exceptional step? which is bound to render the tenant defenceless in his contest against the respondents-landlord.31. In our opinion, the decision of the Rent Controller and confirmed by the Single Judge of the High Court of Delhi under the impugned judgment upholding the decision of striking out of the defence of the appellants which certainly entails adverse consequences in depriving of taking their defence and to contest the eviction application filed by the respondents-landlord has not been exercised judiciously and with circumspection and for the aforesaid reasons, the impugned judgment is unsustainable and deserves to be set aside.32. It appears that the eviction application was filed by the respondents in the year 2007 and almost 12 years have rolled by and the matter could not be proceeded because of the pendency of the proceedings in this Court, we consider it appropriate to observe that the Rent Controller/Competent Authority may proceed with the matter and decide the pending eviction application expeditiously on merits but in no case later than one year in accordance with law.
### Response:
1
### Explanation:
they paid ten months advance rent in addition to arrears from November, 2007 to April, 2008 in compliance of the order dated 21st April, 2008.26. The second limb which in fact has been missed at all the three stages is that in addition to the arrears of rent i.e. from November, 2007 to April, 2008, the appellants paid an amount equivalent to ten months? advance rent, although there was neither any legal obligation to do so nor was any direction issued by the Rent Controller for making such payment. It is not disputed that the additional rent paid by the appellants of ten months advance rent did not represent any admitted liability, and the fact is that the additional rent of ten months which was paid by the appellants over the period from 1st November, 2007 to April, 2008 was neither adjusted against future rent nor was it refunded to the appellants.27. It may be relevant to note that although the respondents- landlord have claimed arrears for the period 1 st January 2007 to October 2007, but that was disputed by the appellants as it revealed from the order dated 21st April, 2008, but as we are examining the question regarding striking of defence because of non-compliance of the order passed by the Rent Controller in exercise of his power under Section 15(1) of Act, 1958, the arrear in terms of order dated 21st April, 2008 was to be paid from November, 2007 to April, 2008 and additional rent of ten months paid on 21st April, 2008 was indeed to be adjusted by the respondents towards future rent for the period commencing from 1 st May, 2008 and it was the only legal option and having that excess amount being acknowledged by the respondents- landlord, the same must have been, in absence of a direction from the Court, be deemed to have been received and held by the respondents- landlord for the benefit of the appellants-tenants and adjustment of such excess amount against future liability in that view is the only possible and legally valid method of appropriation of that amount. Viewed thus, the amount paid by the appellants on 21st April, 2008 covered the period of future rent commencing from May 2008 to February, 2009(ten months).28. The further limb of the factual matrix is also indisputed from the record that after adjustment of the rent paid upto February, 2009, the monthly rent deposited on 27 th June, 2008 of one month and 17th December, 2008 for five months will cover the period till 31st August, 2009. That means, the appellants have paid advance rent upto 31 st August, 2009. Not only that, the further two deposits made by them, first on 1st May, 2009 and second on 5th May, 2009, if these payments would have been taken into consideration, the appellants discharged the entire rent liability commencing from 1st September, 2009. The rent which was paid/deposited by the appellants on 21st April, 2008 followed with 27th June, 2008, 17th December, 2008, 1 st May, 2009 and 5th May, 2009 is not in dispute and that covers the rent for a period of one year and nine months commencing from 1st September, 2009.29. It clearly manifests from record that on the date of the order passed by the Rent Controller dated 21st April, 2008 itself, the entire arrears as directed to be deposited by the appellants stood paid and also on the date of the order passed by the Rent Controller striking out his defence, rent for the entire intervening period and even beyond had been paid and what it appears is that suitable reconciliation and adjustments were required to be made against the months for which rent was payable but what cannot be disputed is that the amount which the appellants were called upon to pay and what they have, pursuant to the directions of the Rent Controller was paid/deposited at all relevant point of time in excess of what was payable to the landlord. In the given circumstances, the charge of contumacious failure and deliberate default in making payment levelled against the appellants-tenants is, therefore, ill founded.30. The question is whether the tenants were guilty of contumacious conduct in withholding such payment. While answering that question, the amount of rent payable for the demised premises may be a factor which cannot be brushed aside, but the facts and circumstances of the case on hand, do not suggest any negligence, defiance or contumacious non-payment of the amount payable to the landlord to warrant the taking of that ?exceptional step? which is bound to render the tenant defenceless in his contest against the respondents-landlord.31. In our opinion, the decision of the Rent Controller and confirmed by the Single Judge of the High Court of Delhi under the impugned judgment upholding the decision of striking out of the defence of the appellants which certainly entails adverse consequences in depriving of taking their defence and to contest the eviction application filed by the respondents-landlord has not been exercised judiciously and with circumspection and for the aforesaid reasons, the impugned judgment is unsustainable and deserves to be set aside.32. It appears that the eviction application was filed by the respondents in the year 2007 and almost 12 years have rolled by and the matter could not be proceeded because of the pendency of the proceedings in this Court, we consider it appropriate to observe that the Rent Controller/Competent Authority may proceed with the matter and decide the pending eviction application expeditiously on merits but in no case later than one year in accordance with law.It clearly emerges from the exposition of law that power vested under Section 15(7) of the Act, 1958 is discretionary and not mandatory and depends on contumacious or deliberate default and must be construed harmoniously so as to balance the rights and obligations of the tenant and the landlord and the power under Section 15(7) of Act, 1958 being an exception to be exercised with due care and circumspection.
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Jaiprakash Associates Ltd Vs. State of Madhya Pradesh and Ors | the similar enactments made by the said States. Some of the High Courts upheld the legislation holding the tax to be compensatory tax whereas some other High Courts found the legislation not to be compensatory in nature and, thus, struck down the provisions thereof. Some High Courts had taken support of certain other reasons also in striking down these legislations. The Assessees as well as the States had filed special leave petitions against those judgments. Those cases were heard and decided by the Constitution Bench of this Court in Jindal Stainless Ltd. (2) and Anr. v. State of Haryana and Ors. [2006 (7) SCC 241 ].4. Jindal Strips Ltd. is an industry manufacturing products within the State of Haryana. The raw-material is purchased from outside the State. The finished products are sent to other States on consignment basis or stock transfer basis. No sales tax is paid on the input of the raw material. Similarly, no sales tax is paid on the export of finished products.5. The impugned Act came into force w.e.f. 5th May, 2000, to provide for levy and collection of tax on the entry of goods into the local areas of the State for consumption or use therein. The Act is enacted to provide for levy and collection of tax on the entry into a local area of the State, of a motor vehicle for use or sale, and of other goods for use or consumption therein. The Act seeks to impose entry tax on all goods brought into a "local area". The entire State is divided into local areas. The Act covers not only vehicles bringing goods into the State but also vehicles carrying goods from one local area to another. However, those who pay sales tax to the State are exempt from payment of entry tax. Ultimately, the entry tax only falls on concerns, like Jindal Strips, which, by virtue of the provisions of the Central Sales Tax Act, 1956, pay sales tax on purchase of raw-material and sale of finished goods to other States and do not pay sales tax to the State of Haryana. This is the context in which the challenge to the Act under Article 301 has been made. At this stage, we may point out that prior to September 30, 2003, Section 22 stated that the tax collected under the Act shall be distributed by the State Government amongst the local bodies to be utilized for the development of local areas. However, on 30th September, 2003, Section 22 was amended clarifying that the tax levied and collected shall be utilized for facilitating free flow of trade and commerce.REASONS FOR THE REFERRAL ORDER:6. In Atiabari Tea Co. Ltd. etc. v. State of Assam and Ors., it was held that taxing laws are not excluded from the operation of Article 301, which means that tax laws can and do amount to restrictions on the freedoms guaranteed to trade under Part-XIII of the Constitution. However, the prohibition of restrictions on free trade is not an-absolute one. Statutes restrictive of trade can avoid invalidation if they comply with Article 304(a) or (b).7. In Automobile Transport (Rajasthan) Ltd. (Supra), it was held that only such taxes that directly and immediately restrict trade would fall within the purview of Article 301 and that any restriction in the form of taxes imposed on the carriage of goods or their movement by the State Legislature can only be done after satisfying the requirements of Article 304(b). The statute which was challenged in Atiabari Tea Co. (supra) was the Assam Taxation (On Goods Carried By Roads And Inland Waterways) Act, 1954. It was held that the Act had put a direct restriction on the freedom of trade and since the State Legislature had not complied with the provisions of Article 304(b), the Act was declared void.8. It is in the aforesaid background, reference was made to Nine Judges Bench, as indicated at the outset of this order.9. We may also mention at this stage that when the matters were argued before the Nine Judges Bench, certain other aspects were also argued. Primarily, three kinds of issues were taken by the Assessees which are to the following effect:(1) Whether the entire State can be treated as local area for the purposes of entry tax?(2) Whether entry tax can be levied on the goods which are directly imported from other countries and brought in a particular State?.(3) In some statutes enacted by certain States, there was a provision for giving adjustment of other taxes like VAT, incentives etc. paid by the indigenous manufacturers and it was contended by the Assessees that whether the benefits given to certain categories of manufacturers would amount to discrimination Under Section (sic Article) 304.10. The Nine Judges Bench while answering the reference deemed it appropriate to leave these questions to be agitated before the regular Bench. That is how these matters are posted before this Bench and it is agreed that the aforesaid issues are the main issues to be decided.11. During the hearing of arguments, counsel for both sides submitted that since the main challenge in the writ petitions, which were filed by the writ Petitioners before the High Court, was predicated on the law laid down by the Constitution Bench in Atiabari Tea Co. Ltd. (supra), the High Court essentially confined its discussion only on "compensatory tax theory", as propounded in the aforesaid judgment so the High Courts looked at the issue by only keeping in mind the principle propounded in the aforesaid judgment and decided as to whether the tax imposed by a particular statute is compensatory in nature or not. Thus, when other issues are to be dealt with, as indicated above, we find that in many cases there is no adequate factual foundation and there is no discussion in the impugned judgments as well. It is also agreed by counsel for both the sides that in the absence thereof, it may not be possible for this Court to decide these issues. | 1[ds]11. During the hearing of arguments, counsel for both sides submitted that since the main challenge in the writ petitions, which were filed by the writ Petitioners before the High Court, was predicated on the law laid down by the Constitution Bench in Atiabari Tea Co. Ltd. (supra), the High Court essentially confined its discussion only on "compensatory tax theory", as propounded in the aforesaid judgment so the High Courts looked at the issue by only keeping in mind the principle propounded in the aforesaid judgment and decided as to whether the tax imposed by a particular statute is compensatory in nature or not. Thus, when other issues are to be dealt with, as indicated above, we find that in many cases there is no adequate factual foundation and there is no discussion in the impugned judgments as well. It is also agreed by counsel for both the sides that in the absence thereof, it may not be possible for this Court to decide these issues | 1 | 1,762 | 186 | ### Instruction:
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the similar enactments made by the said States. Some of the High Courts upheld the legislation holding the tax to be compensatory tax whereas some other High Courts found the legislation not to be compensatory in nature and, thus, struck down the provisions thereof. Some High Courts had taken support of certain other reasons also in striking down these legislations. The Assessees as well as the States had filed special leave petitions against those judgments. Those cases were heard and decided by the Constitution Bench of this Court in Jindal Stainless Ltd. (2) and Anr. v. State of Haryana and Ors. [2006 (7) SCC 241 ].4. Jindal Strips Ltd. is an industry manufacturing products within the State of Haryana. The raw-material is purchased from outside the State. The finished products are sent to other States on consignment basis or stock transfer basis. No sales tax is paid on the input of the raw material. Similarly, no sales tax is paid on the export of finished products.5. The impugned Act came into force w.e.f. 5th May, 2000, to provide for levy and collection of tax on the entry of goods into the local areas of the State for consumption or use therein. The Act is enacted to provide for levy and collection of tax on the entry into a local area of the State, of a motor vehicle for use or sale, and of other goods for use or consumption therein. The Act seeks to impose entry tax on all goods brought into a "local area". The entire State is divided into local areas. The Act covers not only vehicles bringing goods into the State but also vehicles carrying goods from one local area to another. However, those who pay sales tax to the State are exempt from payment of entry tax. Ultimately, the entry tax only falls on concerns, like Jindal Strips, which, by virtue of the provisions of the Central Sales Tax Act, 1956, pay sales tax on purchase of raw-material and sale of finished goods to other States and do not pay sales tax to the State of Haryana. This is the context in which the challenge to the Act under Article 301 has been made. At this stage, we may point out that prior to September 30, 2003, Section 22 stated that the tax collected under the Act shall be distributed by the State Government amongst the local bodies to be utilized for the development of local areas. However, on 30th September, 2003, Section 22 was amended clarifying that the tax levied and collected shall be utilized for facilitating free flow of trade and commerce.REASONS FOR THE REFERRAL ORDER:6. In Atiabari Tea Co. Ltd. etc. v. State of Assam and Ors., it was held that taxing laws are not excluded from the operation of Article 301, which means that tax laws can and do amount to restrictions on the freedoms guaranteed to trade under Part-XIII of the Constitution. However, the prohibition of restrictions on free trade is not an-absolute one. Statutes restrictive of trade can avoid invalidation if they comply with Article 304(a) or (b).7. In Automobile Transport (Rajasthan) Ltd. (Supra), it was held that only such taxes that directly and immediately restrict trade would fall within the purview of Article 301 and that any restriction in the form of taxes imposed on the carriage of goods or their movement by the State Legislature can only be done after satisfying the requirements of Article 304(b). The statute which was challenged in Atiabari Tea Co. (supra) was the Assam Taxation (On Goods Carried By Roads And Inland Waterways) Act, 1954. It was held that the Act had put a direct restriction on the freedom of trade and since the State Legislature had not complied with the provisions of Article 304(b), the Act was declared void.8. It is in the aforesaid background, reference was made to Nine Judges Bench, as indicated at the outset of this order.9. We may also mention at this stage that when the matters were argued before the Nine Judges Bench, certain other aspects were also argued. Primarily, three kinds of issues were taken by the Assessees which are to the following effect:(1) Whether the entire State can be treated as local area for the purposes of entry tax?(2) Whether entry tax can be levied on the goods which are directly imported from other countries and brought in a particular State?.(3) In some statutes enacted by certain States, there was a provision for giving adjustment of other taxes like VAT, incentives etc. paid by the indigenous manufacturers and it was contended by the Assessees that whether the benefits given to certain categories of manufacturers would amount to discrimination Under Section (sic Article) 304.10. The Nine Judges Bench while answering the reference deemed it appropriate to leave these questions to be agitated before the regular Bench. That is how these matters are posted before this Bench and it is agreed that the aforesaid issues are the main issues to be decided.11. During the hearing of arguments, counsel for both sides submitted that since the main challenge in the writ petitions, which were filed by the writ Petitioners before the High Court, was predicated on the law laid down by the Constitution Bench in Atiabari Tea Co. Ltd. (supra), the High Court essentially confined its discussion only on "compensatory tax theory", as propounded in the aforesaid judgment so the High Courts looked at the issue by only keeping in mind the principle propounded in the aforesaid judgment and decided as to whether the tax imposed by a particular statute is compensatory in nature or not. Thus, when other issues are to be dealt with, as indicated above, we find that in many cases there is no adequate factual foundation and there is no discussion in the impugned judgments as well. It is also agreed by counsel for both the sides that in the absence thereof, it may not be possible for this Court to decide these issues.
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11. During the hearing of arguments, counsel for both sides submitted that since the main challenge in the writ petitions, which were filed by the writ Petitioners before the High Court, was predicated on the law laid down by the Constitution Bench in Atiabari Tea Co. Ltd. (supra), the High Court essentially confined its discussion only on "compensatory tax theory", as propounded in the aforesaid judgment so the High Courts looked at the issue by only keeping in mind the principle propounded in the aforesaid judgment and decided as to whether the tax imposed by a particular statute is compensatory in nature or not. Thus, when other issues are to be dealt with, as indicated above, we find that in many cases there is no adequate factual foundation and there is no discussion in the impugned judgments as well. It is also agreed by counsel for both the sides that in the absence thereof, it may not be possible for this Court to decide these issues
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Vinodchandra Sakarlal Kapadia and Ors Vs. State of Gujarat and Ors | consider, inter alia, the competence of the State Legislature to enact certain provisions of the Maharashtra Regional and Town Planning Act, 1966, stated to be in conflict with Section 11A of the Land Acquisition Act, 1894, a Central Legislation. While rejecting the submission, this Court observed: 183. We have already discussed in great detail that the State Act being a code in itself can take within its ambit provisions of the Central Act related to acquisition, while excluding the provisions which offend and frustrate the object of the State Act. It will not be necessary to create, or read into the legislations, an imaginary conflict or repugnancy between the two legislations, particularly, when they can be enforced in their respective fields without conflict. Even if they are examined from the point of view that repugnancy is implied between Section 11-A of the Land Acquisition Act and Sections 126 and 127 of the MRTP Act, then in our considered view, they would fall within the permissible limits of doctrine of incidental encroachment without rendering any part of the State law invalid. 184. Once the doctrine of pith and substance is applied to the facts of the present case, it is more than clear that in substance the State Act is aimed at planned development unlike the Central Act where the object is to acquire land and disburse compensation in accordance with law. Paramount purpose and object of the State Act being planned development and acquisition being incidental thereto, the question of repugnancy does not arise. The State, in terms of Entry 5 of List II of Schedule VII, is competent to enact such a law. It is a settled canon of law that courts normally would make every effort to save the legislation and resolve the conflict/repugnancy, if any, rather than invalidating the statute. Therefore, it will be the purposive approach to permit both the enactments to operate in their own fields by applying them harmoniously. Thus, in our view, the ground of repugnancy raised by the Appellants, in the present appeals, merits rejection. 185. A self-contained code is an exception to the Rule of referential legislation. The various legal concepts covering the relevant issues have been discussed by us in detail above. The schemes of the MRTP Act and the Land Acquisition Act do not admit any conflict or repugnancy in their implementation. The slight overlapping would not take the colour of repugnancy. In such cases, the doctrine of pith and substance would squarely be applicable and rigours of Article 254(1) would not be attracted. Besides that, the reference is limited to specific provisions of the Land Acquisition Act, in the State Act. Unambiguous language of the provisions of the MRTP Act and the legislative intent clearly mandates that it is a case of legislation by incorporation in contradistinction to legislation by reference. 186. Only those provisions of the Central Act which precisely apply to acquisition of land, determination and disbursement of compensation in accordance with law, can be read into the State Act. But with the specific exceptions that the provisions of the Central Act relating to default and consequences thereof, including lapsing of acquisition proceedings, cannot be read into the State Act. It is for the reason that neither have they been specifically incorporated into the State law nor can they be absorbed objectively into that statute. If such provisions (Section 11-A being one of such sections) are read as part of the State enactment, they are bound to produce undesirable results as they would destroy the very essence, object and purpose of the MRTP Act. 187. Even if fractional overlapping is accepted between the two statutes, then it will be saved by the doctrine of incidental encroachment, and it shall also be inconsequential as both the constituents have enacted the respective laws within their legislative competence and, moreover, both the statutes can eloquently coexist and operate with compatibility. It will be in consonance with the established canons of law to tilt the balance in favour of the legislation rather than invalidating the same, particularly, when the Central and State law can be enforced symbiotically to achieve the ultimate goal of planned development. 31. If the provisions referred to in Section 43 of the Act and allied provisions are considered in light of the settled principles extracted earlier, it emerges that the primary concern of those provisions is to see that the legislative scheme of granting protection to persons from disadvantaged categories and conferring the right of purchase upon them, and thereby ensure direct relationship of a tiller with the land. The provisions, though lay down a norm which may not be fully consistent with the principles of Indian Succession Act, are principally designed to attain and sub-serve the purpose of protecting the holdings in the hands of disadvantaged categories. The prohibition against transfers of holding without the previous sanction of the concerned authorities, is to be seen in that light as furthering the cause of legislation. Even if by the process of construction, the expression assignment is construed to include testamentary disposition, in keeping with the settled principles, the incidental encroachment cannot render the said provisions invalid. In pith and substance, the legislation and the concerned provisions are completely within the competence of the State Legislature and by placing the construction upon the expression assignment to include testamentary disposition, no transgression will ensue. 32. We, therefore, reject the submissions advanced by Mr. Srivatsa, learned Counsel. 33. In the premises, we accept the construction put by the Division Bench on the provisions that fell for consideration. The challenge to the view taken by the Division Bench must therefore be rejected. We must also observe that the decision of this Court in Mahadeo (2017) 13 SCC 756 which had failed to notice the earlier decisions in Sangappa (1998) 7 SCC 294 and Jayamma (2004) 7 SCC 459 and which is inconsistent with the decisions referred to hereinabove and what we have concluded, must be held to be incorrectly decided. | 0[ds]20. The common thread running through these decisions except that in Mahadeo (2017) 13 SCC 756 is to construe the prohibition against transfer appearing in various statutes in keeping with the legislative intent. As laid down in Amarendra Pratap Singh (2004) 10 SCC 65 , where the object of the legislation is to prevent a mischief and to confer protection on the weaker Sections of the society, the court would not hesitate in placing an extended meaning, even a stretched one, on the word, if in doing so the statute would succeed in attaining the object sought to be achieved.21. The provisions considered in the preceding paragraph deal with matters pertaining to and arising out of proceedings related to statutory purchase. Sections 14 and 29 do not belong to that category. In terms of Section 14, if the land is assigned in contravention of Section 27, the tenancy of the tenant is liable to be terminated. Section 27 states in clear terms that assignment of any interest in the land by a tenant shall not be valid. The decision of this Court in Bhavarlal16 has stood the test of time which clearly states that a tenancy governed by a statute which prohibits assignment, cannot be willed away to a total stranger. The expression assignment in Sections 14 and 27, if understood in light of the decision of this Court in Bhavarlal16 which has consistently been followed, must include testamentary disposition.One thought may be expressed here though that by itself may not be determinative and that is, the meaning ascribed to the expression assignment in Section 43 cannot in any way be different. There is nothing in the provisions of the Act to suggest that the expression assignment must carry a different meaning in Sections 14 and 27 on the one hand, and Section 43 on the other.22. The provisions analysed hereinabove intend to confer the advantage of statutory purchase upon a cultivating tenant, and see that the tiller of the land is conferred ownership with respect to the lands cultivated by him as well as the dwelling house occupied by him. Thus, a cultivating tenant, if his holding is otherwise not beyond the ceiling limit, would be given the right to own the land cultivated by him. In cases where no purchase could be effected either on account of inability of the tenant to pay the purchase price, or on account of other situations, more than one attempt and opportunities are afforded to him. The statute goes to the extent of obliging the State Government to deposit the purchase price on his behalf. Even in cases where the tenant is unable to exercise the right of purchase because his holding would go beyond ceiling limit, the land would not revert to the landlord, but in terms of Section 32P, it must come to the persons or entities listed in the priority list. The priority list includes persons such as agricultural labourers and landless persons. The scheme is, therefore, to effectuate distribution of agricultural lands in such a way that the persons who are disadvantaged, would be conferred the ownership. After such purchase, the law obliges the purchaser to cultivate the land personally and not to transfer it23. If a tenant or any other person from the priority list is conferred ownership in respect of the agricultural land or when a landlord is allowed to retain the land which was surrendered by his tenant, each one of them is obliged to cultivate the land personally. In case any of them is unwilling, the land must be given to those who principally depend upon agricultural operations for their sustenance. If a person is a beneficiary of such statutory purchase and wishes to transfer his holding the law obliges that he must take prior sanction from the Collector. While granting such sanction, the authorities may essentially check whether the transferee is an agriculturist or an agricultural labour who otherwise fulfils the requirements and would carry out the obligation of cultivating the land personally; and that his holding would not go beyond the ceiling limit. Since the ownership itself was conferred as a result of the legislative scheme as discussed hereinabove, these conditions are inherent in the very conferral of ownership and, therefore, specifically incorporated in Section 43 with direct reference to the provisions named therein.24. A transfer inter vivos would normally be for consideration where the transferor may get value for the land but the legislation requires previous sanction of the concerned authority so that the transferee can step into the shoes of the transferor, and carry out all the obligations as a part of legislative scheme must be discharged. Thus, the screening whether a transferee is eligible or not, can be undertaken even before the actual transfer is effected. As against this, if a testamentary disposition which does not have the element of consideration is to be permitted, and if it is assumed that Sections 43 and 63 of the Act do not get attracted, the land can be bequeathed to a total stranger and a non-agriculturist who may not cultivate the land himself; which in turn may then lead to engagement of somebody as a tenant on the land. The legislative intent to do away with absentee landlordism and to protect the cultivating tenants, and to establish direct relationship between the cultivator and the land would then be rendered otiose. The construction put on the expression assignment appearing in Section 43, therefore, has to be consistent with the legislative scheme. In the context of the entire scheme, the term assignment used in Section 43 of the Act must include testamentary disposition as well. By adopting such construction, in keeping with the law laid down by this Court, the statute would succeed in attaining the object sought to be achieved. On the other hand, if it is held that the testamentary disposition would not get covered by the provisions of Section 43, a gullible person can be made to execute a testament in favour of a person who may not fulfil the requirements and be eligible to be a transferee in accordance with law. This may not only render the natural heirs of the tenant without any support or sustenance, but may also have serious impact on agricultural operations.25. In the circumstances the view taken by the Division Bench of the High Court in the present matter is absolutely correct and does not call for any interference. The decision is completely consistent with the law laid down by this Court in Sangappa AIR 1998 SC 3229 : (1998) 7 SCC 294 and Jayamma (2004) 7 SCC 459 and the other cases referred to hereinabove and must be accepted to be the correct exposition of law.A. In Sangappa (1998) 7 SCC 294 , the facts were noted as under:2. The facts leading to this appeal are as follows:Sangappa Bangi made an application Under Section 45 of the Karnataka Land Reforms Act, 1961 (hereinafter referred to as the Act) in Form 7 claiming occupancy rights in respect of the land in question. During the pendency of the proceedings, he made a Will on 8-4-1975 bequeathing his tenancy rights in respect of the land in favour of one Ameerjan who claims to be the legal representative of the Appellant Sangappa who died during the pendency of proceedings before the Tribunal. She in turn executed another Will under which Husensab is making a claim to the land through the said Sangappa. Respondent 2 is the wife of the said Sangappa while Respondents 3 to 5 are the children of Sangappa. The Land Tribunal as well as the Appellate Authority examined the question whether right to tenancy could have been the subject-matter of a bequest under a Will. In answering that question, the Appellate Authority referred to a decision of the High Court of Karnataka in Shivanna v. Rachiah (1977) 1 Kant LJ 146 (Short notes Item 160) (CRP No. 319 of 1976 dated 29-3-1977 wherein it was stated that there was no prohibition against a tenant disposing of his interest by testamentary disposition. However it was stated that such testamentary disposition must be confined to the heirs of the deceased or an interpretation of the provision of Sections 21 and 24 of the Karnataka Land Reforms Act that the tenancy rights are inherited only by legal representatives and not by anybody else; that tenancy could be deemed to have been continued in favour of the heirs of the tenant. It is also made clear that transfer of tenancy rights made in violation of the provisions of Section 21 would be void. The High Court did not give any detailed reasons, but taking the view that the Appellate Authority and the Land Tribunal having concurrently held that Respondents 2 to 5 are entitled to grant of occupancy rights, found no reasons to interfere with the order made by them.The question that arose for consideration was dealt with by this Court as under:5. This case gives rise to a difficult and doubtful question, whether a devise under a Will would amount to an assignment of interest in the lands and, therefore, would be invalid under the provisions of Section 21 of the Land Reforms Act. What is prohibited Under Section 21 of the Act is that there cannot be any sub-division or subletting of the land held by a tenant or assignment of any interest thereunder. Exceptions thereto are when the tenant dies, the surviving members of the joint family and if he is not a member of the joint family, his heirs shall be entitled to partition and sub-divide the land leased subject to certain conditions. Section 24 of the Act declares that when a tenant dies, the landlord is deemed to continue the tenancy to the heirs of such tenant on the same terms and conditions on which the tenant was holding at the time of his death. We have to read Section 21 with Section 24 to understand the full purport of the provisions. Section 24 is enacted only for the purpose of making it clear that the tenancy continues notwithstanding the death of the tenant and such tenancy is held by the heirs of such tenant on the same terms and conditions on which he had held prior to his death. The heirs who can take the property are those who are referable to in Section 21. If he is a member of the joint family, then the surviving members of the joint family and if he is not such a member of a joint family, his heirs would be entitled to partition. Again, as to who his heirs are will have to be determined not with reference to the Act, but with reference to the personal law on the matter. The assignment of any interest in the tenanted land will not be valid. A devise or a bequest under a Will cannot be stated to fall outside the scope of the said provisions inasmuch as such assignment disposes of or deals with the lease. When there is a disposition of rights under a Will, though it operates posthumously is nevertheless a recognition of the right of the legatee thereunder as to his rights of the tenanted land. In that event, there is an assignment of the tenanted land, but that right will come into effect after the death of the testator. Therefore, though it can be said in general terms that the devise simpliciter will not amount to an assignment, in a special case of this nature, interpretation will have to be otherwise.6. If we bear in mind the purpose behind Section 21, it becomes clear that the object of the law is not to allow strangers to the family of the tenant to come upon the land. The tenanted land is not allowed to be sub-let, i.e., to pass to the hands of a stranger nor any kind of assignment taking place in respect of the lease held. If the tenant could assign his interest, strangers can come upon the land, and therefore, the expression assignment will have to be given such meaning as to promote the object of the enactment. Therefore, the deceased tenant can assign his rights only to the heirs noticed in the provision and such heirs could only be the spouse or any descendants or one who is related to the deceased tenant by legitimate kinship. We must take into consideration that when it is possible for the tenant to pass the property to those who may not necessarily be the heirs under the ordinary law and who become heirs only by reason of a bequest under a Will in which event, he would be a stranger to the family and imported on the land thus to the detriment of the landlord. In that event, it must be taken that a devise under a Will will also amount to an assignment and, therefore, be not valid for the purpose of Section 21 of the Act. If Section 24 is read along with Section 21, it would only mean that the land can pass by succession to the heirs of a deceased tenant, but subject to the conditions prescribed in Section 21 of the Act. Therefore, we are of the view that the broad statement made by the High Court in the two decisions in Shivanna4 and Dhareppa v. State of Karnataka (1979) 1 Kant LJ 18 would not promote the object and purpose of the law. Therefore, the better view appears to us is as stated by the High Court in Timmakka Kom Venkanna Naik v. Land Tribunal (1987) 2 Kant LJ 337.B. Similar issues regarding disposition by will were dealt with by this Court in Jayamma (2004) 7 SCC 459 , as follows:16. We would discuss the construction of the provision of Section 61 of the said Act, a little later, but we have no hesitation in holding that in the event if it be held that the testator could not have executed the Will in favour of a person who could not be declared to be a tenant having occupancy right, such a Will would be void ab initio and, therefore, non est in the eye of the law. The court in such an event would not be determining a disputed question of title but would be considering the effect of the statute vis-a-vis the Will in question.... ... ...18. As we have noticed hereinbefore, that the statutory embargo on transfer of land is stricter in a case where the tenant has become occupant than a land held by a tenant simpliciter. We have also noticed that the embargo on transfer is not only by way of sale, gift, exchange, mortgage, lease but also by assignment. What is permitted under the law is partition of the land amongst the members of the family. Section 61 of the Act is to be read in its entirety.19. Sub-section (3) of Section 61 lays down that any transfer of land in contravention of Sub-section (1) shall be invalid whereupon the same shall vest in the State Government free from all encumbrances. The legislative intent that the land should not be allowed to go into the hands of a stranger to the family is, therefore, manifest. Whereas in terms of Section 21, strangers to the family of the tenant to come upon the land is not allowed, the tenor of Section 61 is that except partition amongst the co-sharers, no transfer of the property, in any manner, is permissible.20. When an assignment or transfer is made in contravention of statutory provisions, the consequence whereof would be that the same is invalid, and thus, being opposed to public policy the same shall attract the provisions of Section 23 of the Indian Contract Act.21. It is not disputed that in view of the purport and object the legislature sought to achieve by enacting the said provision the expression assignment would include a Will.22. In this case, there is also no dispute that grant of agricultural land with occupancy right in terms of the provisions of the said Act was made on 14-10-1981. The Will in question having been executed on 20-2-1984; the transfer has been made within a period of fifteen years from the date of grant which is prohibited in law.C. Both these decisions were in the context of prohibition against transfer or assignment under the provisions of the Karnataka Land Reforms Act, 1961.31. If the provisions referred to in Section 43 of the Act and allied provisions are considered in light of the settled principles extracted earlier, it emerges that the primary concern of those provisions is to see that the legislative scheme of granting protection to persons from disadvantaged categories and conferring the right of purchase upon them, and thereby ensure direct relationship of a tiller with the land. The provisions, though lay down a norm which may not be fully consistent with the principles of Indian Succession Act, are principally designed to attain and sub-serve the purpose of protecting the holdings in the hands of disadvantaged categories. The prohibition against transfers of holding without the previous sanction of the concerned authorities, is to be seen in that light as furthering the cause of legislation. Even if by the process of construction, the expression assignment is construed to include testamentary disposition, in keeping with the settled principles, the incidental encroachment cannot render the said provisions invalid. In pith and substance, the legislation and the concerned provisions are completely within the competence of the State Legislature and by placing the construction upon the expression assignment to include testamentary disposition, no transgression will ensue.32. We, therefore, reject the submissions advanced by Mr. Srivatsa, learned Counsel.33. In the premises, we accept the construction put by the Division Bench on the provisions that fell for consideration. The challenge to the view taken by the Division Bench must therefore be rejected. We must also observe that the decision of this Court in Mahadeo (2017) 13 SCC 756 which had failed to notice the earlier decisions in Sangappa (1998) 7 SCC 294 and Jayamma (2004) 7 SCC 459 and which is inconsistent with the decisions referred to hereinabove and what we have concluded, must be held to be incorrectly decided.In Mahadeo (2017) 13 SCC 756 , this Court dealt with Section 57 of the Bombay Tenancy and Agricultural Lands Act, 1958 as applicable to Vidarbha Region of State Maharashtra, and observed:4. The High Court took the view that the provisions of Section 57 of the Bombay Tenancy and Agricultural Lands Act, 1958 pertaining to Vidarbha Region do not permit the transfer of land by way of a will. Section 57 of the Act which is relevant reads as follows:57. Restriction on transfers of land purchased or sold under this Act(1) No land purchased by a tenant Under Section 41 or 46 or 49-A or 57-D or 130 or sold to any person Under Section 91 or 122 shall be transferred by sale, gift, exchange, mortgage, lease or assignment without the previous sanction of the Collector. Such sanction shall be given by the Collector in such circumstances and subject to such conditions as may be prescribed by the State Government.(2) Any transfer of land in contravention of Sub-section (1) shall be invalid:Provided that nothing in this Section shall apply to the lands purchased by an occupancy tenant.5. On a plain reading of the aforesaid provision, it is clear that transfer without the previous sanction of the Collector is impermissible by way of sale, gift, exchange, mortgage, lease or assignment. There is no prohibition insofar as the transfer of land by way of a will is concerned. In fact, in view of the decision of this Court in State of W.B. v. Kailash Chandra Kapur (1997) 2 SCC 387 , devolution of property by way of a will does not amount to a transfer of the property. This is clear from para 12 of the aforesaid decision wherein it has been observed that transfer connotes, normally, between two living persons during life. However, a will takes effect after demise of the testator and transfer in that perspective becomes incongruous.6. That the beneficiary of a will receives the property by way of devolution and not by way of transfer is also made clear by the decision of this Court in S. Rathinam alias Kappamuthu and Ors. v. L.S. Mariappan and Ors. (2007) 6 SCC 724 wherein this Court has held in para 21 that: (SCC p. 732)21. A testator by his will, may make any disposition of his property subject to the condition that the same should not be inconsistent with the laws or contrary to the policy of the State. A will of a man is the aggregate of his testamentary intentions so far as they are manifested in writing. It is not a transfer but a mode of devolution.In coming to this conclusion, this Court referred to Beru Ram v. Shankar Dass (1977) 8 JKLR 73.D. It must be stated here that the decisions in Sangappa AIR 1998 SC 3229 : (1998) 7 SCC 294 and Jayamma (2004) 7 SCC 459 were rendered by benches of two judges and so was the decision in Mahadeo (2017) 13 SCC 756. However, the decision in Mahadeo does not show that the attention of the bench was invited to the earlier decisions in Sangappa (1998) 7 SCC 294 and Jayamma (2004) 7 SCC 459. E. The decision of this Court in Sangappa (1998) 7 SCC 294 had approved the decision of the Division Bench of the High Court of Karnataka in Timmakka (1987) 2 Kant LJ 337F. On the other hand, the decision in Mahadeo (2017) 13 SCC 756 had placed reliance on the decisions of this Court in State of West Bengal v. Kailash Chandra Kapur (1997) 2 SCC 387 and in S. Rathinam (2007) 6 SCC 724. In neither of these cases any statutory prohibition or restriction on transfer or assignment was involved.13. The decisions in Sangappa (1998) 7 SCC 294 , Jayamma (2004) 7 SCC 459 and Mahadeo (2017) 13 SCC 756 had dealt with the question whether prohibition against transfer of agricultural holdings applied to testamentary disposition.15. Various States have enacted legislations seeking to invalidate transfers of agricultural lands made by tribals or socially disadvantaged persons to non-tribals or transferees from non-backward communities which legislations have gone to the extent of nullifying transactions entered into even before the legislations had come into effect. Validity of these legislations have been sustained by this Court.17. In Amrendra Pratap Singh v. Tej Bahadur Prajapati and Ors. (2004) 10 SCC 65 , a question arose whether a plea of adverse possession by a non-tribal with regard to land of a tribal situated in the scheduled area could be entertained. While dealing with the question, following observations were made by this Court:14. ...... Dictionaries can be taken as safe guides for finding out meanings of such words as are not defined in the statute. However, dictionaries are not the final words on interpretation. The words take colour from the context and the setting in which they have been used. It is permissible to assign a meaning or a sense, restricted or wider than the one given in dictionaries, depending on the scheme of the legislation wherein the word has been used. The court would place such construction on the meaning of the words as would enable the legislative intent being effectuated. Where the object of the legislation is to prevent a mischief and to confer protection on the weaker Sections of the society the court would not hesitate in placing an extended meaning, even a stretched one. on the word, if in doing so the statute would succeed in attaining the object sought to be achieved. We may refer to Principles of Statutory Interpretation by Justice G.P. Singh (8th Edn., 2001) wherein at pp. 279-280 the learned author states-..... in selecting one out of the various meaning of a word, regard must always be had to the context as it is a fundamental Rule that the meanings of words and expressions used in an Act must take their colour from the context in which they appear. Therefore, when the context makes the meaning of a word quite clear, it becomes unnecessary to search for and select a particular meaning out of the diverse meanings a word is capable of, according to lexicographers...... Judge Learned Hand cautioned not to make a fortress out of the dictionary but to pay more attention to the sympathetic and imaginative discovery of the purpose or object of the statute as a guide to its meaning.... ... ...19. State of M.P. v. Babu Lal (1977) 2 SCC 435 is an interesting case showing how this Court dealt with an artistic device employed by a non-tribal to deprive a tribal of his land. The M.P. Land Revenue Code, 1959 imposed restrictions on the transfer of land by members of a Scheduled Tribe. Babu Lal, a non-tribal, filed a suit for declaration against Baddiya, a Bheel, notified Scheduled Tribe, for declaration that his name be recorded in the revenue record as bhumiswami over the land of Baddiya. Baddiya did not contest the suit and the parties filed a compromise conceding to the claim of Babu Lal. The State Government intervened and filed a petition in the High Court seeking a writ of certiorari, submitting that the entire proceedings in the suit were in contravention of Sub-section (6) of Section 165 of the M.P. Land Revenue Code, 1959. The judgment of the civil court based on compromise was sought to be quashed. The High Court dismissed the petition holding that the State could pursue the alternative remedy of filing a suit for declaration that the decree was null and void. In appeal by special leave, this Court set aside the judgment of the High Court and issued a writ of certiorari to quash the judgment and decree passed in the civil suit. It was held: (SCC p. 436, para 5)5. One of the principles on which certiorari is issued is where the Court acts illegally and there is error on the face of record. If the Court usurps the jurisdiction, the record is corrected by certiorari. This case is a glaring instance of such violation of law. The High Court was in error in not issuing writ of certiorari.20. The law laid down by this Court is an authority for the proposition that the court shall step in and annul any such transaction as would have the effect of violating a provision of law, more so when it is a beneficial piece of social legislation. A simple declaratory decree passed by a civil court which had the effect of extinguishing the title of a member of a Scheduled Tribe and vesting the same in a non-member, was construed as transfer within the meaning of Section 165(6) of the M.P. Land Revenue Code, 1959. Thus, we are very clear in our minds that the expression transfer of immovable property as defined in Clause (f) of para 2 of the 1956 Regulations has to be assigned a very wide meaning. Any transaction or dealing with immovable property which would have the effect of extinguishing title, possession or right to possess such property in a tribal and vesting the same in a non-tribal, would be included within the meaning of transfer of immovable property.... ... ...24. In Madhavrao Waman Saundalgekar v. Raghunath Venkatesh Deshpande AIR 1923 PC 205 Their Lordships of the Privy Council dealt with a case of watan lands and observed that it is somewhat difficult to see how a stranger to a watan can acquire a title by adverse possession for twelve years of lands, the alienation of which is, in the interests of the State, prohibited. The Privy Councils decision was noticed in Karimullakhan v. Bhanupratapsingh AIR 1949 Nag 265 : ILR 1948 Nag 978 and the High Court noted non-availability of any direct decision on the point and resorted to borrowing from analogy. It was held that title by adverse possession on inam lands, watan lands and debutter, was incapable of acquisition.25. Reverting back to the facts of the case at hand, we find that in the land, the ultimate ownership vests in the State on the principle of eminent domain. Tribals are conferred with a right to hold land, which right is inalienable in favour of non-tribals. It is clear that the law does not permit a right in immovable property vesting in a tribal to be transferred in favour of or acquired by a non-tribal, unless permitted by the previous sanction of a competent authority. The definition of transfer of immovable property has been coined in the widest-possible terms. The definition makes a reference to all known modes of transferring right, title and interest in immovable property and to make the definition exhaustive, conspicuously employs the expression any other dealing with such property, which would embrace within its sweep any other mode having an impact on right, title or interest of the holder, causing it to cease in one and vest or accrue in another. The use of the word dealing is suggestive of the legislative intent that not only a transfer as such but any dealing with such property (though such dealing may not, in law, amount to transfer), is sought to be included within the meaning of the expression. Such dealing may be a voluntary act on the part of the tribal or may amount to a dealing because of the default or inaction of the tribal as a result of his ignorance, poverty or backwardness, which shall be presumed to have existed when the property of the tribal is taken possession of or otherwise appropriated or sought to be appropriated by a non-tribal. In other words, a default or inaction on the part of a tribal which results in deprivation or deterioration of his rights over immovable property would amount to dealing by him with such property, and hence a transfer of immovable property. It is so because a tribal is considered by the legislature not to be capable of protecting his own immovable property. A provision has been made by para 3-A of the 1956 Regulations for evicting any unauthorised occupant, by way of trespass or otherwise, of any immovable property of a member of a Scheduled Tribe, the steps in regard to which may be taken by the tribal or by any person interested therein or even suo motu by the competent authority. The concept of locus standi loses its significance. The State is the custodian and trustee of the immovable property of tribals and is enjoined to see that the tribal remains in possession of such property. No period of limitation is prescribed by para 3-A. The prescription of the period of twelve years in Article 65 of the Limitation Act becomes irrelevant so far as the immovable property of a tribal is concerned. The tribal need not file a civil suit which will be governed by the law of limitation; it is enough if he or anyone on his behalf moves the State or the State itself moves into action to protect him and restores his property to him. To such an action neither Article 65 of the Limitation Act nor Section 27 thereof would be attracted.26. In our opinion, the abovesaid shall be the position of law under the 1956 Regulations where transfer of immovable property has been defined and also under the 1950 Act where transfer of holding has not been defined. Acquisition of title in favour of a non-tribal by invoking the doctrine of adverse possession over the immovable property belonging to a tribal, is prohibited by law and cannot be countenanced by the court.The law laid down in Amarendra Pratap Singh (2004) 10 SCC 65 was followed by this Court in Lincai Gamango and Ors. v. Dayanidhi Jena and Ors. (2004) 7 SCC 437. 20. The common thread running through these decisions except that in Mahadeo (2017) 13 SCC 756 is to construe the prohibition against transfer appearing in various statutes in keeping with the legislative intent. As laid down in Amarendra Pratap Singh (2004) 10 SCC 65 , where the object of the legislation is to prevent a mischief and to confer protection on the weaker Sections of the society, the court would not hesitate in placing an extended meaning, even a stretched one, on the word, if in doing so the statute would succeed in attaining the object sought to be achieved. | 0 | 39,626 | 5,938 | ### Instruction:
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consider, inter alia, the competence of the State Legislature to enact certain provisions of the Maharashtra Regional and Town Planning Act, 1966, stated to be in conflict with Section 11A of the Land Acquisition Act, 1894, a Central Legislation. While rejecting the submission, this Court observed: 183. We have already discussed in great detail that the State Act being a code in itself can take within its ambit provisions of the Central Act related to acquisition, while excluding the provisions which offend and frustrate the object of the State Act. It will not be necessary to create, or read into the legislations, an imaginary conflict or repugnancy between the two legislations, particularly, when they can be enforced in their respective fields without conflict. Even if they are examined from the point of view that repugnancy is implied between Section 11-A of the Land Acquisition Act and Sections 126 and 127 of the MRTP Act, then in our considered view, they would fall within the permissible limits of doctrine of incidental encroachment without rendering any part of the State law invalid. 184. Once the doctrine of pith and substance is applied to the facts of the present case, it is more than clear that in substance the State Act is aimed at planned development unlike the Central Act where the object is to acquire land and disburse compensation in accordance with law. Paramount purpose and object of the State Act being planned development and acquisition being incidental thereto, the question of repugnancy does not arise. The State, in terms of Entry 5 of List II of Schedule VII, is competent to enact such a law. It is a settled canon of law that courts normally would make every effort to save the legislation and resolve the conflict/repugnancy, if any, rather than invalidating the statute. Therefore, it will be the purposive approach to permit both the enactments to operate in their own fields by applying them harmoniously. Thus, in our view, the ground of repugnancy raised by the Appellants, in the present appeals, merits rejection. 185. A self-contained code is an exception to the Rule of referential legislation. The various legal concepts covering the relevant issues have been discussed by us in detail above. The schemes of the MRTP Act and the Land Acquisition Act do not admit any conflict or repugnancy in their implementation. The slight overlapping would not take the colour of repugnancy. In such cases, the doctrine of pith and substance would squarely be applicable and rigours of Article 254(1) would not be attracted. Besides that, the reference is limited to specific provisions of the Land Acquisition Act, in the State Act. Unambiguous language of the provisions of the MRTP Act and the legislative intent clearly mandates that it is a case of legislation by incorporation in contradistinction to legislation by reference. 186. Only those provisions of the Central Act which precisely apply to acquisition of land, determination and disbursement of compensation in accordance with law, can be read into the State Act. But with the specific exceptions that the provisions of the Central Act relating to default and consequences thereof, including lapsing of acquisition proceedings, cannot be read into the State Act. It is for the reason that neither have they been specifically incorporated into the State law nor can they be absorbed objectively into that statute. If such provisions (Section 11-A being one of such sections) are read as part of the State enactment, they are bound to produce undesirable results as they would destroy the very essence, object and purpose of the MRTP Act. 187. Even if fractional overlapping is accepted between the two statutes, then it will be saved by the doctrine of incidental encroachment, and it shall also be inconsequential as both the constituents have enacted the respective laws within their legislative competence and, moreover, both the statutes can eloquently coexist and operate with compatibility. It will be in consonance with the established canons of law to tilt the balance in favour of the legislation rather than invalidating the same, particularly, when the Central and State law can be enforced symbiotically to achieve the ultimate goal of planned development. 31. If the provisions referred to in Section 43 of the Act and allied provisions are considered in light of the settled principles extracted earlier, it emerges that the primary concern of those provisions is to see that the legislative scheme of granting protection to persons from disadvantaged categories and conferring the right of purchase upon them, and thereby ensure direct relationship of a tiller with the land. The provisions, though lay down a norm which may not be fully consistent with the principles of Indian Succession Act, are principally designed to attain and sub-serve the purpose of protecting the holdings in the hands of disadvantaged categories. The prohibition against transfers of holding without the previous sanction of the concerned authorities, is to be seen in that light as furthering the cause of legislation. Even if by the process of construction, the expression assignment is construed to include testamentary disposition, in keeping with the settled principles, the incidental encroachment cannot render the said provisions invalid. In pith and substance, the legislation and the concerned provisions are completely within the competence of the State Legislature and by placing the construction upon the expression assignment to include testamentary disposition, no transgression will ensue. 32. We, therefore, reject the submissions advanced by Mr. Srivatsa, learned Counsel. 33. In the premises, we accept the construction put by the Division Bench on the provisions that fell for consideration. The challenge to the view taken by the Division Bench must therefore be rejected. We must also observe that the decision of this Court in Mahadeo (2017) 13 SCC 756 which had failed to notice the earlier decisions in Sangappa (1998) 7 SCC 294 and Jayamma (2004) 7 SCC 459 and which is inconsistent with the decisions referred to hereinabove and what we have concluded, must be held to be incorrectly decided.
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provision of law, more so when it is a beneficial piece of social legislation. A simple declaratory decree passed by a civil court which had the effect of extinguishing the title of a member of a Scheduled Tribe and vesting the same in a non-member, was construed as transfer within the meaning of Section 165(6) of the M.P. Land Revenue Code, 1959. Thus, we are very clear in our minds that the expression transfer of immovable property as defined in Clause (f) of para 2 of the 1956 Regulations has to be assigned a very wide meaning. Any transaction or dealing with immovable property which would have the effect of extinguishing title, possession or right to possess such property in a tribal and vesting the same in a non-tribal, would be included within the meaning of transfer of immovable property.... ... ...24. In Madhavrao Waman Saundalgekar v. Raghunath Venkatesh Deshpande AIR 1923 PC 205 Their Lordships of the Privy Council dealt with a case of watan lands and observed that it is somewhat difficult to see how a stranger to a watan can acquire a title by adverse possession for twelve years of lands, the alienation of which is, in the interests of the State, prohibited. The Privy Councils decision was noticed in Karimullakhan v. Bhanupratapsingh AIR 1949 Nag 265 : ILR 1948 Nag 978 and the High Court noted non-availability of any direct decision on the point and resorted to borrowing from analogy. It was held that title by adverse possession on inam lands, watan lands and debutter, was incapable of acquisition.25. Reverting back to the facts of the case at hand, we find that in the land, the ultimate ownership vests in the State on the principle of eminent domain. Tribals are conferred with a right to hold land, which right is inalienable in favour of non-tribals. It is clear that the law does not permit a right in immovable property vesting in a tribal to be transferred in favour of or acquired by a non-tribal, unless permitted by the previous sanction of a competent authority. The definition of transfer of immovable property has been coined in the widest-possible terms. The definition makes a reference to all known modes of transferring right, title and interest in immovable property and to make the definition exhaustive, conspicuously employs the expression any other dealing with such property, which would embrace within its sweep any other mode having an impact on right, title or interest of the holder, causing it to cease in one and vest or accrue in another. The use of the word dealing is suggestive of the legislative intent that not only a transfer as such but any dealing with such property (though such dealing may not, in law, amount to transfer), is sought to be included within the meaning of the expression. Such dealing may be a voluntary act on the part of the tribal or may amount to a dealing because of the default or inaction of the tribal as a result of his ignorance, poverty or backwardness, which shall be presumed to have existed when the property of the tribal is taken possession of or otherwise appropriated or sought to be appropriated by a non-tribal. In other words, a default or inaction on the part of a tribal which results in deprivation or deterioration of his rights over immovable property would amount to dealing by him with such property, and hence a transfer of immovable property. It is so because a tribal is considered by the legislature not to be capable of protecting his own immovable property. A provision has been made by para 3-A of the 1956 Regulations for evicting any unauthorised occupant, by way of trespass or otherwise, of any immovable property of a member of a Scheduled Tribe, the steps in regard to which may be taken by the tribal or by any person interested therein or even suo motu by the competent authority. The concept of locus standi loses its significance. The State is the custodian and trustee of the immovable property of tribals and is enjoined to see that the tribal remains in possession of such property. No period of limitation is prescribed by para 3-A. The prescription of the period of twelve years in Article 65 of the Limitation Act becomes irrelevant so far as the immovable property of a tribal is concerned. The tribal need not file a civil suit which will be governed by the law of limitation; it is enough if he or anyone on his behalf moves the State or the State itself moves into action to protect him and restores his property to him. To such an action neither Article 65 of the Limitation Act nor Section 27 thereof would be attracted.26. In our opinion, the abovesaid shall be the position of law under the 1956 Regulations where transfer of immovable property has been defined and also under the 1950 Act where transfer of holding has not been defined. Acquisition of title in favour of a non-tribal by invoking the doctrine of adverse possession over the immovable property belonging to a tribal, is prohibited by law and cannot be countenanced by the court.The law laid down in Amarendra Pratap Singh (2004) 10 SCC 65 was followed by this Court in Lincai Gamango and Ors. v. Dayanidhi Jena and Ors. (2004) 7 SCC 437. 20. The common thread running through these decisions except that in Mahadeo (2017) 13 SCC 756 is to construe the prohibition against transfer appearing in various statutes in keeping with the legislative intent. As laid down in Amarendra Pratap Singh (2004) 10 SCC 65 , where the object of the legislation is to prevent a mischief and to confer protection on the weaker Sections of the society, the court would not hesitate in placing an extended meaning, even a stretched one, on the word, if in doing so the statute would succeed in attaining the object sought to be achieved.
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President/Secretary, J.K. Synthetics Mazdoor Union and Ors Vs. Arfat Petrochemicals Pvt. Ltd. and Ors | held by the BIFR on 30.06.2008. It complained of no notice being issued for the earlier meeting dated 05.05.2008. The First Respondent informed the BIFR that it is not a sick company and no directions can therefore be issued to it. The BIFR held that the First Respondent was not right in contending that it does not fall within the purview of the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to as ?the Act??) and need not implement the orders issued by the Board. The BIFR directed the IDBI to carry out an inspection of the Kota units and to submit a report. There was a direction to maintain status quo in respect of the material/assets at the factory site of the Kota Units till further orders. There was also a stay on transfer/alienation of land or assets of the company without the permission of the Board. The orders dated 05.05.2008 and 30.06.2008 of the BIFR were assailed by the First and Second Respondents before the AAIFR. The AAIFR by its order dated 11.12.2008 dismissed the Appeals filed by the First Respondent and directed the BIFR to re-examine the exact position relating to the payment of dues to the workmen. The BIFR was also directed to continue the monitoring of the Scheme and review the efforts made by the First Respondent towards revival of the Kota units. The contention of the First Respondent that the BIFR has no jurisdiction over a company which is not a sick company was rejected. It is relevant to refer to the findings of the AAIFR in favour of the Second Respondent in paragraphs 38, 39 and 40 of the said order. In the said paragraphs the AAIFR held that it is only the First Respondent who would be responsible for the payment of the dues to the workmen. While holding that the Second Respondent is not liable to make any payment, the AAIFR allowed the Appeal of the Second Respondent by setting aside the directions issued by the BIFR to the Second Respondent.8. Aggrieved by the order dated 11.12.2008 of the AAIFR, the First Respondent filed a Writ Petition in the Rajasthan High Court. The High Court allowed the Writ Petition by holding that the BIFR and the AAIFR do not have jurisdiction to issue directions to a company which is not a sick industrial company under Section 22 A of the Act. Being aggrieved by the said judgment of the High Court, the Labour Unions filed Civil Appeal No. 8597 and 8598 of 2010. Civil Appeal No. 8599 of 2010 is filed by JK Synthetics Limited aggrieved by the judgment in so far as it set aside the findings in its favour which were not challenged in the Writ Petition.9. The only point that falls for consideration in these Appeals is regarding the scope of Section 22 A of the Act.Section 22 A is as follows:?22 A. Direction not to dispose of assets: -The Board may, if it is of opinion that any direction is necessary in the interest of the sick industrial company or creditors or shareholders or in the public interest, by order in writing direct the sick industrial company not to dispose of, except with the consent of the Board, any of its assets—(a) during the period of preparation or consideration of the scheme under section 18; and(b) during the period beginning with the recording of opinion by the Board for winding up of the company under sub-section (1) of section 20 and up to commencement of the proceedings relating to the winding up before the concerned High Court.?10. ?Sick industrial company? is defined in Section 3 (1) (o) which is as under:?(o) "sick industrial company" means an industrial company (being a company registered for not less than five years) which has at the end of any financial year accumulated losses equal to or exceeding its entire net worth.Explanation: - For the removal of doubts, it is hereby declared that an industrial company existing immediately before the commencement of the Sick Industrial Companies (Special Provisions) Amendment Act, 1993, registered for not less than five years and having at the end of any financial year accumulated losses equal to or exceeding its entire net worth, shall be deemed to be a sick industrial company;?11. It is clear from a plain reading of Section 22 A of the Act that the Board can issue a direction not to dispose of assets only to a sick industrial company. There is no dispute that the First Respondent is not a sick industrial company and that it purchased the assets from a sick industrial company in accordance with the Sanctioned Scheme. The BIFR was not correct in passing an order of status quo and directing the First Respondent not to alienate/transfer the assets by its orders dated 05.05.2008 and 30.06.2008. We agree with the findings of the High Court in the impugned judgment that the BIFR does not have competence to issue directions to a company which is not a sick industrial company under Section 22 A of the Act. We are fortified in this view by a judgment of this Court in U.P . State Sugar Corporation Ltd. v. U.P. State Sugar Corporation Karamchari Association and Anr. reported in (1995) 4 SCC 276 wherein it was held as follows:?It runs counter to the express terms of Section 22 A of the Act which confers a limited power on the Board to pass an order prohibiting a sick industrial company from disposing of its assets only during the period specified in Clause (a) and (b).?12. Several contentions have been raised by both sides during the course of hearing of these Appeals which we have not adverted to as they are not relevant for adjudication of the dispute in these appeals. We express no opinion on the jurisdiction of BIFR under other provisions of the Act. It is open to the BIFR to review the implementation of the Sanctioned Scheme and pass suitable directions. | 0[ds]11. It is clear from a plain reading of Section 22 A of the Act that the Board can issue a direction not to dispose of assets only to a sick industrial company. There is no dispute that the First Respondent is not a sick industrial company and that it purchased the assets from a sick industrial company in accordance with the Sanctioned Scheme. The BIFR was not correct in passing an order of status quo and directing the First Respondent not to alienate/transfer the assets by its orders dated 05.05.2008 and 30.06.2008. We agree with the findings of the High Court in the impugned judgment that the BIFR does not have competence to issue directions to a company which is not a sick industrial company under Section 22 A of the Act. We are fortified in this view by a judgment of this Court in U.P . State Sugar Corporation Ltd. v. U.P. State Sugar Corporation Karamchari Association and Anr. reported in (1995) 4 SCC 276 wherein it was held asruns counter to the express terms of Section 22 A of the Act which confers a limited power on the Board to pass an order prohibiting a sick industrial company from disposing of its assets only during the period specified in Clause (a) and (b).Several contentions have been raised by both sides during the course of hearing of these Appeals which we have not adverted to as they are not relevant for adjudication of the dispute in these appeals. We express no opinion on the jurisdiction of BIFR under other provisions of the Act. It is open to the BIFR to review the implementation of the Sanctioned Scheme and pass suitable directions. | 0 | 2,210 | 304 | ### Instruction:
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held by the BIFR on 30.06.2008. It complained of no notice being issued for the earlier meeting dated 05.05.2008. The First Respondent informed the BIFR that it is not a sick company and no directions can therefore be issued to it. The BIFR held that the First Respondent was not right in contending that it does not fall within the purview of the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to as ?the Act??) and need not implement the orders issued by the Board. The BIFR directed the IDBI to carry out an inspection of the Kota units and to submit a report. There was a direction to maintain status quo in respect of the material/assets at the factory site of the Kota Units till further orders. There was also a stay on transfer/alienation of land or assets of the company without the permission of the Board. The orders dated 05.05.2008 and 30.06.2008 of the BIFR were assailed by the First and Second Respondents before the AAIFR. The AAIFR by its order dated 11.12.2008 dismissed the Appeals filed by the First Respondent and directed the BIFR to re-examine the exact position relating to the payment of dues to the workmen. The BIFR was also directed to continue the monitoring of the Scheme and review the efforts made by the First Respondent towards revival of the Kota units. The contention of the First Respondent that the BIFR has no jurisdiction over a company which is not a sick company was rejected. It is relevant to refer to the findings of the AAIFR in favour of the Second Respondent in paragraphs 38, 39 and 40 of the said order. In the said paragraphs the AAIFR held that it is only the First Respondent who would be responsible for the payment of the dues to the workmen. While holding that the Second Respondent is not liable to make any payment, the AAIFR allowed the Appeal of the Second Respondent by setting aside the directions issued by the BIFR to the Second Respondent.8. Aggrieved by the order dated 11.12.2008 of the AAIFR, the First Respondent filed a Writ Petition in the Rajasthan High Court. The High Court allowed the Writ Petition by holding that the BIFR and the AAIFR do not have jurisdiction to issue directions to a company which is not a sick industrial company under Section 22 A of the Act. Being aggrieved by the said judgment of the High Court, the Labour Unions filed Civil Appeal No. 8597 and 8598 of 2010. Civil Appeal No. 8599 of 2010 is filed by JK Synthetics Limited aggrieved by the judgment in so far as it set aside the findings in its favour which were not challenged in the Writ Petition.9. The only point that falls for consideration in these Appeals is regarding the scope of Section 22 A of the Act.Section 22 A is as follows:?22 A. Direction not to dispose of assets: -The Board may, if it is of opinion that any direction is necessary in the interest of the sick industrial company or creditors or shareholders or in the public interest, by order in writing direct the sick industrial company not to dispose of, except with the consent of the Board, any of its assets—(a) during the period of preparation or consideration of the scheme under section 18; and(b) during the period beginning with the recording of opinion by the Board for winding up of the company under sub-section (1) of section 20 and up to commencement of the proceedings relating to the winding up before the concerned High Court.?10. ?Sick industrial company? is defined in Section 3 (1) (o) which is as under:?(o) "sick industrial company" means an industrial company (being a company registered for not less than five years) which has at the end of any financial year accumulated losses equal to or exceeding its entire net worth.Explanation: - For the removal of doubts, it is hereby declared that an industrial company existing immediately before the commencement of the Sick Industrial Companies (Special Provisions) Amendment Act, 1993, registered for not less than five years and having at the end of any financial year accumulated losses equal to or exceeding its entire net worth, shall be deemed to be a sick industrial company;?11. It is clear from a plain reading of Section 22 A of the Act that the Board can issue a direction not to dispose of assets only to a sick industrial company. There is no dispute that the First Respondent is not a sick industrial company and that it purchased the assets from a sick industrial company in accordance with the Sanctioned Scheme. The BIFR was not correct in passing an order of status quo and directing the First Respondent not to alienate/transfer the assets by its orders dated 05.05.2008 and 30.06.2008. We agree with the findings of the High Court in the impugned judgment that the BIFR does not have competence to issue directions to a company which is not a sick industrial company under Section 22 A of the Act. We are fortified in this view by a judgment of this Court in U.P . State Sugar Corporation Ltd. v. U.P. State Sugar Corporation Karamchari Association and Anr. reported in (1995) 4 SCC 276 wherein it was held as follows:?It runs counter to the express terms of Section 22 A of the Act which confers a limited power on the Board to pass an order prohibiting a sick industrial company from disposing of its assets only during the period specified in Clause (a) and (b).?12. Several contentions have been raised by both sides during the course of hearing of these Appeals which we have not adverted to as they are not relevant for adjudication of the dispute in these appeals. We express no opinion on the jurisdiction of BIFR under other provisions of the Act. It is open to the BIFR to review the implementation of the Sanctioned Scheme and pass suitable directions.
### Response:
0
### Explanation:
11. It is clear from a plain reading of Section 22 A of the Act that the Board can issue a direction not to dispose of assets only to a sick industrial company. There is no dispute that the First Respondent is not a sick industrial company and that it purchased the assets from a sick industrial company in accordance with the Sanctioned Scheme. The BIFR was not correct in passing an order of status quo and directing the First Respondent not to alienate/transfer the assets by its orders dated 05.05.2008 and 30.06.2008. We agree with the findings of the High Court in the impugned judgment that the BIFR does not have competence to issue directions to a company which is not a sick industrial company under Section 22 A of the Act. We are fortified in this view by a judgment of this Court in U.P . State Sugar Corporation Ltd. v. U.P. State Sugar Corporation Karamchari Association and Anr. reported in (1995) 4 SCC 276 wherein it was held asruns counter to the express terms of Section 22 A of the Act which confers a limited power on the Board to pass an order prohibiting a sick industrial company from disposing of its assets only during the period specified in Clause (a) and (b).Several contentions have been raised by both sides during the course of hearing of these Appeals which we have not adverted to as they are not relevant for adjudication of the dispute in these appeals. We express no opinion on the jurisdiction of BIFR under other provisions of the Act. It is open to the BIFR to review the implementation of the Sanctioned Scheme and pass suitable directions.
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MRF Ltd., Kottayam Vs. Assistant Commissioner Sales Tax and Ors | than 5 years out of a total period of 7 years, in our opinion, is highly arbitrary, unjust and unreasonable and deserves to be quashed. In any event the State Government has no power to make a retrospective amendment to SRO 1729/93 affecting rights already accrued to MRF thereunder. Section 10 of the Act provides the power to the Government to grant exemption and reduction in rate of tax. Section 10 reads: "10. Power of Government to grant exemption and reduction in rate of tax.- (1) The Government may, if they consider it necessary in the public interest, by notification in the Gazette, make an exemption or reduction in rate, either prospectively or retrospectively in respect of any tax payable under this Act, (i) on the sale or purchase of any specified goods or class of goods, at all points or at a specified point or points in the series of sales or purchases by successive dealers, or (ii) by any specified class of persons in regard to the whole or any part of their turnover. (2) Any exemption from tax, or reduction in the rate of tax, notified under Sub-section (1),- (a) may extend to the whole State or to any specified area or areas therein, (b) may be subject to such restrictions and conditions as may be specified in the notification. (3) The Government may by notification in the Gazette, cancel or vary any notification issued under Sub-section (1). 39. Under Section 10(1) of the Act the State Government has the power to make an exemption or reduction in rate either prospectively or retrospectively in respect of any tax payable under this Act. However, the power of Government under Section 10(3) by notification in the Gazette to cancel or vary any notification issued under Section 10(3) cannot be exercised retrospectively. This is the view taken by the Kerala High Court in M.M. Nagalingam Nadar Sons Vs. State of Kerala, 1993 (91) STC 61, where the learned Single Judge of the High Court has stated as under: "Power is thus given under sub-section (1) to make an exemption or reduction in rate either prospectively or retrospectively in respect of any tax payable under the Act. Sub-section (3) enables the Government to cancel or vary any such notification issued under sub-section (1). Significantly, sub-section (3) is silent about retorpsectivity for any notification issued under it. Thus while sub-section (1) authorizes the grant of an exemption or reduction in rate with retrospective effect in respect of any tax payable under the Act, sub-section (3) does not provide for any cancellation or variation retrospectively. In issuing notifications under Section 10, the Government is exercising only delegated powers. While the legislature has plenary powers to Legislate prospectively and retrospectively, a delegated authority like the Government acting under the powers conferred on it by the enactment concerned, can exercise only those powers which are specifically conferred. Therefore, if it is intended to confer on the Government a power to cancel/withdraw/vary an exemption or reduction in rate of tax, with retrospective effect, such a power has to be specifically conferred, and in the absence of any such specific conferment of power in sub-section (3) of Section 10, the Government cannot issue notifications there under affecting a vested right or imposing an obligation to act retrospectively. I have already mentioned that this provision is significantly silent on such a power. Equally, the Government has also no power to levy a tax with retrospective effect. The retrospective cancellation/withdrawal of an exemption or a reduction in rate tantamounts to levy of a tax, or tax at a higher rate from a date in the past, for which the Government has no power under sub-section (3)." [Emphasis supplied] 40. This judgment of the learned Single Judge was approved by a Division Bench of the Kerala High Court in Dy. Commissioner (Law), Board of Revenue (Taxes) Vs. MRF Ltd., 1998 (109) STC 306, by observing thus: "We are in full agreement with the view taken by the learned Single Judge in M.M. Nagalingam Nadar Sons vs. State of Kerala, 1993 (91) STC 61 (Ker) that Government has no power under Section 10(3) of the Act to issue a notification with retrospective effect." 41. Before this Court the State of Kerala did not dispute the above finding (See 2000(9) SCC 286) where the States appeal was dismissed. That Section 10(3) of the Kerala General Sales Tax Act did not confer the power to withdraw an exemption with retrospective effect was not challenged by the State Government and accordingly the finding regarding the meaning and effect of Section 10(3) of the Act has become final. In any event, the appeal preferred by the State of Kerala was dismissed and the judgment of the High Court has therefore become final. Accordingly, it was held that Section 10(3) does not confer the power to withdraw an exemption with retrospective effect. Effect of this is that the amendment notification SRO 38/98 has to be read so as not to take away or disturb any manufacturers pre-existing accrued right of exemption for a period of 7 years. If SRO 38/98 is construed as now contended by the respondent, then the inevitable consequence would be that SRO 38/98 would itself be rendered ultra vires Section 10(3) of the Act, and therefore, illegal, bad in law and null and void. 42. We do not agree with the submission made by the learned counsel for the respondent/State that subsequent notification was classificatory in nature. That it only removed the doubt which had arisen with reference to "compound rubber" in the SRO 1729/93. Making of "compound rubber" had been accepted to be "manufacture" in the Memorandum of Undertaking entered between MRF and the Government on 6.10.1993 and the addendum dated 10.4.1996 to the Memorandum of Undertaking dated 6.10.1993. It is further recognized in the eligibility certificate issued by the Director of Industries and Commerce after investigation and due verification and the exemption certificate issued by the Board of Revenue. 43. | 1[ds]In the aforesaid case, the Employees Provident Fund Act (as amended in 1988) provided that the Act would not apply "to a newly set up establishment for a period of three years from the date on which such establishment is set up." Section 16 (1)(d) was deleted by the Amending Act w.e.f. 22.9.1997 and the question was whether the initial exemption from application of the Act would continue for the full period of three years from the date of its establishment, even beyond 22.9.1997. Rejecting the contention, as pointed out earlier, it was held that retrospective operation is not taken to be intended unless that intention of the Legislature is projected by express words or necessary implication. Setting aside the order of the High Court it was held:"18. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. (See Keshvan Madhavan Memon v. State of Bombay, 1951 SCR 228 ). But the rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the Legislature to affect existing rights, it is deemed to be prospective only nova constitutio futuris formam imponere debet non praeteritis. In the words of Lord Blansburg, "provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment."High Court in its judgment has recorded a finding that the notifications being statutory "no plea of estoppel will lie against a statutory notification". This finding of the High Court is erroneous. The doctrine of promissory estoppel has been repeatedly applied by this Court to statutory notificationsIn Kasinka Tradings case (supra) and Rom Industries Vs. State of Jammu & Kashmir, 2005 (7) SCC 348, on which reliance has been placed by the learned counsel for the respondent do not disturb the settled position in law that where a right has already accrued, for instance, the right to exemption of tax for a fixed period and the conditions for that exemption have been fulfilled, then the withdrawal of the exemption during that fixed period cannot effect the already accrued right. Of course, overriding public interest would prevail over a plea based on promissory estoppel, but in the present case there is not even a whisper of any overriding public interest or equity. Notification SRO 38/98 was an amendment and not a clarification of SRO 1729/93 and was expressly made prospective w.e.f. 15.1.1998Besides, a plea of promissory estoppel is in the nature of an equitable plea and must be determined in the facts and circumstances of each case where it is raisedMRF made a huge investment in the State of Kerala under a promise held to it that it would be granted exemption from payment of sales tax for a period of seven years. It was granted the eligibility certificate. The exemption order had also been passed. It is not open to or permissible for the State Government to seek to deprive MRF of the benefit of tax exemption in respect of its substantial investment in expansion in respect of compound rubber when the State Government had enjoyed the benefit from the investment made by the MRF in the form of industrial development in the State, contribution to labour and employment and also a huge benefit to the State exchequer in the form of the States share, i.e. 40% of the Central Excise duty paid on compound rubber of Rs. 177 crores within the State of Kerala. The impugned action on the part of the State Government is highly unfair, unreasonable, arbitrary and, therefore, the same is violative of Article 14 of the Constitution of India. The action of the State cannot be permitted to operate if it is arbitrary or unreasonable. This Court in E.P. Royappa Vs. State of Tamil Nadu, 1974 (4) SCC 3 , observed that where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14. Equity that arises in favour of a party as a result of a representation made by the State is founded on the basic concept of "justice and fair play". The attempt to take away the said benefit of exemption with effect from 15.1.1998 and thereby deprive MRF of the benefit of exemption for more than 5 years out of a total period of 7 years, in our opinion, is highly arbitrary, unjust and unreasonable and deserves to be quashed. In any event the State Government has no power to make a retrospective amendment to SRO 1729/93 affecting rights already accrued to MRF thereunder. Section 10 of the Act provides the power to the Government to grant exemption and reduction in rate of taxBefore this Court the State of Kerala did not dispute the above finding (See 2000(9) SCC 286) where the States appeal was dismissed. That Section 10(3) of the Kerala General Sales Tax Act did not confer the power to withdraw an exemption with retrospective effect was not challenged by the State Government and accordingly the finding regarding the meaning and effect of Section 10(3) of the Act has become final. In any event, the appeal preferred by the State of Kerala was dismissed and the judgment of the High Court has therefore become final. Accordingly, it was held that Section 10(3) does not confer the power to withdraw an exemption with retrospective effect. Effect of this is that the amendment notification SRO 38/98 has to be read so as not to take away or disturb any manufacturers pre-existing accrued right of exemption for a period of 7 years. If SRO 38/98 is construed as now contended by the respondent, then the inevitable consequence would be that SRO 38/98 would itself be rendered ultra vires Section 10(3) of the Act, and therefore, illegal, bad in law and null and voidWe do not agree with the submission made by the learned counsel for the respondent/State that subsequent notification was classificatory in nature. That it only removed the doubt which had arisen with reference to "compound rubber" in the SRO 1729/93. Making of "compound rubber" had been accepted to be "manufacture" in the Memorandum of Undertaking entered between MRF and the Government on 6.10.1993 and the addendum dated 10.4.1996 to the Memorandum of Undertaking dated 6.10.1993. It is further recognized in the eligibility certificate issued by the Director of Industries and Commerce after investigation and due verification and the exemption certificate issued by the Board of Revenue. | 1 | 9,805 | 1,249 | ### 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:
than 5 years out of a total period of 7 years, in our opinion, is highly arbitrary, unjust and unreasonable and deserves to be quashed. In any event the State Government has no power to make a retrospective amendment to SRO 1729/93 affecting rights already accrued to MRF thereunder. Section 10 of the Act provides the power to the Government to grant exemption and reduction in rate of tax. Section 10 reads: "10. Power of Government to grant exemption and reduction in rate of tax.- (1) The Government may, if they consider it necessary in the public interest, by notification in the Gazette, make an exemption or reduction in rate, either prospectively or retrospectively in respect of any tax payable under this Act, (i) on the sale or purchase of any specified goods or class of goods, at all points or at a specified point or points in the series of sales or purchases by successive dealers, or (ii) by any specified class of persons in regard to the whole or any part of their turnover. (2) Any exemption from tax, or reduction in the rate of tax, notified under Sub-section (1),- (a) may extend to the whole State or to any specified area or areas therein, (b) may be subject to such restrictions and conditions as may be specified in the notification. (3) The Government may by notification in the Gazette, cancel or vary any notification issued under Sub-section (1). 39. Under Section 10(1) of the Act the State Government has the power to make an exemption or reduction in rate either prospectively or retrospectively in respect of any tax payable under this Act. However, the power of Government under Section 10(3) by notification in the Gazette to cancel or vary any notification issued under Section 10(3) cannot be exercised retrospectively. This is the view taken by the Kerala High Court in M.M. Nagalingam Nadar Sons Vs. State of Kerala, 1993 (91) STC 61, where the learned Single Judge of the High Court has stated as under: "Power is thus given under sub-section (1) to make an exemption or reduction in rate either prospectively or retrospectively in respect of any tax payable under the Act. Sub-section (3) enables the Government to cancel or vary any such notification issued under sub-section (1). Significantly, sub-section (3) is silent about retorpsectivity for any notification issued under it. Thus while sub-section (1) authorizes the grant of an exemption or reduction in rate with retrospective effect in respect of any tax payable under the Act, sub-section (3) does not provide for any cancellation or variation retrospectively. In issuing notifications under Section 10, the Government is exercising only delegated powers. While the legislature has plenary powers to Legislate prospectively and retrospectively, a delegated authority like the Government acting under the powers conferred on it by the enactment concerned, can exercise only those powers which are specifically conferred. Therefore, if it is intended to confer on the Government a power to cancel/withdraw/vary an exemption or reduction in rate of tax, with retrospective effect, such a power has to be specifically conferred, and in the absence of any such specific conferment of power in sub-section (3) of Section 10, the Government cannot issue notifications there under affecting a vested right or imposing an obligation to act retrospectively. I have already mentioned that this provision is significantly silent on such a power. Equally, the Government has also no power to levy a tax with retrospective effect. The retrospective cancellation/withdrawal of an exemption or a reduction in rate tantamounts to levy of a tax, or tax at a higher rate from a date in the past, for which the Government has no power under sub-section (3)." [Emphasis supplied] 40. This judgment of the learned Single Judge was approved by a Division Bench of the Kerala High Court in Dy. Commissioner (Law), Board of Revenue (Taxes) Vs. MRF Ltd., 1998 (109) STC 306, by observing thus: "We are in full agreement with the view taken by the learned Single Judge in M.M. Nagalingam Nadar Sons vs. State of Kerala, 1993 (91) STC 61 (Ker) that Government has no power under Section 10(3) of the Act to issue a notification with retrospective effect." 41. Before this Court the State of Kerala did not dispute the above finding (See 2000(9) SCC 286) where the States appeal was dismissed. That Section 10(3) of the Kerala General Sales Tax Act did not confer the power to withdraw an exemption with retrospective effect was not challenged by the State Government and accordingly the finding regarding the meaning and effect of Section 10(3) of the Act has become final. In any event, the appeal preferred by the State of Kerala was dismissed and the judgment of the High Court has therefore become final. Accordingly, it was held that Section 10(3) does not confer the power to withdraw an exemption with retrospective effect. Effect of this is that the amendment notification SRO 38/98 has to be read so as not to take away or disturb any manufacturers pre-existing accrued right of exemption for a period of 7 years. If SRO 38/98 is construed as now contended by the respondent, then the inevitable consequence would be that SRO 38/98 would itself be rendered ultra vires Section 10(3) of the Act, and therefore, illegal, bad in law and null and void. 42. We do not agree with the submission made by the learned counsel for the respondent/State that subsequent notification was classificatory in nature. That it only removed the doubt which had arisen with reference to "compound rubber" in the SRO 1729/93. Making of "compound rubber" had been accepted to be "manufacture" in the Memorandum of Undertaking entered between MRF and the Government on 6.10.1993 and the addendum dated 10.4.1996 to the Memorandum of Undertaking dated 6.10.1993. It is further recognized in the eligibility certificate issued by the Director of Industries and Commerce after investigation and due verification and the exemption certificate issued by the Board of Revenue. 43.
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### Explanation:
Court it was held:"18. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. (See Keshvan Madhavan Memon v. State of Bombay, 1951 SCR 228 ). But the rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the Legislature to affect existing rights, it is deemed to be prospective only nova constitutio futuris formam imponere debet non praeteritis. In the words of Lord Blansburg, "provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment."High Court in its judgment has recorded a finding that the notifications being statutory "no plea of estoppel will lie against a statutory notification". This finding of the High Court is erroneous. The doctrine of promissory estoppel has been repeatedly applied by this Court to statutory notificationsIn Kasinka Tradings case (supra) and Rom Industries Vs. State of Jammu & Kashmir, 2005 (7) SCC 348, on which reliance has been placed by the learned counsel for the respondent do not disturb the settled position in law that where a right has already accrued, for instance, the right to exemption of tax for a fixed period and the conditions for that exemption have been fulfilled, then the withdrawal of the exemption during that fixed period cannot effect the already accrued right. Of course, overriding public interest would prevail over a plea based on promissory estoppel, but in the present case there is not even a whisper of any overriding public interest or equity. Notification SRO 38/98 was an amendment and not a clarification of SRO 1729/93 and was expressly made prospective w.e.f. 15.1.1998Besides, a plea of promissory estoppel is in the nature of an equitable plea and must be determined in the facts and circumstances of each case where it is raisedMRF made a huge investment in the State of Kerala under a promise held to it that it would be granted exemption from payment of sales tax for a period of seven years. It was granted the eligibility certificate. The exemption order had also been passed. It is not open to or permissible for the State Government to seek to deprive MRF of the benefit of tax exemption in respect of its substantial investment in expansion in respect of compound rubber when the State Government had enjoyed the benefit from the investment made by the MRF in the form of industrial development in the State, contribution to labour and employment and also a huge benefit to the State exchequer in the form of the States share, i.e. 40% of the Central Excise duty paid on compound rubber of Rs. 177 crores within the State of Kerala. The impugned action on the part of the State Government is highly unfair, unreasonable, arbitrary and, therefore, the same is violative of Article 14 of the Constitution of India. The action of the State cannot be permitted to operate if it is arbitrary or unreasonable. This Court in E.P. Royappa Vs. State of Tamil Nadu, 1974 (4) SCC 3 , observed that where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14. Equity that arises in favour of a party as a result of a representation made by the State is founded on the basic concept of "justice and fair play". The attempt to take away the said benefit of exemption with effect from 15.1.1998 and thereby deprive MRF of the benefit of exemption for more than 5 years out of a total period of 7 years, in our opinion, is highly arbitrary, unjust and unreasonable and deserves to be quashed. In any event the State Government has no power to make a retrospective amendment to SRO 1729/93 affecting rights already accrued to MRF thereunder. Section 10 of the Act provides the power to the Government to grant exemption and reduction in rate of taxBefore this Court the State of Kerala did not dispute the above finding (See 2000(9) SCC 286) where the States appeal was dismissed. That Section 10(3) of the Kerala General Sales Tax Act did not confer the power to withdraw an exemption with retrospective effect was not challenged by the State Government and accordingly the finding regarding the meaning and effect of Section 10(3) of the Act has become final. In any event, the appeal preferred by the State of Kerala was dismissed and the judgment of the High Court has therefore become final. Accordingly, it was held that Section 10(3) does not confer the power to withdraw an exemption with retrospective effect. Effect of this is that the amendment notification SRO 38/98 has to be read so as not to take away or disturb any manufacturers pre-existing accrued right of exemption for a period of 7 years. If SRO 38/98 is construed as now contended by the respondent, then the inevitable consequence would be that SRO 38/98 would itself be rendered ultra vires Section 10(3) of the Act, and therefore, illegal, bad in law and null and voidWe do not agree with the submission made by the learned counsel for the respondent/State that subsequent notification was classificatory in nature. That it only removed the doubt which had arisen with reference to "compound rubber" in the SRO 1729/93. Making of "compound rubber" had been accepted to be "manufacture" in the Memorandum of Undertaking entered between MRF and the Government on 6.10.1993 and the addendum dated 10.4.1996 to the Memorandum of Undertaking dated 6.10.1993. It is further recognized in the eligibility certificate issued by the Director of Industries and Commerce after investigation and due verification and the exemption certificate issued by the Board of Revenue.
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VINAY EKNATH LAD Vs. CHIU MAO CHEN | because the interest is a fluctuating one depending on various factors, such as, the losses incurred by the firm, the advances made by the partners as distinguished from the capital brought in the firm, etc., it cannot be said, unless the accounts are settled in the manner indicated by Section 48 of the Partnership Act, what would be the residue which would ultimately be allocable to the partners. In that residue, which becomes divisible among the partners, every partner has an interest and when a particular property is allocated to a partner in proportion to his share in the profits of the firm, there is no partition or transfer taking place nor is there any extinguishment of interest of other partners in the allocated property in the sense of a transfer or extinguishment of interest under Section 17 of the Registration Act. Therefore, viewed from this angle also it seems clear to us that when a dissolution of the partnership takes place and the residue is distributed among the partners after settlement of accounts there is no partition, transfer or extinguishment of interest attracting Section 17 of the Registration Act.? 15. The documents through which the plaintiffs claim to have come to own the property were not adequately stamped and for that reason, such document could not be relied upon. T o this argument of the defendant, stand of the plaintiffs has been that once a document has been admitted without objection, in view of Section 35 of the Karnataka Stamp Act (a provision similar to Section 36 of the Indian Stamp Act 1899) such objection could not be taken at the appellate stage. The case of Dr. Chiranji Lal (D) (supra) Vs. Haridas 2005 SCC 746 was cited on behalf of the defendant. But we need not enter into this controversy while examining the rival claims in this appeal as the document which was effectively made exhibit and relied upon, is exhibit P5. This document came into existence after filing of the suit. We are to determine the position as it subsisted prior to the institution of the suit and existence of this document in isolation does not have any impact on the case of either of the parties. 16. An application, registered as I.A. No. 1/2009 has been taken out by the plaintiffs in connection with the present Civil Appeal, through which the appellant seeks to introduce to the present proceeding the following documents:- (i) partnership deed dated 10.10.1975 constituting firm by Name Sri Sabari Corporation (ii) Deed of dissolution dated 7.12.1978 dissolving the firm by name Sri Sabari Corporation. (iii) Co-ownership agreement dated 7.12.1978 (iv) copy of registered agreement declaring interest in co- ownership property dated 19.3.1993 (v) Income T ax returns of V. Sivagupta wherein income from suit scheduled property is shown as HUF income. (vi) Income T ax returns of S. Giridhar wherein income from suit scheduled property is shown as HUF income. 17. These documents, however, would have to be proved to enable the plaintiffs to show the journey path of the title of the subject premises. At this stage, we do not think we can enter into that exercise, which would call for proving of these documents. We have to examine the respective claims without reverting to the documents annexed to this application. The permission to file these documents was given by this Court on 16 th January, 2009. Upon going through the application however we decline to permit the appellant to adduce fresh evidence before this Court at this stage of the proceeding. 18. Without the aid of these documents annexed to the aforesaid interlocutory application, the Trial Court found plaintiffs had established title superior to that of the tenant in respect of the subject premises. The Trial Court has proceeded on a principle akin to admission by the defendant of plaintiffs? position as that of the landlords of the subject-premises. That is the underlying reasoning of the Trial Court?s judgment. According to the original plaintiffs, the defendant entered into negotiation with them, for which paragraph 7 of the written statement has been relied upon. The said notice of 2004, however, was not made exhibit. The High Court, in the judgment under appeal has not dealt with finding of the Trial Court on this aspect of the suit. This is a point which could have material impact on adjudication of the rival claims. We hold so because the defendant?s defence on derivative title would not survive if the appellant can establish that from the notice of 17 th May 2004 the ownership of seventeen original plaintiffs could be established. In that event, Section 116 of the Evidence Act, 1872 would become applicable. The defendant?s continued payment of rent thereafter would constitute acknowledging the said plaintiffs as his landlord. This would result in creation of attornment, as held in the cases of Bismilla Be (supra) and Apollo Zippers (supra). T o conclude this part of the controversy, factual enquiry is necessary which the High Court exercising its appellate jurisdiction has not gone into. 19. We have already opined that sufficient material was not there before the first two Courts to establish the original plaintiffs? claim of ownership of the subject premises on the basis of a family arrangement after dissolution of the firm. The appellant?s attempt to adduce additional documents to establish his stand on that point has been rejected by us at this stage. The ratio of the judgment in the case of S.V.Chandra Pandian (supra) cannot be applied in the present proceeding as there is no material before us from which we could conclude that the original plaintiffs? title to the subject-premises came from residue assets of the dissolved firm. In a landlord-tenant suit, the landlord is not required to prove his title in the subject property as in a title-suit. But when the landlord?s derivative title is challenged, the same has to be established in some form. On this point the original plaintiffs have failed before the first two Courts. | 1[ds]8. We accept the plaintiffs? stand that the principle of estoppel bars a tenant from questioning the title landlords. This is incorporated in Section 116 of the Evidence Act. But this principle cannot be made applicable in the present case straightaway as the main defence set up by the tenant is that he had acknowledged the said partnership firm as the landlord but questioned the locus standi of the plaintiffs, who operated under the same trade name. In absence of attornment or public notice of dissolution, the defendant had no way of having knowledge of change of landlord of the subject-premises from partnership firm to a co- ownership concern. The co-ownership firm admittedly was not the defendant?s landlord at the time of commencement of the lease. Thus, identity of the landlord stood altered, though the seventeen individuals continued to operate under the same trade name. For this reason, the very fact that rent was continued to be paid to Sri Sabari Corporation cannot constitute acceptance of the original plaintiffs as the landlord by the defendant.The other limb of defence of the tenant related to admissibility of Exhibit P5, which in substance is a modification instrument of an earlier co-ownership agreement of the year 1993. Exhibit P5 however, is a document that came into existence after the suit was instituted on 15 th November, 2006. This document is dated 5 th May, 2007. There is reference in this document to an earlier co-ownership agreement effected on 10 th March, 1993. The necessity of executing Exhibit P5 appears to be demise of two of the co-owners, who were parties to the aforesaid document of 1993 and their shares were transferred to their respective widows. But the suit cannot turn solely on the basis of this document. Neither this document per se establishes plaintiffs? ownership of the subject property.The plaint, exhibits and deposition of the plaintiffs? witness do not adequately explain the journey of the subject premises from the erstwhile partnership firm, which had inducted mother of the present defendant as a tenant, to the seventeen individuals operating as a co-ownership firm. What has been argued on behalf of the appellant is that upon dissolution of the firm, there was sharing of residue assets thereof under Section 48 of the Partnership Act 1932 among the partners or their legal representatives.The documents through which the plaintiffs claim to have come to own the property were not adequately stamped and for that reason, such document could not be relied upon. T o this argument of the defendant, stand of the plaintiffs has been that once a document has been admitted without objection, in view of Section 35 of the Karnataka Stamp Act (a provision similar to Section 36 of the Indian Stamp Act 1899) such objection could not be taken at the appellate stage. The case of Dr. Chiranji Lal (D) (supra) Vs. Haridas 2005 SCC 746 was cited on behalf of the defendant. But we need not enter into this controversy while examining the rival claims in this appeal as the document which was effectively made exhibit and relied upon, is exhibit P5. This document came into existence after filing of the suit. We are to determine the position as it subsisted prior to the institution of the suit and existence of this document in isolation does not have any impact on the case of either of the parties.These documents, however, would have to be proved to enable the plaintiffs to show the journey path of the title of the subject premises. At this stage, we do not think we can enter into that exercise, which would call for proving of these documents. We have to examine the respective claims without reverting to the documents annexed to this application. The permission to file these documents was given by this Court on 16 th January, 2009. Upon going through the application however we decline to permit the appellant to adduce fresh evidence before this Court at this stage of the proceeding.Without the aid of these documents annexed to the aforesaid interlocutory application, the Trial Court found plaintiffs had established title superior to that of the tenant in respect of the subject premises. The Trial Court has proceeded on a principle akin to admission by the defendant of plaintiffs? position as that of the landlords of the subject-premises. That is the underlying reasoning of the Trial Court?s judgment. According to the original plaintiffs, the defendant entered into negotiation with them, for which paragraph 7 of the written statement has been relied upon. The said notice of 2004, however, was not made exhibit. The High Court, in the judgment under appeal has not dealt with finding of the Trial Court on this aspect of the suit. This is a point which could have material impact on adjudication of the rival claims. We hold so because the defendant?s defence on derivative title would not survive if the appellant can establish that from the notice of 17 th May 2004 the ownership of seventeen original plaintiffs could be established. In that event, Section 116 of the Evidence Act, 1872 would become applicable. The defendant?s continued payment of rent thereafter would constitute acknowledging the said plaintiffs as his landlord. This would result in creation of attornment, as held in the cases of Bismilla Be (supra) and Apollo Zippers (supra). T o conclude this part of the controversy, factual enquiry is necessary which the High Court exercising its appellate jurisdiction has not gone into.We have already opined that sufficient material was not there before the first two Courts to establish the original plaintiffs? claim of ownership of the subject premises on the basis of a family arrangement after dissolution of the firm. The appellant?s attempt to adduce additional documents to establish his stand on that point has been rejected by us at this stage. The ratio of the judgment in the case of S.V.Chandra Pandian (supra) cannot be applied in the present proceeding as there is no material before us from which we could conclude that the original plaintiffs? title to the subject-premises came from residue assets of the dissolved firm. In a landlord-tenant suit, the landlord is not required to prove his title in the subject property as in a title-suit. But when the landlord?s derivative title is challenged, the same has to be established in some form. On this point the original plaintiffs have failed before the first two Courts. | 1 | 6,157 | 1,185 | ### Instruction:
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because the interest is a fluctuating one depending on various factors, such as, the losses incurred by the firm, the advances made by the partners as distinguished from the capital brought in the firm, etc., it cannot be said, unless the accounts are settled in the manner indicated by Section 48 of the Partnership Act, what would be the residue which would ultimately be allocable to the partners. In that residue, which becomes divisible among the partners, every partner has an interest and when a particular property is allocated to a partner in proportion to his share in the profits of the firm, there is no partition or transfer taking place nor is there any extinguishment of interest of other partners in the allocated property in the sense of a transfer or extinguishment of interest under Section 17 of the Registration Act. Therefore, viewed from this angle also it seems clear to us that when a dissolution of the partnership takes place and the residue is distributed among the partners after settlement of accounts there is no partition, transfer or extinguishment of interest attracting Section 17 of the Registration Act.? 15. The documents through which the plaintiffs claim to have come to own the property were not adequately stamped and for that reason, such document could not be relied upon. T o this argument of the defendant, stand of the plaintiffs has been that once a document has been admitted without objection, in view of Section 35 of the Karnataka Stamp Act (a provision similar to Section 36 of the Indian Stamp Act 1899) such objection could not be taken at the appellate stage. The case of Dr. Chiranji Lal (D) (supra) Vs. Haridas 2005 SCC 746 was cited on behalf of the defendant. But we need not enter into this controversy while examining the rival claims in this appeal as the document which was effectively made exhibit and relied upon, is exhibit P5. This document came into existence after filing of the suit. We are to determine the position as it subsisted prior to the institution of the suit and existence of this document in isolation does not have any impact on the case of either of the parties. 16. An application, registered as I.A. No. 1/2009 has been taken out by the plaintiffs in connection with the present Civil Appeal, through which the appellant seeks to introduce to the present proceeding the following documents:- (i) partnership deed dated 10.10.1975 constituting firm by Name Sri Sabari Corporation (ii) Deed of dissolution dated 7.12.1978 dissolving the firm by name Sri Sabari Corporation. (iii) Co-ownership agreement dated 7.12.1978 (iv) copy of registered agreement declaring interest in co- ownership property dated 19.3.1993 (v) Income T ax returns of V. Sivagupta wherein income from suit scheduled property is shown as HUF income. (vi) Income T ax returns of S. Giridhar wherein income from suit scheduled property is shown as HUF income. 17. These documents, however, would have to be proved to enable the plaintiffs to show the journey path of the title of the subject premises. At this stage, we do not think we can enter into that exercise, which would call for proving of these documents. We have to examine the respective claims without reverting to the documents annexed to this application. The permission to file these documents was given by this Court on 16 th January, 2009. Upon going through the application however we decline to permit the appellant to adduce fresh evidence before this Court at this stage of the proceeding. 18. Without the aid of these documents annexed to the aforesaid interlocutory application, the Trial Court found plaintiffs had established title superior to that of the tenant in respect of the subject premises. The Trial Court has proceeded on a principle akin to admission by the defendant of plaintiffs? position as that of the landlords of the subject-premises. That is the underlying reasoning of the Trial Court?s judgment. According to the original plaintiffs, the defendant entered into negotiation with them, for which paragraph 7 of the written statement has been relied upon. The said notice of 2004, however, was not made exhibit. The High Court, in the judgment under appeal has not dealt with finding of the Trial Court on this aspect of the suit. This is a point which could have material impact on adjudication of the rival claims. We hold so because the defendant?s defence on derivative title would not survive if the appellant can establish that from the notice of 17 th May 2004 the ownership of seventeen original plaintiffs could be established. In that event, Section 116 of the Evidence Act, 1872 would become applicable. The defendant?s continued payment of rent thereafter would constitute acknowledging the said plaintiffs as his landlord. This would result in creation of attornment, as held in the cases of Bismilla Be (supra) and Apollo Zippers (supra). T o conclude this part of the controversy, factual enquiry is necessary which the High Court exercising its appellate jurisdiction has not gone into. 19. We have already opined that sufficient material was not there before the first two Courts to establish the original plaintiffs? claim of ownership of the subject premises on the basis of a family arrangement after dissolution of the firm. The appellant?s attempt to adduce additional documents to establish his stand on that point has been rejected by us at this stage. The ratio of the judgment in the case of S.V.Chandra Pandian (supra) cannot be applied in the present proceeding as there is no material before us from which we could conclude that the original plaintiffs? title to the subject-premises came from residue assets of the dissolved firm. In a landlord-tenant suit, the landlord is not required to prove his title in the subject property as in a title-suit. But when the landlord?s derivative title is challenged, the same has to be established in some form. On this point the original plaintiffs have failed before the first two Courts.
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operated under the same trade name. In absence of attornment or public notice of dissolution, the defendant had no way of having knowledge of change of landlord of the subject-premises from partnership firm to a co- ownership concern. The co-ownership firm admittedly was not the defendant?s landlord at the time of commencement of the lease. Thus, identity of the landlord stood altered, though the seventeen individuals continued to operate under the same trade name. For this reason, the very fact that rent was continued to be paid to Sri Sabari Corporation cannot constitute acceptance of the original plaintiffs as the landlord by the defendant.The other limb of defence of the tenant related to admissibility of Exhibit P5, which in substance is a modification instrument of an earlier co-ownership agreement of the year 1993. Exhibit P5 however, is a document that came into existence after the suit was instituted on 15 th November, 2006. This document is dated 5 th May, 2007. There is reference in this document to an earlier co-ownership agreement effected on 10 th March, 1993. The necessity of executing Exhibit P5 appears to be demise of two of the co-owners, who were parties to the aforesaid document of 1993 and their shares were transferred to their respective widows. But the suit cannot turn solely on the basis of this document. Neither this document per se establishes plaintiffs? ownership of the subject property.The plaint, exhibits and deposition of the plaintiffs? witness do not adequately explain the journey of the subject premises from the erstwhile partnership firm, which had inducted mother of the present defendant as a tenant, to the seventeen individuals operating as a co-ownership firm. What has been argued on behalf of the appellant is that upon dissolution of the firm, there was sharing of residue assets thereof under Section 48 of the Partnership Act 1932 among the partners or their legal representatives.The documents through which the plaintiffs claim to have come to own the property were not adequately stamped and for that reason, such document could not be relied upon. T o this argument of the defendant, stand of the plaintiffs has been that once a document has been admitted without objection, in view of Section 35 of the Karnataka Stamp Act (a provision similar to Section 36 of the Indian Stamp Act 1899) such objection could not be taken at the appellate stage. The case of Dr. Chiranji Lal (D) (supra) Vs. Haridas 2005 SCC 746 was cited on behalf of the defendant. But we need not enter into this controversy while examining the rival claims in this appeal as the document which was effectively made exhibit and relied upon, is exhibit P5. This document came into existence after filing of the suit. We are to determine the position as it subsisted prior to the institution of the suit and existence of this document in isolation does not have any impact on the case of either of the parties.These documents, however, would have to be proved to enable the plaintiffs to show the journey path of the title of the subject premises. At this stage, we do not think we can enter into that exercise, which would call for proving of these documents. We have to examine the respective claims without reverting to the documents annexed to this application. The permission to file these documents was given by this Court on 16 th January, 2009. Upon going through the application however we decline to permit the appellant to adduce fresh evidence before this Court at this stage of the proceeding.Without the aid of these documents annexed to the aforesaid interlocutory application, the Trial Court found plaintiffs had established title superior to that of the tenant in respect of the subject premises. The Trial Court has proceeded on a principle akin to admission by the defendant of plaintiffs? position as that of the landlords of the subject-premises. That is the underlying reasoning of the Trial Court?s judgment. According to the original plaintiffs, the defendant entered into negotiation with them, for which paragraph 7 of the written statement has been relied upon. The said notice of 2004, however, was not made exhibit. The High Court, in the judgment under appeal has not dealt with finding of the Trial Court on this aspect of the suit. This is a point which could have material impact on adjudication of the rival claims. We hold so because the defendant?s defence on derivative title would not survive if the appellant can establish that from the notice of 17 th May 2004 the ownership of seventeen original plaintiffs could be established. In that event, Section 116 of the Evidence Act, 1872 would become applicable. The defendant?s continued payment of rent thereafter would constitute acknowledging the said plaintiffs as his landlord. This would result in creation of attornment, as held in the cases of Bismilla Be (supra) and Apollo Zippers (supra). T o conclude this part of the controversy, factual enquiry is necessary which the High Court exercising its appellate jurisdiction has not gone into.We have already opined that sufficient material was not there before the first two Courts to establish the original plaintiffs? claim of ownership of the subject premises on the basis of a family arrangement after dissolution of the firm. The appellant?s attempt to adduce additional documents to establish his stand on that point has been rejected by us at this stage. The ratio of the judgment in the case of S.V.Chandra Pandian (supra) cannot be applied in the present proceeding as there is no material before us from which we could conclude that the original plaintiffs? title to the subject-premises came from residue assets of the dissolved firm. In a landlord-tenant suit, the landlord is not required to prove his title in the subject property as in a title-suit. But when the landlord?s derivative title is challenged, the same has to be established in some form. On this point the original plaintiffs have failed before the first two Courts.
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T.G. Shivacharana Singh & Others Vs. State of Mysore | before the date on which he is required to retire. The note further provides that a government servant who retires or is retired, only in the manner indicated above, shall be granted a retiring pension not exceeding such proportion of average emoluments and subject to such maximum limit as are specified in Chapter XIX. 4. It would thus be clear that though the normal age of retirement under R. 95(a) is 55 years, under R. 285 it is competent to the Government to retire compulsorily a government servant prematurely if it is thought that such premature retirement is necessary in the public interest. This power can, however, be exercised only in cases where the government servant has completed 25 years qualifying service or has attained 50 years of age. In other words, ordinary retirement by superannuation occurs after attaining 55 years or completing 30 years service, while premature retirement can be forced on the government servant if he has either completed 25 years of service or has attained 50 years of age. In the case of premature compulsory retirement, the government servant is entitled to pension as indicated in note 1 to Rule 285. 5. Mr. Venkataranga Iyengar contends that this Rule is invalid, because it contravenes Art. 14 as well as Art. 16(1) of the Constitution. In our opinion, this contention can no longer be entertained; because it is concluded by a long series of decisions of this Court. Recently, a Special Bench of this Court had occasion to consider the validity of Rules 148(3) and 149(3) contained in the Indian Railway Establishment Code in Moti Ram Deka v. General Manager, North East Frontier Railway, Civil Appeals Nos. 711 to 713 of 1962; 714 of 1962 and 837 to 889 of 1963, D/ - 5-12-1963: (AIR 1964 SC 600 ). In dealing with the problem raised in that case; this Court has made it perfectly clear that so far as the question of compulsory retirement is concerned, it must be taken to be concluded by several decisions of this Court. This Court then examined the relevant decisions on this point beginning with the case of Shyam Lal v. State of U. P. 1955-1 SCR 26 : (AIR 1954 SC 369 ) and it has observed that the law in relation to the validity of the Rules permitting compulsory premature retirement of government servants must be held to be well-settled by those decisions and need not be reopened. The only exception the majority judgment made in that behalf was that it may be necessary to consider whether such a rule of compulsory retirement would be valid if having fixed a proper age of superaunuation, it permits a permanent servant to be retired at a very early stage of his career. This consideration does not arise in the present case because, as we have already seen, note 1 to R. 285 reuires that the government servant against whom an order of compulsory retirement is proposed to be passed must have completed either 25 years of active service or attained 50 years of age. We are, therefore, satisfied that the point which Mr. Venkataranga Iyengar wants to raise before us in the present petition is clearly concluded by the decisions of this Court and cannot be allowed to be reopened. 6. Mr. Venkataranga Iyengar, however, attempted to argue that there are certain observations made by this Court in the case of General Manager, Southern Railway v. Rangachari, (1962) 2 SCR 586 : (AIR 1962 SC 36 ) which support his contention. In that case, this Court was called upon to consider the validity of certain railway circulars and that needed an examination about the scope and effect of the provisions of the different clauses of Art. 16, read with Art. 14 of the Constitution, the question of compulsory retirement did not fall to be considered in that case. Dealing with the scope and effect of Art. 16(1), it was observed that the narrow construction of the expression "matters relating to employment" occurring in Art.16(1) could not be accepted, because it would lead to anomalous results. In that connection, it was pointed out that it would not be open to the State to prescribe, different scales of salary for the same or similar posts, different terms of leaves or superannuation for the same or similar posts. It is on these observations that reliance is placed by Mr. Venkataranga Iyengar. It is obvious that these observations have no relevance to the point with which we are concerned in the present petition. We are not dealing with different rules of compulsory retirement at all government servants and as such, is not open to a challenge under Art. 14 or Art. 16(1). Therefore, we do not think Mr. Venkataranga Iyengar is justified in contending that these observations support his argument. 7. It is true that his petition, the petitioner has made certain allegations against the Home Minister Mr. Channabasappa and has suggested that the order terminating his services prematurely is due to his whims and fancies, and he has characterised the said order as both arbitrary and illegal. According to the petitioner, his past record is free from blemish and the Government was not, therefore, justified in coming to the conclusion that it was in the public interest to retire him compulsorily. The allegations made by the petitioner in that behalf are very vague and unsatisfactory, and so, it would be idle to contend that if the impugned note is valid, the order terminating the services of the petitioner can still be challenged on the ground that it is not justified on the merits or is illegal or arbitrary. Whether or not the petitioners retirement was in the public interest, is a matter for the State Government to consider, and as to the plea that the order is arbitrary and illegal, it is impossible to hold on the material placed by the petitioner before us that the said order suffers from the vice of mala fides. | 0[ds]4. It would thus be clear that though the normal age of retirement under R. 95(a) is 55 years, under R. 285 it is competent to the Government to retire compulsorily a government servant prematurely if it is thought that such premature retirement is necessary in the public interest. This power can, however, be exercised only in cases where the government servant has completed 25 years qualifying service or has attained 50 years of age. In other words, ordinary retirement by superannuation occurs after attaining 55 years or completing 30 years service, while premature retirement can be forced on the government servant if he has either completed 25 years of service or has attained 50 years of age. In the case of premature compulsory retirement, the government servant is entitled to pension as indicated in note 1 to Rule 285In our opinion, this contention can no longer be entertained; because it is concluded by a long series of decisions of this Court. Recently, a Special Bench of this Court had occasion to consider the validity of Rules 148(3) and 149(3) contained in the Indian Railway Establishment Code in Moti Ram Deka v. General Manager, North East Frontier Railway, Civil Appeals Nos. 711 to 713 of 1962; 714 of 1962 and 837 to 889 of 1963, D/ - 5-12-1963: (AIR 1964 SC 600 ). In dealing with the problem raised in that case; this Court has made it perfectly clear that so far as the question of compulsory retirement is concerned, it must be taken to be concluded by several decisions of this Court. This Court then examined the relevant decisions on this point beginning with the case of Shyam Lal v. State of U. P. 1955-1 SCR 26 : (AIR 1954 SC 369 ) and it has observed that the law in relation to the validity of the Rules permitting compulsory premature retirement of government servants must be held to be well-settled by those decisions and need not be reopened. The only exception the majority judgment made in that behalf was that it may be necessary to consider whether such a rule of compulsory retirement would be valid if having fixed a proper age of superaunuation, it permits a permanent servant to be retired at a very early stage of his career. This consideration does not arise in the present case because, as we have already seen, note 1 to R. 285 reuires that the government servant against whom an order of compulsory retirement is proposed to be passed must have completed either 25 years of active service or attained 50 years of age. We are, therefore, satisfied that the point which Mr. Venkataranga Iyengar wants to raise before us in the present petition is clearly concluded by the decisions of this Court and cannot be allowed to be reopenedIt is on these observations that reliance is placed by Mr. Venkataranga Iyengar. It is obvious that these observations have no relevance to the point with which we are concerned in the present petition. We are not dealing with different rules of compulsory retirement at all government servants and as such, is not open to a challenge under Art. 14 or Art. 16(1). Therefore, we do not think Mr. Venkataranga Iyengar is justified in contending that these observations support his argument7. It is true that his petition, the petitioner has made certain allegations against the Home Minister Mr. Channabasappa and has suggested that the order terminating his services prematurely is due to his whims and fancies, and he has characterised the said order as both arbitrary and illegal. According to the petitioner, his past record is free from blemish and the Government was not, therefore, justified in coming to the conclusion that it was in the public interest to retire him compulsorily. The allegations made by the petitioner in that behalf are very vague and unsatisfactory, and so, it would be idle to contend that if the impugned note is valid, the order terminating the services of the petitioner can still be challenged on the ground that it is not justified on the merits or is illegal or arbitrary. Whether or not the petitioners retirement was in the public interest, is a matter for the State Government to consider, and as to the plea that the order is arbitrary and illegal, it is impossible to hold on the material placed by the petitioner before us that the said order suffers from the vice of mala fides. | 0 | 1,838 | 819 | ### Instruction:
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before the date on which he is required to retire. The note further provides that a government servant who retires or is retired, only in the manner indicated above, shall be granted a retiring pension not exceeding such proportion of average emoluments and subject to such maximum limit as are specified in Chapter XIX. 4. It would thus be clear that though the normal age of retirement under R. 95(a) is 55 years, under R. 285 it is competent to the Government to retire compulsorily a government servant prematurely if it is thought that such premature retirement is necessary in the public interest. This power can, however, be exercised only in cases where the government servant has completed 25 years qualifying service or has attained 50 years of age. In other words, ordinary retirement by superannuation occurs after attaining 55 years or completing 30 years service, while premature retirement can be forced on the government servant if he has either completed 25 years of service or has attained 50 years of age. In the case of premature compulsory retirement, the government servant is entitled to pension as indicated in note 1 to Rule 285. 5. Mr. Venkataranga Iyengar contends that this Rule is invalid, because it contravenes Art. 14 as well as Art. 16(1) of the Constitution. In our opinion, this contention can no longer be entertained; because it is concluded by a long series of decisions of this Court. Recently, a Special Bench of this Court had occasion to consider the validity of Rules 148(3) and 149(3) contained in the Indian Railway Establishment Code in Moti Ram Deka v. General Manager, North East Frontier Railway, Civil Appeals Nos. 711 to 713 of 1962; 714 of 1962 and 837 to 889 of 1963, D/ - 5-12-1963: (AIR 1964 SC 600 ). In dealing with the problem raised in that case; this Court has made it perfectly clear that so far as the question of compulsory retirement is concerned, it must be taken to be concluded by several decisions of this Court. This Court then examined the relevant decisions on this point beginning with the case of Shyam Lal v. State of U. P. 1955-1 SCR 26 : (AIR 1954 SC 369 ) and it has observed that the law in relation to the validity of the Rules permitting compulsory premature retirement of government servants must be held to be well-settled by those decisions and need not be reopened. The only exception the majority judgment made in that behalf was that it may be necessary to consider whether such a rule of compulsory retirement would be valid if having fixed a proper age of superaunuation, it permits a permanent servant to be retired at a very early stage of his career. This consideration does not arise in the present case because, as we have already seen, note 1 to R. 285 reuires that the government servant against whom an order of compulsory retirement is proposed to be passed must have completed either 25 years of active service or attained 50 years of age. We are, therefore, satisfied that the point which Mr. Venkataranga Iyengar wants to raise before us in the present petition is clearly concluded by the decisions of this Court and cannot be allowed to be reopened. 6. Mr. Venkataranga Iyengar, however, attempted to argue that there are certain observations made by this Court in the case of General Manager, Southern Railway v. Rangachari, (1962) 2 SCR 586 : (AIR 1962 SC 36 ) which support his contention. In that case, this Court was called upon to consider the validity of certain railway circulars and that needed an examination about the scope and effect of the provisions of the different clauses of Art. 16, read with Art. 14 of the Constitution, the question of compulsory retirement did not fall to be considered in that case. Dealing with the scope and effect of Art. 16(1), it was observed that the narrow construction of the expression "matters relating to employment" occurring in Art.16(1) could not be accepted, because it would lead to anomalous results. In that connection, it was pointed out that it would not be open to the State to prescribe, different scales of salary for the same or similar posts, different terms of leaves or superannuation for the same or similar posts. It is on these observations that reliance is placed by Mr. Venkataranga Iyengar. It is obvious that these observations have no relevance to the point with which we are concerned in the present petition. We are not dealing with different rules of compulsory retirement at all government servants and as such, is not open to a challenge under Art. 14 or Art. 16(1). Therefore, we do not think Mr. Venkataranga Iyengar is justified in contending that these observations support his argument. 7. It is true that his petition, the petitioner has made certain allegations against the Home Minister Mr. Channabasappa and has suggested that the order terminating his services prematurely is due to his whims and fancies, and he has characterised the said order as both arbitrary and illegal. According to the petitioner, his past record is free from blemish and the Government was not, therefore, justified in coming to the conclusion that it was in the public interest to retire him compulsorily. The allegations made by the petitioner in that behalf are very vague and unsatisfactory, and so, it would be idle to contend that if the impugned note is valid, the order terminating the services of the petitioner can still be challenged on the ground that it is not justified on the merits or is illegal or arbitrary. Whether or not the petitioners retirement was in the public interest, is a matter for the State Government to consider, and as to the plea that the order is arbitrary and illegal, it is impossible to hold on the material placed by the petitioner before us that the said order suffers from the vice of mala fides.
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### Explanation:
4. It would thus be clear that though the normal age of retirement under R. 95(a) is 55 years, under R. 285 it is competent to the Government to retire compulsorily a government servant prematurely if it is thought that such premature retirement is necessary in the public interest. This power can, however, be exercised only in cases where the government servant has completed 25 years qualifying service or has attained 50 years of age. In other words, ordinary retirement by superannuation occurs after attaining 55 years or completing 30 years service, while premature retirement can be forced on the government servant if he has either completed 25 years of service or has attained 50 years of age. In the case of premature compulsory retirement, the government servant is entitled to pension as indicated in note 1 to Rule 285In our opinion, this contention can no longer be entertained; because it is concluded by a long series of decisions of this Court. Recently, a Special Bench of this Court had occasion to consider the validity of Rules 148(3) and 149(3) contained in the Indian Railway Establishment Code in Moti Ram Deka v. General Manager, North East Frontier Railway, Civil Appeals Nos. 711 to 713 of 1962; 714 of 1962 and 837 to 889 of 1963, D/ - 5-12-1963: (AIR 1964 SC 600 ). In dealing with the problem raised in that case; this Court has made it perfectly clear that so far as the question of compulsory retirement is concerned, it must be taken to be concluded by several decisions of this Court. This Court then examined the relevant decisions on this point beginning with the case of Shyam Lal v. State of U. P. 1955-1 SCR 26 : (AIR 1954 SC 369 ) and it has observed that the law in relation to the validity of the Rules permitting compulsory premature retirement of government servants must be held to be well-settled by those decisions and need not be reopened. The only exception the majority judgment made in that behalf was that it may be necessary to consider whether such a rule of compulsory retirement would be valid if having fixed a proper age of superaunuation, it permits a permanent servant to be retired at a very early stage of his career. This consideration does not arise in the present case because, as we have already seen, note 1 to R. 285 reuires that the government servant against whom an order of compulsory retirement is proposed to be passed must have completed either 25 years of active service or attained 50 years of age. We are, therefore, satisfied that the point which Mr. Venkataranga Iyengar wants to raise before us in the present petition is clearly concluded by the decisions of this Court and cannot be allowed to be reopenedIt is on these observations that reliance is placed by Mr. Venkataranga Iyengar. It is obvious that these observations have no relevance to the point with which we are concerned in the present petition. We are not dealing with different rules of compulsory retirement at all government servants and as such, is not open to a challenge under Art. 14 or Art. 16(1). Therefore, we do not think Mr. Venkataranga Iyengar is justified in contending that these observations support his argument7. It is true that his petition, the petitioner has made certain allegations against the Home Minister Mr. Channabasappa and has suggested that the order terminating his services prematurely is due to his whims and fancies, and he has characterised the said order as both arbitrary and illegal. According to the petitioner, his past record is free from blemish and the Government was not, therefore, justified in coming to the conclusion that it was in the public interest to retire him compulsorily. The allegations made by the petitioner in that behalf are very vague and unsatisfactory, and so, it would be idle to contend that if the impugned note is valid, the order terminating the services of the petitioner can still be challenged on the ground that it is not justified on the merits or is illegal or arbitrary. Whether or not the petitioners retirement was in the public interest, is a matter for the State Government to consider, and as to the plea that the order is arbitrary and illegal, it is impossible to hold on the material placed by the petitioner before us that the said order suffers from the vice of mala fides.
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Union of India Vs. Concrete Products and Const. Co. Etc | sums found payable or which at any time-thereafter may become payable to the Contractor under the same contract or any other contract with the Purchaser or the Government pending finalization or adjudication of any such claim.It is an agreed term of the contract that the sum of money or moneys so withheld or retained under the lien referred to above, by the Purchaser will be kept withheld or retained as such by the Purchaser till the claim arising out of or under the contract is determined by the Arbitrator (if the contract is governed by the arbitration clause) or by the competent court as prescribed under Clause 2703 hereinafter provided, as the case may be, and that the Contractor will have no claim for interest or damages whatsoever on any account in respect of such withholding or retention under the lien referred to supra and duly notified as such to the contractor.” “2403. Lien in respect of Claims in other Contracts:a) Any sum of money due and payable, to the Contractor (including the security deposit, returnable to him) under the contract may withhold or retain by way of lien by the Purchaser or Government against any claim of the Purchaser or Government in respect of payment of a sum of money arising out of or under any other contract made by the Contractor with the Purchaser or Government.b) It is an agreed term of the contract that the sum of money so withheld or retained under this clause by the Purchaser or Government will be kept withheld or retained as such by the Purchaser or Government till his claim arising out of the same contract or any other contract is either mutually settled or determined by the arbitrator, if the contract is governed by the arbitration clause or by the competent court under Clause 2703 hereinafter provided, as the case may be, and that the Contractor shall have no claim for interest or damages whatsoever on this account or on any other ground in respect of any sum of money withheld or retained under this clause and duly notified as such to the Contractor.” 15. Clause 2401 provides that the railways shall be entitled to withhold and also have a lien to retain any amount deposited as security by the contractor to satisfy any claims arising out of or in the contract. In such circumstances, the railways can withhold the amount deposited by the contractors as security and also have lien over the same pending finalization or adjudication of the claim. In case, the security deposit is insufficient to cover the claim of the railways, it is entitled to withhold and have lien to the extent of the amount claimed from any sum payable for any works done by the contractor thereafter under the same contract or any other contract. This withholding of the money and the exercise of the lien is pending finalization or adjudication of any claim. This clause further provided that the amount withheld by the railways over which it is exercising lien will not entitle the contractor to claim any interest or damages for such withholding or retention under lien by the railways. 16. Clause 2403 again provides that any sum of money due and payable to the contractor under the contract may be withheld or retained by way of lien by the railway authorities or the Government in respect of payment of a sum of money arising out of or under any other contract made by the contractor with the railway authority or the Government. 17. Clause 2403(b) further provides that it is an agreed term of the contract that against the sum of money withheld or retained under lien, the contractor shall have no claim for interest or damages whatsoever provided the claim has been duly notified to the contractor. 18. We are of the opinion that the sole arbitrator in awarding interest to the contractors has failed to take into account the provisions contained in the aforesaid two clauses. We find merit in the submission made by learned Additional Solicitor General that award of interest at-least from the date when the amount was deposited in Court was wholly unwarranted. Therefore, the High Court as well as the arbitrator, in our opinion, have committed an error of jurisdiction in this respect. This view of ours will find support from the judgment of this Court in the case of Sayeed Ahmed & Company (supra), wherein it has been held as follows:- “16. In view of clause (a) of sub-section (7) of Section 31 of the Act, it is clear that the arbitrator could not have awarded interest up to the date of the award, as the agreement between the parties barred payment of interest. The bar against award of interest would operate not only during the pre-reference period, that is, up to 13-3-1997 but also during the pendente lite period, that is, from 14-3-1997 to 31-7-2001.” 19. This view has been reiterated by this Court in Sree Kamatchi Amman Construction (supra), wherein it has been held as follows:- “19. Section 37(1) of the new Act by using the words “unless otherwise agreed by the parties” categorically clarifies that the arbitrator is bound by the terms of the contract insofar as the award of interest from the date of cause of action to the date of award. Therefore, where the parties had agreed that no interest shall be payable, the Arbitral Tribunal cannot award interest between the date when the cause of action arose to the date of award.” 20. From the aforesaid it becomes apparent that the arbitrator could not have awarded any interest from the date when the recovery was made till the award was made. However, interest would have been payable from the date when the award was made till the money was deposited in the High Court and thereafter converted to fixed deposit receipts. Upon the amount being deposited in the High Court, no further interest could be paid to the respondents. | 1[ds]18. We are of the opinion that the sole arbitrator in awarding interest to the contractors has failed to take into account the provisions contained in the aforesaid two clauses. We find merit in the submission made by learned Additional Solicitor General that award of interest at-least from the date when the amount was deposited in Court was wholly unwarranted. Therefore, the High Court as well as the arbitrator, in our opinion, have committed an error of jurisdiction in thisFrom the aforesaid it becomes apparent that the arbitrator could not have awarded any interest from the date when the recovery was made till the award was made. However, interest would have been payable from the date when the award was made till the money was deposited in the High Court and thereafter converted to fixed deposit receipts. Upon the amount being deposited in the High Court, no further interest could be paid to the respondents. | 1 | 4,087 | 170 | ### 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:
sums found payable or which at any time-thereafter may become payable to the Contractor under the same contract or any other contract with the Purchaser or the Government pending finalization or adjudication of any such claim.It is an agreed term of the contract that the sum of money or moneys so withheld or retained under the lien referred to above, by the Purchaser will be kept withheld or retained as such by the Purchaser till the claim arising out of or under the contract is determined by the Arbitrator (if the contract is governed by the arbitration clause) or by the competent court as prescribed under Clause 2703 hereinafter provided, as the case may be, and that the Contractor will have no claim for interest or damages whatsoever on any account in respect of such withholding or retention under the lien referred to supra and duly notified as such to the contractor.” “2403. Lien in respect of Claims in other Contracts:a) Any sum of money due and payable, to the Contractor (including the security deposit, returnable to him) under the contract may withhold or retain by way of lien by the Purchaser or Government against any claim of the Purchaser or Government in respect of payment of a sum of money arising out of or under any other contract made by the Contractor with the Purchaser or Government.b) It is an agreed term of the contract that the sum of money so withheld or retained under this clause by the Purchaser or Government will be kept withheld or retained as such by the Purchaser or Government till his claim arising out of the same contract or any other contract is either mutually settled or determined by the arbitrator, if the contract is governed by the arbitration clause or by the competent court under Clause 2703 hereinafter provided, as the case may be, and that the Contractor shall have no claim for interest or damages whatsoever on this account or on any other ground in respect of any sum of money withheld or retained under this clause and duly notified as such to the Contractor.” 15. Clause 2401 provides that the railways shall be entitled to withhold and also have a lien to retain any amount deposited as security by the contractor to satisfy any claims arising out of or in the contract. In such circumstances, the railways can withhold the amount deposited by the contractors as security and also have lien over the same pending finalization or adjudication of the claim. In case, the security deposit is insufficient to cover the claim of the railways, it is entitled to withhold and have lien to the extent of the amount claimed from any sum payable for any works done by the contractor thereafter under the same contract or any other contract. This withholding of the money and the exercise of the lien is pending finalization or adjudication of any claim. This clause further provided that the amount withheld by the railways over which it is exercising lien will not entitle the contractor to claim any interest or damages for such withholding or retention under lien by the railways. 16. Clause 2403 again provides that any sum of money due and payable to the contractor under the contract may be withheld or retained by way of lien by the railway authorities or the Government in respect of payment of a sum of money arising out of or under any other contract made by the contractor with the railway authority or the Government. 17. Clause 2403(b) further provides that it is an agreed term of the contract that against the sum of money withheld or retained under lien, the contractor shall have no claim for interest or damages whatsoever provided the claim has been duly notified to the contractor. 18. We are of the opinion that the sole arbitrator in awarding interest to the contractors has failed to take into account the provisions contained in the aforesaid two clauses. We find merit in the submission made by learned Additional Solicitor General that award of interest at-least from the date when the amount was deposited in Court was wholly unwarranted. Therefore, the High Court as well as the arbitrator, in our opinion, have committed an error of jurisdiction in this respect. This view of ours will find support from the judgment of this Court in the case of Sayeed Ahmed & Company (supra), wherein it has been held as follows:- “16. In view of clause (a) of sub-section (7) of Section 31 of the Act, it is clear that the arbitrator could not have awarded interest up to the date of the award, as the agreement between the parties barred payment of interest. The bar against award of interest would operate not only during the pre-reference period, that is, up to 13-3-1997 but also during the pendente lite period, that is, from 14-3-1997 to 31-7-2001.” 19. This view has been reiterated by this Court in Sree Kamatchi Amman Construction (supra), wherein it has been held as follows:- “19. Section 37(1) of the new Act by using the words “unless otherwise agreed by the parties” categorically clarifies that the arbitrator is bound by the terms of the contract insofar as the award of interest from the date of cause of action to the date of award. Therefore, where the parties had agreed that no interest shall be payable, the Arbitral Tribunal cannot award interest between the date when the cause of action arose to the date of award.” 20. From the aforesaid it becomes apparent that the arbitrator could not have awarded any interest from the date when the recovery was made till the award was made. However, interest would have been payable from the date when the award was made till the money was deposited in the High Court and thereafter converted to fixed deposit receipts. Upon the amount being deposited in the High Court, no further interest could be paid to the respondents.
### Response:
1
### Explanation:
18. We are of the opinion that the sole arbitrator in awarding interest to the contractors has failed to take into account the provisions contained in the aforesaid two clauses. We find merit in the submission made by learned Additional Solicitor General that award of interest at-least from the date when the amount was deposited in Court was wholly unwarranted. Therefore, the High Court as well as the arbitrator, in our opinion, have committed an error of jurisdiction in thisFrom the aforesaid it becomes apparent that the arbitrator could not have awarded any interest from the date when the recovery was made till the award was made. However, interest would have been payable from the date when the award was made till the money was deposited in the High Court and thereafter converted to fixed deposit receipts. Upon the amount being deposited in the High Court, no further interest could be paid to the respondents.
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Pushpavathi & Others Vs. Chandraraja Kadamba & Others | and return in the evening. In the midday, however, he did not return to his house and it appears that the testator who was a rich and charitably disposed man and a respected Patil of the village must have requested the teacher to take his lunch at his place and that was how the teacher was visiting the Kolke house at noon every day. He continued to be a teacher in that school even after the death of the testator and defendant No. 1 and defendant No. 4 continued the same facility to him as the testator had done. It is not shown that he was in any way interested in the parties to the suit. In fact he knows very little about the family affairs. The attesting witnesses also are not shown to be so much interested in the defendants that they should agree to the fabrication of the testators Will. Dharampal Kadamba is the resident of the Miyar village and is also now the President of the village Panchayat. He was not a local man. He had no property of his own at Miyar. But it seems he owed his position as the village Patil to the testator. The testator had stopped living at Miyar and had shifted to Irvathoor. Dharampal was asked to live in the Miyar house and it appears that a land and a small garden piece were given to him - the consideration being that he should stay in the place and perform all the Viniyogas it was the testators custom to do. We can, therefore, say that he was a man in the confidence of the deceased testator and it wont be surprising that he was called to attest the Will. The defendants have continued to give him the same facilities as the testator had done and it cannot be said that the defendants have conferred upon him such benefits that he will agree to fabricate the Will. The other attesting witness Anantraj Kadamba who lived in Irvathoor itself is still more disinterested. He was merely a tenant of one or two lands of the testator. He was a tenant before and continued to be a tenant after the death of the testator. One of the lands was on mulgaini tenure from the time of the testator. That means that the tenure was of permanent tenancy. In short, no benefit has been conferred by the defendants upon these three important witnesses which they had not enjoyed in the testators own life-time for several years. It had been contended in the written statement that defendant No. 4, the aged kept mistress, was chiefly instrumental in fabricating the Will with the help of the other defendants, the scribe and the two attesting witnesses. At the time of the argument defendant No. 1 was made the villain of the piece. It was argued that defendant No. 1 after having conspired with the rest to fabricate the Will arranged with the scribe and the attesting witnesses that when the time to give evidence they should say that defendant No. 1 was not present at all at the time of the execution of the Will, so that the suspicion of procuring the Will in his favour would be completely avoided. But the pity of it is that when defendant No. 1, the scribe and the two attesting witnesses were in the witness-box there was not even a suggestion to them that they had conspired to forge the Will and that the Will was forged by them after the death of the testator. The High Court after a detailed consideration of the evidence has come to the conclusion that the witnesses with regard to the execution of the Will are reliable and we have no good reason to think otherwise. 11. On that finding it is not necessary to consider some other small points which were argued in the case. Those points had been argued before the High Court and the High Court, for good reasons, had repelled them all. A reference was also made to the evidence of the handwriting experts. On behalf of the plaintiffs, Mr. C. M. Reghelini, a handwriting expert from Madras was examined to show that the disputed signature was not of the testator. On behalf of the defendants, Mr. C. T. Bhanagay of Nagpur who is a Government Criminologist and Additional Government Examiner of Questioned Documents for certain States was examined as expert witness. He gave his opinion that the disputed signature on the Will was of the testator. Both the witnesses did not know Kannada or the Kannada script. The Trial Court, therefore, rejected the evidence of both. The High Court was not agreeable that on that ground alone their evidence should be rejected. So far as Mr. Reghelini was concerned it was noticed that he had compared the disputed signature of the testator with some other signatures alleged to have been of the testator but which were not proved in Court. When the admitted signatures were shown in the witness-box, he obviously called for additional signatures for further comparison, the implication of which was that he could not make up his mind by a mere look at the admitted signatures in the witness-box whether the disputed signature was made by the person who had made the admitted signatures. Naturally Mr. Reghelinis evidence was of little help. The learned Judges, who apparently know Kannada and also the Kannada script, were inclined to accept Mr. Bhanagays evidence as more reliable. Mrs. Pappu appearing on behalf of the appellants before us contended that there were more pen lifts in the disputed signature than in the admitted signatures which had been compared by Mr. Bhanagay. But Mr. Bhanagay himself when he was in the witness-box was not cross-examined about the same. We have also, for ourselves, scrutinized the signatures as well as we could, and we think that it is not possible to disagree with the view taken by the High Court in this respect. | 1[ds]4. The Will in question is Exhibit, dated March 10, 1958. The case of the defendant is that it was executed by Shantiraja at about 1.00 p.m. on that day. The Will was written by one P. Venkataramana (D.W. 1) a teacher in the village School at Irvathoor. The two attesting witnesses are Dharampal Kadamba, (D.W. 2) and Anantraj Kadamba (D.W. 3), Dharampal Kadamba is the Patel of Miyar village since 1951 and is also the President of the local village Panchayat. Anantraj Kadamba (D.W. 3), is a resident of Irvathoor and is the uncle of Dharampal Kadamba. The evidence of all these three witnesses is to the effect that the scribe wrote the Will to the dictation of the deceased Shantiraja and that after the same was written the deceased Shantiraja signed the same in the presence of the scribe and the two attesting witnesses. After the signature of the testator, the two attesting witnesses put their signature as attesting witnesses and so did the scribe. If the evidence of these witnesses is accepted as satisfactory, as High Court has done, there can be no doubt that the Will will have to be regarded as a valid Will of the deceased Shantiraja. It is the plaintiffs own case that except for two days before his death in October, 1958, the deceased Shantiraja, though old, enjoyed good health and used to move about in the village. His state of health and capacity to execute the Will on March 10, 1958 is beyond disputeIf, as alleged in the plaint, defendant No. 4 was responsible for the fabrication of the Will with the help of others, she would have certainly seen to it that her daughters also got a large share. The very fact that there daughters were not given any property goes to show that defendant No. 4 could not have been party to any such alleged fabrication. The testator had already married off the daughters, they were well placed in life, and he might have though that after the death of his mistress, defendant No. 4, all the substantial property which was devised by him to her would automatically go to the daughters and hence there was no need for any separate provision. In other words, the High Court is right in concluding that the disposition. In other words, the High Court is right in concluding that the dispositions under the Will were neither unnatural nor unjust10. The High Court has accepted this evidence with regard to the execution of the Will. It had been contended before it that the scribe and the attesting witnesses were not disinterested independent witnesses and, therefore, the evidence should not be accepted. The High Court has repelled that contention and was of the view that the interest of these persons was not such that they would be party to a fabricated Will. Venkataramana was a teacher in the Primary School and did not belong to the village. His village was about 5 miles away but being a teacher in the Irvathoor School he had to come to school every morning from his own village and return in the evening. In the midday, however, he did not return to his house and it appears that the testator who was a rich and charitably disposed man and a respected Patil of the village must have requested the teacher to take his lunch at his place and that was how the teacher was visiting the Kolke house at noon every day. He continued to be a teacher in that school even after the death of the testator and defendant No. 1 and defendant No. 4 continued the same facility to him as the testator had done. It is not shown that he was in any way interested in the parties to the suit. In fact he knows very little about the family affairs. The attesting witnesses also are not shown to be so much interested in the defendants that they should agree to the fabrication of the testators Will. Dharampal Kadamba is the resident of the Miyar village and is also now the President of the village Panchayat. He was not a local man. He had no property of his own at Miyar. But it seems he owed his position as the village Patil to the testator. The testator had stopped living at Miyar and had shifted to Irvathoor. Dharampal was asked to live in the Miyar house and it appears that a land and a small garden piece were given to himthe consideration being that he should stay in the place and perform all the Viniyogas it was the testators custom to do. We can, therefore, say that he was a man in the confidence of the deceased testator and it wont be surprising that he was called to attest the Will. The defendants have continued to give him the same facilities as the testator had done and it cannot be said that the defendants have conferred upon him such benefits that he will agree to fabricate the Will. The other attesting witness Anantraj Kadamba who lived in Irvathoor itself is still more disinterested. He was merely a tenant of one or two lands of the testator. He was a tenant before and continued to be a tenant after the death of the testator. One of the lands was on mulgaini tenure from the time of the testator. That means that the tenure was of permanent tenancy. In short, no benefit has been conferred by the defendants upon these three important witnesses which they had not enjoyed in the testators owne for several years. It had been contended in the written statement that defendant No. 4, the aged kept mistress, was chiefly instrumental in fabricating the Will with the help of the other defendants, the scribe and the two attesting witnesses. At the time of the argument defendant No. 1 was made the villain of the piece. It was argued that defendant No. 1 after having conspired with the rest to fabricate the Will arranged with the scribe and the attesting witnesses that when the time to give evidence they should say that defendant No. 1 was not present at all at the time of the execution of the Will, so that the suspicion of procuring the Will in his favour would be completely avoided. But the pity of it is that when defendant No. 1, the scribe and the two attesting witnesses were in thex there was not even a suggestion to them that they had conspired to forge the Will and that the Will was forged by them after the death of the testator. The High Court after a detailed consideration of the evidence has come to the conclusion that the witnesses with regard to the execution of the Will are reliable and we have no good reason to think otherwise11. On that finding it is not necessary to consider some other small points which were argued in the case. Those points had been argued before the High Court and the High Court, for good reasons, had repelled them all. A reference was also made to the evidence of the handwriting experts. On behalf of the plaintiffs, Mr. C. M. Reghelini, a handwriting expert from Madras was examined to show that the disputed signature was not of the testator. On behalf of the defendants, Mr. C. T. Bhanagay of Nagpur who is a Government Criminologist and Additional Government Examiner of Questioned Documents for certain States was examined as expert witness. He gave his opinion that the disputed signature on the Will was of the testator. Both the witnesses did not know Kannada or the Kannada script. The Trial Court, therefore, rejected the evidence of both. The High Court was not agreeable that on that ground alone their evidence should be rejected. So far as Mr. Reghelini was concerned it was noticed that he had compared the disputed signature of the testator with some other signatures alleged to have been of the testator but which were not proved in Court. When the admitted signatures were shown in the, he obviously called for additional signatures for further comparison, the implication of which was that he could not make up his mind by a mere look at the admitted signatures in thex whether the disputed signature was made by the person who had made the admitted signatures. Naturally Mr. Reghelinis evidence was of little help. The learned Judges, who apparently know Kannada and also the Kannada script, were inclined to accept Mr. Bhanagays evidence as more reliable. Mrs. Pappu appearing on behalf of the appellants before us contended that there were more pen lifts in the disputed signature than in the admitted signatures which had been compared by Mr. Bhanagay. But Mr. Bhanagay himself when he was in thex was notd about the same. We have also, for ourselves, scrutinized the signatures as well as we could, and we think that it is not possible to disagree with the view taken by the High Court in this respect. | 1 | 3,892 | 1,642 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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and return in the evening. In the midday, however, he did not return to his house and it appears that the testator who was a rich and charitably disposed man and a respected Patil of the village must have requested the teacher to take his lunch at his place and that was how the teacher was visiting the Kolke house at noon every day. He continued to be a teacher in that school even after the death of the testator and defendant No. 1 and defendant No. 4 continued the same facility to him as the testator had done. It is not shown that he was in any way interested in the parties to the suit. In fact he knows very little about the family affairs. The attesting witnesses also are not shown to be so much interested in the defendants that they should agree to the fabrication of the testators Will. Dharampal Kadamba is the resident of the Miyar village and is also now the President of the village Panchayat. He was not a local man. He had no property of his own at Miyar. But it seems he owed his position as the village Patil to the testator. The testator had stopped living at Miyar and had shifted to Irvathoor. Dharampal was asked to live in the Miyar house and it appears that a land and a small garden piece were given to him - the consideration being that he should stay in the place and perform all the Viniyogas it was the testators custom to do. We can, therefore, say that he was a man in the confidence of the deceased testator and it wont be surprising that he was called to attest the Will. The defendants have continued to give him the same facilities as the testator had done and it cannot be said that the defendants have conferred upon him such benefits that he will agree to fabricate the Will. The other attesting witness Anantraj Kadamba who lived in Irvathoor itself is still more disinterested. He was merely a tenant of one or two lands of the testator. He was a tenant before and continued to be a tenant after the death of the testator. One of the lands was on mulgaini tenure from the time of the testator. That means that the tenure was of permanent tenancy. In short, no benefit has been conferred by the defendants upon these three important witnesses which they had not enjoyed in the testators own life-time for several years. It had been contended in the written statement that defendant No. 4, the aged kept mistress, was chiefly instrumental in fabricating the Will with the help of the other defendants, the scribe and the two attesting witnesses. At the time of the argument defendant No. 1 was made the villain of the piece. It was argued that defendant No. 1 after having conspired with the rest to fabricate the Will arranged with the scribe and the attesting witnesses that when the time to give evidence they should say that defendant No. 1 was not present at all at the time of the execution of the Will, so that the suspicion of procuring the Will in his favour would be completely avoided. But the pity of it is that when defendant No. 1, the scribe and the two attesting witnesses were in the witness-box there was not even a suggestion to them that they had conspired to forge the Will and that the Will was forged by them after the death of the testator. The High Court after a detailed consideration of the evidence has come to the conclusion that the witnesses with regard to the execution of the Will are reliable and we have no good reason to think otherwise. 11. On that finding it is not necessary to consider some other small points which were argued in the case. Those points had been argued before the High Court and the High Court, for good reasons, had repelled them all. A reference was also made to the evidence of the handwriting experts. On behalf of the plaintiffs, Mr. C. M. Reghelini, a handwriting expert from Madras was examined to show that the disputed signature was not of the testator. On behalf of the defendants, Mr. C. T. Bhanagay of Nagpur who is a Government Criminologist and Additional Government Examiner of Questioned Documents for certain States was examined as expert witness. He gave his opinion that the disputed signature on the Will was of the testator. Both the witnesses did not know Kannada or the Kannada script. The Trial Court, therefore, rejected the evidence of both. The High Court was not agreeable that on that ground alone their evidence should be rejected. So far as Mr. Reghelini was concerned it was noticed that he had compared the disputed signature of the testator with some other signatures alleged to have been of the testator but which were not proved in Court. When the admitted signatures were shown in the witness-box, he obviously called for additional signatures for further comparison, the implication of which was that he could not make up his mind by a mere look at the admitted signatures in the witness-box whether the disputed signature was made by the person who had made the admitted signatures. Naturally Mr. Reghelinis evidence was of little help. The learned Judges, who apparently know Kannada and also the Kannada script, were inclined to accept Mr. Bhanagays evidence as more reliable. Mrs. Pappu appearing on behalf of the appellants before us contended that there were more pen lifts in the disputed signature than in the admitted signatures which had been compared by Mr. Bhanagay. But Mr. Bhanagay himself when he was in the witness-box was not cross-examined about the same. We have also, for ourselves, scrutinized the signatures as well as we could, and we think that it is not possible to disagree with the view taken by the High Court in this respect.
### Response:
1
### Explanation:
come to school every morning from his own village and return in the evening. In the midday, however, he did not return to his house and it appears that the testator who was a rich and charitably disposed man and a respected Patil of the village must have requested the teacher to take his lunch at his place and that was how the teacher was visiting the Kolke house at noon every day. He continued to be a teacher in that school even after the death of the testator and defendant No. 1 and defendant No. 4 continued the same facility to him as the testator had done. It is not shown that he was in any way interested in the parties to the suit. In fact he knows very little about the family affairs. The attesting witnesses also are not shown to be so much interested in the defendants that they should agree to the fabrication of the testators Will. Dharampal Kadamba is the resident of the Miyar village and is also now the President of the village Panchayat. He was not a local man. He had no property of his own at Miyar. But it seems he owed his position as the village Patil to the testator. The testator had stopped living at Miyar and had shifted to Irvathoor. Dharampal was asked to live in the Miyar house and it appears that a land and a small garden piece were given to himthe consideration being that he should stay in the place and perform all the Viniyogas it was the testators custom to do. We can, therefore, say that he was a man in the confidence of the deceased testator and it wont be surprising that he was called to attest the Will. The defendants have continued to give him the same facilities as the testator had done and it cannot be said that the defendants have conferred upon him such benefits that he will agree to fabricate the Will. The other attesting witness Anantraj Kadamba who lived in Irvathoor itself is still more disinterested. He was merely a tenant of one or two lands of the testator. He was a tenant before and continued to be a tenant after the death of the testator. One of the lands was on mulgaini tenure from the time of the testator. That means that the tenure was of permanent tenancy. In short, no benefit has been conferred by the defendants upon these three important witnesses which they had not enjoyed in the testators owne for several years. It had been contended in the written statement that defendant No. 4, the aged kept mistress, was chiefly instrumental in fabricating the Will with the help of the other defendants, the scribe and the two attesting witnesses. At the time of the argument defendant No. 1 was made the villain of the piece. It was argued that defendant No. 1 after having conspired with the rest to fabricate the Will arranged with the scribe and the attesting witnesses that when the time to give evidence they should say that defendant No. 1 was not present at all at the time of the execution of the Will, so that the suspicion of procuring the Will in his favour would be completely avoided. But the pity of it is that when defendant No. 1, the scribe and the two attesting witnesses were in thex there was not even a suggestion to them that they had conspired to forge the Will and that the Will was forged by them after the death of the testator. The High Court after a detailed consideration of the evidence has come to the conclusion that the witnesses with regard to the execution of the Will are reliable and we have no good reason to think otherwise11. On that finding it is not necessary to consider some other small points which were argued in the case. Those points had been argued before the High Court and the High Court, for good reasons, had repelled them all. A reference was also made to the evidence of the handwriting experts. On behalf of the plaintiffs, Mr. C. M. Reghelini, a handwriting expert from Madras was examined to show that the disputed signature was not of the testator. On behalf of the defendants, Mr. C. T. Bhanagay of Nagpur who is a Government Criminologist and Additional Government Examiner of Questioned Documents for certain States was examined as expert witness. He gave his opinion that the disputed signature on the Will was of the testator. Both the witnesses did not know Kannada or the Kannada script. The Trial Court, therefore, rejected the evidence of both. The High Court was not agreeable that on that ground alone their evidence should be rejected. So far as Mr. Reghelini was concerned it was noticed that he had compared the disputed signature of the testator with some other signatures alleged to have been of the testator but which were not proved in Court. When the admitted signatures were shown in the, he obviously called for additional signatures for further comparison, the implication of which was that he could not make up his mind by a mere look at the admitted signatures in thex whether the disputed signature was made by the person who had made the admitted signatures. Naturally Mr. Reghelinis evidence was of little help. The learned Judges, who apparently know Kannada and also the Kannada script, were inclined to accept Mr. Bhanagays evidence as more reliable. Mrs. Pappu appearing on behalf of the appellants before us contended that there were more pen lifts in the disputed signature than in the admitted signatures which had been compared by Mr. Bhanagay. But Mr. Bhanagay himself when he was in thex was notd about the same. We have also, for ourselves, scrutinized the signatures as well as we could, and we think that it is not possible to disagree with the view taken by the High Court in this respect.
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Ram Singh & Others Vs. Union of India | which was submitted in the year 2012, all the other reports as well as the literature on the subject would be at least a decade old. The necessary data on which the exercise has to be made, as already observed by us, has to be contemporaneous. Outdated statistics cannot provide accurate parameters for measuring backwardness for the purpose of inclusion in the list of Other Backward Classes. This is because one may legitimately presume progressive advancement of all citizens on every front i.e. social, economic and education. Any other view would amount to retrograde governance. Yet, surprisingly the facts that stare at us indicate a governmental affirmation of such negative governance inasmuch as decade old decisions not to treat the Jats as backward, arrived at on due consideration of the existing ground realities, have been reopened, inspite of perceptible all round development of the nation. This is the basic fallacy inherent in the impugned governmental decision that has been challenged in the present proceedings. The percentage of the OBC population estimated at “not less than 52%” (Indra Sawhney) certainly must have gone up considerably as over the last two decades there has been only inclusions in the Central as well as State OBC Lists and hardly any exclusion therefrom. This is certainly not what has been envisaged in our Constitutional Scheme. 52. In so far as the contemporaneous report for the State of Haryana is concerned, the discussion that has preceded indicate adequate and good reasons for the view taken by the NCBC in respect of the said Report and not to accept the findings contained therein. The same would hardly require any further reiteration. 53. Past decisions of this Court in M.R. Balaji Vs. State of Mysore (1963 Suppl. (1) SCR 439) and Janaki Prasad Vs. State of Jammu & Kashmir ((1973) 1 SCC 420 )had conflated the two expressions used in Articles 15(4) and 16(4) and read them synonymously. It is in Indra Sawhney’s case (supra) that this Court held that the terms “backward class” and “socially and educationally backward classes” are not equivalent and further that in Article 16(4) the backwardness contemplated is mainly social. The above interpretation of backwardness in Indra Sawhney (supra) would be binding on numerically smaller Benches. We may, therefore, understand a social class as an identifiable section of society which may be internally homogenous (based on caste or occupation) or heterogeneous (based on disability or gender e.g. transgender). Backwardness is a manifestation caused by the presence of several independent circumstances which may be social, cultural, economic, educational or even political. Owing to historical conditions, particularly in Hindu society, recognition of backwardness has been associated with caste. Though caste may be a prominent and distinguishing factor for easy determination of backwardness of a social group, this Court has been routinely discouraging the identification of a group as backward solely on the basis of caste. Article 16(4) as also Article 15(4) lays the foundation for affirmative action by the State to reach out the most deserving. Social groups who would be most deserving must necessarily be a matter of continuous evolution. New practices, methods and yardsticks have to be continuously evolved moving away from caste centric definition of backwardness. This alone can enable recognition of newly emerging groups in society which would require palliative action. The recognition of the third gender as a socially and educationally backward class of citizens entitled to affirmative action of the State under the Constitution in National Legal Services Authority vs. Union of India (2014) 5 SCC 438 )is too significant a development to be ignored. In fact it is a path finder, if not a path-breaker. It is an important reminder to the State of the high degree of vigilance it must exercise to discover emerging forms of backwardness. The State, therefore, cannot blind itself to the existence of other forms and instances of backwardness. An affirmative action policy that keeps in mind only historical injustice would certainly result in under-protection of the most deserving backward class of citizens, which is constitutionally mandated. It is the identification of these new emerging groups that must engage the attention of the State and the constitutional power and duty must be concentrated to discover such groups rather than to enable groups of citizens to recover “lost ground” in claiming preference and benefits on the basis of historical prejudice. 54. The perception of a self-proclaimed socially backward class of citizens or even the perception of the “advanced classes” as to the social status of the “less fortunates” cannot continue to be a constitutionally permissible yardstick for determination of backwardness, both in the context of Articles 15(4) and 16(4) of the Constitution. Neither can any longer backwardness be a matter of determination on the basis of mathematical formulae evolved by taking into account social, economic and educational indicators. Determination of backwardness must also cease to be relative; possible wrong inclusions cannot be the basis for further inclusions but the gates would be opened only to permit entry of the most distressed. Any other inclusion would be a serious abdication of the constitutional duty of the State. Judged by the aforesaid standards we must hold that inclusion of the politically organized classes (such as Jats) in the list of backward classes mainly, if not solely, on the basis that on same parameters other groups who have fared better have been so included cannot be affirmed. 55. For the various reasons indicated above, we cannot agree with the view taken by the Union Government that Jats in the 9 (nine) States in question is a backward community so as to be entitled to inclusion in the Central Lists of Other Backward Classes for the States concerned. The view taken by the NCBC to the contrary is adequately supported by good and acceptable reasons which furnished a sound and reasonable basis for further consequential action on the part of the Union Government. In the above situation we cannot hold the notification dated 4.3.2014 to be justified. | 1[ds]30. Apart from the aforesaid eight reports, fifty one representations in favour of inclusion of Jats in the Central Lists and fifty eight representations against such inclusion received by the NCBC were also forwarded to the ICSSR. On receipt of the report of ICSSR, the summary of which has been indicated above, the Commission on an extensive study of the same and on a further detailed examination of the eight specific reports which were referred to it by the Group of Ministers carried out a State-wise analysis of the aforesaid materials.The NCBC had evolved a set of guidelines, criteria, formats and parameters against which all claims for inclusion as an other backward class are required to be considered. The said parameters were evolved on the basis of the Mandal Commission Report and the judgment in Indra Sawhney. 11 indicators under three broad heads i.e. social, economic and educational, details of which are indicated below, were identified.Relative weight-age to each of the parameters under the aforesaid three broad heads is to be in the proportion of 3:2:1. The Justice K.C. Gupta Commission however followed 12 Social indicators, 7 Educational indicators and 5 Economic indicators. That apart, according to the Commission, backwardness that was required to be determined, is primarily social backwardness which, in turn, depended on how the other castes/classes perceived whether the Jats were socially backward or not. Justice K.C. Gupta Commission did not proceed in the matter from the aforesaid perspective. Further in its report the NCBC found that indicators like Infant Mortality Rate, Maternal Mortality Rate, Deliveries at Home etc. had been considered to determine social backwardness. Such data, according to the NCBC, are actually Public Health Statistics and are wholly irrelevant for determination of social backwardness.Insofar as education is concerned, though the literacy rate is high i.e. 85.7% as against 83.7% for the general population, the level of education is mainly high school and drop-out at school level is very high. The economic standard of the Jat community was, however, found to be relatively better. The employment in the government jobs, however, according to the report, was quite low. Only 2.4% Jats engaged in high-end services while 19.1% Jats are engaged in low-end services likeDTC drivers, teachers in primary school etc.The NCBC took into account that the claim of the Jats for inclusion in the State List of OBCs in Himachal Pradesh had been differently considered at different points of time by the State Commission itself. While the State Commission had rejected the said claim in the year 1999 and its recommendations had been accepted by the State Government in the year 2000, the Report of the State Commission prepared in October 2002 recommended inclusion of the Jats who, accordingly, came to be included in the State List. From the Report of the NCBC it appears that a public hearing was conducted by the Commission in Shimla on 17.08.2011 and on the basis of what had transpired and also upon consideration of the Report of the State Commission prepared in October 2002, the NCBC decided to keep the matter pending. No compulsive material, according to the NCBC, was laid before it in the course of the present exercise so as to enable a recommendation in favour of the Jats of Himachal Pradesh to be made by it.The NCBC in its report dated 28.11.1997 had recommended the inclusion of Jats (excluding Dholpur and Bharatpur districts) in the Central List of other backward classes. On the basis of the recommendation of the NCBC, the Government of India had issued a Notification dated 27.10.1999 to the above effect. Following the said Notification, the State Government had also issued a Notification including Jats in the State List of other backward classes (excluding the two districts). Thereafter, the State Commission recommended for the removal of the area restriction of the Jats in the two districts which was also accepted by the Government of Rajasthan and a Notification dated 10.01.2000 was issued. It appears that in the course of survey undertaken by ICSSR, the report of the State Commission for OBCs was not made available. In the absence of the said Report, a study sponsored by the State Government and conducted by the Institute of Development Studies, Jaipur, was considered. On the basis of the findings recorded by the ICSSR in its report, (earlier extracted), the Jats were found to be better off in regard to ownership of land though in respect of literacy rate and representation in Government service they were found to be marginally lower than Ahirs, Vishnois and Charans but better than rest of the OBCs. In the aforesaid backdrop the NCBC came to the conclusion that on the basis of the materials available as well as what had been revealed in the course of the the public hearings conducted on 10.02.2014 and 13.02.2014preponderance of evidence adduced by those speaking against the motion was much more than those speakingUnder these circumstances the NCBC did not find any reason to interfere with its earlier order issued on the subject.The State Backward Classes Commission of the State of Madhya Pradesh undertook a study of Jat Community in the districts of Dewas and Hoshangabad in the year 1994. The findings of the study had indicated that the Jats considered themselves equal to the Rajputs;political situation is veryand so is their social status. The State Commission therefore did not recommend the inclusion of the Jats in the State List of OBCs. The said recommendation was approved by the State Government on 21.12.1999. Thereafter, on account of the representations received by the State Commission, another study was conducted in January 2002 in a single district of the State i.e.district. Based on the aforesaid study, which the NCBC found to be cursory, the Jats came to be included in the State List. The aforesaid materials failed to convince the NCBC that it would be justified to include the Jats in the State of Madhya Pradesh in the Central List of Other Backward Classes.The Jat Hindus of 4 districts of Bihar and Jat Muslims in 5 districts are included in the State List of Other Backward Classes. In the report of the ICSSR it has been mentioned that the recommendation of the State Commission is based on information received through questionnaire (number not indicated) and not on the basis of any household survey. Considering the materials made available to it, the NCBC came to the conclusion that the recommendation of the State Commission was based on awithout any formal survey or study. Furthermore, according to the NCBC nothing was revealed in the course of the public hearings to justify the inclusion of Jats of Bihar in the Central List of Other Backward Classes.No separate report was prepared for Uttarakhand by the State Commission and the Jats in the State came to be included in the State List of OBCs merely because the State of Uttarakhand had accepted the list of OBCs in the State List of Uttar Pradesh. In the absence of an independent survey and information, the claims of the Jats of Uttarakhand for inclusion in the Central List had been negatived by the NCBC particularly when it had recommended that the claims of the Jats in the State of U.P. be rejected.The Jat Muslims were included in the Central List of OBCs way back in the year 1993 but the Jat Hindus had not been so included either in the State List or the Central List. The cases of Jat Hindus in Gujarat were considered by the NCBC in the year 2011 but in the absence of relevant information its decision was deferred till the report of the ICSSR is received. The said report of the ICSSR prepared on the basis of the literature survey mentions (as noted and extracted above) that there is lack of information on the parameters (social, educational and economic) specified by the NCBC. In these circumstances, the claim of the Jats in Gujarat was not recommended by the NCBC in its report dated 26.2.2014.The Jat Muslims were included in the Central List of OBCs way back in the year 1993 but the Jat Hindus had not been so included either in the State List or the Central List. The cases of Jat Hindus in Gujarat were considered by the NCBC in the year 2011 but in the absence of relevant information its decision was deferred till the report of the ICSSR is received. The said report of the ICSSR prepared on the basis of the literature survey mentions (as noted and extracted above) that there is lack of information on the parameters (social, educational and economic) specified by the NCBC. In these circumstances, the claim of the Jats in Gujarat was not recommended by the NCBC in its report dated 26.2.2014.In so far as Haryana is concerned, the test adopted appears to be educational backwardness. Similarly for the NCT of Delhi also, educational backwardness has been taken into account as the determining factor for inclusion of Jats along with the fact that the Jats are behind the Gujars who are already included in the Central Lists of OBCs. Similarly, in Uttar Pradesh and Uttarakhand, the test appears to be educational backwardness; same is the position with regard to Rajasthan. Though the States of M.P., Gujarat and Bihar have also been included in the Central Lists of OBCs by impugned notification, no apparent consideration of the cases of these States is reflected in the Minutes of the Cabinet Meeting dated 2nd March, 2014. Of course, the Cabinet is not expected to record the manner of its consideration of each of the States but when it is done so for some of the States, the absence of any mention of the other States would be a strong basis to conclude that the States that do not find any mention in the Minutes, in fact, did not receive the consideration of the Cabinet, at all.In so far as the contemporaneous report for the State of Haryana is concerned, the discussion that has preceded indicate adequate and good reasons for the view taken by the NCBC in respect of the said Report and not to accept the findings contained therein. The same would hardly require any further reiteration.For the various reasons indicated above, we cannot agree with the view taken by the Union Government that Jats in the 9 (nine) States in question is a backward community so as to be entitled to inclusion in the Central Lists of Other Backward Classes for the States concerned. The view taken by the NCBC to the contrary is adequately supported by good and acceptable reasons which furnished a sound and reasonable basis for further consequential action on the part of the Union Government. In the above situation we cannot hold the notification dated 4.3.2014 to be justified.Apart from the aforesaid eight reports, fifty one representations in favour of inclusion of Jats in the Central Lists and fifty eight representations against such inclusion received by the NCBC were also forwarded to the ICSSR. On receipt of the report of ICSSR, the summary of which has been indicated above, the Commission on an extensive study of the same and on a further detailed examination of the eight specific reports which were referred to it by the Group of Ministers carried out a State-wise analysis of the aforesaid materials.The NCBC had evolved a set of guidelines, criteria, formats and parameters against which all claims for inclusion as an other backward class are required to be considered. The said parameters were evolved on the basis of the Mandal Commission Report and the judgment in Indra Sawhney. 11 indicators under three broad heads i.e. social, economic and educational, details of which are indicated below, were identified.e weight-age to each of the parameters under the aforesaid three broad heads is to be in the proportion of 3:2:1. The Justice K.C. Gupta Commission however followed 12 Social indicators, 7 Educational indicators and 5 Economic indicators. That apart, according to the Commission, backwardness that was required to be determined, is primarily social backwardness which, in turn, depended on how the other castes/classes perceived whether the Jats were socially backward or not. Justice K.C. Gupta Commission did not proceed in the matter from the aforesaid perspective. Further in its report the NCBC found that indicators like Infant Mortality Rate, Maternal Mortality Rate, Deliveries at Home etc. had been considered to determine social backwardness. Such data, according to the NCBC, are actually Public Health Statistics and are wholly irrelevant for determination of social backwardness.r as education is concerned, though the literacy rate is high i.e. 85.7% as against 83.7% for the general population, the level of education is mainly high school and drop-out at school level is very high. The economic standard of the Jat community was, however, found to be relatively better. The employment in the government jobs, however, according to the report, was quite low. Only 2.4% Jats engaged in high-end services while 19.1% Jats are engaged in low-end services likeC drivers, teachers in primary school etc.The NCBC took into account that the claim of the Jats for inclusion in the State List of OBCs in Himachal Pradesh had been differently considered at different points of time by the State Commission itself. While the State Commission had rejected the said claim in the year 1999 and its recommendations had been accepted by the State Government in the year 2000, the Report of the State Commission prepared in October 2002 recommended inclusion of the Jats who, accordingly, came to be included in the State List. From the Report of the NCBC it appears that a public hearing was conducted by the Commission in Shimla on 17.08.2011 and on the basis of what had transpired and also upon consideration of the Report of the State Commission prepared in October 2002, the NCBC decided to keep the matter pending. No compulsive material, according to the NCBC, was laid before it in the course of the present exercise so as to enable a recommendation in favour of the Jats of Himachal Pradesh to be made by it.The NCBC in its report dated 28.11.1997 had recommended the inclusion of Jats (excluding Dholpur and Bharatpur districts) in the Central List of other backward classes. On the basis of the recommendation of the NCBC, the Government of India had issued a Notification dated 27.10.1999 to the above effect. Following the said Notification, the State Government had also issued a Notification including Jats in the State List of other backward classes (excluding the two districts). Thereafter, the State Commission recommended for the removal of the area restriction of the Jats in the two districts which was also accepted by the Government of Rajasthan and a Notification dated 10.01.2000 was issued. It appears that in the course of survey undertaken by ICSSR, the report of the State Commission for OBCs was not made available. In the absence of the said Report, a study sponsored by the State Government and conducted by the Institute of Development Studies, Jaipur, was considered. On the basis of the findings recorded by the ICSSR in its report, (earlier extracted), the Jats were found to be better off in regard to ownership of land though in respect of literacy rate and representation in Government service they were found to be marginally lower than Ahirs, Vishnois and Charans but better than rest of the OBCs. In the aforesaid backdrop the NCBC came to the conclusion that on the basis of the materials available as well as what had been revealed in the course of the the public hearings conducted on 10.02.2014 and 13.02.2014e of evidence adduced by those speaking against the motion was much more than those speakingr these circumstances the NCBC did not find any reason to interfere with its earlier order issued on the subject.The State Backward Classes Commission of the State of Madhya Pradesh undertook a study of Jat Community in the districts of Dewas and Hoshangabad in the year 1994. The findings of the study had indicated that the Jats considered themselves equal to the Rajputs;l situation is veryand so is their social status. The State Commission therefore did not recommend the inclusion of the Jats in the State List of OBCs. The said recommendation was approved by the State Government on 21.12.1999. Thereafter, on account of the representations received by the State Commission, another study was conducted in January 2002 in a single district of the State i.e.. Based on the aforesaid study, which the NCBC found to be cursory, the Jats came to be included in the State List. The aforesaid materials failed to convince the NCBC that it would be justified to include the Jats in the State of Madhya Pradesh in the Central List of Other Backward Classes.The Jat Hindus of 4 districts of Bihar and Jat Muslims in 5 districts are included in the State List of Other Backward Classes. In the report of the ICSSR it has been mentioned that the recommendation of the State Commission is based on information received through questionnaire (number not indicated) and not on the basis of any household survey. Considering the materials made available to it, the NCBC came to the conclusion that the recommendation of the State Commission was based on at any formal survey or study. Furthermore, according to the NCBC nothing was revealed in the course of the public hearings to justify the inclusion of Jats of Bihar in the Central List of Other Backward Classes.o separate report was prepared for Uttarakhand by the State Commission and the Jats in the State came to be included in the State List of OBCs merely because the State of Uttarakhand had accepted the list of OBCs in the State List of Uttar Pradesh. In the absence of an independent survey and information, the claims of the Jats of Uttarakhand for inclusion in the Central List had been negatived by the NCBC particularly when it had recommended that the claims of the Jats in the State of U.P. be rejected.The Jat Muslims were included in the Central List of OBCs way back in the year 1993 but the Jat Hindus had not been so included either in the State List or the Central List. The cases of Jat Hindus in Gujarat were considered by the NCBC in the year 2011 but in the absence of relevant information its decision was deferred till the report of the ICSSR is received. The said report of the ICSSR prepared on the basis of the literature survey mentions (as noted and extracted above) that there is lack of information on the parameters (social, educational and economic) specified by the NCBC. In these circumstances, the claim of the Jats in Gujarat was not recommended by the NCBC in its report dated 26.2.2014.The Jat Muslims were included in the Central List of OBCs way back in the year 1993 but the Jat Hindus had not been so included either in the State List or the Central List. The cases of Jat Hindus in Gujarat were considered by the NCBC in the year 2011 but in the absence of relevant information its decision was deferred till the report of the ICSSR is received. The said report of the ICSSR prepared on the basis of the literature survey mentions (as noted and extracted above) that there is lack of information on the parameters (social, educational and economic) specified by the NCBC. In these circumstances, the claim of the Jats in Gujarat was not recommended by the NCBC in its report dated 26.2.2014.In so far as Haryana is concerned, the test adopted appears to be educational backwardness. Similarly for the NCT of Delhi also, educational backwardness has been taken into account as the determining factor for inclusion of Jats along with the fact that the Jats are behind the Gujars who are already included in the Central Lists of OBCs. Similarly, in Uttar Pradesh and Uttarakhand, the test appears to be educational backwardness; same is the position with regard to Rajasthan. Though the States of M.P., Gujarat and Bihar have also been included in the Central Lists of OBCs by impugned notification, no apparent consideration of the cases of these States is reflected in the Minutes of the Cabinet Meeting dated 2nd March, 2014. Of course, the Cabinet is not expected to record the manner of its consideration of each of the States but when it is done so for some of the States, the absence of any mention of the other States would be a strong basis to conclude that the States that do not find any mention in the Minutes, in fact, did not receive the consideration of the Cabinet, at all.In so far as the contemporaneous report for the State of Haryana is concerned, the discussion that has preceded indicate adequate and good reasons for the view taken by the NCBC in respect of the said Report and not to accept the findings contained therein. The same would hardly require any further reiteration.r the various reasons indicated above, we cannot agree with the view taken by the Union Government that Jats in the 9 (nine) States in question is a backward community so as to be entitled to inclusion in the Central Lists of Other Backward Classes for the States concerned. The view taken by the NCBC to the contrary is adequately supported by good and acceptable reasons which furnished a sound and reasonable basis for further consequential action on the part of the Union Government. In the above situation we cannot hold the notification dated 4.3.2014 to be justified.Apart from the aforesaid eight reports, fifty one representations in favour of inclusion of Jats in the Central Lists and fifty eight representations against such inclusion received by the NCBC were also forwarded to the ICSSR. On receipt of the report of ICSSR, the summary of which has been indicated above, the Commission on an extensive study of the same and on a further detailed examination of the eight specific reports which were referred to it by the Group of Ministers carried out a State-wise analysis of the aforesaid materials.The NCBC had evolved a set of guidelines, criteria, formats and parameters against which all claims for inclusion as an other backward class are required to be considered. The said parameters were evolved on the basis of the Mandal Commission Report and the judgment in Indra Sawhney. 11 indicators under three broad heads i.e. social, economic and educational, details of which are indicated below, were identified.e weight-age to each of the parameters under the aforesaid three broad heads is to be in the proportion of 3:2:1. The Justice K.C. Gupta Commission however followed 12 Social indicators, 7 Educational indicators and 5 Economic indicators. That apart, according to the Commission, backwardness that was required to be determined, is primarily social backwardness which, in turn, depended on how the other castes/classes perceived whether the Jats were socially backward or not. Justice K.C. Gupta Commission did not proceed in the matter from the aforesaid perspective. Further in its report the NCBC found that indicators like Infant Mortality Rate, Maternal Mortality Rate, Deliveries at Home etc. had been considered to determine social backwardness. Such data, according to the NCBC, are actually Public Health Statistics and are wholly irrelevant for determination of social backwardness.r as education is concerned, though the literacy rate is high i.e. 85.7% as against 83.7% for the general population, the level of education is mainly high school and drop-out at school level is very high. The economic standard of the Jat community was, however, found to be relatively better. The employment in the government jobs, however, according to the report, was quite low. Only 2.4% Jats engaged in high-end services while 19.1% Jats are engaged in low-end services likeC drivers, teachers in primary school etc.The NCBC took into account that the claim of the Jats for inclusion in the State List of OBCs in Himachal Pradesh had been differently considered at different points of time by the State Commission itself. While the State Commission had rejected the said claim in the year 1999 and its recommendations had been accepted by the State Government in the year 2000, the Report of the State Commission prepared in October 2002 recommended inclusion of the Jats who, accordingly, came to be included in the State List. From the Report of the NCBC it appears that a public hearing was conducted by the Commission in Shimla on 17.08.2011 and on the basis of what had transpired and also upon consideration of the Report of the State Commission prepared in October 2002, the NCBC decided to keep the matter pending. No compulsive material, according to the NCBC, was laid before it in the course of the present exercise so as to enable a recommendation in favour of the Jats of Himachal Pradesh to be made by it.The NCBC in its report dated 28.11.1997 had recommended the inclusion of Jats (excluding Dholpur and Bharatpur districts) in the Central List of other backward classes. On the basis of the recommendation of the NCBC, the Government of India had issued a Notification dated 27.10.1999 to the above effect. Following the said Notification, the State Government had also issued a Notification including Jats in the State List of other backward classes (excluding the two districts). Thereafter, the State Commission recommended for the removal of the area restriction of the Jats in the two districts which was also accepted by the Government of Rajasthan and a Notification dated 10.01.2000 was issued. It appears that in the course of survey undertaken by ICSSR, the report of the State Commission for OBCs was not made available. In the absence of the said Report, a study sponsored by the State Government and conducted by the Institute of Development Studies, Jaipur, was considered. On the basis of the findings recorded by the ICSSR in its report, (earlier extracted), the Jats were found to be better off in regard to ownership of land though in respect of literacy rate and representation in Government service they were found to be marginally lower than Ahirs, Vishnois and Charans but better than rest of the OBCs. In the aforesaid backdrop the NCBC came to the conclusion that on the basis of the materials available as well as what had been revealed in the course of the the public hearings conducted on 10.02.2014 and 13.02.2014e of evidence adduced by those speaking against the motion was much more than those speakingr these circumstances the NCBC did not find any reason to interfere with its earlier order issued on the subject.The State Backward Classes Commission of the State of Madhya Pradesh undertook a study of Jat Community in the districts of Dewas and Hoshangabad in the year 1994. The findings of the study had indicated that the Jats considered themselves equal to the Rajputs;l situation is veryand so is their social status. The State Commission therefore did not recommend the inclusion of the Jats in the State List of OBCs. The said recommendation was approved by the State Government on 21.12.1999. Thereafter, on account of the representations received by the State Commission, another study was conducted in January 2002 in a single district of the State i.e.. Based on the aforesaid study, which the NCBC found to be cursory, the Jats came to be included in the State List. The aforesaid materials failed to convince the NCBC that it would be justified to include the Jats in the State of Madhya Pradesh in the Central List of Other Backward Classes.The Jat Hindus of 4 districts of Bihar and Jat Muslims in 5 districts are included in the State List of Other Backward Classes. In the report of the ICSSR it has been mentioned that the recommendation of the State Commission is based on information received through questionnaire (number not indicated) and not on the basis of any household survey. Considering the materials made available to it, the NCBC came to the conclusion that the recommendation of the State Commission was based on at any formal survey or study. Furthermore, according to the NCBC nothing was revealed in the course of the public hearings to justify the inclusion of Jats of Bihar in the Central List of Other Backward Classes.o separate report was prepared for Uttarakhand by the State Commission and the Jats in the State came to be included in the State List of OBCs merely because the State of Uttarakhand had accepted the list of OBCs in the State List of Uttar Pradesh. In the absence of an independent survey and information, the claims of the Jats of Uttarakhand for inclusion in the Central List had been negatived by the NCBC particularly when it had recommended that the claims of the Jats in the State of U.P. be rejected.The Jat Muslims were included in the Central List of OBCs way back in the year 1993 but the Jat Hindus had not been so included either in the State List or the Central List. The cases of Jat Hindus in Gujarat were considered by the NCBC in the year 2011 but in the absence of relevant information its decision was deferred till the report of the ICSSR is received. The said report of the ICSSR prepared on the basis of the literature survey mentions (as noted and extracted above) that there is lack of information on the parameters (social, educational and economic) specified by the NCBC. In these circumstances, the claim of the Jats in Gujarat was not recommended by the NCBC in its report dated 26.2.2014.The Jat Muslims were included in the Central List of OBCs way back in the year 1993 but the Jat Hindus had not been so included either in the State List or the Central List. The cases of Jat Hindus in Gujarat were considered by the NCBC in the year 2011 but in the absence of relevant information its decision was deferred till the report of the ICSSR is received. The said report of the ICSSR prepared on the basis of the literature survey mentions (as noted and extracted above) that there is lack of information on the parameters (social, educational and economic) specified by the NCBC. In these circumstances, the claim of the Jats in Gujarat was not recommended by the NCBC in its report dated 26.2.2014.In so far as Haryana is concerned, the test adopted appears to be educational backwardness. Similarly for the NCT of Delhi also, educational backwardness has been taken into account as the determining factor for inclusion of Jats along with the fact that the Jats are behind the Gujars who are already included in the Central Lists of OBCs. Similarly, in Uttar Pradesh and Uttarakhand, the test appears to be educational backwardness; same is the position with regard to Rajasthan. Though the States of M.P., Gujarat and Bihar have also been included in the Central Lists of OBCs by impugned notification, no apparent consideration of the cases of these States is reflected in the Minutes of the Cabinet Meeting dated 2nd March, 2014. Of course, the Cabinet is not expected to record the manner of its consideration of each of the States but when it is done so for some of the States, the absence of any mention of the other States would be a strong basis to conclude that the States that do not find any mention in the Minutes, in fact, did not receive the consideration of the Cabinet, at all.In so far as the contemporaneous report for the State of Haryana is concerned, the discussion that has preceded indicate adequate and good reasons for the view taken by the NCBC in respect of the said Report and not to accept the findings contained therein. The same would hardly require any further reiteration.r the various reasons indicated above, we cannot agree with the view taken by the Union Government that Jats in the 9 (nine) States in question is a backward community so as to be entitled to inclusion in the Central Lists of Other Backward Classes for the States concerned. The view taken by the NCBC to the contrary is adequately supported by good and acceptable reasons which furnished a sound and reasonable basis for further consequential action on the part of the Union Government. In the above situation we cannot hold the notification dated 4.3.2014 to be justified.Apart from the aforesaid eight reports, fifty one representations in favour of inclusion of Jats in the Central Lists and fifty eight representations against such inclusion received by the NCBC were also forwarded to the ICSSR. On receipt of the report of ICSSR, the summary of which has been indicated above, the Commission on an extensive study of the same and on a further detailed examination of the eight specific reports which were referred to it by the Group of Ministers carried out a State-wise analysis of the aforesaid materials.The NCBC had evolved a set of guidelines, criteria, formats and parameters against which all claims for inclusion as an other backward class are required to be considered. The said parameters were evolved on the basis of the Mandal Commission Report and the judgment in Indra Sawhney. 11 indicators under three broad heads i.e. social, economic and educational, details of which are indicated below, were identified.e weight-age to each of the parameters under the aforesaid three broad heads is to be in the proportion of 3:2:1. The Justice K.C. Gupta Commission however followed 12 Social indicators, 7 Educational indicators and 5 Economic indicators. That apart, according to the Commission, backwardness that was required to be determined, is primarily social backwardness which, in turn, depended on how the other castes/classes perceived whether the Jats were socially backward or not. Justice K.C. Gupta Commission did not proceed in the matter from the aforesaid perspective. Further in its report the NCBC found that indicators like Infant Mortality Rate, Maternal Mortality Rate, Deliveries at Home etc. had been considered to determine social backwardness. Such data, according to the NCBC, are actually Public Health Statistics and are wholly irrelevant for determination of social backwardness.r as education is concerned, though the literacy rate is high i.e. 85.7% as against 83.7% for the general population, the level of education is mainly high school and drop-out at school level is very high. The economic standard of the Jat community was, however, found to be relatively better. The employment in the government jobs, however, according to the report, was quite low. Only 2.4% Jats engaged in high-end services while 19.1% Jats are engaged in low-end services likeC drivers, teachers in primary school etc.The NCBC took into account that the claim of the Jats for inclusion in the State List of OBCs in Himachal Pradesh had been differently considered at different points of time by the State Commission itself. While the State Commission had rejected the said claim in the year 1999 and its recommendations had been accepted by the State Government in the year 2000, the Report of the State Commission prepared in October 2002 recommended inclusion of the Jats who, accordingly, came to be included in the State List. From the Report of the NCBC it appears that a public hearing was conducted by the Commission in Shimla on 17.08.2011 and on the basis of what had transpired and also upon consideration of the Report of the State Commission prepared in October 2002, the NCBC decided to keep the matter pending. No compulsive material, according to the NCBC, was laid before it in the course of the present exercise so as to enable a recommendation in favour of the Jats of Himachal Pradesh to be made by it.The NCBC in its report dated 28.11.1997 had recommended the inclusion of Jats (excluding Dholpur and Bharatpur districts) in the Central List of other backward classes. On the basis of the recommendation of the NCBC, the Government of India had issued a Notification dated 27.10.1999 to the above effect. Following the said Notification, the State Government had also issued a Notification including Jats in the State List of other backward classes (excluding the two districts). Thereafter, the State Commission recommended for the removal of the area restriction of the Jats in the two districts which was also accepted by the Government of Rajasthan and a Notification dated 10.01.2000 was issued. It appears that in the course of survey undertaken by ICSSR, the report of the State Commission for OBCs was not made available. In the absence of the said Report, a study sponsored by the State Government and conducted by the Institute of Development Studies, Jaipur, was considered. On the basis of the findings recorded by the ICSSR in its report, (earlier extracted), the Jats were found to be better off in regard to ownership of land though in respect of literacy rate and representation in Government service they were found to be marginally lower than Ahirs, Vishnois and Charans but better than rest of the OBCs. In the aforesaid backdrop the NCBC came to the conclusion that on the basis of the materials available as well as what had been revealed in the course of the the public hearings conducted on 10.02.2014 and 13.02.2014e of evidence adduced by those speaking against the motion was much more than those speakingr these circumstances the NCBC did not find any reason to interfere with its earlier order issued on the subject.The State Backward Classes Commission of the State of Madhya Pradesh undertook a study of Jat Community in the districts of Dewas and Hoshangabad in the year 1994. The findings of the study had indicated that the Jats considered themselves equal to the Rajputs;l situation is veryand so is their social status. The State Commission therefore did not recommend the inclusion of the Jats in the State List of OBCs. The said recommendation was approved by the State Government on 21.12.1999. Thereafter, on account of the representations received by the State Commission, another study was conducted in January 2002 in a single district of the State i.e.. Based on the aforesaid study, which the NCBC found to be cursory, the Jats came to be included in the State List. The aforesaid materials failed to convince the NCBC that it would be justified to include the Jats in the State of Madhya Pradesh in the Central List of Other Backward Classes.The Jat Hindus of 4 districts of Bihar and Jat Muslims in 5 districts are included in the State List of Other Backward Classes. In the report of the ICSSR it has been mentioned that the recommendation of the State Commission is based on information received through questionnaire (number not indicated) and not on the basis of any household survey. Considering the materials made available to it, the NCBC came to the conclusion that the recommendation of the State Commission was based on at any formal survey or study. Furthermore, according to the NCBC nothing was revealed in the course of the public hearings to justify the inclusion of Jats of Bihar in the Central List of Other Backward Classes.o separate report was prepared for Uttarakhand by the State Commission and the Jats in the State came to be included in the State List of OBCs merely because the State of Uttarakhand had accepted the list of OBCs in the State List of Uttar Pradesh. In the absence of an independent survey and information, the claims of the Jats of Uttarakhand for inclusion in the Central List had been negatived by the NCBC particularly when it had recommended that the claims of the Jats in the State of U.P. be rejected.The Jat Muslims were included in the Central List of OBCs way back in the year 1993 but the Jat Hindus had not been so included either in the State List or the Central List. The cases of Jat Hindus in Gujarat were considered by the NCBC in the year 2011 but in the absence of relevant information its decision was deferred till the report of the ICSSR is received. The said report of the ICSSR prepared on the basis of the literature survey mentions (as noted and extracted above) that there is lack of information on the parameters (social, educational and economic) specified by the NCBC. In these circumstances, the claim of the Jats in Gujarat was not recommended by the NCBC in its report dated 26.2.2014.The Jat Muslims were included in the Central List of OBCs way back in the year 1993 but the Jat Hindus had not been so included either in the State List or the Central List. The cases of Jat Hindus in Gujarat were considered by the NCBC in the year 2011 but in the absence of relevant information its decision was deferred till the report of the ICSSR is received. The said report of the ICSSR prepared on the basis of the literature survey mentions (as noted and extracted above) that there is lack of information on the parameters (social, educational and economic) specified by the NCBC. In these circumstances, the claim of the Jats in Gujarat was not recommended by the NCBC in its report dated 26.2.2014.In so far as Haryana is concerned, the test adopted appears to be educational backwardness. Similarly for the NCT of Delhi also, educational backwardness has been taken into account as the determining factor for inclusion of Jats along with the fact that the Jats are behind the Gujars who are already included in the Central Lists of OBCs. Similarly, in Uttar Pradesh and Uttarakhand, the test appears to be educational backwardness; same is the position with regard to Rajasthan. Though the States of M.P., Gujarat and Bihar have also been included in the Central Lists of OBCs by impugned notification, no apparent consideration of the cases of these States is reflected in the Minutes of the Cabinet Meeting dated 2nd March, 2014. Of course, the Cabinet is not expected to record the manner of its consideration of each of the States but when it is done so for some of the States, the absence of any mention of the other States would be a strong basis to conclude that the States that do not find any mention in the Minutes, in fact, did not receive the consideration of the Cabinet, at all.In so far as the contemporaneous report for the State of Haryana is concerned, the discussion that has preceded indicate adequate and good reasons for the view taken by the NCBC in respect of the said Report and not to accept the findings contained therein. The same would hardly require any further reiteration.r the various reasons indicated above, we cannot agree with the view taken by the Union Government that Jats in the 9 (nine) States in question is a backward community so as to be entitled to inclusion in the Central Lists of Other Backward Classes for the States concerned. The view taken by the NCBC to the contrary is adequately supported by good and acceptable reasons which furnished a sound and reasonable basis for further consequential action on the part of the Union Government. In the above situation we cannot hold the notification dated 4.3.2014 to be justified. | 1 | 13,345 | 7,780 | ### Instruction:
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which was submitted in the year 2012, all the other reports as well as the literature on the subject would be at least a decade old. The necessary data on which the exercise has to be made, as already observed by us, has to be contemporaneous. Outdated statistics cannot provide accurate parameters for measuring backwardness for the purpose of inclusion in the list of Other Backward Classes. This is because one may legitimately presume progressive advancement of all citizens on every front i.e. social, economic and education. Any other view would amount to retrograde governance. Yet, surprisingly the facts that stare at us indicate a governmental affirmation of such negative governance inasmuch as decade old decisions not to treat the Jats as backward, arrived at on due consideration of the existing ground realities, have been reopened, inspite of perceptible all round development of the nation. This is the basic fallacy inherent in the impugned governmental decision that has been challenged in the present proceedings. The percentage of the OBC population estimated at “not less than 52%” (Indra Sawhney) certainly must have gone up considerably as over the last two decades there has been only inclusions in the Central as well as State OBC Lists and hardly any exclusion therefrom. This is certainly not what has been envisaged in our Constitutional Scheme. 52. In so far as the contemporaneous report for the State of Haryana is concerned, the discussion that has preceded indicate adequate and good reasons for the view taken by the NCBC in respect of the said Report and not to accept the findings contained therein. The same would hardly require any further reiteration. 53. Past decisions of this Court in M.R. Balaji Vs. State of Mysore (1963 Suppl. (1) SCR 439) and Janaki Prasad Vs. State of Jammu & Kashmir ((1973) 1 SCC 420 )had conflated the two expressions used in Articles 15(4) and 16(4) and read them synonymously. It is in Indra Sawhney’s case (supra) that this Court held that the terms “backward class” and “socially and educationally backward classes” are not equivalent and further that in Article 16(4) the backwardness contemplated is mainly social. The above interpretation of backwardness in Indra Sawhney (supra) would be binding on numerically smaller Benches. We may, therefore, understand a social class as an identifiable section of society which may be internally homogenous (based on caste or occupation) or heterogeneous (based on disability or gender e.g. transgender). Backwardness is a manifestation caused by the presence of several independent circumstances which may be social, cultural, economic, educational or even political. Owing to historical conditions, particularly in Hindu society, recognition of backwardness has been associated with caste. Though caste may be a prominent and distinguishing factor for easy determination of backwardness of a social group, this Court has been routinely discouraging the identification of a group as backward solely on the basis of caste. Article 16(4) as also Article 15(4) lays the foundation for affirmative action by the State to reach out the most deserving. Social groups who would be most deserving must necessarily be a matter of continuous evolution. New practices, methods and yardsticks have to be continuously evolved moving away from caste centric definition of backwardness. This alone can enable recognition of newly emerging groups in society which would require palliative action. The recognition of the third gender as a socially and educationally backward class of citizens entitled to affirmative action of the State under the Constitution in National Legal Services Authority vs. Union of India (2014) 5 SCC 438 )is too significant a development to be ignored. In fact it is a path finder, if not a path-breaker. It is an important reminder to the State of the high degree of vigilance it must exercise to discover emerging forms of backwardness. The State, therefore, cannot blind itself to the existence of other forms and instances of backwardness. An affirmative action policy that keeps in mind only historical injustice would certainly result in under-protection of the most deserving backward class of citizens, which is constitutionally mandated. It is the identification of these new emerging groups that must engage the attention of the State and the constitutional power and duty must be concentrated to discover such groups rather than to enable groups of citizens to recover “lost ground” in claiming preference and benefits on the basis of historical prejudice. 54. The perception of a self-proclaimed socially backward class of citizens or even the perception of the “advanced classes” as to the social status of the “less fortunates” cannot continue to be a constitutionally permissible yardstick for determination of backwardness, both in the context of Articles 15(4) and 16(4) of the Constitution. Neither can any longer backwardness be a matter of determination on the basis of mathematical formulae evolved by taking into account social, economic and educational indicators. Determination of backwardness must also cease to be relative; possible wrong inclusions cannot be the basis for further inclusions but the gates would be opened only to permit entry of the most distressed. Any other inclusion would be a serious abdication of the constitutional duty of the State. Judged by the aforesaid standards we must hold that inclusion of the politically organized classes (such as Jats) in the list of backward classes mainly, if not solely, on the basis that on same parameters other groups who have fared better have been so included cannot be affirmed. 55. For the various reasons indicated above, we cannot agree with the view taken by the Union Government that Jats in the 9 (nine) States in question is a backward community so as to be entitled to inclusion in the Central Lists of Other Backward Classes for the States concerned. The view taken by the NCBC to the contrary is adequately supported by good and acceptable reasons which furnished a sound and reasonable basis for further consequential action on the part of the Union Government. In the above situation we cannot hold the notification dated 4.3.2014 to be justified.
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10.02.2014 and 13.02.2014e of evidence adduced by those speaking against the motion was much more than those speakingr these circumstances the NCBC did not find any reason to interfere with its earlier order issued on the subject.The State Backward Classes Commission of the State of Madhya Pradesh undertook a study of Jat Community in the districts of Dewas and Hoshangabad in the year 1994. The findings of the study had indicated that the Jats considered themselves equal to the Rajputs;l situation is veryand so is their social status. The State Commission therefore did not recommend the inclusion of the Jats in the State List of OBCs. The said recommendation was approved by the State Government on 21.12.1999. Thereafter, on account of the representations received by the State Commission, another study was conducted in January 2002 in a single district of the State i.e.. Based on the aforesaid study, which the NCBC found to be cursory, the Jats came to be included in the State List. The aforesaid materials failed to convince the NCBC that it would be justified to include the Jats in the State of Madhya Pradesh in the Central List of Other Backward Classes.The Jat Hindus of 4 districts of Bihar and Jat Muslims in 5 districts are included in the State List of Other Backward Classes. In the report of the ICSSR it has been mentioned that the recommendation of the State Commission is based on information received through questionnaire (number not indicated) and not on the basis of any household survey. Considering the materials made available to it, the NCBC came to the conclusion that the recommendation of the State Commission was based on at any formal survey or study. Furthermore, according to the NCBC nothing was revealed in the course of the public hearings to justify the inclusion of Jats of Bihar in the Central List of Other Backward Classes.o separate report was prepared for Uttarakhand by the State Commission and the Jats in the State came to be included in the State List of OBCs merely because the State of Uttarakhand had accepted the list of OBCs in the State List of Uttar Pradesh. In the absence of an independent survey and information, the claims of the Jats of Uttarakhand for inclusion in the Central List had been negatived by the NCBC particularly when it had recommended that the claims of the Jats in the State of U.P. be rejected.The Jat Muslims were included in the Central List of OBCs way back in the year 1993 but the Jat Hindus had not been so included either in the State List or the Central List. The cases of Jat Hindus in Gujarat were considered by the NCBC in the year 2011 but in the absence of relevant information its decision was deferred till the report of the ICSSR is received. The said report of the ICSSR prepared on the basis of the literature survey mentions (as noted and extracted above) that there is lack of information on the parameters (social, educational and economic) specified by the NCBC. In these circumstances, the claim of the Jats in Gujarat was not recommended by the NCBC in its report dated 26.2.2014.The Jat Muslims were included in the Central List of OBCs way back in the year 1993 but the Jat Hindus had not been so included either in the State List or the Central List. The cases of Jat Hindus in Gujarat were considered by the NCBC in the year 2011 but in the absence of relevant information its decision was deferred till the report of the ICSSR is received. The said report of the ICSSR prepared on the basis of the literature survey mentions (as noted and extracted above) that there is lack of information on the parameters (social, educational and economic) specified by the NCBC. In these circumstances, the claim of the Jats in Gujarat was not recommended by the NCBC in its report dated 26.2.2014.In so far as Haryana is concerned, the test adopted appears to be educational backwardness. Similarly for the NCT of Delhi also, educational backwardness has been taken into account as the determining factor for inclusion of Jats along with the fact that the Jats are behind the Gujars who are already included in the Central Lists of OBCs. Similarly, in Uttar Pradesh and Uttarakhand, the test appears to be educational backwardness; same is the position with regard to Rajasthan. Though the States of M.P., Gujarat and Bihar have also been included in the Central Lists of OBCs by impugned notification, no apparent consideration of the cases of these States is reflected in the Minutes of the Cabinet Meeting dated 2nd March, 2014. Of course, the Cabinet is not expected to record the manner of its consideration of each of the States but when it is done so for some of the States, the absence of any mention of the other States would be a strong basis to conclude that the States that do not find any mention in the Minutes, in fact, did not receive the consideration of the Cabinet, at all.In so far as the contemporaneous report for the State of Haryana is concerned, the discussion that has preceded indicate adequate and good reasons for the view taken by the NCBC in respect of the said Report and not to accept the findings contained therein. The same would hardly require any further reiteration.r the various reasons indicated above, we cannot agree with the view taken by the Union Government that Jats in the 9 (nine) States in question is a backward community so as to be entitled to inclusion in the Central Lists of Other Backward Classes for the States concerned. The view taken by the NCBC to the contrary is adequately supported by good and acceptable reasons which furnished a sound and reasonable basis for further consequential action on the part of the Union Government. In the above situation we cannot hold the notification dated 4.3.2014 to be justified.
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E. Mahboob Saheb Vs. N. Subbarayan Chowdhary and Others | Schedule property by the plaintiff, there had been a partition between her and the other heirs of Narayanaswamy in 195 2, as pleaded by the plaintiff, and the plaint C Schedule property had been allotted to the plaintiffs share at that partition. In the light of the aforesaid findings, the appeal filed by the first defendant was dismissed by the learned Ad ditional District Judge, the cross-objections filed by the plaintiff were allowed and in modi- fication of the decree of the trial court, the plaintiff was granted a decree for recovery of possession of the plaint C Schedule property. Against the aforesaid judgment of the Additional District Judge, Anantapur, the first defendant and the 8th defendant filed two separate Second Appeals before the High Court of Andhra Pradesh. The two questions raised in those appeals were (a) whethe r the purchase of the property by the plaintiff was benami for Narayanaswamy and (b) whether a partition of the plaint B Schedule property had taken place as between the plaintiff and the heirs of Narayanaswamy, at which the plaintiff got the souther n half thereof. 6. A learned Single Judge of the High Court disposed of the two Second Appeals by a common judgment, wherein he has discussed at great length the oral and documentary evidence and entered findings of his own on the two questi ons aforementioned. The learned Judge found that there was no force in the contention put forward by the first defendant that the half interest in plaint B Schedule property was purchased at the court auction sale by Narasimhulu benami for Nara yanaswamy. He also rejected the further plea put forward by the first defendant that the subsequent transfer of the property by Narasimhulu to the plaintiff was also a benami transaction. In consequence, the Second Appeal filed by the first defenda nt was dismissed,On the second question aforesaid, the learned Judge differed from the finding of the Additional District Judge and held that the plaintiff had failed to establish that a partition of the property had been effected as be tween herself and the legal heirs of Narayanaswamy at which the C Schedule property had been allotted to her share. The learned Judge then proceeded to hold that the fact that the first defendant sold to the 7th defendant a specified portio n in the north did not necessarily create any right in the 7th defendant to the particular properly and hence this was a case where a partition of the property should be effected between the plaintiff on the one hand and the defendants 7th an d 8th on the C other. In view of the said findings, the Second Appeal filed by the 8th defendant was allowed by the learned Judge and the suit was remanded to the trial court for effecting a partition of the plaint B Schedule property between the plaintiff, the 7th defendant and the 8th defendant. It is against the said decision of the High Court that the 7th defendant has filed this appeal after obtaining special leave from this Court. 7. Two main contentions were advanced by the learned counsel on behalf of the appellant. Firstly, it was urged that the High Court has acted illegally and in clear violation of the limitations imposed by Section 100 C.P.C. in interfering with the finding entered by the Additional Dis trict Judge on the question as to whether or not there had been a partition between certain parties which is a pure question of fact. The second contention advanced on behalf of the appellant is that the High Court has committed a grievous error in omitting to notice that the 7th defendant had not been even impleaded as a party in the Second Appeal (S.A. 826/67) filed by the 8th defendant, and that while showing the plaintiff as the sole respondent in that Second Appeal a categorical st atement had been made in the memorandum of the Second Appeal that "the other parties in the courts below are not necessary parties to this appeal". It was, therefore, contended by the appellant that the High Court has acted wholly illegally in recording a finding adverse to the 7th defendant and directing a partition of the entire B Schedule. property in spite of the fact that the northern plot had been sold to the 7th defendant by deceased Narayanaswamy.After hearing counsel appearing on both sides, we have unhesitatingly come to the conclusion that both the aforesaid contentions advanced on behalf of the appellant have to be upheld. The finding entered by the Additional District Judge that a partition had taken place between the plaintiff and the other legal heirs of Narayanaswamy in 1952, and as a result thereof the southern portion of the B Schedule property (plaint C Schedule property) had been allotted to the plaintiffs share was bas ed on a detailed consideration of the legal evidence available on the record. It was not open to the High Court to reappreciate the said evidence and substitute its own conclusions in place of those entered by the lower courts wh ile exercising the jurisdiction conferred by Section 100 C.P.C. The learned counsel appearing on both sides have taken us through the relevant portions of the evidence having a bearing on the plea of partition, and we are satisfied tha t the finding entered by the Additional District Judge cannot be said to be unreasonable or perverse. No question of law whatever was agitated before the High Court. In the circumstances, there was no justification at all for the High Court to interfere with the finding of fact entered by the Additional District Judge that there had been a partition between the plaintiff and the legal heirs of Narayanaswamy in 1952 at which the plaint C Schedule property had been allott ed to the share of the plaintiff. In this view, it is unnecessary for us to go into the merits of the second contention advanced on behalf of the appellant. 8. | 1[ds]The learned counsel appearing on both sides have taken us through the relevant portions of the evidence having a bearing on the plea of partition, and we are satisfied tha t the finding entered by the Additional District Judge cannot be said to be unreasonable or perverse. No question of law whatever was agitated before the High Court. In the circumstances, there was no justification at all for the High Court to interfere with the finding of fact entered by the Additional District Judge that there had been a partition between the plaintiff and the legal heirs of Narayanaswamy in 1952 at which the plaint C Schedule property had been allott ed to the share of the plaintiffIn this view, it is unnecessary for us to go into the merits of the second contention advanced on behalf of the appellant. | 1 | 2,451 | 151 | ### Instruction:
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Schedule property by the plaintiff, there had been a partition between her and the other heirs of Narayanaswamy in 195 2, as pleaded by the plaintiff, and the plaint C Schedule property had been allotted to the plaintiffs share at that partition. In the light of the aforesaid findings, the appeal filed by the first defendant was dismissed by the learned Ad ditional District Judge, the cross-objections filed by the plaintiff were allowed and in modi- fication of the decree of the trial court, the plaintiff was granted a decree for recovery of possession of the plaint C Schedule property. Against the aforesaid judgment of the Additional District Judge, Anantapur, the first defendant and the 8th defendant filed two separate Second Appeals before the High Court of Andhra Pradesh. The two questions raised in those appeals were (a) whethe r the purchase of the property by the plaintiff was benami for Narayanaswamy and (b) whether a partition of the plaint B Schedule property had taken place as between the plaintiff and the heirs of Narayanaswamy, at which the plaintiff got the souther n half thereof. 6. A learned Single Judge of the High Court disposed of the two Second Appeals by a common judgment, wherein he has discussed at great length the oral and documentary evidence and entered findings of his own on the two questi ons aforementioned. The learned Judge found that there was no force in the contention put forward by the first defendant that the half interest in plaint B Schedule property was purchased at the court auction sale by Narasimhulu benami for Nara yanaswamy. He also rejected the further plea put forward by the first defendant that the subsequent transfer of the property by Narasimhulu to the plaintiff was also a benami transaction. In consequence, the Second Appeal filed by the first defenda nt was dismissed,On the second question aforesaid, the learned Judge differed from the finding of the Additional District Judge and held that the plaintiff had failed to establish that a partition of the property had been effected as be tween herself and the legal heirs of Narayanaswamy at which the C Schedule property had been allotted to her share. The learned Judge then proceeded to hold that the fact that the first defendant sold to the 7th defendant a specified portio n in the north did not necessarily create any right in the 7th defendant to the particular properly and hence this was a case where a partition of the property should be effected between the plaintiff on the one hand and the defendants 7th an d 8th on the C other. In view of the said findings, the Second Appeal filed by the 8th defendant was allowed by the learned Judge and the suit was remanded to the trial court for effecting a partition of the plaint B Schedule property between the plaintiff, the 7th defendant and the 8th defendant. It is against the said decision of the High Court that the 7th defendant has filed this appeal after obtaining special leave from this Court. 7. Two main contentions were advanced by the learned counsel on behalf of the appellant. Firstly, it was urged that the High Court has acted illegally and in clear violation of the limitations imposed by Section 100 C.P.C. in interfering with the finding entered by the Additional Dis trict Judge on the question as to whether or not there had been a partition between certain parties which is a pure question of fact. The second contention advanced on behalf of the appellant is that the High Court has committed a grievous error in omitting to notice that the 7th defendant had not been even impleaded as a party in the Second Appeal (S.A. 826/67) filed by the 8th defendant, and that while showing the plaintiff as the sole respondent in that Second Appeal a categorical st atement had been made in the memorandum of the Second Appeal that "the other parties in the courts below are not necessary parties to this appeal". It was, therefore, contended by the appellant that the High Court has acted wholly illegally in recording a finding adverse to the 7th defendant and directing a partition of the entire B Schedule. property in spite of the fact that the northern plot had been sold to the 7th defendant by deceased Narayanaswamy.After hearing counsel appearing on both sides, we have unhesitatingly come to the conclusion that both the aforesaid contentions advanced on behalf of the appellant have to be upheld. The finding entered by the Additional District Judge that a partition had taken place between the plaintiff and the other legal heirs of Narayanaswamy in 1952, and as a result thereof the southern portion of the B Schedule property (plaint C Schedule property) had been allotted to the plaintiffs share was bas ed on a detailed consideration of the legal evidence available on the record. It was not open to the High Court to reappreciate the said evidence and substitute its own conclusions in place of those entered by the lower courts wh ile exercising the jurisdiction conferred by Section 100 C.P.C. The learned counsel appearing on both sides have taken us through the relevant portions of the evidence having a bearing on the plea of partition, and we are satisfied tha t the finding entered by the Additional District Judge cannot be said to be unreasonable or perverse. No question of law whatever was agitated before the High Court. In the circumstances, there was no justification at all for the High Court to interfere with the finding of fact entered by the Additional District Judge that there had been a partition between the plaintiff and the legal heirs of Narayanaswamy in 1952 at which the plaint C Schedule property had been allott ed to the share of the plaintiff. In this view, it is unnecessary for us to go into the merits of the second contention advanced on behalf of the appellant. 8.
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The learned counsel appearing on both sides have taken us through the relevant portions of the evidence having a bearing on the plea of partition, and we are satisfied tha t the finding entered by the Additional District Judge cannot be said to be unreasonable or perverse. No question of law whatever was agitated before the High Court. In the circumstances, there was no justification at all for the High Court to interfere with the finding of fact entered by the Additional District Judge that there had been a partition between the plaintiff and the legal heirs of Narayanaswamy in 1952 at which the plaint C Schedule property had been allott ed to the share of the plaintiffIn this view, it is unnecessary for us to go into the merits of the second contention advanced on behalf of the appellant.
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Waryam Singh & Another Vs. Amarnath & Another | Urban Rent Restriction Act, as applied to Himchal Pradesh, the Controller, if it came to the finding, that rent had not been paid, had no option but to direct the tenant to put the landlord in possession. Undoubtedly, that is the correct legal position, but in the present case the non-payment of rent was due to a misapprehension of the legal position created by the tenant filing an application for fixing fair rent. I, therefore, think that this case can be distinguished and does not fall within section 13(2), Punjab Urban Rent Restriction Act."10. The respondents moved the Judicial Commissioner, Himachal Pradesh, under Articles 226 and 227 of the Constitution of India for setting aside the order of the District Judge. The learned Judicial Commissioner held that the view of the admitted failure to pay the rent as provided by the rent deed or at the first hearing of the Court under the proviso to section 13(2) (i) the Courts below had acted arbitrarily in refusing to make an order for ejectment against the tenants who had not done what was incumbent on them to do under the law and that such a situation called for interference by the Court of the Judicial Commissioner in order to keep the Subordinate Courts within the bounds of their authority. He accordingly set aside the orders of the courts below and allowed the application for ejectment but gave the appellants three months time for vacating the premises. The appellants have now come up before this Court on appeal by special leave obtained from this Court.11. Learned Advocate appearing in support of this appeal urges that the learned Judicial Commissioner acted wholly without jurisdiction inasmuch as (1) the Rent Controller or the District Judge exercising powers under the Act was not amenable to the jurisdiction of the High Court and, therefore, Article 227 confers no power on the Court of the Judicial Commissioner over the Rent Controller or the District Judge, and (2) that Article 227 read with Article 241 confers no power of judicial superintendence on the Court of the Judicial Commissioner.12. Re. 1. - The Court of the Judicial Commissioner of Himachal Pradesh exercise jurisdiction in relation to the whole of the territories of Himachal Pradesh. The Rent Controller and the District Judge exercising jurisdiction under the Act are certainly Tribunals, if not Courts, and they function within the territories of Himachal Pradesh. Therefore, Article 227 (1) read with Article 241 confers on the Court of the Judicial Commissioner power of superintendence over such Tribunals.The words "in relation to which" obviously qualify the word "territories" and not the words "Courts and Tribunals".13. Re. 2.- The material part of Article 227 substantially reproduces the provisions of section 107 of the Government of India Act, 1915 except that the power of superintendence has been extended by the Article also to Tribunals. That the Rent Controller and the District Judge exercising jurisdiction under the Act are Tribunals cannot and has not been controverted. The only question raised is as to the nature of the power of superintendence conferred by the Article. Reference is made to clause (2) of the Article in support of the contention that this Article only confers on the High Court administrative superintendence over the Subordinate Courts and Tribunals. We are unable to accept this contention because clause (2) is expressed to be without prejudice to the generality of the provisions in clause (1). Further, the preponderance of judicial opinion in India was that section 107 which was similar in terms to section 15 of the High Courts Act, 1861, gave a power of judicial superintendence to the High Court apart from and independently of the provisions of other laws conferring revisional jurisdiction on the High Court.In this connection it has to be remembered that section 107 of the Government of India Act, 1915 was reproduced in the Government of India act, 1935 as section 224. Section 224 of the 1935 Act, however, introduced sub-section (2), which was new, providing that nothing in the section should be construed as giving the High Court any jurisdiction to question any judgment of any inferior Court which was not otherwise subject to appeal or revision. The idea presumably was to nullify the effect of the decisions of the different High Courts referred to above. Section 224 of the 1935 Act has been reproduced with certain modifications in Article 227 of the Constitution. It is significant to note that sub-section (2) to section 224 of the 1935 Act has been omitted from Article 227.This significant omission has been regarded by all High court is India before whom this question has arisen as having restored to the High Court the power of judicial superintendence it had under section 15 of the High Courts Act, 1961 and section 107 of the Government of India Act, 1915.See the cases referred to in - Moti Lal v. The State, AIR 1952 All 963 at p. 966 (A). Our attention has not been drawn to any case which has taken a different view and, as at present advised, we see no reason to take a different view.14. This power of superintendence conferred by Article 227 is, as pointed out by Harries, C. J., in - Dalmia Jain Airways Ltd. v. Sukumar Mukherjee, AIR 1951 Cal 193 (SB) (B),to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors. As rightly pointed out by the Judicial Commissioner in the case before us the lower Courts in refusing to make an order for ejectment acted arbitrarily. The lower Courts realised the legal position but in effect declined to do what was by section 13(2)(i) incumbent on them to do and thereby refused to exercise jurisdiction vested in them by law. It was, therefore, a case which called for an interference by the Court of the Judicial Commissioner and it acted quite properly in doing so.15. | 0[ds]The Court of the Judicial Commissioner of Himachal Pradesh exercise jurisdiction in relation to the whole of the territories of Himachal Pradesh. The Rent Controller and the District Judge exercising jurisdiction under the Act are certainly Tribunals, if not Courts, and they function within the territories of Himachal Pradesh. Therefore, Article 227 (1) read with Article 241 confers on the Court of the Judicial Commissioner power of superintendence over such Tribunals.The words "in relation to which" obviously qualify the word "territories" and not the words "Courts andmaterial part of Article 227 substantially reproduces the provisions of section 107 of the Government of India Act, 1915 except that the power of superintendence has been extended by the Article also to Tribunals. That the Rent Controller and the District Judge exercising jurisdiction under the Act are Tribunals cannot and has not been controverted. The only question raised is as to the nature of the power of superintendence conferred by the Article. Reference is made to clause (2) of the Article in support of the contention that this Article only confers on the High Court administrative superintendence over the Subordinate Courts and Tribunals. We are unable to accept this contention because clause (2) is expressed to be without prejudice to the generality of the provisions in clause (1). Further, the preponderance of judicial opinion in India was that section 107 which was similar in terms to section 15 of the High Courts Act, 1861, gave a power of judicial superintendence to the High Court apart from and independently of the provisions of other laws conferring revisional jurisdiction on the High Court.This power of superintendence conferred by Article 227 is, as pointed out by Harries, C. J., in - Dalmia Jain Airways Ltd. v. Sukumar Mukherjee, AIR 1951 Cal 193 (SB) (B),to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors. As rightly pointed out by the Judicial Commissioner in the case before us the lower Courts in refusing to make an order for ejectment acted arbitrarily. The lower Courts realised the legal position but in effect declined to do what was by section 13(2)(i) incumbent on them to do and thereby refused to exercise jurisdiction vested in them by law. It was, therefore, a case which called for an interference by the Court of the Judicial Commissioner and it acted quite properly in doing so. | 0 | 2,000 | 465 | ### 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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Urban Rent Restriction Act, as applied to Himchal Pradesh, the Controller, if it came to the finding, that rent had not been paid, had no option but to direct the tenant to put the landlord in possession. Undoubtedly, that is the correct legal position, but in the present case the non-payment of rent was due to a misapprehension of the legal position created by the tenant filing an application for fixing fair rent. I, therefore, think that this case can be distinguished and does not fall within section 13(2), Punjab Urban Rent Restriction Act."10. The respondents moved the Judicial Commissioner, Himachal Pradesh, under Articles 226 and 227 of the Constitution of India for setting aside the order of the District Judge. The learned Judicial Commissioner held that the view of the admitted failure to pay the rent as provided by the rent deed or at the first hearing of the Court under the proviso to section 13(2) (i) the Courts below had acted arbitrarily in refusing to make an order for ejectment against the tenants who had not done what was incumbent on them to do under the law and that such a situation called for interference by the Court of the Judicial Commissioner in order to keep the Subordinate Courts within the bounds of their authority. He accordingly set aside the orders of the courts below and allowed the application for ejectment but gave the appellants three months time for vacating the premises. The appellants have now come up before this Court on appeal by special leave obtained from this Court.11. Learned Advocate appearing in support of this appeal urges that the learned Judicial Commissioner acted wholly without jurisdiction inasmuch as (1) the Rent Controller or the District Judge exercising powers under the Act was not amenable to the jurisdiction of the High Court and, therefore, Article 227 confers no power on the Court of the Judicial Commissioner over the Rent Controller or the District Judge, and (2) that Article 227 read with Article 241 confers no power of judicial superintendence on the Court of the Judicial Commissioner.12. Re. 1. - The Court of the Judicial Commissioner of Himachal Pradesh exercise jurisdiction in relation to the whole of the territories of Himachal Pradesh. The Rent Controller and the District Judge exercising jurisdiction under the Act are certainly Tribunals, if not Courts, and they function within the territories of Himachal Pradesh. Therefore, Article 227 (1) read with Article 241 confers on the Court of the Judicial Commissioner power of superintendence over such Tribunals.The words "in relation to which" obviously qualify the word "territories" and not the words "Courts and Tribunals".13. Re. 2.- The material part of Article 227 substantially reproduces the provisions of section 107 of the Government of India Act, 1915 except that the power of superintendence has been extended by the Article also to Tribunals. That the Rent Controller and the District Judge exercising jurisdiction under the Act are Tribunals cannot and has not been controverted. The only question raised is as to the nature of the power of superintendence conferred by the Article. Reference is made to clause (2) of the Article in support of the contention that this Article only confers on the High Court administrative superintendence over the Subordinate Courts and Tribunals. We are unable to accept this contention because clause (2) is expressed to be without prejudice to the generality of the provisions in clause (1). Further, the preponderance of judicial opinion in India was that section 107 which was similar in terms to section 15 of the High Courts Act, 1861, gave a power of judicial superintendence to the High Court apart from and independently of the provisions of other laws conferring revisional jurisdiction on the High Court.In this connection it has to be remembered that section 107 of the Government of India Act, 1915 was reproduced in the Government of India act, 1935 as section 224. Section 224 of the 1935 Act, however, introduced sub-section (2), which was new, providing that nothing in the section should be construed as giving the High Court any jurisdiction to question any judgment of any inferior Court which was not otherwise subject to appeal or revision. The idea presumably was to nullify the effect of the decisions of the different High Courts referred to above. Section 224 of the 1935 Act has been reproduced with certain modifications in Article 227 of the Constitution. It is significant to note that sub-section (2) to section 224 of the 1935 Act has been omitted from Article 227.This significant omission has been regarded by all High court is India before whom this question has arisen as having restored to the High Court the power of judicial superintendence it had under section 15 of the High Courts Act, 1961 and section 107 of the Government of India Act, 1915.See the cases referred to in - Moti Lal v. The State, AIR 1952 All 963 at p. 966 (A). Our attention has not been drawn to any case which has taken a different view and, as at present advised, we see no reason to take a different view.14. This power of superintendence conferred by Article 227 is, as pointed out by Harries, C. J., in - Dalmia Jain Airways Ltd. v. Sukumar Mukherjee, AIR 1951 Cal 193 (SB) (B),to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors. As rightly pointed out by the Judicial Commissioner in the case before us the lower Courts in refusing to make an order for ejectment acted arbitrarily. The lower Courts realised the legal position but in effect declined to do what was by section 13(2)(i) incumbent on them to do and thereby refused to exercise jurisdiction vested in them by law. It was, therefore, a case which called for an interference by the Court of the Judicial Commissioner and it acted quite properly in doing so.15.
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The Court of the Judicial Commissioner of Himachal Pradesh exercise jurisdiction in relation to the whole of the territories of Himachal Pradesh. The Rent Controller and the District Judge exercising jurisdiction under the Act are certainly Tribunals, if not Courts, and they function within the territories of Himachal Pradesh. Therefore, Article 227 (1) read with Article 241 confers on the Court of the Judicial Commissioner power of superintendence over such Tribunals.The words "in relation to which" obviously qualify the word "territories" and not the words "Courts andmaterial part of Article 227 substantially reproduces the provisions of section 107 of the Government of India Act, 1915 except that the power of superintendence has been extended by the Article also to Tribunals. That the Rent Controller and the District Judge exercising jurisdiction under the Act are Tribunals cannot and has not been controverted. The only question raised is as to the nature of the power of superintendence conferred by the Article. Reference is made to clause (2) of the Article in support of the contention that this Article only confers on the High Court administrative superintendence over the Subordinate Courts and Tribunals. We are unable to accept this contention because clause (2) is expressed to be without prejudice to the generality of the provisions in clause (1). Further, the preponderance of judicial opinion in India was that section 107 which was similar in terms to section 15 of the High Courts Act, 1861, gave a power of judicial superintendence to the High Court apart from and independently of the provisions of other laws conferring revisional jurisdiction on the High Court.This power of superintendence conferred by Article 227 is, as pointed out by Harries, C. J., in - Dalmia Jain Airways Ltd. v. Sukumar Mukherjee, AIR 1951 Cal 193 (SB) (B),to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors. As rightly pointed out by the Judicial Commissioner in the case before us the lower Courts in refusing to make an order for ejectment acted arbitrarily. The lower Courts realised the legal position but in effect declined to do what was by section 13(2)(i) incumbent on them to do and thereby refused to exercise jurisdiction vested in them by law. It was, therefore, a case which called for an interference by the Court of the Judicial Commissioner and it acted quite properly in doing so.
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Arun Kumar Agrawal Vs. Union of India & Others | Mr. Bhave was not granted the extension for the reasons which have been given in detail by Mr. Prasaran in his submission, the same need not be reiterated. We are also unable to take the allegations made by Dr. Abraham seriously, as the same seem to be actuated by ulterior motive. It is a direct attack on the integrity of respondent No.4. The opinion expressed by Dr. Abraham, in his lengthy letter, cannot be given much credence unless it is supported by very convincing material. We are also not much impressed by the submission of Mr. Bhushan that the constitution of the Search-cum-Selection Committee was changed at the instance of respondent No.6. As narrated by the Solicitor General, the ultimate selection was made by a Selection Committee consisting of Members who were all serving Officers in the Government. Therefore, it is difficult to accept the submission that 3 out of 5 members were hand-picked by respondent No.6 to select Mr. Sinha. We are also unable to see any merit in the submission of the petitioner that the post of CMD, UTI AMC was kept vacant for 17 months to accommodate the brother of respondent No.6. In our opinion, the allegations are malicious and without any basis, and therefore, cannot be taken into consideration. 63. This now brings us to the preliminary objections raised by the respondents that the writ petition deserves to be dismissed on the ground that it is not a bona fide petition. According to the respondents, the petitioner has been set up by interested parties. We entirely agree with the submissions made by the learned Attorney General that the first requirement for the maintainability of a public interest litigation is the uberrimae fide of the petitioner. In our opinion, the petitioner has unjustifiably attacked the integrity of the entire selection process. It is virtually impossible to accept the submission that respondent No.6 was able to influence the decision making process which involves the active participation of the ACC, a high powered Search-cum-Section Committee with the final approval of the Finance Minister and the Prime Minister. The proposition is so absurd that the allegations with regard to mala fide could have been thrown out at the threshold. We have, however, examined the entire issue not to satisfy the ego of the petitioner, but to demonstrate that it is not entirely inconceivable that a petition disguised as “public interest litigation” can be filed with an ulterior motive or at the instance of some other person who hides behind the cloak of anonymity even in cases where the procedure for selection has been meticulously followed. The respondents have successfully demonstrated how the petitioner has cleverly distorted and misinterpreted the official documents on virtually each and every issue. In our opinion, the petition does not satisfy the test of utmost good faith which is required to maintain public interest litigation. We have been left with the very unsavoury impression that the petitioner is a surrogate for some powerful phantom lobbies. Respondent No.2-SEBI in its affidavit has stated that the petitioner is a habitual litigant. He files writ petitions against individuals to promote vested interest without any relief to the public at large. We are at a loss to understand as to how in the facts of this case, the petitioner can justify invoking the jurisdiction of this court under Article 32. This is not a petition to protect the Fundamental Rights of any class of down trodden or deprived section of the population. It is more for the protection of the vested interests of some unidentified business lobbies. The petitioner had earlier filed writ petition in which identical relief had been claimed and the same had been dismissed. The aforesaid writ petition is sought to be distinguished by the petitioner on the ground that three successive writ petitions were withdrawn as sufficient pleadings were not made for the grant of necessary relief. Even if this preliminary objection is disregarded, we are satisfied that the present petition is filed at the behest of certain interested powerful lobbies. The allegations made in the letter written by Dr. Abraham are without any basis and clearly motivated. Further, a perusal of the record clearly reveals that several complaints were filed against Dr. Abraham, wherein some serious allegations have been made against him in relation to his tenure as the Whole Time Member (WTM), SEBI. Also, it was only after the Ministry of Finance decided not to extend his tenure as WTM, SEBI and advertisements for new appointments were issued that Dr. Abraham started complaining about interference of the Ministry of Finance in SEBI through the present Chairman. We may also notice here that the letter dated 1st June, 2011 written by Dr. Abraham to the Prime Minister, that the Petitioner seeks reliance upon, was written merely a month and a half before Dr. Abrham’s tenure was to end. From the above, it is manifest that the letter written by Dr. Abraham was clearly motivated and espouses no public interest. The affidavit also narrates the action which has been taken by SEBI against very influential and powerful business Houses, including Sahara and Reliance. It is pointed out that the petitioner is a stool pigeon acting on the directions of these Business Houses. We are unable to easily discard the reasoning put forward by respondent No.4. It is a well known fact that in recent times, SEBI has been active in pursuing a number of cause celebre against some very powerful Business Houses. Therefore, the anxiety of these Business Houses for the removal of the present Chairman of SEBI is not wholly unimaginable. We make the aforesaid observations only to put on record that the present petition could have been dismissed as not maintainable for a variety of reasons. However, we have chosen to examine the entire issue to satisfy our judicial conscience that the appointment to such a High Powered Position has actually been made fairly and in accordance with the procedure established by law. 64. | 0[ds]We agree with Mr. Bhushan that SEBI is an institution of high integrity. A bare perusal of the SEBI Act makes it apparent that SEBI was established to protect the interests of investors in securities and to promote the development of, and to regulate the securities market. In fact, the SEBI Act gives wide ranging powers to the Board to take such measures as it thinks fit to perform its duty to protect the interests of investors in securities and to promote the development of, and to regulate the securities market. These measures may provide for regulating the business in stock exchanges and any other securities markets. Further measures are set out in Sections 11(1), (2)(a to m) to enable SEBI to perform its duties and functions efficiently. Section 11(2)(a) provides that the Board may take measures to undertake inspection of any book, register, or other document or record of any listed public company or a public company which intends to get its securities listed on any recognised stock exchange. The Board can exercise its power where it has reasonable grounds to believe that such company has been indulging in insider trading or fraudulent and unfair trade practices relating to securities market. To enforce its directions, the Board has powers under Section 11(4) to issue any suspension/restraint orders against the persons including office bearers of any stock exchange or self regulatory organisation. It can impound and retain the proceeds or securities in respect of any transaction which is under investigation. The wide sweep of the powers of SEBI leaves no manner of doubt that it is the supreme authority for the control and regulations and orderly development of the securities market in India. It would not be mere rhetoric to state that in this era of globalisation, the importance of the functions performed by SEBI are of paramount importance to the well being of the economic health of the nation. Therefore, Mr. Bhushan is absolutely correct in emphasising that the Chairman of SEBI has to be a person of high integrity. This is imperative and there are no two ways about it. The importance of the functions performed by SEBI has been elaborately examined by this Court in the case of Sahara India Real Estate Corporation Ltd. & Ors. Vs. Securities and Exchange Board of India & Anr. [2013 (1) SCC 1 ]. Justice Radhakrishnan, upon examination of the various provisions of the SEBI Act, has observed that it is a special law, a complete code in itself containing elaborate provisions to protect interest of the investors. The paramount duty of the Board under the SEBI Act is to protect the interest of the investors and to prevent unscrupulous operators to enter and remain in the securities market. It is reiterated in paragraph 67 that SEBI is also duty bound to prohibit fraudulent and unfair trade practice relating to securities markets. Similarly, Justice Khehar in the concurrent judgment has emphasised the importance of the functions performed by SEBI in exercise of its powers under Sectionlearned Attorney General, in our opinion, rightly pointed out that no illegality was committed in making the amendment in the rules pertaining to the selection of Chairman/WTM of SEBI. It is borne out from the record that prior to 23rd July, 2009, there was no rule on the procedure to be followed in the selection of Chairman/whole time Member of SEBI. The selection procedure for the Chairman of SEBI in 2008 was approved by the Finance Minister on 2nd November, 2007. This procedure envisaged that the selection has to be made on the recommendation of the high powered Search Committee. The composition of the Search Committee was changed on the orders of the Finance Minister. The learned Attorney General also pointed out that the amendment of the rules had no relevance to the consideration of recommendation of Mr. Sinha to be appointed as Chairman of the SEBI. The Attorney General had also pointed out that in spite of the change in the Selection Committee and in spite of Mr. Sinha having been short- listed at No.1 by the Search-cum-Section Committee in its meeting held on 29th November, 2008, it was Shri C.B. Bhave who was appointed Chairman, SEBI on 15th February, 2008. We also find substance in the submission of learned Attorney General that the amendment in Rule 3 of the Security Exchange Board of India (Terms and Conditions of Service and Members) Rules, 1992 was to provide for more participation by the expert members. Therefore, sub-rule (5) of the aforesaid rules was incorporated which requires that recommendation of Search-cum- Selection Committee will consist of Cabinet Secretary, Department of Economic Affairs, Chairman, SEBI for selection of WTM and two expert eminent from relevant field. We have also been taken through the necessary correspondence for the inclusion of Shri Suman Berry and Shekhar Chaudhary, two experts of eminence from the relevant filed for the selection of Chairman, SEBI in 2010. But it was noticed that inclusion of Secretary Finance Services was not within the rules as amended on 23rd July, 2009. Upon discussion with the Ministry of Law, it was decided that the amendment in the rules could be made in line with the rule prevalent for the selection made to the Income Tax Appellate Tribunal. In view of the record produced in this court, we are of the opinion that the submission made on behalf of the petitioner is not correct. Learned Attorney General submitted that the Search-cum-Selection Committee, after scrutinizing the qualification and experience of the short-listed candidates unanimously placed respondent No.4 first in the merit list. We have also perused the record and it appears that respondent No.4 was unanimously placed at Sr.No.1 by the Search-cum-Selection Committee. It has wrongly been submitted on behalf of the petitioner that respondent No.4 was placed at No.2 and yet he was appointed ignoring the person who was placed at No.1.Salve, in our opinion, has also rightly submitted that there is nothing surprising in respondent No.4 accepting the post of Chairman, SEBI which carried much lesser emoluments than he enjoyed as Chairman, UTI AMC. It is not abnormal for people of high integrity to make a sacrifice financially to take up the position of honour and service to the nation. In any event, we are of the opinion, the acceptance by Mr. Sinha of lesser salary as Chairman of SEBI cannot ipso facto lead to the conclusion that he accepted the position for the purpose of abusing the authority of Chairman, SEBI. Adverting to the allegation of non-disclosure of ESOP, in our opinion, Mr. Salve has rightly submitted that it was not done to avoid any investigation by the ACC into the question as to why respondent No.4 would wish to join Chairman, SEBI when he was drawing much higher emoluments as Chairman, UTI AMC. This non-mention cannot lead to the conclusion that if the same had been mentioned, respondent No.4 would not have been selected as Chairman, SEBI on the ground that it would have been illogical for a person drawing higher emoluments on one post to join another post having lesser emoluments. Mr. Salve has rightly reiterated that there was nothing abnormal; in the course adopted by respondent No.4. No material has been placed on record to show that respondent No.4 was in receipt of ESOP illegally. It has been pointed out that under ESOP, an employee is given an option by the company to buy its shares upto the given quantity allotted to him which can be exercised after a specified time. In the case of UTI AMC, the stock option was to vest after a period of three years. Secondly, an employee could not exercise 100% of the option in one go. It was spread over four years, 10% in the 4th year, 20% in the 5th year, 30% in the 6th year and last 40% in the 7th year. After vesting of each trench, the employee had one year to make up his mind whether to exercise his option or to let it go by. In UTI AMC, ESOP was approved by the shareholders. The HR Committee of the Board and the Board, the decision by the Board was taken on 27th December, 2007. The minutes of the meeting of the Board dated 12th April, 2008 clearly shows that the stock option was exercised by respondent No.4 in accordance with due procedure. However, even though the decision had been taken by the Board of Directors on 17th September, 2007 to grant respondent No.4 market based compensation, the matter was pending with the share holders. It was only on 12th April, 2008 that the Board took a decision to release the market based compensation to respondent No.4. The actual allocation of ESOP was made to respondent No.4 on 17th May, 2008 through the letter of head of HR Committee of the Board. In fact in 2011 after respondent No.4 got appointment in SEBI and had to leave UTI AMC on 31st January, 2011, he surrendered his entire ESOP and rescinded all his rights to exercise his option in future. We, therefore, find no substance in the submission of the petitioner that there was any ulterior motive involved in non- disclosure of the information with regard to ESOP to thehave been left with the very unsavoury impression that the petitioner is a surrogate for some powerful phantom lobbies. Respondent No.2-SEBI in its affidavit has stated that the petitioner is a habitual litigant. He files writ petitions against individuals to promote vested interest without any relief to the public at large. We are at a loss to understand as to how in the facts of this case, the petitioner can justify invoking the jurisdiction of this court under Article 32. This is not a petition to protect the Fundamental Rights of any class of down trodden or deprived section of the population. It is more for the protection of the vested interests of some unidentified business lobbies. The petitioner had earlier filed writ petition in which identical relief had been claimed and the same had been dismissed. The aforesaid writ petition is sought to be distinguished by the petitioner on the ground that three successive writ petitions were withdrawn as sufficient pleadings were not made for the grant of necessary relief. Even if this preliminary objection is disregarded, we are satisfied that the present petition is filed at the behest of certain interested powerful lobbies. The allegations made in the letter written by Dr. Abraham are without any basis and clearly motivated. Further, a perusal of the record clearly reveals that several complaints were filed against Dr. Abraham, wherein some serious allegations have been made against him in relation to his tenure as the Whole Time Member (WTM), SEBI. Also, it was only after the Ministry of Finance decided not to extend his tenure as WTM, SEBI and advertisements for new appointments were issued that Dr. Abraham started complaining about interference of the Ministry of Finance in SEBI through the present Chairman. We may also notice here that the letter dated 1st June, 2011 written by Dr. Abraham to the Prime Minister, that the Petitioner seeks reliance upon, was written merely a month and a half before Dr.tenure was to end. From the above, it is manifest that the letter written by Dr. Abraham was clearly motivated and espouses no public interest. The affidavit also narrates the action which has been taken by SEBI against very influential and powerful business Houses, including Sahara and Reliance. It is pointed out that the petitioner is a stool pigeon acting on the directions of these Business Houses. We are unable to easily discard the reasoning put forward by respondent No.4. It is a well known fact that in recent times, SEBI has been active in pursuing a number of cause celebre against some very powerful Business Houses. Therefore, the anxiety of these Business Houses for the removal of the present Chairman of SEBI is not wholly unimaginable. We make the aforesaid observations only to put on record that the present petition could have been dismissed as not maintainable for a variety of reasons. However, we have chosen to examine the entire issue to satisfy our judicial conscience that the appointment to such a High Powered Position has actually been made fairly and in accordance with the procedure established by law. | 0 | 20,532 | 2,255 | ### 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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Mr. Bhave was not granted the extension for the reasons which have been given in detail by Mr. Prasaran in his submission, the same need not be reiterated. We are also unable to take the allegations made by Dr. Abraham seriously, as the same seem to be actuated by ulterior motive. It is a direct attack on the integrity of respondent No.4. The opinion expressed by Dr. Abraham, in his lengthy letter, cannot be given much credence unless it is supported by very convincing material. We are also not much impressed by the submission of Mr. Bhushan that the constitution of the Search-cum-Selection Committee was changed at the instance of respondent No.6. As narrated by the Solicitor General, the ultimate selection was made by a Selection Committee consisting of Members who were all serving Officers in the Government. Therefore, it is difficult to accept the submission that 3 out of 5 members were hand-picked by respondent No.6 to select Mr. Sinha. We are also unable to see any merit in the submission of the petitioner that the post of CMD, UTI AMC was kept vacant for 17 months to accommodate the brother of respondent No.6. In our opinion, the allegations are malicious and without any basis, and therefore, cannot be taken into consideration. 63. This now brings us to the preliminary objections raised by the respondents that the writ petition deserves to be dismissed on the ground that it is not a bona fide petition. According to the respondents, the petitioner has been set up by interested parties. We entirely agree with the submissions made by the learned Attorney General that the first requirement for the maintainability of a public interest litigation is the uberrimae fide of the petitioner. In our opinion, the petitioner has unjustifiably attacked the integrity of the entire selection process. It is virtually impossible to accept the submission that respondent No.6 was able to influence the decision making process which involves the active participation of the ACC, a high powered Search-cum-Section Committee with the final approval of the Finance Minister and the Prime Minister. The proposition is so absurd that the allegations with regard to mala fide could have been thrown out at the threshold. We have, however, examined the entire issue not to satisfy the ego of the petitioner, but to demonstrate that it is not entirely inconceivable that a petition disguised as “public interest litigation” can be filed with an ulterior motive or at the instance of some other person who hides behind the cloak of anonymity even in cases where the procedure for selection has been meticulously followed. The respondents have successfully demonstrated how the petitioner has cleverly distorted and misinterpreted the official documents on virtually each and every issue. In our opinion, the petition does not satisfy the test of utmost good faith which is required to maintain public interest litigation. We have been left with the very unsavoury impression that the petitioner is a surrogate for some powerful phantom lobbies. Respondent No.2-SEBI in its affidavit has stated that the petitioner is a habitual litigant. He files writ petitions against individuals to promote vested interest without any relief to the public at large. We are at a loss to understand as to how in the facts of this case, the petitioner can justify invoking the jurisdiction of this court under Article 32. This is not a petition to protect the Fundamental Rights of any class of down trodden or deprived section of the population. It is more for the protection of the vested interests of some unidentified business lobbies. The petitioner had earlier filed writ petition in which identical relief had been claimed and the same had been dismissed. The aforesaid writ petition is sought to be distinguished by the petitioner on the ground that three successive writ petitions were withdrawn as sufficient pleadings were not made for the grant of necessary relief. Even if this preliminary objection is disregarded, we are satisfied that the present petition is filed at the behest of certain interested powerful lobbies. The allegations made in the letter written by Dr. Abraham are without any basis and clearly motivated. Further, a perusal of the record clearly reveals that several complaints were filed against Dr. Abraham, wherein some serious allegations have been made against him in relation to his tenure as the Whole Time Member (WTM), SEBI. Also, it was only after the Ministry of Finance decided not to extend his tenure as WTM, SEBI and advertisements for new appointments were issued that Dr. Abraham started complaining about interference of the Ministry of Finance in SEBI through the present Chairman. We may also notice here that the letter dated 1st June, 2011 written by Dr. Abraham to the Prime Minister, that the Petitioner seeks reliance upon, was written merely a month and a half before Dr. Abrham’s tenure was to end. From the above, it is manifest that the letter written by Dr. Abraham was clearly motivated and espouses no public interest. The affidavit also narrates the action which has been taken by SEBI against very influential and powerful business Houses, including Sahara and Reliance. It is pointed out that the petitioner is a stool pigeon acting on the directions of these Business Houses. We are unable to easily discard the reasoning put forward by respondent No.4. It is a well known fact that in recent times, SEBI has been active in pursuing a number of cause celebre against some very powerful Business Houses. Therefore, the anxiety of these Business Houses for the removal of the present Chairman of SEBI is not wholly unimaginable. We make the aforesaid observations only to put on record that the present petition could have been dismissed as not maintainable for a variety of reasons. However, we have chosen to examine the entire issue to satisfy our judicial conscience that the appointment to such a High Powered Position has actually been made fairly and in accordance with the procedure established by law. 64.
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SEBI cannot ipso facto lead to the conclusion that he accepted the position for the purpose of abusing the authority of Chairman, SEBI. Adverting to the allegation of non-disclosure of ESOP, in our opinion, Mr. Salve has rightly submitted that it was not done to avoid any investigation by the ACC into the question as to why respondent No.4 would wish to join Chairman, SEBI when he was drawing much higher emoluments as Chairman, UTI AMC. This non-mention cannot lead to the conclusion that if the same had been mentioned, respondent No.4 would not have been selected as Chairman, SEBI on the ground that it would have been illogical for a person drawing higher emoluments on one post to join another post having lesser emoluments. Mr. Salve has rightly reiterated that there was nothing abnormal; in the course adopted by respondent No.4. No material has been placed on record to show that respondent No.4 was in receipt of ESOP illegally. It has been pointed out that under ESOP, an employee is given an option by the company to buy its shares upto the given quantity allotted to him which can be exercised after a specified time. In the case of UTI AMC, the stock option was to vest after a period of three years. Secondly, an employee could not exercise 100% of the option in one go. It was spread over four years, 10% in the 4th year, 20% in the 5th year, 30% in the 6th year and last 40% in the 7th year. After vesting of each trench, the employee had one year to make up his mind whether to exercise his option or to let it go by. In UTI AMC, ESOP was approved by the shareholders. The HR Committee of the Board and the Board, the decision by the Board was taken on 27th December, 2007. The minutes of the meeting of the Board dated 12th April, 2008 clearly shows that the stock option was exercised by respondent No.4 in accordance with due procedure. However, even though the decision had been taken by the Board of Directors on 17th September, 2007 to grant respondent No.4 market based compensation, the matter was pending with the share holders. It was only on 12th April, 2008 that the Board took a decision to release the market based compensation to respondent No.4. The actual allocation of ESOP was made to respondent No.4 on 17th May, 2008 through the letter of head of HR Committee of the Board. In fact in 2011 after respondent No.4 got appointment in SEBI and had to leave UTI AMC on 31st January, 2011, he surrendered his entire ESOP and rescinded all his rights to exercise his option in future. We, therefore, find no substance in the submission of the petitioner that there was any ulterior motive involved in non- disclosure of the information with regard to ESOP to thehave been left with the very unsavoury impression that the petitioner is a surrogate for some powerful phantom lobbies. Respondent No.2-SEBI in its affidavit has stated that the petitioner is a habitual litigant. He files writ petitions against individuals to promote vested interest without any relief to the public at large. We are at a loss to understand as to how in the facts of this case, the petitioner can justify invoking the jurisdiction of this court under Article 32. This is not a petition to protect the Fundamental Rights of any class of down trodden or deprived section of the population. It is more for the protection of the vested interests of some unidentified business lobbies. The petitioner had earlier filed writ petition in which identical relief had been claimed and the same had been dismissed. The aforesaid writ petition is sought to be distinguished by the petitioner on the ground that three successive writ petitions were withdrawn as sufficient pleadings were not made for the grant of necessary relief. Even if this preliminary objection is disregarded, we are satisfied that the present petition is filed at the behest of certain interested powerful lobbies. The allegations made in the letter written by Dr. Abraham are without any basis and clearly motivated. Further, a perusal of the record clearly reveals that several complaints were filed against Dr. Abraham, wherein some serious allegations have been made against him in relation to his tenure as the Whole Time Member (WTM), SEBI. Also, it was only after the Ministry of Finance decided not to extend his tenure as WTM, SEBI and advertisements for new appointments were issued that Dr. Abraham started complaining about interference of the Ministry of Finance in SEBI through the present Chairman. We may also notice here that the letter dated 1st June, 2011 written by Dr. Abraham to the Prime Minister, that the Petitioner seeks reliance upon, was written merely a month and a half before Dr.tenure was to end. From the above, it is manifest that the letter written by Dr. Abraham was clearly motivated and espouses no public interest. The affidavit also narrates the action which has been taken by SEBI against very influential and powerful business Houses, including Sahara and Reliance. It is pointed out that the petitioner is a stool pigeon acting on the directions of these Business Houses. We are unable to easily discard the reasoning put forward by respondent No.4. It is a well known fact that in recent times, SEBI has been active in pursuing a number of cause celebre against some very powerful Business Houses. Therefore, the anxiety of these Business Houses for the removal of the present Chairman of SEBI is not wholly unimaginable. We make the aforesaid observations only to put on record that the present petition could have been dismissed as not maintainable for a variety of reasons. However, we have chosen to examine the entire issue to satisfy our judicial conscience that the appointment to such a High Powered Position has actually been made fairly and in accordance with the procedure established by law.
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P.B. NAYAK & ORS Vs. MANAGING DIRECTOR, BHILAI STEEL PLANT & ORS | The members and their families are to be provided facilities for their cultural and intellectual advancement. 36. The inquiry conducted by the Appellate Authority was predominantly based on the definition of the word restaurant or eating house (Section 2(23)). The Appellate Authority glossed over the vital clue provided by the inclusion of the residential club as a residential hotel. 37. It must be noticed that the second respondent is, admittedly, a club under its bye-laws. The objective of the club was to provide various indoor or outdoor games, library and reading room facilities and social gatherings. It also contemplated providing members and their families with facilities for their cultural, social and intellectual advancement. The appellants are correct in contending that the authority and the court are not to be held hostage by the words used in the bye-laws. In other words, the bye-laws may unerringly point to activities which are associated with a club.However, in point of fact what actually goes on in the premises, may be only activities as are described in Section 2(23) of the Act, namely, the premise of the club may be used wholly or principally only for the purpose of an eating place or restaurant. If that is the case the court would not be oblivious to the actual nature of activities and still clothe the organisation as a Club exempted under Section 3(j). However, in this regard there is unmistakable evidence to show that the objects in the bye-laws were actually realised and the members were indeed being provided with various facilities. The witness for the appellant has stated that the workmen were allotted duty separately by the Club Manager. He has said that the he was working in the canteen which was run by the Club. Other people were working in the canteen, bar, billiard room, concert room and table tennis room. Members came there to play tennis, badminton and cards. The witness for the respondents have spoken about the club providing facilities like indoor games, outdoor games, social gathering and also about there being facility for social cultural development for the families of the club members. There are 1400 members of the Club. The club has been working since 1982. The Appellate Authority has also found that the club does provide indoor and outdoor games. It goes on to find that as far as the activities of the club is concerned, the Act does not apply. But a bifurcation is made qua the catering service. 38. We can safely conclude that second respondent was a genuine club. There were three different class of members. The club was a private premise. Entry to the club premises was restricted to the members and their families and other persons permitted by the governing body. The club did indeed provide various facilities to be availed by the members and others permitted to come to the club. It is to cater to their needs by way of food that apparently the catering contract was entered into. The appellate authority finds that identity cards were issued to the appellants in the year 1996. No doubt the dates of issue as already noted precede the day 05.09.1996, the date on which the catering contract is seen issued. The witness for the appellants has stated in his evidence that the club invites Shiva Caters for party and give contract to him and like this every year any one comes on contract. They arrange parties and we used to work with them. No outsider come to the steel club for taking tea, whiskey or eating samosa but he can come as a guest of the member is the further deposition of the witness for the appellants. 39. In the light of this state of facts and the definition of the word restaurant and eating place the conclusion appears to be inevitable that the respondent club cannot be characterized as premises which was wholly or principally used for the business of supply of meals and refreshment to the public. In the first place as already noticed, the members of the Club and their guests and family members cannot be described as the public. Even proceeding on the basis that the members of the club and their family members and the guests whom they would bring would constitute a class of the public, the fact remains that the Court must turn a blind eye to the multifarious activities which are both contemplated in the bye-laws and which were admittedly being carried out in the premises by way of indoor or outdoor games, gatherings to find that the premises was being used wholly or principally for the business of supply of meals or refreshment. The fact that by catering services, food and refreshment and even liquor as are permitted in Clubs under law was being provided would not make it a case where the club became premises in which the supply of meals and refreshments was wholly or principally what was carried out. 40. The Appellate Authority proceeds on the basis that providing food, refreshment and drink are not contemplated in the bye-laws and therefore, it would attract Section 2(23) of the Act. We notice in this regard that bye-law No.2 (See para 15 of this judgment) does provide that the aims and objectives of the club was to provide to the members and their families the facilities usually obtainable in a club of this nature and including the various facilities like indoor and outdoor games etc. Therefore, providing of food and refreshment cannot be described as falling outside the scope of the bye-laws. In other words, a proper interpretation of bye-law No.2 would mean that the specifically enumerated facilities in bye-law No.2 are not exhaustive. 41. The bye-laws do not reveal provision for lodging. There is no finding also that the club was providing lodging. In such circumstances, the question that should have been asked was, whether, being a club, which was not residential in nature, it stood exempted. This was not done. | 0[ds]27. The argument of the Respondents No. 1 and 2 is essentially based on the second respondent-club not being a residential club and, consequently, the Act not being applicable to the establishment. As can be seen, Section 3 exempts certain persons and establishments from the purview of the Act. Section 3 [(a) to Section 3 (1) (d)] describes persons to whom the Act does not apply. Section 3 (1) e to Section 3 (1) j deals with establishments to which the Act does not apply. A club would be an establishment. It is not a person. Even though, it could also be treated as an association of persons or voluntary association of persons, however, in the context of Section 3, we would proceed on the basis that a club is an establishment. In this regard, the word establishment has been defined as meaning also a residential hotel in Section 2(22). A residential hotel has been defined as meaning any premises, in which, a bonafide business is carried on of supplying for payment, board or lodging, and lodging to travellers and other members or class of members of public and including a residential club. Therefore, a residential club, is treated as residential hotel, which in turn, is included in the definition of the word establishment. A residential club would be an establishment under Section 2(8). It is clear that a club is treated as an establishment subject only to qualification that it is a residential club. A club, which is not a residential club, may have been within the ambit of the word establishment but for the fact that the word residential hotel takes within its sweep only residential club. More importantly, the Act specifically exempts clubs which are not residential clubs.The Appellate Authority has found that the club is actually an eating house exclusively to serve the class of members of the Steel Club. It has all the elements of the bar, restaurant and eating house. Even though, the Appellate Authority was called upon to deal with Section 2(22) of the Act, defining the words residential hotel, we find that the Appellate Authority confined itself only to the definition of the words restaurant or eating house as defined in Section 2(23) of the Act. The Appellate Authority has proceeded to finally find that an establishment of bar, restaurant and for service to the members of the club, would definitely not be a club withing the meaning of Section 3(j) of the Act. Therefore, the finding of the Appellate Authority completely overlooked the invaluable input provided by the definition of the words residential hotel as contained in Section 2(22) of the Act. We find clear illumination of the mind of the Legislature being provided by the definition of the words residential hotel for the reason that it helps the Court to understand the ambit of Section 3(j), which provides for exemption of a club, which is not residential. This is for the reason that a residential club, in contradiction from a club which is not residential, is treated as an establishment under Section 2(8) of the Act. In other words, a club, which is residential, would not be entitled to the exemption, provided in Section 3(j), whereas, a club which is non-residential is exempted.30. The Appellate Authority has not found that the second respondent is a residential club. Appellate Authority did not even consider the said provision, that is, Section 2 (22), though Respondents No. 1 and 2 did invite its attention to the said provision. There is no material also placed before the Court to conclude that the second respondent-club was a residential club. If the second respondent-club is not found to be a residential club, then, it is clear that it would be a club, which is not a residential club. It would stand exempted under Section 3(j) of the Act.The Appellate Authority has found it to be restaurant or eating house as defined in Section 2 (23), and therefore, an establishment under Section 2(8) of the Act. We have already referred to the findings rendered by the Appellate Authority.33. Clubs have been classified broadly into Members Clubs and Proprietorship Clubs. There are different classes of members clubs.34. In the light of the scheme of the Act, it may not be sufficient to claim the benefit of the exemptionunder Section 3 (j) for the respondents to flaunt the appellation of the organisation as a club. The club cannot become a cloak or made a front behind which what is done is as contained in Section 2(23) of the Act. In other words, if the activity which is carried out wholly or principally is the business of supply of meals or refreshment to the public or to a class of public, then the employees working in connection would get the protection under the Act. At the same time, if there is genuinely a club where the members assemble not for the purpose of wholly or principally having their meals or refreshment but in connection with other activities and any meals, refreshment and drinks are also served then a distinction must indeed be drawn. This is inevitable as harmonizing of the provisions of Section 3 (j) under which legislature has carved out an exemption in favour of clubs not being residential by not applying the provisions of the Act must be given effect to.Undoubtedly, the second respondent is a club. There are members. The members are defined as the members of the Bhilai Steel Plant, MECON, HSCL, BRP and any other officer of SAIL found eligible to become a member of the Club. The governing body may also grant rights as associate member to certain others. Similarly, there can be temporary members. Entry into the club premises is regulated by bye-law 6 of the Club. The club premises are described as private premises. Entry is restricted to the members, families of members and such other persons as are authorised by the governing body. There is a governing body which manages the affairs of the club. The aims and objectives of the club are provided in bye-law No.2, that is to provide the members and their families with the facilities obtainable in a club of this nature including indoor games like table tennis, billiards, cards, chess, carrom etc. Also, bye-laws contemplate providing of facilities of outdoor games like tennis, badminton, squash etc. The bye-laws also contemplate a library and reading room. So also, the members are to be provided social gathering and swimming. The members and their families are to be provided facilities for their cultural and intellectual advancement.36. The inquiry conducted by the Appellate Authority was predominantly based on the definition of the word restaurant or eating house (Section 2(23)). The Appellate Authority glossed over the vital clue provided by the inclusion of the residential club as a residential hotel.37. It must be noticed that the second respondent is, admittedly, a club under its bye-laws. The objective of the club was to provide various indoor or outdoor games, library and reading room facilities and social gatherings. It also contemplated providing members and their families with facilities for their cultural, social and intellectual advancement. The appellants are correct in contending that the authority and the court are not to be held hostage by the words used in the bye-laws. In other words, the bye-laws may unerringly point to activities which are associated with a club.However, in point of fact what actually goes on in the premises, may be only activities as are described in Section 2(23) of the Act, namely, the premise of the club may be used wholly or principally only for the purpose of an eating place or restaurant. If that is the case the court would not be oblivious to the actual nature of activities and still clothe the organisation as a Club exempted under Section 3(j). However, in this regard there is unmistakable evidence to show that the objects in the bye-laws were actually realised and the members were indeed being provided with various facilities. The witness for the appellant has stated that the workmen were allotted duty separately by the Club Manager. He has said that the he was working in the canteen which was run by the Club. Other people were working in the canteen, bar, billiard room, concert room and table tennis room. Members came there to play tennis, badminton and cards. The witness for the respondents have spoken about the club providing facilities like indoor games, outdoor games, social gathering and also about there being facility for social cultural development for the families of the club members. There are 1400 members of the Club. The club has been working since 1982. The Appellate Authority has also found that the club does provide indoor and outdoor games. It goes on to find that as far as the activities of the club is concerned, the Act does not apply. But a bifurcation is made qua the catering service.38. We can safely conclude that second respondent was a genuine club. There were three different class of members. The club was a private premise. Entry to the club premises was restricted to the members and their families and other persons permitted by the governing body. The club did indeed provide various facilities to be availed by the members and others permitted to come to the club. It is to cater to their needs by way of food that apparently the catering contract was entered into. The appellate authority finds that identity cards were issued to the appellants in the year 1996. No doubt the dates of issue as already noted precede the day 05.09.1996, the date on which the catering contract is seen issued. The witness for the appellants has stated in his evidence that the club invites Shiva Caters for party and give contract to him and like this every year any one comes on contract. They arrange parties and we used to work with them. No outsider come to the steel club for taking tea, whiskey or eating samosa but he can come as a guest of the member is the further deposition of the witness for the appellants.39. In the light of this state of facts and the definition of the word restaurant and eating place the conclusion appears to be inevitable that the respondent club cannot be characterized as premises which was wholly or principally used for the business of supply of meals and refreshment to the public. In the first place as already noticed, the members of the Club and their guests and family members cannot be described as the public. Even proceeding on the basis that the members of the club and their family members and the guests whom they would bring would constitute a class of the public, the fact remains that the Court must turn a blind eye to the multifarious activities which are both contemplated in the bye-laws and which were admittedly being carried out in the premises by way of indoor or outdoor games, gatherings to find that the premises was being used wholly or principally for the business of supply of meals or refreshment. The fact that by catering services, food and refreshment and even liquor as are permitted in Clubs under law was being provided would not make it a case where the club became premises in which the supply of meals and refreshments was wholly or principally what was carried out.40. The Appellate Authority proceeds on the basis that providing food, refreshment and drink are not contemplated in the bye-laws and therefore, it would attract Section 2(23) of the Act. We notice in this regard that bye-law No.2 (See para 15 of this judgment) does provide that the aims and objectives of the club was to provide to the members and their families the facilities usually obtainable in a club of this nature and including the various facilities like indoor and outdoor games etc. Therefore, providing of food and refreshment cannot be described as falling outside the scope of the bye-laws. In other words, a proper interpretation of bye-law No.2 would mean that the specifically enumerated facilities in bye-law No.2 are not exhaustive.41. The bye-laws do not reveal provision for lodging. There is no finding also that the club was providing lodging. In such circumstances, the question that should have been asked was, whether, being a club, which was not residential in nature, it stood exempted. This was not done. | 0 | 8,854 | 2,343 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
The members and their families are to be provided facilities for their cultural and intellectual advancement. 36. The inquiry conducted by the Appellate Authority was predominantly based on the definition of the word restaurant or eating house (Section 2(23)). The Appellate Authority glossed over the vital clue provided by the inclusion of the residential club as a residential hotel. 37. It must be noticed that the second respondent is, admittedly, a club under its bye-laws. The objective of the club was to provide various indoor or outdoor games, library and reading room facilities and social gatherings. It also contemplated providing members and their families with facilities for their cultural, social and intellectual advancement. The appellants are correct in contending that the authority and the court are not to be held hostage by the words used in the bye-laws. In other words, the bye-laws may unerringly point to activities which are associated with a club.However, in point of fact what actually goes on in the premises, may be only activities as are described in Section 2(23) of the Act, namely, the premise of the club may be used wholly or principally only for the purpose of an eating place or restaurant. If that is the case the court would not be oblivious to the actual nature of activities and still clothe the organisation as a Club exempted under Section 3(j). However, in this regard there is unmistakable evidence to show that the objects in the bye-laws were actually realised and the members were indeed being provided with various facilities. The witness for the appellant has stated that the workmen were allotted duty separately by the Club Manager. He has said that the he was working in the canteen which was run by the Club. Other people were working in the canteen, bar, billiard room, concert room and table tennis room. Members came there to play tennis, badminton and cards. The witness for the respondents have spoken about the club providing facilities like indoor games, outdoor games, social gathering and also about there being facility for social cultural development for the families of the club members. There are 1400 members of the Club. The club has been working since 1982. The Appellate Authority has also found that the club does provide indoor and outdoor games. It goes on to find that as far as the activities of the club is concerned, the Act does not apply. But a bifurcation is made qua the catering service. 38. We can safely conclude that second respondent was a genuine club. There were three different class of members. The club was a private premise. Entry to the club premises was restricted to the members and their families and other persons permitted by the governing body. The club did indeed provide various facilities to be availed by the members and others permitted to come to the club. It is to cater to their needs by way of food that apparently the catering contract was entered into. The appellate authority finds that identity cards were issued to the appellants in the year 1996. No doubt the dates of issue as already noted precede the day 05.09.1996, the date on which the catering contract is seen issued. The witness for the appellants has stated in his evidence that the club invites Shiva Caters for party and give contract to him and like this every year any one comes on contract. They arrange parties and we used to work with them. No outsider come to the steel club for taking tea, whiskey or eating samosa but he can come as a guest of the member is the further deposition of the witness for the appellants. 39. In the light of this state of facts and the definition of the word restaurant and eating place the conclusion appears to be inevitable that the respondent club cannot be characterized as premises which was wholly or principally used for the business of supply of meals and refreshment to the public. In the first place as already noticed, the members of the Club and their guests and family members cannot be described as the public. Even proceeding on the basis that the members of the club and their family members and the guests whom they would bring would constitute a class of the public, the fact remains that the Court must turn a blind eye to the multifarious activities which are both contemplated in the bye-laws and which were admittedly being carried out in the premises by way of indoor or outdoor games, gatherings to find that the premises was being used wholly or principally for the business of supply of meals or refreshment. The fact that by catering services, food and refreshment and even liquor as are permitted in Clubs under law was being provided would not make it a case where the club became premises in which the supply of meals and refreshments was wholly or principally what was carried out. 40. The Appellate Authority proceeds on the basis that providing food, refreshment and drink are not contemplated in the bye-laws and therefore, it would attract Section 2(23) of the Act. We notice in this regard that bye-law No.2 (See para 15 of this judgment) does provide that the aims and objectives of the club was to provide to the members and their families the facilities usually obtainable in a club of this nature and including the various facilities like indoor and outdoor games etc. Therefore, providing of food and refreshment cannot be described as falling outside the scope of the bye-laws. In other words, a proper interpretation of bye-law No.2 would mean that the specifically enumerated facilities in bye-law No.2 are not exhaustive. 41. The bye-laws do not reveal provision for lodging. There is no finding also that the club was providing lodging. In such circumstances, the question that should have been asked was, whether, being a club, which was not residential in nature, it stood exempted. This was not done.
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be provided social gathering and swimming. The members and their families are to be provided facilities for their cultural and intellectual advancement.36. The inquiry conducted by the Appellate Authority was predominantly based on the definition of the word restaurant or eating house (Section 2(23)). The Appellate Authority glossed over the vital clue provided by the inclusion of the residential club as a residential hotel.37. It must be noticed that the second respondent is, admittedly, a club under its bye-laws. The objective of the club was to provide various indoor or outdoor games, library and reading room facilities and social gatherings. It also contemplated providing members and their families with facilities for their cultural, social and intellectual advancement. The appellants are correct in contending that the authority and the court are not to be held hostage by the words used in the bye-laws. In other words, the bye-laws may unerringly point to activities which are associated with a club.However, in point of fact what actually goes on in the premises, may be only activities as are described in Section 2(23) of the Act, namely, the premise of the club may be used wholly or principally only for the purpose of an eating place or restaurant. If that is the case the court would not be oblivious to the actual nature of activities and still clothe the organisation as a Club exempted under Section 3(j). However, in this regard there is unmistakable evidence to show that the objects in the bye-laws were actually realised and the members were indeed being provided with various facilities. The witness for the appellant has stated that the workmen were allotted duty separately by the Club Manager. He has said that the he was working in the canteen which was run by the Club. Other people were working in the canteen, bar, billiard room, concert room and table tennis room. Members came there to play tennis, badminton and cards. The witness for the respondents have spoken about the club providing facilities like indoor games, outdoor games, social gathering and also about there being facility for social cultural development for the families of the club members. There are 1400 members of the Club. The club has been working since 1982. The Appellate Authority has also found that the club does provide indoor and outdoor games. It goes on to find that as far as the activities of the club is concerned, the Act does not apply. But a bifurcation is made qua the catering service.38. We can safely conclude that second respondent was a genuine club. There were three different class of members. The club was a private premise. Entry to the club premises was restricted to the members and their families and other persons permitted by the governing body. The club did indeed provide various facilities to be availed by the members and others permitted to come to the club. It is to cater to their needs by way of food that apparently the catering contract was entered into. The appellate authority finds that identity cards were issued to the appellants in the year 1996. No doubt the dates of issue as already noted precede the day 05.09.1996, the date on which the catering contract is seen issued. The witness for the appellants has stated in his evidence that the club invites Shiva Caters for party and give contract to him and like this every year any one comes on contract. They arrange parties and we used to work with them. No outsider come to the steel club for taking tea, whiskey or eating samosa but he can come as a guest of the member is the further deposition of the witness for the appellants.39. In the light of this state of facts and the definition of the word restaurant and eating place the conclusion appears to be inevitable that the respondent club cannot be characterized as premises which was wholly or principally used for the business of supply of meals and refreshment to the public. In the first place as already noticed, the members of the Club and their guests and family members cannot be described as the public. Even proceeding on the basis that the members of the club and their family members and the guests whom they would bring would constitute a class of the public, the fact remains that the Court must turn a blind eye to the multifarious activities which are both contemplated in the bye-laws and which were admittedly being carried out in the premises by way of indoor or outdoor games, gatherings to find that the premises was being used wholly or principally for the business of supply of meals or refreshment. The fact that by catering services, food and refreshment and even liquor as are permitted in Clubs under law was being provided would not make it a case where the club became premises in which the supply of meals and refreshments was wholly or principally what was carried out.40. The Appellate Authority proceeds on the basis that providing food, refreshment and drink are not contemplated in the bye-laws and therefore, it would attract Section 2(23) of the Act. We notice in this regard that bye-law No.2 (See para 15 of this judgment) does provide that the aims and objectives of the club was to provide to the members and their families the facilities usually obtainable in a club of this nature and including the various facilities like indoor and outdoor games etc. Therefore, providing of food and refreshment cannot be described as falling outside the scope of the bye-laws. In other words, a proper interpretation of bye-law No.2 would mean that the specifically enumerated facilities in bye-law No.2 are not exhaustive.41. The bye-laws do not reveal provision for lodging. There is no finding also that the club was providing lodging. In such circumstances, the question that should have been asked was, whether, being a club, which was not residential in nature, it stood exempted. This was not done.
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Smt. M.M. Amonkar and Others Vs. Dr.S.A.Johari | said cabin to the respondent-plaintiff but at that time it could not be within the contemplation of anybody to seek protection against giving premises on licence also, and even so Ext. No. 1 in terms records that respondent-plaintiff was neither a tenant nor a licensee of the suit cabin. Such a double protection was unnecessary as against the L.I.C. but, it was necessary as against the respondent-plaintiff to whom late Dr. Amonkar wanted to ensure that the user of the cabin was allowed only in the capacity of an attached Honourary Surgeon to the Hospital and in no other and that is what Ext. No. 1 says. In our view, the motive suggested by the respondent-plaintiff does not fit in with the situation or state of affairs that existed in May, 1970 and the document really records the true transaction between the parties, namely, that the respondent-plaintiff was allowed the user of the suit cabin because of his attachment as Honorary Surgeon to Dr. Amonkar Hospital. Secondly, if Ext. No. 1 was not to be acted upon and it was signed by respondent- plaintiff on the representation made to him by late Dr. Amonkar that it was simply for the purpose of protecting himself against the L.I.C. and was not to be used against the respondent-plaintiff, the respondent-plaintiff could have obtained from later Dr. Amonkar a writing that effect which he could have preserved for his own safety but no such writing was obtained by him from late Dr. Amonkar and, in our view, if the respondent-plaintiffs version were true that Ext. No. 1 had been obtained on the alleged representation two writings could have been executed and preserved by each for his own safety but this was not done. If, therefore, respondent-plaintiffs suggestion as to why Ext. No. 1 was obtained by late Dr. Amonkar from him is not believable-and for the reasons indicated above it is not-the respondent-plaintiff must be held bound by the writing Ext. No. 1 which he executed after fully understanding the contents thereof and his oral testimony that the user of the cabin was given to him on leave and licence basis cannot be accepted.It may be stated that the main reason why the High Court felt that Ext. No. 1 did not reflect the true nature of the transaction between the parties was that no documentary evidence was produced by the appellant-defendants to show that actually medical services were rendered by the respondent-plaintiff to Dr. Amonkar Hospital. On this point there was merely the respondent-plaintiffs word as against the testimony of defendant No. 2 and Dr. Rawalia. Respondent-plaintiff claimed that he had not rendered any services to Dr. Amonkar Hospital as an attached Honourary Surgeon thereto while both the witness on the side of the appellant-defendants asserted that consultations were held with the respondent-plaintiff whenever occasions arose in maternity cases done in the Hospital. Leaving aside the High Courts view about the unsatisfactory nature of evidence of Dr. Rawalia, there was no reason why the evidence of defendant No. 2 (Junior Dr. Amonkar)-who had as per the High Courts view given evidence in a responsible and restrained manner-should not have been accepted on the point. Defendant No. 2 had clearly stated in his evidence that consultations with the respondent- plaintiff were held whenever preoperative or post-operative problems arose in maternity cases and this was done at least 4 or 5 times a month and he was consulted in his capacity as an Honorary Surgeon attached to the Hospital. It is true that no documentary record of such consultations was produced but whether any record of consultations would be maintained or not would depend upon the nature and type of consultations made and it is equally possible that due to lapse of time that had occurred between such consultations and the trial such record may not have been preserved. In our view defendant No. 2s evidence in this behalf need not have been rejected simply because no record of such consultations was produced. Furthermore the respondent No. 2 admitted in his evidence that he had made use of the Operation Theatre together with the facilities attached thereto of Dr. Amonkar Hospital for performing operations on his private patients and though there is a controversy as to whether such user of the Operation Theatre was free of charge or on payment, in our view such user of Operation Theatre together with the facilities attached thereto would not have been permitted to respondent-plaintiff if he were an independent licensee of the suit cabin and was not connected with and attached to the Hospital. Lastly, the evidence clearly shows that right from commencement of his occupation of the suit cabin t ill January 1973 (when the respondent-plaintiff obtained an interim injunction) the respondent plaintiff had no servant of his own attached to the suit cabin but he was getting the services from the members of the Hospital staff in the matter of sweeping, cleaning and dusting of his cabin, receiving his patients in the common waiting room and ushering them into his cabin for which no separate payment was being made by him. Were he an independent licensee of the suit cabin and not attached to the Hospital such services would not have been made available to him free of charge.In our view the aforesaid broad features emerging from the evidence on record clearly support the appellants-defendants case that the user of the suit cabin was allowed to the respondent-plaintiff not on leave and licence basis but because of his attachment as Honourary Surgeon to Dr. Amonkar Hospital. Such being our conclusion on the factual issue it is unnecessary for us to deal with or discuss the other two semi-legal issues that were argued before us in these appeals. We are clearly of the view that the High Court was not right in reversing the concurrent finding of fact recorded by both the courts below and even on merits the High Court judgment cannot be sustained. Th | 1[ds]Though the aforesaid conclusion of ours would be sufficient to dispose of the appeals, even on merits we feel that the broad features emerging from the evidence on record make it difficult to accept the respondent-plaintiffs case that the user of the suit cabin was permitted to him on leave and licence basis as claimed by him. Admittedly, Dr. Amonkar Hospital was never exclusively a Maternity and Gynecological Hospital and had a Nursing Home Department where general operations were undertaken and as such attachment of couple of doctors as Honourary Surgeons to it would be most natural and since at the material time both the senior Dr. Amonkar (since deceased) and the junior Dr. Amonkar (defendant No. 2) were on account of their ill health, unable to work with full vigour, with only doctors (Dr. Miss Usha Amonkar and Dr. Rawalia) in attendance the respondent-plaintiffs attachment as Honourary Surgeon to it for temporary duration till Dr. (Mrs.) Gaitonde returned from Calcutta, could not be said to be unnecessary as opined by the High Court but was more probable. Even the High Court has observed that late Dr. Amonkar had obliged the respondent-plaintiff by accommodating him in the suit cabin temporarily when he was suddenly made to leave his premises on the third floor of the very building and that the respondent-plaintiff had taken advantage of the gesture shown to him by late Dr. Amonkar as Dr. (Mrs.) Gaitonde was away ateven the High Court has accepted the position that the user of the suit cabin became available to the respondent-plaintiff as a result of his direct approach to late Dr. Amonkar but through the intervention and good offices of Dr. Rawalia, and he has fully supported the Appellants-Defendants case that such user was allowed to the respondent-plaintiff on the same terms on which he had been permitted the user of his ca bin in that Hospital, namely, because of attachment as Honourary Surgeon to Dr. Amonkar Hospital. But Dr. Rawalias evidence has been discarded by the High Court for reasons which are, in our view, not sound. Apart from some minor contradictions (which were really omissions) that appeared in his evidence in light of the averments made by him in his earlier Affidavits filed in the proceedings, the main reason for discarding his evidence has been that he could not be regarded as disinterested witness because of his close ties with the Amonkar family and that he had displayed an attitude of being ever willing to sign any affidavit or to swear to anything to help whom he had come to help; for instance he had gone t o the extent of saying "so far I am not asked to go out but I am prepared to go as and when they will tell me to get out", which showed that he had identified himself with Amonkars. In our view these aspects would not be good reasons for discarding his evidence. True, some of his answers do show that he was having close ties with the Amonkar family but this is not unnatural if it is borne in mind that he has been working with them in that Hospital since 1954 and the mere fact that he has stated that he was prepared to go whenever Amonkars would ask him to go would not show that there was any private or secret-understanding between him and Amonkars as was sought to be suggested by counsel for the respondent- plaintiff. Since he was a signatory to writing Exh. No. 2 all that he wanted to convery was that his user of the cabin was because of his attachment as Honourary Surgeon to Dr. Amonkar Hospital and as such his right to occupy the cabin would come to an end as and when his attachment would cease, that is to say, as and when Amonkars would ask him to go. Far from showing any interestedness in the Amonkars his aforesaid statement was an admission against his own interest, as it exposed him to imminent risk of eviction, and as such deserved commendation. Honouring ones word has become a rare virtue these days and it would become rarer still if those who display it are to be discredited like this. To disbelieve Dr. Rawalia who showed his willingness to honour his word by sticking to the arrangement to which he was a signatory and for not behaving in the manner as respondent-plaintiff has done, would be a travesty of justice.Thirdly, turning to the documentary evidence , it must be observed that the three or four receipt produced by the respondent-plaintiff showing monthly payments made by him would be of no avail because the nature or the character of the payment, whether it was by way of compensation or to wards ratable expenses, has no where been indicated in any of them. But so far as Exh. No. 1 is concerned it is clear that this document in terms indicates that the respondent- plaintiff was permitted to use the suit cabin not on leave and licence basis but because of his attachment as Honourary Surgeon to Dr. Amonkar Hospital and that it contains a categorical admission on his part that he was neither a tenant nor a licensee thereof. In cross-examination respondent-plaintiff admitted that he had signed this document after fully understanding the contents thereof. If that be so, his oral testimony which runs-counter to the document cannot obviously be accepted unless, of course, the document is shown to have been obtain ed by late Dr. Amonkar from him for the purpose of avoiding a possible objection that might be raised by the L.I.C. and was not to be acted up.. ones suggested by the respondent-plaintiff. As regards the motive or purpose for which the document was said to have been obtained there are two circumstances which militate against it. In the first place at the material time that is in May 1970 unlawful subletting of premises was a ground for eviction and not the giving it on leave and licence basis and late Dr. Amonkar might have faced some difficulty from his own landlord, namely, L.I.C. if he had sublet the said cabin to the respondent-plaintiff but at that time it could not be within the contemplation of anybody to seek protection against giving premises on licence also, and even so Ext. No. 1 in terms records that respondent-plaintiff was neither a tenant nor a licensee of the suit cabin. Such a double protection was unnecessary as against the L.I.C. but, it was necessary as against the respondent-plaintiff to whom late Dr. Amonkar wanted to ensure that the user of the cabin was allowed only in the capacity of an attached Honourary Surgeon to the Hospital and in no other and that is what Ext. No. 1 says. In our view, the motive suggested by the respondent-plaintiff does not fit in with the situation or state of affairs that existed in May, 1970 and the document really records the true transaction between the parties, namely, that the respondent-plaintiff was allowed the user of the suit cabin because of his attachment as Honorary Surgeon to Dr. Amonkar Hospital. Secondly, if Ext. No. 1 was not to be acted upon and it was signed by respondent- plaintiff on the representation made to him by late Dr. Amonkar that it was simply for the purpose of protecting himself against the L.I.C. and was not to be used against the respondent-plaintiff, the respondent-plaintiff could have obtained from later Dr. Amonkar a writing that effect which he could have preserved for his own safety but no such writing was obtained by him from late Dr. Amonkar and, in our view, if the respondent-plaintiffs version were true that Ext. No. 1 had been obtained on the alleged representation two writings could have been executed and preserved by each for his own safety but this was not done. If, therefore, respondent-plaintiffs suggestion as to why Ext. No. 1 was obtained by late Dr. Amonkar from him is not believable-and for the reasons indicated above it is not-the respondent-plaintiff must be held bound by the writing Ext. No. 1 which he executed after fully understanding the contents thereof and his oral testimony that the user of the cabin was given to him on leave and licence basis cannot be accepted.It may be stated that the main reason why the High Court felt that Ext. No. 1 did not reflect the true nature of the transaction between the parties was that no documentary evidence was produced by the appellant-defendants to show that actually medical services were rendered by the respondent-plaintiff to Dr. Amonkar Hospital. On this point there was merely the respondent-plaintiffs word as against the testimony of defendant No. 2 and Dr. Rawalia. Respondent-plaintiff claimed that he had not rendered any services to Dr. Amonkar Hospital as an attached Honourary Surgeon thereto while both the witness on the side of the appellant-defendants asserted that consultations were held with the respondent-plaintiff whenever occasions arose in maternity cases done in the Hospital. Leaving aside the High Courts view about the unsatisfactory nature of evidence of Dr. Rawalia, there was no reason why the evidence of defendant No. 2 (Junior Dr. Amonkar)-who had as per the High Courts view given evidence in a responsible and restrained manner-should not have been accepted on the point. Defendant No. 2 had clearly stated in his evidence that consultations with the respondent- plaintiff were held whenever preoperative or post-operative problems arose in maternity cases and this was done at least 4 or 5 times a month and he was consulted in his capacity as an Honorary Surgeon attached to the Hospital. It is true that no documentary record of such consultations was produced but whether any record of consultations would be maintained or not would depend upon the nature and type of consultations made and it is equally possible that due to lapse of time that had occurred between such consultations and the trial such record may not have been preserved. In our view defendant No. 2s evidence in this behalf need not have been rejected simply because no record of such consultations was produced. Furthermore the respondent No. 2 admitted in his evidence that he had made use of the Operation Theatre together with the facilities attached thereto of Dr. Amonkar Hospital for performing operations on his private patients and though there is a controversy as to whether such user of the Operation Theatre was free of charge or on payment, in our view such user of Operation Theatre together with the facilities attached thereto would not have been permitted to respondent-plaintiff if he were an independent licensee of the suit cabin and was not connected with and attached to the Hospital. Lastly, the evidence clearly shows that right from commencement of his occupation of the suit cabin t ill January 1973 (when the respondent-plaintiff obtained an interim injunction) the respondent plaintiff had no servant of his own attached to the suit cabin but he was getting the services from the members of the Hospital staff in the matter of sweeping, cleaning and dusting of his cabin, receiving his patients in the common waiting room and ushering them into his cabin for which no separate payment was being made by him. Were he an independent licensee of the suit cabin and not attached to the Hospital such services would not have been made available to him free of charge.In our view the aforesaid broad features emerging from the evidence on record clearly support the appellants-defendants case that the user of the suit cabin was allowed to the respondent-plaintiff not on leave and licence basis but because of his attachment as Honourary Surgeon to Dr. Amonkar Hospital. Such being our conclusion on the factual issue it is unnecessary for us to deal with or discuss the other two semi-legal issues that were argued before us in these appeals. We are clearly of the view that the High Court was not right in reversing the concurrent finding of fact recorded by both the courts below and even on merits the High Court judgment cannot be sustained. | 1 | 6,899 | 2,156 | ### 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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said cabin to the respondent-plaintiff but at that time it could not be within the contemplation of anybody to seek protection against giving premises on licence also, and even so Ext. No. 1 in terms records that respondent-plaintiff was neither a tenant nor a licensee of the suit cabin. Such a double protection was unnecessary as against the L.I.C. but, it was necessary as against the respondent-plaintiff to whom late Dr. Amonkar wanted to ensure that the user of the cabin was allowed only in the capacity of an attached Honourary Surgeon to the Hospital and in no other and that is what Ext. No. 1 says. In our view, the motive suggested by the respondent-plaintiff does not fit in with the situation or state of affairs that existed in May, 1970 and the document really records the true transaction between the parties, namely, that the respondent-plaintiff was allowed the user of the suit cabin because of his attachment as Honorary Surgeon to Dr. Amonkar Hospital. Secondly, if Ext. No. 1 was not to be acted upon and it was signed by respondent- plaintiff on the representation made to him by late Dr. Amonkar that it was simply for the purpose of protecting himself against the L.I.C. and was not to be used against the respondent-plaintiff, the respondent-plaintiff could have obtained from later Dr. Amonkar a writing that effect which he could have preserved for his own safety but no such writing was obtained by him from late Dr. Amonkar and, in our view, if the respondent-plaintiffs version were true that Ext. No. 1 had been obtained on the alleged representation two writings could have been executed and preserved by each for his own safety but this was not done. If, therefore, respondent-plaintiffs suggestion as to why Ext. No. 1 was obtained by late Dr. Amonkar from him is not believable-and for the reasons indicated above it is not-the respondent-plaintiff must be held bound by the writing Ext. No. 1 which he executed after fully understanding the contents thereof and his oral testimony that the user of the cabin was given to him on leave and licence basis cannot be accepted.It may be stated that the main reason why the High Court felt that Ext. No. 1 did not reflect the true nature of the transaction between the parties was that no documentary evidence was produced by the appellant-defendants to show that actually medical services were rendered by the respondent-plaintiff to Dr. Amonkar Hospital. On this point there was merely the respondent-plaintiffs word as against the testimony of defendant No. 2 and Dr. Rawalia. Respondent-plaintiff claimed that he had not rendered any services to Dr. Amonkar Hospital as an attached Honourary Surgeon thereto while both the witness on the side of the appellant-defendants asserted that consultations were held with the respondent-plaintiff whenever occasions arose in maternity cases done in the Hospital. Leaving aside the High Courts view about the unsatisfactory nature of evidence of Dr. Rawalia, there was no reason why the evidence of defendant No. 2 (Junior Dr. Amonkar)-who had as per the High Courts view given evidence in a responsible and restrained manner-should not have been accepted on the point. Defendant No. 2 had clearly stated in his evidence that consultations with the respondent- plaintiff were held whenever preoperative or post-operative problems arose in maternity cases and this was done at least 4 or 5 times a month and he was consulted in his capacity as an Honorary Surgeon attached to the Hospital. It is true that no documentary record of such consultations was produced but whether any record of consultations would be maintained or not would depend upon the nature and type of consultations made and it is equally possible that due to lapse of time that had occurred between such consultations and the trial such record may not have been preserved. In our view defendant No. 2s evidence in this behalf need not have been rejected simply because no record of such consultations was produced. Furthermore the respondent No. 2 admitted in his evidence that he had made use of the Operation Theatre together with the facilities attached thereto of Dr. Amonkar Hospital for performing operations on his private patients and though there is a controversy as to whether such user of the Operation Theatre was free of charge or on payment, in our view such user of Operation Theatre together with the facilities attached thereto would not have been permitted to respondent-plaintiff if he were an independent licensee of the suit cabin and was not connected with and attached to the Hospital. Lastly, the evidence clearly shows that right from commencement of his occupation of the suit cabin t ill January 1973 (when the respondent-plaintiff obtained an interim injunction) the respondent plaintiff had no servant of his own attached to the suit cabin but he was getting the services from the members of the Hospital staff in the matter of sweeping, cleaning and dusting of his cabin, receiving his patients in the common waiting room and ushering them into his cabin for which no separate payment was being made by him. Were he an independent licensee of the suit cabin and not attached to the Hospital such services would not have been made available to him free of charge.In our view the aforesaid broad features emerging from the evidence on record clearly support the appellants-defendants case that the user of the suit cabin was allowed to the respondent-plaintiff not on leave and licence basis but because of his attachment as Honourary Surgeon to Dr. Amonkar Hospital. Such being our conclusion on the factual issue it is unnecessary for us to deal with or discuss the other two semi-legal issues that were argued before us in these appeals. We are clearly of the view that the High Court was not right in reversing the concurrent finding of fact recorded by both the courts below and even on merits the High Court judgment cannot be sustained. Th
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the said cabin to the respondent-plaintiff but at that time it could not be within the contemplation of anybody to seek protection against giving premises on licence also, and even so Ext. No. 1 in terms records that respondent-plaintiff was neither a tenant nor a licensee of the suit cabin. Such a double protection was unnecessary as against the L.I.C. but, it was necessary as against the respondent-plaintiff to whom late Dr. Amonkar wanted to ensure that the user of the cabin was allowed only in the capacity of an attached Honourary Surgeon to the Hospital and in no other and that is what Ext. No. 1 says. In our view, the motive suggested by the respondent-plaintiff does not fit in with the situation or state of affairs that existed in May, 1970 and the document really records the true transaction between the parties, namely, that the respondent-plaintiff was allowed the user of the suit cabin because of his attachment as Honorary Surgeon to Dr. Amonkar Hospital. Secondly, if Ext. No. 1 was not to be acted upon and it was signed by respondent- plaintiff on the representation made to him by late Dr. Amonkar that it was simply for the purpose of protecting himself against the L.I.C. and was not to be used against the respondent-plaintiff, the respondent-plaintiff could have obtained from later Dr. Amonkar a writing that effect which he could have preserved for his own safety but no such writing was obtained by him from late Dr. Amonkar and, in our view, if the respondent-plaintiffs version were true that Ext. No. 1 had been obtained on the alleged representation two writings could have been executed and preserved by each for his own safety but this was not done. If, therefore, respondent-plaintiffs suggestion as to why Ext. No. 1 was obtained by late Dr. Amonkar from him is not believable-and for the reasons indicated above it is not-the respondent-plaintiff must be held bound by the writing Ext. No. 1 which he executed after fully understanding the contents thereof and his oral testimony that the user of the cabin was given to him on leave and licence basis cannot be accepted.It may be stated that the main reason why the High Court felt that Ext. No. 1 did not reflect the true nature of the transaction between the parties was that no documentary evidence was produced by the appellant-defendants to show that actually medical services were rendered by the respondent-plaintiff to Dr. Amonkar Hospital. On this point there was merely the respondent-plaintiffs word as against the testimony of defendant No. 2 and Dr. Rawalia. Respondent-plaintiff claimed that he had not rendered any services to Dr. Amonkar Hospital as an attached Honourary Surgeon thereto while both the witness on the side of the appellant-defendants asserted that consultations were held with the respondent-plaintiff whenever occasions arose in maternity cases done in the Hospital. Leaving aside the High Courts view about the unsatisfactory nature of evidence of Dr. Rawalia, there was no reason why the evidence of defendant No. 2 (Junior Dr. Amonkar)-who had as per the High Courts view given evidence in a responsible and restrained manner-should not have been accepted on the point. Defendant No. 2 had clearly stated in his evidence that consultations with the respondent- plaintiff were held whenever preoperative or post-operative problems arose in maternity cases and this was done at least 4 or 5 times a month and he was consulted in his capacity as an Honorary Surgeon attached to the Hospital. It is true that no documentary record of such consultations was produced but whether any record of consultations would be maintained or not would depend upon the nature and type of consultations made and it is equally possible that due to lapse of time that had occurred between such consultations and the trial such record may not have been preserved. In our view defendant No. 2s evidence in this behalf need not have been rejected simply because no record of such consultations was produced. Furthermore the respondent No. 2 admitted in his evidence that he had made use of the Operation Theatre together with the facilities attached thereto of Dr. Amonkar Hospital for performing operations on his private patients and though there is a controversy as to whether such user of the Operation Theatre was free of charge or on payment, in our view such user of Operation Theatre together with the facilities attached thereto would not have been permitted to respondent-plaintiff if he were an independent licensee of the suit cabin and was not connected with and attached to the Hospital. Lastly, the evidence clearly shows that right from commencement of his occupation of the suit cabin t ill January 1973 (when the respondent-plaintiff obtained an interim injunction) the respondent plaintiff had no servant of his own attached to the suit cabin but he was getting the services from the members of the Hospital staff in the matter of sweeping, cleaning and dusting of his cabin, receiving his patients in the common waiting room and ushering them into his cabin for which no separate payment was being made by him. Were he an independent licensee of the suit cabin and not attached to the Hospital such services would not have been made available to him free of charge.In our view the aforesaid broad features emerging from the evidence on record clearly support the appellants-defendants case that the user of the suit cabin was allowed to the respondent-plaintiff not on leave and licence basis but because of his attachment as Honourary Surgeon to Dr. Amonkar Hospital. Such being our conclusion on the factual issue it is unnecessary for us to deal with or discuss the other two semi-legal issues that were argued before us in these appeals. We are clearly of the view that the High Court was not right in reversing the concurrent finding of fact recorded by both the courts below and even on merits the High Court judgment cannot be sustained.
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M/s Neeharika Infrastructure Pvt. Ltd Vs. State of Maharashtra and others | before the higher authority/Forum, contain reasons, however brief, in support of the grant or refusal thereof. It is further observed that in the absence of such reasons, it is virtually impossible for such higher authority/Forum to determine what persuaded the grant or refusal of relief. 21.3 In the case of Hindustan Times Limited v. Union of India, (1998) 2 SCC 242 , while emphasising on giving reasons by the High Court, it is observed that necessity to provide reasons, howsoever brief, in support of the High Courts conclusions is too obvious to be reiterated. Obligation to give reasons introduces clarity and excludes or at any rate minimises the changes of arbitrariness and the higher forum can test the correctness of those reasons. 21.4 While considering the importance of the reasons to be given during the decision-making process, in the case of Kranti Associates (P) Ltd. v. Masood Ahmed, (2010) 9 SCC 496 , in paragraph 47, this Court has summarised as under: 47. Summarising the above discussion, this Court holds: (a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. (b) A quasi-judicial authority must record reasons in support of its conclusions. (c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. (d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. (e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations. (f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. (g) Reasons facilitate the process of judicial review by superior courts. (h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice. (i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants faith in the justice delivery system. (j) Insistence on reason is a requirement for both judicial accountability and transparency. (k) If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. (l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or rubber-stamp reasons is not to be equated with a valid decision-making process. (m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor [(1987) 100 Harvard Law Review 731-37] .) (n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain [(1994) 19 EHRR 553] EHRR, at 562 para 29 and Anya v. University of Oxford [2001 EWCA Civ 405 (CA)] , wherein the Court referred to Article 6 of the European Convention of Human Rights which requires, adequate and intelligent reasons must be given for judicial decisions. (o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of due process. Therefore, even while passing such an interim order, in exceptional cases with caution and circumspection, the High Court has to give brief reasons why it is necessary to pass such an interim order, more particularly when the High Court is exercising the extraordinary and inherent powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. Therefore, in the facts and circumstances of the case, the High Court has committed a grave error of law and also of facts in passing such an interim order of no coercive steps to be adopted and the same deserves to be quashed and set aside. Criminal Miscellaneous Petition No. 4961 of 2021 22. Criminal Miscellaneous Petition No. 4961 of 2021 has been preferred by respondent nos. 2 to 4 herein – original accused under Section 340 r/w Section 195 (1)(B), Cr.P.C. for initiating action against the appellant. It is alleged that the appellant has suppressed the vital documents/agreements and the facts and by suppressing the material documents/agreements and the facts has obtained an interim order dated 12.10.2020 from this Court, staying order dated 28.09.2020 passed by the High Court. Number of submissions and counter submissions have been made by the learned counsel for the respective parties. However, considering the fact that the quashing petition is yet to be considered by the High Court on merits, we do not propose to entertain the present application and enter into the merits of the allegations in the present application. However, it will sufficed to say that this Court has passed an interim order dated 12.10.2020, staying order dated 28.09.2020 passed by the High Court, by giving brief reasons and even if the documents/agreements which are alleged to have been suppressed would have been there, it would not have any bearing on the interim order passed by this Court. What is weighed while passing interim order dated 12.10.2020 is very clear from the interim order dated 12.10.2020. | 0[ds]7.1 The first case on the point which is required to be noticed is the decision of this Court in the case of R.P. Kapur (supra). While dealing with the inherent powers of the High Court under Section 561-A of the earlier Code (which is pari materia with Section 482 of the Code), it is observed and held that the inherent powers of the High Court under Section 561 of the earlier Code cannot be exercised in regard to the matters specifically covered by the other provisions of the Code; the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice; ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. After observing this, thereafter this Court then carved out some exceptions to the above-stated rule, which are as under:(i) Where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceeding in respect of the offence alleged. Absence of the requisite sanction may, for instance, furnish cases under this category.(ii) Where the allegations in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the first information report to decide whether the offence alleged is disclosed or not.(iii) Where the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under Section 561- A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial Magistrate, and ordinarily it would not be open to any party to invoke the High Courts inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained.7.2 In the case of Kurukshetra University (supra), this Court observed and held that inherent powers under Section 482 Cr.P.C. do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice; that statutory power has to be exercised sparingly with circumspection and in the rarest of rare cases. In the case before this Court, the High Court quashed the first information report filed by the Kurukshetra University through Warden and that too without issuing notice to the University, in exercise of inherent powers under Section 482 Cr.P.C. This Court noticed and observed that the High Court was not justified in quashing the FIR when the police had not even commenced investigation into the complaint filed by the Warden of the University and no proceedings were at all pending before any Court in pursuance of the FIR.7.3 Then comes the celebrated decision of this Court in the case of Bhajan Lal (supra). In the said decision, this Court considered in detail the scope of the High Court powers under Section 482 Cr.P.C. and/or Article 226 of the Constitution of India to quash the FIR and referred to several judicial precedents and held that the High Court should not embark upon an inquiry into the merits and demerits of the allegations and quash the proceedings without allowing the investigating agency to complete its task. At the same time, this Court identified the following cases in which FIR/complaint can be quashed:102.(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.7.7 In the case of Arun Gulab Gawali (supra), this Court set aside the order passed by the High Court quashing the criminal complaint/FIR which was even filed by the complainant. In the case before this Court, prayer for quashing the FIR before the High Court was by the complainant himself and the High Court quashed the FIR/complaint in exercise of the powers under Section 482 Cr.P.C. Quashing and setting aside the judgment and order passed by the High Court quashing the FIR, this Court in paragraphs 13 and 27 to 29 has observed as under:13. The power of quashing criminal proceedings has to be exercised very sparingly and with circumspection and that too in the rarest of rare cases and the Court cannot be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of allegations made in the FIR/complaint, unless the allegations are so patently absurd and inherently improbable so that no prudent person can ever reach such a conclusion. The extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice. However, the Court, under its inherent powers, can neither intervene at an uncalled for stage nor can it soft-pedal the course of justice at a crucial stage of investigation/proceedings. The provisions of Articles 226, 227 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1973 (hereinafter called as CrPC) are a device to advance justice and not to frustrate it. The power of judicial review is discretionary, however, it must be exercised to prevent the miscarriage of justice and for correcting some grave errors and to ensure that stream of administration of justice remains clean and pure. However, there are no limits of power of the Court, but the more the power, the more due care and caution is to be exercised in invoking these powers. (Vide State of W.B. v. Swapan Kumar Guha [(1982) 1 SCC561 : 1982 SCC (Cri) 283 : AIR 1982 SC 949 ] , Pepsi Foods Ltd. v. Special Judicial Magistrate [(1998) 5 SCC 749 : 1998 SCC (Cri) 1400 ] , G. Sagar Suri v. State of U.P. [(2000) 2 SCC 636 : 2000 SCC (Cri) 513 : AIR 2000 SC 754 ] and Ajay Mitra v. State of M.P. [(2003) 3 SCC 11 : 2003 SCC (Cri) 703 ] )xxx xxx xxx27. The High Court proceeded on the perception that as the complainant himself was not supporting the complaint, he would not support the case of the prosecution and there would be no chance of conviction, thus the trial itself would be a futile exercise. Quashing of FIR/complaint on such a ground cannot be held to be justified in law. Ordinarily, the Court of Session is empowered to discharge an accused under Section 227 CrPC even before initiating the trial. The accused can, therefore, move the trial court itself for such a relief and the trial court would be in a better position to analyse and pass an order as it is possessed of all the powers and the material to do so. It is, therefore, not necessary to invoke the jurisdiction under Section 482 CrPC for the quashing of a prosecution in such a case. The reliance on affidavits by the High Court would be a weak, hazy and unreliable source for adjudication on the fate of a trial. The presumption that an accused would never be convicted on the material available is too risky a proposition to be accepted readily, particularly in heinous offences like extortion.28. A claim founded on a denial by the complainant even before the trial commences coupled with an allegation that the police had compelled the lodging of a false FIR, is a matter which requires further investigation as the charge is levelled against the police. If the prosecution is quashed, then neither the trial court nor the investigating agency has any opportunity to go into this question, which may require consideration. The State is the prosecutor and all prosecution is the social and legal responsibility of the State. An offence committed is a crime against society and not against the victim alone. The victim under undue pressure or influence of the accused or under any threat or compulsion may resile back but that would not absolve the State from bringing the accused to book, who has committed an offence and has violated the law of the land.29. Thus, while exercising such power the Court has to act cautiously before proceeding to quash a prosecution in respect of an offence which hits and affects the society at large. It should be a case where no other view is possible nor any investigation or inquiry is further required. There cannot be a general proposition of law, so as to fit in as a straitjacket formula for the exercise of such power. Each case will have to be judged on its own merit and the facts warranting exercise of such power. More so, it was not a case of civil nature where there could be a possibility of compromise or involving an offence which may be compoundable under Section 320 CrPC, where the Court could apply the ratio of Madhavrao Jiwajirao Scindia [(1988) 1 SCC 692 : 1988 SCC (Cri) 234 : AIR 1988 SC 709 ] .7.8 Thereafter in catena of decisions, this Court has reiterated the parameters for exercise of inherent powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India in the matter of quashing the FIR/complaint.8.2 The Privy Council in the case of Khwaja Nazir Ahmad (supra) observed that in India, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities. It is further observed that it would be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the court. It is further observed that the functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function.9.1 In the case of State of Bihar v. J.A.C. Saldanha, (1980) 1 SCC 554 , this Court, after referring to the precedents including the decision of the Privy Council in the case of Khawaja Nazir Ahmad (supra), has observed in paragraphs 25 and 26 as under:25. There is a clear-cut and well demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively reserved for the executive through the police department the superintendence over which vests in the State Government. The executive which is charged with a duty to keep vigilance over law and order situation is obliged to prevent crime and if an offence is alleged to have been committed it is its bounded duty to investigate into the offence and bring the offender to book. Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating officer submits report to the court requesting the court to take cognizance of the offence under Section 190 of the Code its duty comes to an end. On a cognizance of the offence being taken by the court the police function of investigation comes to an end subject to the provision contained in Section 173(8), there commences the adjudicatory function of the judiciary to determine whether an offence has been committed and if so, whether by the person or persons charged with the crime by the police in its report to the court, and to award adequate punishment according to law for the offence proved to the satisfaction of the court. There is thus a well defined and well demarcated function in the field of crime detection and its subsequent adjudication between the police and the Magistrate. This had been recognised way back in King Emperor v. Khwaja Nazir Ahmad [AIR 1944 PC 18 : 1944 LR 71 IA 203, 213] where the Privy Council observed as under:In India, as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities and it would, as Their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the court. The functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the court to intervene in an appropriate case when moved under Section 491 of the Criminal Procedure Code to give directions in the nature of habeas corpus. In such a case as the present, however, the Courts functions begin when a charge is preferred before it, and not until then.26. This view of the Judicial Committee clearly demarcates the functions of the executive and the judiciary in the field of detection of crime and its subsequent trial and it would appear that the power of the police to investigate into a cognizable offence is ordinarily not to be interfered with by the judiciary.In the said decision, this Court also took note of the following observations made by this Court in the case of S.M. Sharma v. Bipen Kumar Tiwari, (1970) 1 SCC 653 :It appears to us that, though the Code of Criminal Procedure gives to the police unfettered power to investigate all cases where they suspect that a cognizable offence has been committed, in appropriate cases an aggrieved person can always seek a remedy by invoking the power of the High Court under Article 226 of the Constitution under which, if the High Court could be convinced that the power of investigation has been exercised by a police officer mala fide, the High Court can always issue a writ of mandamus restraining the police officer from misusing his legal powers.9.3 In the case of Bhajan Lal (supra), it is observed and held by this Court that save in exceptional cases where non interference would result in miscarriage of justice, the court and the judicial process should not interfere at the stage of the investigation of offence. It is further observed that in a routine case where information of an offence or offences has been lodged, investigation commenced, search and seizure followed and suspects arrested, the resort to the unusual procedure of oral applications and oral appeals and interim stay order thereon would have the effect of interfering and staying the investigation of offences by the investigating officer performing statutory duty under Cr.P.C.9.6 In the case of Supdt. of Police, CBI v. Tapan Kumar Singh, (2003) 6 SCC 175 and in the case of State of U.P. v. Naresh, (2011) 4 SCC 324 , it is observed and held by this Court that FIR is not an encyclopaedia, which must disclose all facts and details relating to the offence reported. In paragraph 20 in the case of Tapan Kumar Singh (supra), it is observed and held as under:20. It is well settled that a first information report is not an encyclopaedia, which must disclose all facts and details relating to the offence reported. An informant may lodge a report about the commission of an offence though he may not know the name of the victim or his assailant. He may not even know how the occurrence took place. A first informant need not necessarily be an eyewitness so as to be able to disclose in great detail all aspects of the offence committed. What is of significance is that the information given must disclose the commission of a cognizable offence and the information so lodged must provide a basis for the police officer to suspect the commission of a cognizable offence. At this stage it is enough if the police officer on the basis of the information given suspects the commission of a cognizable offence, and not that he must be convinced or satisfied that a cognizable offence has been committed. If he has reasons to suspect, on the basis of information received, that a cognizable offence may have been committed, he is bound to record the information and conduct an investigation. At this stage it is also not necessary for him to satisfy himself about the truthfulness of the information. It is only after a complete investigation that he may be able to report on the truthfulness or otherwise of the information. Similarly, even if the information does not furnish all the details he must find out those details in the course of investigation and collect all the necessary evidence. The information given disclosing the commission of a cognizable offence only sets in motion the investigative machinery, with a view to collect all necessary evidence, and thereafter to take action in accordance with law. The true test is whether the information furnished provides a reason to suspect the commission of an offence, which the police officer concerned is empowered under Section 156 of the Code to investigate. If it does, he has no option but to record the information and proceed to investigate the case either himself or depute any other competent officer to conduct the investigation. The question as to whether the report is true, whether it discloses full details regarding the manner of occurrence, whether the accused is named, and whether there is sufficient evidence to support the allegations are all matters which are alien to the consideration of the question whether the report discloses the commission of a cognizable offence. Even if the information does not give full details regarding these matters, the investigating officer is not absolved of his duty to investigate the case and discover the true facts, if he can.9.8 In the case of P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 24 , this Court while considering the powers of the investigating agency to investigate the cognizable offence, has observed in paragraphs 61, 64 to 67 as under:61. The investigation of a cognizable offence and the various stages thereon including the interrogation of the accused is exclusively reserved for the investigating agency whose powers are unfettered so long as the investigating officer exercises his investigating powers well within the provisions of the law and the legal bounds. In exercise of its inherent power under Section 482 CrPC, the Court can interfere and issue appropriate direction only when the Court is convinced that the power of the investigating officer is exercised mala fide or where there is abuse of power and non-compliance of the provisions of the Code of Criminal Procedure. However, this power of invoking inherent jurisdiction to issue direction and interfering with the investigation is exercised only in rare cases where there is abuse of process or non- compliance of the provisions of the Criminal Procedure Code.xxx xxx xxx64. Investigation into crimes is the prerogative of the police and excepting in rare cases, the judiciary should keep out all the areas of investigation. In State of Bihar v. P.P. Sharma [State of Bihar v. P.P. Sharma, 1992 Supp (1) SCC 222 : 1992 SCC (Cri) 192 ] , it was held that : (SCC p. 258, para 47)47. … The investigating officer is an arm of the law and plays a pivotal role in the dispensation of criminal justice and maintenance of law and order. … Enough power is therefore given to the police officer in the area of investigating process and granting them the court latitude to exercise its discretionary power to make a successful investigation….65. In Dukhishyam Benupani v. Arun Kumar Bajoria [Dukhishyam Benupani v. Arun Kumar Bajoria, (1998) 1 SCC 52 : 1998 SCC (Cri) 261] , this Court held that : (SCC p. 55, para 7)7. … It is not the function of the court to monitor investigation processes so long as such investigation does not transgress any provision of law. It must be left to the investigating agency to decide the venue, the timings and the questions and the manner of putting such questions to persons involved in such offences. A blanket order fully insulating a person from arrest would make his interrogation a mere ritual….66. As held by the Supreme Court in a catena of judgments that there is a well-defined and demarcated function in the field of investigation and its subsequent adjudication. It is not the function of the court to monitor the investigation process so long as the investigation does not violate any provision of law. It must be left to the discretion of the investigating agency to decide the course of investigation. If the court is to interfere in each and every stage of the investigation and the interrogation of the accused, it would affect the normal course of investigation. It must be left to the investigating agency to proceed in its own manner in interrogation of the accused, nature of questions put to him and the manner of interrogation of the accused.67. It is one thing to say that if the power of investigation has been exercised by an investigating officer mala fide or non-compliance of the provisions of the Criminal Procedure Code in the conduct of the investigation, it is open to the court to quash the proceedings where there is a clear case of abuse of power. It is a different matter that the High Court in exercise of its inherent power under Section 482 CrPC, can always issue appropriate direction at the instance of an aggrieved person if the High Court is convinced that the power of investigation has been exercised by the investigating officer mala fide and not in accordance with the provisions of the Criminal Procedure Code. However, as pointed out earlier that power is to be exercised in rare cases where there is a clear abuse of power and non-compliance of the provisions falling under Chapter XII of the Code of Criminal Procedure requiring the interference of the High Court. In the initial stages of investigation where the Court is considering the question of grant of regular bail or pre-arrest bail, it is not for the Court to enter into the demarcated function of the investigation and collection of evidence/materials for establishing the offence and interrogation of the accused and the witnesses.9.9 In the recent decision of this Court in the case of Skoda Auto Volkswagen India Private Limited v. State of Uttar Pradesh, 2020 SCC OnLine SC 958, it is observed in paragraph 41 as under:41. It is needless to point out that ever since the decision of the Privy Council in King Emperor v. Khwaja Nazir Ahmed AIR 1945 PC 18 , the law is well settled that Courts would not thwart any investigation. It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on. As cautioned by this Court in State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335, the power of quashing should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. While examining a complaint, the quashing of which is sought, the Court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or in the complaint. In S.M. Datta v. State of Gujarat (2001) 7 SCC 659 this Court again cautioned that criminal proceedings ought not to be scuttled at the initial stage. Quashing of a complaint should rather be an exception and a rarity than an ordinary rule. In S.M. Datta (supra), this Court held that if a perusal of the first information report leads to disclosure of an offence even broadly, law courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere.10. From the aforesaid decisions of this Court, right from the decision of the Privy Council in the case of Khawaja Nazir Ahmad (supra), the following principles of law emerge:i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into cognizable offences;ii) Courts would not thwart any investigation into the cognizable offences;iii) However, in cases where no cognizable offence or offence of any kind is disclosed in the first information report the Court will not permit an investigation to go on;iv) The power of quashing should be exercised sparingly with circumspection, in the rarest of rare cases. (The rarest of rare cases standard in its application for quashing under Section 482 Cr.P.C. is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court);v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;vi) Criminal proceedings ought not to be scuttled at the initial stage;vii) Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule;viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities. The inherent power of the court is, however, recognised to secure the ends of justice or prevent the above of the process by Section 482 Cr.P.C.ix) The functions of the judiciary and the police are complementary, not overlapping;x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be cautious. It casts an onerous and more diligent duty on the court;xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; andxv) When a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the court has to permit the investigating agency/police to investigate the allegations in the FIR.13. While deprecating the grant of stay of investigation or trial by the High Courts, this Court in the case of Imtiyaz Ahmad (supra), in paragraphs 25 to 27, held as under:25. Unduly long delay has the effect of bringing about blatant violation of the rule of law and adverse impact on the common mans access to justice. A persons access to justice is a guaranteed fundamental right under the Constitution and particularly Article 21. Denial of this right undermines public confidence in the justice delivery system and incentivises people to look for short cuts and other fora where they feel that justice will be done quicker. In the long run, this also weakens the justice delivery system and poses a threat to the rule of law.26. It may not be out of place to highlight that access to justice must not be understood in a purely quantitative dimension. Access to justice in an egalitarian democracy must be understood to mean qualitative access to justice as well. Access to justice is, therefore, much more than improving an individuals access to courts, or guaranteeing representation. It must be defined in terms of ensuring that legal and judicial outcomes are just and equitable [see United Nations Development Programme, Access to Justice — Practice Note (2004)].27. The present case discloses the need to reiterate that access to justice is vital for the rule of law, which by implication includes the right of access to an independent judiciary. It is submitted that the stay of investigation or trial for significant periods of time runs counter to the principle of rule of law, wherein the rights and aspirations of citizens are intertwined with expeditious conclusion of matters. It is further submitted that delay in conclusion of criminal matters signifies a restriction on the right of access to justice itself, thus amounting to a violation of the citizens rights under the Constitution, in particular under Article 21.14. A similar view has been expressed by this Court again in the case of Asian Resurfacing of Road Agency Private Limited (supra). By deprecating the interlocutory orders/stay of criminal proceedings by the High Courts, it is observed by this Court that the stay should not be considered as an incentive to cause delay in the proceedings. It is further observed that order granting stay or extending it must be a speaking order and stay not to operate long. It is further observed in the said decision that delay in a criminal trial has deleterious effect on the administration of justice in which the society has a vital interest; delay in trials affects the faith in Rule of Law and efficacy of the legal system; it affects social welfare and development; mere prima facie case is not enough; party seeking stay must be put to terms and stay should not be incentive to delay; the order granting stay must show application of mind; the power to grant stay is coupled with accountability. It is further observed that wherever stay is granted, a speaking order must be passed showing that the case was of an exceptional nature.16. We have come across many orders passed by the High Courts passing interim orders of stay of arrest and/or no coercive steps to be taken against the accused in the quashing proceedings under Section 482 Cr.P.C. and/or Article 226 of the Constitution of India with assigning any reasons. We have also come across number of orders passed by the High Courts, while dismissing the quashing petitions, of not to arrest the accused during the investigation or till the chargesheet/final report under Section 173 Cr.P.C is filed. As observed hereinabove, it is the statutory right and even the duty of the police to investigate into the cognizable offence and collect the evidence during the course of investigation. There may be requirement of a custodial investigation for which the accused is required to be in police custody (popularly known as remand). Therefore, passing such type of blanket interim orders without assigning reasons, of not to arrest and/or no coercive steps would hamper the investigation and may affect the statutory right/duty of the police to investigate the cognizable offence conferred under the provisions of the Cr.P.C. Therefore, such a blanket order is not justified at all. The order of the High Court must disclose reasons why it has passed an ad-interim direction during the pendency of the proceedings under Section 482 Cr.P.C. Such reasons, however brief must disclose an application of mind.The aforesaid is required to be considered from another angle also. Granting of such blanket order would not only adversely affect the investigation but would have far reaching implications for maintaining the Rule of Law. Where the investigation is stayed for a long time, even if the stay is ultimately vacated, the subsequent investigation may not be very fruitful for the simple reason that the evidence may no longer be available. Therefore, in case, the accused named in the FIR/complaint apprehends his arrest, he has a remedy to apply for anticipatory bail under Section 438 Cr.P.C. and on the conditions of grant of anticipatory bail under Section 438 Cr.P.C being satisfied, he may be released on anticipatory bail by the competent court. Therefore, it cannot be said that the accused is remediless. It cannot be disputed that the anticipatory bail under Section 438 Cr.P.C. can be granted on the conditions prescribed under Section 438 Cr.P.C. are satisfied. At the same time, it is to be noted that arrest is not a must whenever an FIR of a cognizable offence is lodged. Still in case a person is apprehending his arrest in connection with an FIR disclosing cognizable offence, as observed hereinabove, he has a remedy to apply for anticipatory bail under Section 438 Cr.P.C. As observed by this Court in the case of Hema Mishra v. State of Uttar Pradesh, (2014) 4 SCC 453 , though the High Courts have very wide powers under Article 226, the powers under Article 226 of the Constitution of India are to be exercised to prevent miscarriage of justice and to prevent abuse of process of law by the authorities indiscriminately making pre-arrest of the accused persons. It is further observed that in entertaining such a petition under Article 226, the High Court is supposed to balance the two interests. On the one hand, the Court is to ensure that such a power under Article 226 is not to be exercised liberally so as to convert it into Section 438 Cr.P.C. proceedings. It is further observed that on the other hand whenever the High Court finds that in a given case if the protection against pre-arrest is not given, it would amount to gross miscarriage of justice and no case, at all, is made for arrest pending trial, the High Court would be free to grant the relief in the nature of anticipatory bail in exercise of its powers under Article 226 of the Constitution of India, keeping in mind that this power has to be exercised sparingly in those cases where it is absolutely warranted and justified. However, such a blanket interim order of not to arrest or no coercive steps cannot be passed mechanically and in a routine manner.17. So far as the order of not to arrest and/or no coercive steps till the final report/chargesheet is filed and/or during the course of investigation or not to arrest till the investigation is completed, passed while dismissing the quashing petitions under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India and having opined that no case is made out to quash the FIR/complaint is concerned, the same is wholly impermissible.18. This Court in the case of Habib Abdullah Jeelani (supra), as such, deprecated such practice/orders passed by the High Courts, directing police not to arrest, even while declining to interfere with the quashing petition in exercise of powers under Section 482 Cr.P.C. In the aforesaid case before this Court, the High Court dismissed the petition filed under Section 482 Cr.P.C. for quashing the FIR. However, while dismissing the quashing petition, the High Court directed the police not to arrest the petitioners during the pendency of the investigation. While setting aside such order, it is observed by this Court that such direction amounts to an order under Section 438 Cr.P.C., albeit without satisfaction of the conditions of the said provision and the same is legally unacceptable. In the aforesaid decision, it is specifically observed and held by this Court that it is absolutely inconceivable and unthinkable to pass an order directing the police not to arrest till the investigation is completed while declining to interfere or expressing opinion that it is not appropriate to stay the investigation. It is further observed that this kind of order is really inappropriate and unseemly and it has no sanction in law. It is further observed that the courts should oust and obstruct unscrupulous litigants from invoking the inherent jurisdiction of the Court on the drop of a hat to file an application for quashing of launching an FIR or investigation and then seek relief by an interim order. It is further observed that it is the obligation of the court to keep such unprincipled and unethical litigants at bay.In the aforesaid decision, this Court has further deprecated the orders passed by the High Courts, while dismissing the applications under Section 482 Cr.P.C. to the effect that if the petitioner-accused surrenders before the trial Magistrate, he shall be admitted to bail on such terms and conditions as deemed fit and appropriate to be imposed by the Magistrate concerned. It is observed that such orders are de hors the powers conferred under Section 438 Cr.P.C. That thereafter, this Court in paragraph 25 has observed as under:25. Having reminded the same, presently we can only say that the types of orders like the present one, are totally unsustainable, for it is contrary to the aforesaid settled principles and judicial precedents. It is intellectual truancy to avoid the precedents and issue directions which are not in consonance with law. It is the duty of a Judge to sustain the judicial balance and not to think of an order which can cause trauma to the process of adjudication. It should be borne in mid that the culture of adjudication is stabilised when intellectual discipline is maintained and further when such discipline constantly keeps guard on the mind.19. We are at pains to note that despite the law laid down by this Court in the case of Habib Abdullah Jeelani (supra), deprecating such orders passed by the High Courts of not to arrest during the pendency of the investigation, even when the quashing petitions under Section 482 Cr.P.C. or Article 226 of the Constitution of India are dismissed, even thereafter also, many High Courts are passing such orders. The law declared/laid down by this Court is binding on all the High Courts and not following the law laid down by this Court would have a very serious implications in the administration of justice.20. In the recent decision of this Court in the case of Ravuri Krishna Murthy (supra), this bench set aside the similar order passed by the Andhra Pradesh High Court of granting a blanket order of protection from arrest, even after coming to the conclusion that no case for quashing was established. The High Court while disposing of the quashing petition and while refusing to quash the criminal proceedings in exercise of powers under Section 482 Cr.P.C. directed to complete the investigation into the crime without arresting the second petitioner – A2 and file a final report, if any, in accordance with law. The High Court also further passed an order that the second petitioner – A2 to appear before the investigating agency as and when required and cooperate with the investigating agency. After considering the decision of this Court in the case of Habib Abdullah Jeelani (supra), this Court set aside the order passed by the High Court restraining the investigating officer from arresting the second accused.Thus, it has been found that despite absolute proposition of law laid down by this Court in the case of Habib Abdullah Jeelani (supra) that such a blanket order of not to arrest till the investigation is completed and the final report is filed, passed while declining to quash the criminal proceedings in exercise of powers under Section 482 Cr.P.C, as observed hereinabove, the High Courts have continued to pass such orders. Therefore, we again reiterate the law laid down by this Court in the case of Habib Abdullah Jeelani (supra) and we direct all the High Courts to scrupulously follow the law laid down by this Court in the case of Habib Abdullah Jeelani (supra) and the law laid down by this Court in the present case, which otherwise the High Courts are bound to follow. We caution the High Courts again against passing such orders of not to arrest or no coercive steps to be taken till the investigation is completed and the final report is filed, while not entertaining quashing petitions under Section 482 Cr.P.C. and/or Article 226 of the Constitution of India.21. Now so far as the legality of the impugned interim order passed by the High Court directing the investigating agency/police not to adopt any coercive steps against the accused is concerned, for the reasons stated hereinbelow, the same is unsustainable:i) that such a blanket interim order passed by the High Court affects the powers of the investigating agency to investigate into the cognizable offences, which otherwise is a statutory right/duty of the police under the relevant provisions of the Cr.P.C.;ii) that the interim order is a cryptic order;iii) that no reasons whatsoever have been assigned by the High Court, while passing such a blanket order of no coercive steps to be adopted by the police;iv) that it is not clear what the High Court meant by passing the order of not to adopt any coercive steps, as it is clear from the impugned interim order that it was brought to the notice of the High Court that so far as the accused are concerned, they are already protected by the interim protection granted by the learned Sessions Court, and therefore there was no further reason and/or justification for the High Court to pass such an interim order of no coercive steps to be adopted. If the High Court meant by passing such an interim order of no coercive steps directing the investigating agency/police not to further investigate, in that case, such a blanket order without assigning any reasons whatsoever and without even permitting the investigating agency to further investigate into the allegations of the cognizable offence is otherwise unsustainable. It has affected the right of the investigating agency to investigate into the cognizable offences. While passing such a blanket order, the High Court has not indicated any reasons.21.1 As observed and held by this Court in the case of Special Director v. Mohd. Ghulam Ghouse, (2004) 3 SCC 440 that though, while passing interim orders, it is not necessary to elaborately deal with the merits, it is certainly desirable and proper for the High Court to indicate the reasons which have weighed with it in granting such an extraordinary relief in the form of an interim protection.21.4 While considering the importance of the reasons to be given during the decision-making process, in the case of Kranti Associates (P) Ltd. v. Masood Ahmed, (2010) 9 SCC 496 , in paragraph 47, this Court has summarised as under:47. Summarising the above discussion, this Court holds:(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.(b) A quasi-judicial authority must record reasons in support of its conclusions.(c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.(d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.(e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations.(f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.(g) Reasons facilitate the process of judicial review by superior courts.(h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice.(i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants faith in the justice delivery system.(j) Insistence on reason is a requirement for both judicial accountability and transparency.(k) If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.(l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or rubber-stamp reasons is not to be equated with a valid decision-making process.(m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor [(1987) 100 Harvard Law Review 731-37] .)(n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain [(1994) 19 EHRR 553] EHRR, at 562 para 29 and Anya v. University of Oxford [2001 EWCA Civ 405 (CA)] , wherein the Court referred to Article 6 of the European Convention of Human Rights which requires,adequate and intelligent reasons must be given for judicial decisions.(o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of due process.Therefore, even while passing such an interim order, in exceptional cases with caution and circumspection, the High Court has to give brief reasons why it is necessary to pass such an interim order, more particularly when the High Court is exercising the extraordinary and inherent powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. Therefore, in the facts and circumstances of the case, the High Court has committed a grave error of law and also of facts in passing such an interim order of no coercive steps to be adopted and the same deserves to be quashed and set aside.Number of submissions and counter submissions have been made by the learned counsel for the respective parties. However, considering the fact that the quashing petition is yet to be considered by the High Court on merits, we do not propose to entertain the present application and enter into the merits of the allegations in the present application. However, it will sufficed to say that this Court has passed an interim order dated 12.10.2020, staying order dated 28.09.2020 passed by the High Court, by giving brief reasons and even if the documents/agreements which are alleged to have been suppressed would have been there, it would not have any bearing on the interim order passed by this Court. What is weighed while passing interim order dated 12.10.2020 is very clear from the interim order dated 12.10.2020. | 0 | 18,399 | 9,150 | ### Instruction:
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before the higher authority/Forum, contain reasons, however brief, in support of the grant or refusal thereof. It is further observed that in the absence of such reasons, it is virtually impossible for such higher authority/Forum to determine what persuaded the grant or refusal of relief. 21.3 In the case of Hindustan Times Limited v. Union of India, (1998) 2 SCC 242 , while emphasising on giving reasons by the High Court, it is observed that necessity to provide reasons, howsoever brief, in support of the High Courts conclusions is too obvious to be reiterated. Obligation to give reasons introduces clarity and excludes or at any rate minimises the changes of arbitrariness and the higher forum can test the correctness of those reasons. 21.4 While considering the importance of the reasons to be given during the decision-making process, in the case of Kranti Associates (P) Ltd. v. Masood Ahmed, (2010) 9 SCC 496 , in paragraph 47, this Court has summarised as under: 47. Summarising the above discussion, this Court holds: (a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. (b) A quasi-judicial authority must record reasons in support of its conclusions. (c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. (d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. (e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations. (f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. (g) Reasons facilitate the process of judicial review by superior courts. (h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice. (i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants faith in the justice delivery system. (j) Insistence on reason is a requirement for both judicial accountability and transparency. (k) If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. (l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or rubber-stamp reasons is not to be equated with a valid decision-making process. (m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor [(1987) 100 Harvard Law Review 731-37] .) (n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain [(1994) 19 EHRR 553] EHRR, at 562 para 29 and Anya v. University of Oxford [2001 EWCA Civ 405 (CA)] , wherein the Court referred to Article 6 of the European Convention of Human Rights which requires, adequate and intelligent reasons must be given for judicial decisions. (o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of due process. Therefore, even while passing such an interim order, in exceptional cases with caution and circumspection, the High Court has to give brief reasons why it is necessary to pass such an interim order, more particularly when the High Court is exercising the extraordinary and inherent powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. Therefore, in the facts and circumstances of the case, the High Court has committed a grave error of law and also of facts in passing such an interim order of no coercive steps to be adopted and the same deserves to be quashed and set aside. Criminal Miscellaneous Petition No. 4961 of 2021 22. Criminal Miscellaneous Petition No. 4961 of 2021 has been preferred by respondent nos. 2 to 4 herein – original accused under Section 340 r/w Section 195 (1)(B), Cr.P.C. for initiating action against the appellant. It is alleged that the appellant has suppressed the vital documents/agreements and the facts and by suppressing the material documents/agreements and the facts has obtained an interim order dated 12.10.2020 from this Court, staying order dated 28.09.2020 passed by the High Court. Number of submissions and counter submissions have been made by the learned counsel for the respective parties. However, considering the fact that the quashing petition is yet to be considered by the High Court on merits, we do not propose to entertain the present application and enter into the merits of the allegations in the present application. However, it will sufficed to say that this Court has passed an interim order dated 12.10.2020, staying order dated 28.09.2020 passed by the High Court, by giving brief reasons and even if the documents/agreements which are alleged to have been suppressed would have been there, it would not have any bearing on the interim order passed by this Court. What is weighed while passing interim order dated 12.10.2020 is very clear from the interim order dated 12.10.2020.
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adopt any coercive steps, as it is clear from the impugned interim order that it was brought to the notice of the High Court that so far as the accused are concerned, they are already protected by the interim protection granted by the learned Sessions Court, and therefore there was no further reason and/or justification for the High Court to pass such an interim order of no coercive steps to be adopted. If the High Court meant by passing such an interim order of no coercive steps directing the investigating agency/police not to further investigate, in that case, such a blanket order without assigning any reasons whatsoever and without even permitting the investigating agency to further investigate into the allegations of the cognizable offence is otherwise unsustainable. It has affected the right of the investigating agency to investigate into the cognizable offences. While passing such a blanket order, the High Court has not indicated any reasons.21.1 As observed and held by this Court in the case of Special Director v. Mohd. Ghulam Ghouse, (2004) 3 SCC 440 that though, while passing interim orders, it is not necessary to elaborately deal with the merits, it is certainly desirable and proper for the High Court to indicate the reasons which have weighed with it in granting such an extraordinary relief in the form of an interim protection.21.4 While considering the importance of the reasons to be given during the decision-making process, in the case of Kranti Associates (P) Ltd. v. Masood Ahmed, (2010) 9 SCC 496 , in paragraph 47, this Court has summarised as under:47. Summarising the above discussion, this Court holds:(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.(b) A quasi-judicial authority must record reasons in support of its conclusions.(c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.(d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.(e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations.(f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.(g) Reasons facilitate the process of judicial review by superior courts.(h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice.(i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants faith in the justice delivery system.(j) Insistence on reason is a requirement for both judicial accountability and transparency.(k) If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.(l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or rubber-stamp reasons is not to be equated with a valid decision-making process.(m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor [(1987) 100 Harvard Law Review 731-37] .)(n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain [(1994) 19 EHRR 553] EHRR, at 562 para 29 and Anya v. University of Oxford [2001 EWCA Civ 405 (CA)] , wherein the Court referred to Article 6 of the European Convention of Human Rights which requires,adequate and intelligent reasons must be given for judicial decisions.(o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of due process.Therefore, even while passing such an interim order, in exceptional cases with caution and circumspection, the High Court has to give brief reasons why it is necessary to pass such an interim order, more particularly when the High Court is exercising the extraordinary and inherent powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. Therefore, in the facts and circumstances of the case, the High Court has committed a grave error of law and also of facts in passing such an interim order of no coercive steps to be adopted and the same deserves to be quashed and set aside.Number of submissions and counter submissions have been made by the learned counsel for the respective parties. However, considering the fact that the quashing petition is yet to be considered by the High Court on merits, we do not propose to entertain the present application and enter into the merits of the allegations in the present application. However, it will sufficed to say that this Court has passed an interim order dated 12.10.2020, staying order dated 28.09.2020 passed by the High Court, by giving brief reasons and even if the documents/agreements which are alleged to have been suppressed would have been there, it would not have any bearing on the interim order passed by this Court. What is weighed while passing interim order dated 12.10.2020 is very clear from the interim order dated 12.10.2020.
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Sree Raghuthilakathirtha Sreepadangalavaru Swamiji Vs. The State Of Mysore And Others | case (1874) 2 Sc and Div 352, appears to have been treated as an authority for the proposition that an order like the one passed by the Magistrates in that case amounted to an evasion of the Parliamentary statute, because it was not in honest and bona fide exercise of the discretion vested in them. (Maxwell on Interpretation of Statutes, 11th Edition, p. 121 and Craies on Statute Law, 5th Edition, p. 75).17. But assuming that the proposition for which Mr. Shukla contends on the authority of the decision in Macbeths case (1874) 2 Sc and Div 352, is sound, does it apply to S. 6 at all and the answer to this question will depend upon the construction of the provisions contained in the two sub-clauses of S. 6. It would be noticed that S. 6 (1) declares a maximum beyond which no landlord can recover rent from his tenant. In other words, as soon as the Act came into force a ceiling was fixed beyond which the landlord cannot recover rent from his tenant even though it may be justified by agreement usage, decree or order of a Court or any other law. The provisions of this subsection apply individually and severally to all agricultural leases and govern the relations of individual landlords and tenants in respect of payment of rent by the latter to the former. The fixation of the maximum by sub-s. (1) is really not intended to lay down a general rule as to what a landlord should recover from his tenant and it is in that sense alone that its relation to the provisions of sub-s. (2) must be judged. In that connection we may point out that there is one proviso to S. 6 (1) which deals with cases of tenants who do not cultivate the land and it lays down that in their case the rent shall be reasonable rent to be fixed by the Amildar.18. Sub-section (2) is so worded that in terms it cannot be said to be a proviso to sub-s. (1) and in substance it is not such a proviso nor is it an exception to sub-s. (1). Having prescribed the maximum beyond which agricultural rent cannot go under S. 6 (1) the legislature has permitted the Government to fix a lower rate of the maximum rent in respect of lands situated in particular areas. The Government has also been authorised to fix the payment of rent on any other suitable basis as it thinks fit. In other words, the authority conferred on the Government is either to fix a lower rate or to fix any other basis on which the rent could be fixed. This provision is an independent provision and so the two sub-sections must be read as different, independent, though co-ordinate, provisions of the Statute. It would, we think, be erroneous to treat sub-s. (2) as a proviso or exception to sub-s. (1). Whereas sub-s. (1) deals with and applies to all leases individually and prescribes a ceiling in that behalf, sub-s. (2) is intended to prescribe a maximum by reference to different areas in the State. The object of both the provisions is no doubt similar but it is not the same and the relation between them cannot legitimately be treated as the relation between the general rule and the proviso or exception to it.19. The argument that by issuing the notification the Government has purported to amend S. 6 (1) is, in our opinion, not well founded. As we have already seen, S. 6 (1) is intended to apply to all the agricultural leases until a notification is issued under S. 6 (2) in respect of the areas where the leased lands may be situated. It is not suggested that under S. 6 (2) it is necessary that the Government must fix the lower rates by reference to individual lands and so there can be no doubt that even on the appellants argument it would be competent to the Government to fix lower rents, say district-wise. If instead of prescribing the lower rates district-wise after classifying the lands into two categories which are well recognised, the Government prescribed the rates by reference to the said categories of lands throughout the State, we do not see how the said notification can be said to be inconsistent with S. 6 (2) or with S. 6 (1) either. The scheme of S. 6 does not seem to postulate that after the notifications are issued under S. 6 (2) some area must inevitably be left to be covered by S. 6 (1). Such an assumption would be inconsistent with the object underlying the said provision itself. What S. 6 (1) has done is to fix a general ceiling apart from the areas and without considering the special factors appertaining to them. Having thus fixed a general ceiling the Legislature realised that the ceiling may have to be changed from area to area and so power was conferred on the Government to fix the ceiling at a lower rate. The Government having examined the matter came to the conclusion that the more equitable and reasonable course to adopt would be to divide the agricultural lands into two well known categories and fix the ceiling by reference to them. Now in the very nature of things, the Legislature must have anticipated that the exercise of the power under S. 6 (2) might cover all the areas in the State and that may mean that the general ceiling prescribed by S. 6 (1) may not apply to any land which is covered by the notification.If S. 6 (1) is not a general rule and S. 6 (2) is not an exception to it, then the consequence flowing from the issue of the impugned notification cannot be characterised as an exception swallowing up the general rule. That, in substance, is the view which the Mysore High Court has taken in the matter and we think that the said view is right. | 0[ds]The Act has been passed by the Mysore Legislature because it was thought necessary to regulate the law which governs the relations of landlords and tenants of agricultural lands and to regulate and impose restrictions on the transfer of agricultural lands, dwelling houses, sites and lands appurtenant thereto belonging to or occupied by agriculturists in the State of Mysore except Bellary District and to make provisions for certain other purposes appearing in the Act. That is the recital contained in the preamble to the Act. It would thus be seen that the primary object of the Act is to afford much needed relief to the agricultural tenants by regulating their relations with their landlords and in that respect the Act bears a very close resemblance to the provisions of the Bombay Tenancy and Agricultural Lands Act, LXVII of 1948. Indeed, the material provisions of the Act with which we are concerned are substantiallyAs we have already indicated, the provisions of the twoof S. 6 are substantially similar to the provisions of S. 6 (1) and (2) of the corresponding Bombay Act. Indeed, it would be correct to say that the Act with which we are concerned has been modelled on the pattern of the Bombay Act and has adopted most of its important provisions. The validity of S. 6 of the Bombay Act was challenged before this Court in "Vasantlal Maganbhai Sanjanwala v. State of Bombay, (1961) 1 SCR 341 : (AIR 1961 SC 4 )", and it has been held that the said section is valid.The reasons given by this Court in upholding the validity of S. 6 of the Bombay Act apply with equal force in support of the validity of S. 6 of the Mysore Act and so the point raised by the appellant in challenging the validity of the impugned section is really covered by the earlier decision of thisare not impressed by this argument. It is true that the preamble to the Act merely says that the Act was passed because it was thought necessary to regulate the law which governs the relations of landlords and tenants of agricultural lands and it does not refer to the requirement of social justice or does not specifically mention the object of ensuring the full and efficient use of land for agriculture.But in dealing with a law which has been passed for the purpose of effecting an agrarian reform it would be pedantic to ignore the essential basis of its material provisions merely on the ground that the concept of social justice on which the said provisions are based has not been expressly stated to be one of the objects of the Act in the preamble. We have already examined briefly the broad scheme of the Act and it is obvious that the important provisions of the Act are intended to improve the economic and social conditions of the agricultural tenants and so the policy of social justice can be safely said to be writ large on the face of the Act. Therefore, we do not think that the argument based upon the fact that the preamble does not refer to social justice distinguishes S. 6 of the Act from the corresponding section of the Bombay Act.9. Then it is urged that unlike the Mysore Act, the Bombay Act has distinguished between irrigated land andland and has provided by S. 6 (1) that the maximum rent payable in the case of irrigated land shall not exceedand in the case of other lands shall not exceedof the crop of such land or its value as determined in the prescribed manner.It is true that S. 6 (1) of the Act makes no such distinction between irrigated andlands. But that, in our opinion, is not a matter of essential importance. Like S. 6 (1) of the Bombay Act S. 6 (1) of the Act also intends to provide for a maximum ceiling beyond which agricultural rent will not be allowed to soar and so far as the fixation of a maximum ceiling of rent is concerned it is not essential that a distinction must necessarily be made between irrigated lands andlands. It must be borne in mind that what the section does is to prescribe the maximum and not to provide for a minimum. In prescribing a maximum it may be open to the Legislature to provide for a maximum which would be common to all lands whether irrigated or not. That is why we are not inclined to attach any importance to the point that in the absence of classification of lands while prescribing a maximum S. 6 (1) suffers from any infirmity.10. Then it is argued that the Bombay Act while prescribing a maximum has taken the precaution of also prescribing a minimum and the absence of the latter provision makes a material difference. This argument is clearly misconceived. It is true that S. 8 of the Bombay Act which had been inserted by the Bombay Legislature in 1956 did provide for the maximum and the minimum rent, but as the decision of this Court in the case of Sanjanwala, (1961) 1 SCR 341 : (AIR 1961 SC 4 ) (supra) shows in upholding the validity of the impugned provision of the Bombay Act no reliance was placed upon the fixation of the minimum rent. Indeed, the minimum rent was fixed subsequent to the decision of the High Court which was under appeal before this Court in that case and the fact that a minimum had been prescribed subsequently has been only incidentally mentioned in the judgment. Therefore, the absence of a provision fixing the minimum rent does not introduce any infirmity in the impugned provision. We are, therefore, satisfied that the case of the impugned section is substantially similar to the case of S. 6 of the Bombay Act with which this Court was concerned in the case of Sanjanwala, (1961) 1 SCR 341 : (AIR 1961 SC 4 ), and the challenge to the validity of the section in the present appeal must, therefore, be held to be covered by the said decision.It appears that 11 oclock at night was the hour appointed for closingin Scotland, although in special cases, and for well considered reasons, a deviation was allowed with reference to any particular locality really requiring it. The Magistrates of Rothesay had ordered for closing at 10 instead of 11 and the effect of the order was that it embraced everyin the burgh. The House of Lords held that the Magistrates order was ultra vires. The statutory provision with which the House of Lords was concerned was contained in the Act of Parliament, 25 and 26 Vict. c. 35. As a result of these provisions 11 oclock at night was appointed to be the hour for closing public houses. There was, however, a proviso which said inter alia that in any particular locality requiring other hours for opening and closing inns, hotels and public houses it shall be lawful for such Justices and Magistrates respectively to insert in the schedule such other hours, not being earlier than six or later than eight oclock in the morning for opening, or earlier than nine oclock or later than eleven oclock in the evening for closing the same as they shall think fit. It is in pursuance of the authority conferred on them by the said proviso that the Magistrates of Rothesay passed an order embracing everyin the burgh by which a deviation from the statutorily fixed hour was effected.15. In dealing with the validity of the order issued by the Magistrates Lord Chancellor Lord Cairns expressed his opinion that if the exception is to swallow up the rule it ceases, of course, to be an exception at all and that which might fairly have been an exercise of discretion becomes no exercise of the kind of discretion mentioned in the Act of Parliament. It was for this reason that the order issued by the Magistrates was declared to be ultra vires. It was conceded that the Magistrates had a discretion, but the Lord Chancellor observed that the words "conferring discretion" expressly bear with reference to a particular locality and not with the whole burgh. What should be true about the whole burgh had been treated as a matter reserved for and determined by the consideration of the Imperial Parliament. The Lord Chancellor did not express any opinion on the question as to whether the discretion vested in the magistrates can be exercised by them more than once but without deciding that point he held that the order of the Magistrates really amounted to evading an Act of Parliament. In substance, the Magistrates had once for all attempted with regard to all thein their district to change the rule laid down by the Act of Parliament. Lord Chelmsford, who concurred with the opinion expressed by the Lord Chancellor, rested his conclusion on the ground that it was impossible to say that the limits which the Magistrates had defined could be called a particular locality within burgh and so it appeared that what the magistrates had done was something very like an attempt to evade the Act of Parliament. According to Lord Selborne, the participle "requiring" is connected with the substantive "locality" and, therefore, it must be a requirement arising out of the particular circumstances of the place. That is why Lord Selborne thought that the Magistrates must, in exercise of an honest and bona fide judgment, be of opinion that the particular locality which they except from the ordinary rule is one which, from its own special circumstances, requires that difference to be made.16. It would thus be seen that though the general basis of the decision, as it has been expressed by Lord Cairns, appears to be that the exception cannot swallow up the rule one of the reasons which ultimately influenced the decision was that the discretion had to be exercised bona fide and after due deliberation in respect of a particular locality and that the manner in which the order was issued indicated that the requirements of the particular localities had not been duly examined by the Magistrates. It is significant that though Lord Cairns posed the question as to whether the discretion in question can be exercised more than once, he did not choose to answer it; but the trend of the opinions expressed by the Law Lords during the course of their speeches may seem to suggest that the discretion cannot be exercised more than once and in any case, it must be exercised by special reference to the particular locality as indicated by the proviso. If an order is made in respect of the whole of the burgh, it cannot be said that it has been passed after exercising due discretion in respect of the requirements of each particular locality. With respect, if the discretion is given to the Magistrates to provide for a departure from the rule prescribed by the general provision by reference to particular localities, it is not easy to see why the said discretion cannot be exercised more than once. Indeed, situations may arise when the Magistrates may have to consider the matter from time to time in respect of different localities and if it appears to the Magistrates considering the cases of different localities that in regard to each one of them a departure from the general rule should be made, it is not easy to follow why the proviso does not justify different orders being passed by the Magistrates in respect of different but particular localities. On the other hand, if the main provision is construed to mean that the time prescribed by it was to apply generally only with certain exceptions contemplated by the proviso, that would be a different matter. However, it is not necessary for us to pursue this point further and to express a definite opinion on the general proposition that an exception cannot swallow the general rule, because, as we will presently show, this rule cannot be applied to the provisions of S. 6 at all. In this connection, we may, however, point out that both in Maxwell and in Craies, the decision in Macbeths case (1874) 2 Sc and Div 352, appears to have been treated as an authority for the proposition that an order like the one passed by the Magistrates in that case amounted to an evasion of the Parliamentary statute, because it was not in honest and bona fide exercise of the discretion vested in them. (Maxwell on Interpretation of Statutes, 11th Edition, p. 121 and Craies on Statute Law, 5th Edition, p. 75).17. But assuming that the proposition for which Mr. Shukla contends on the authority of the decision in Macbeths case (1874) 2 Sc and Div 352, is sound, does it apply to S. 6 at all and the answer to this question will depend upon the construction of the provisions contained in the twoof S. 6. It would be noticed that S. 6 (1) declares a maximum beyond which no landlord can recover rent from his tenant. In other words, as soon as the Act came into force a ceiling was fixed beyond which the landlord cannot recover rent from his tenant even though it may be justified by agreement usage, decree or order of a Court or any other law. The provisions of this subsection apply individually and severally to all agricultural leases and govern the relations of individual landlords and tenants in respect of payment of rent by the latter to the former. The fixation of the maximum by(1) is really not intended to lay down a general rule as to what a landlord should recover from his tenant and it is in that sense alone that its relation to the provisions of(2) must be judged. In that connection we may point out that there is one proviso to S. 6 (1) which deals with cases of tenants who do not cultivate the land and it lays down that in their case the rent shall be reasonable rent to be fixed by the Amildar.18.(2) is so worded that in terms it cannot be said to be a proviso to(1) and in substance it is not such a proviso nor is it an exception to(1). Having prescribed the maximum beyond which agricultural rent cannot go under S. 6 (1) the legislature has permitted the Government to fix a lower rate of the maximum rent in respect of lands situated in particular areas. The Government has also been authorised to fix the payment of rent on any other suitable basis as it thinks fit. In other words, the authority conferred on the Government is either to fix a lower rate or to fix any other basis on which the rent could be fixed. This provision is an independent provision and so the twomust be read as different, independent, thoughprovisions of the Statute. It would, we think, be erroneous to treat(2) as a proviso or exception to(1) deals with and applies to all leases individually and prescribes a ceiling in that behalf,(2) is intended to prescribe a maximum by reference to different areas in the State. The object of both the provisions is no doubt similar but it is not the same and the relation between them cannot legitimately be treated as the relation between the general rule and the proviso or exception to it.19. The argument that by issuing the notification the Government has purported to amend S. 6 (1) is, in our opinion, not well founded. As we have already seen, S. 6 (1) is intended to apply to all the agricultural leases until a notification is issued under S. 6 (2) in respect of the areas where the leased lands may be situated. It is not suggested that under S. 6 (2) it is necessary that the Government must fix the lower rates by reference to individual lands and so there can be no doubt that even on the appellants argument it would be competent to the Government to fix lower rents, sayIf instead of prescribing the lower ratesafter classifying the lands into two categories which are well recognised, the Government prescribed the rates by reference to the said categories of lands throughout the State, we do not see how the said notification can be said to be inconsistent with S. 6 (2) or with S. 6 (1) either. The scheme of S. 6 does not seem to postulate that after the notifications are issued under S. 6 (2) some area must inevitably be left to be covered by S. 6 (1). Such an assumption would be inconsistent with the object underlying the said provision itself. What S. 6 (1) has done is to fix a general ceiling apart from the areas and without considering the special factors appertaining to them. Having thus fixed a general ceiling the Legislature realised that the ceiling may have to be changed from area to area and so power was conferred on the Government to fix the ceiling at a lower rate. The Government having examined the matter came to the conclusion that the more equitable and reasonable course to adopt would be to divide the agricultural lands into two well known categories and fix the ceiling by reference to them. Now in the very nature of things, the Legislature must have anticipated that the exercise of the power under S. 6 (2) might cover all the areas in the State and that may mean that the general ceiling prescribed by S. 6 (1) may not apply to any land which is covered by the notification.If S. 6 (1) is not a general rule and S. 6 (2) is not an exception to it, then the consequence flowing from the issue of the impugned notification cannot be characterised as an exception swallowing up the general rule. That, in substance, is the view which the Mysore High Court has taken in the matter and we think that the said view is right. | 0 | 4,940 | 3,274 | ### Instruction:
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case (1874) 2 Sc and Div 352, appears to have been treated as an authority for the proposition that an order like the one passed by the Magistrates in that case amounted to an evasion of the Parliamentary statute, because it was not in honest and bona fide exercise of the discretion vested in them. (Maxwell on Interpretation of Statutes, 11th Edition, p. 121 and Craies on Statute Law, 5th Edition, p. 75).17. But assuming that the proposition for which Mr. Shukla contends on the authority of the decision in Macbeths case (1874) 2 Sc and Div 352, is sound, does it apply to S. 6 at all and the answer to this question will depend upon the construction of the provisions contained in the two sub-clauses of S. 6. It would be noticed that S. 6 (1) declares a maximum beyond which no landlord can recover rent from his tenant. In other words, as soon as the Act came into force a ceiling was fixed beyond which the landlord cannot recover rent from his tenant even though it may be justified by agreement usage, decree or order of a Court or any other law. The provisions of this subsection apply individually and severally to all agricultural leases and govern the relations of individual landlords and tenants in respect of payment of rent by the latter to the former. The fixation of the maximum by sub-s. (1) is really not intended to lay down a general rule as to what a landlord should recover from his tenant and it is in that sense alone that its relation to the provisions of sub-s. (2) must be judged. In that connection we may point out that there is one proviso to S. 6 (1) which deals with cases of tenants who do not cultivate the land and it lays down that in their case the rent shall be reasonable rent to be fixed by the Amildar.18. Sub-section (2) is so worded that in terms it cannot be said to be a proviso to sub-s. (1) and in substance it is not such a proviso nor is it an exception to sub-s. (1). Having prescribed the maximum beyond which agricultural rent cannot go under S. 6 (1) the legislature has permitted the Government to fix a lower rate of the maximum rent in respect of lands situated in particular areas. The Government has also been authorised to fix the payment of rent on any other suitable basis as it thinks fit. In other words, the authority conferred on the Government is either to fix a lower rate or to fix any other basis on which the rent could be fixed. This provision is an independent provision and so the two sub-sections must be read as different, independent, though co-ordinate, provisions of the Statute. It would, we think, be erroneous to treat sub-s. (2) as a proviso or exception to sub-s. (1). Whereas sub-s. (1) deals with and applies to all leases individually and prescribes a ceiling in that behalf, sub-s. (2) is intended to prescribe a maximum by reference to different areas in the State. The object of both the provisions is no doubt similar but it is not the same and the relation between them cannot legitimately be treated as the relation between the general rule and the proviso or exception to it.19. The argument that by issuing the notification the Government has purported to amend S. 6 (1) is, in our opinion, not well founded. As we have already seen, S. 6 (1) is intended to apply to all the agricultural leases until a notification is issued under S. 6 (2) in respect of the areas where the leased lands may be situated. It is not suggested that under S. 6 (2) it is necessary that the Government must fix the lower rates by reference to individual lands and so there can be no doubt that even on the appellants argument it would be competent to the Government to fix lower rents, say district-wise. If instead of prescribing the lower rates district-wise after classifying the lands into two categories which are well recognised, the Government prescribed the rates by reference to the said categories of lands throughout the State, we do not see how the said notification can be said to be inconsistent with S. 6 (2) or with S. 6 (1) either. The scheme of S. 6 does not seem to postulate that after the notifications are issued under S. 6 (2) some area must inevitably be left to be covered by S. 6 (1). Such an assumption would be inconsistent with the object underlying the said provision itself. What S. 6 (1) has done is to fix a general ceiling apart from the areas and without considering the special factors appertaining to them. Having thus fixed a general ceiling the Legislature realised that the ceiling may have to be changed from area to area and so power was conferred on the Government to fix the ceiling at a lower rate. The Government having examined the matter came to the conclusion that the more equitable and reasonable course to adopt would be to divide the agricultural lands into two well known categories and fix the ceiling by reference to them. Now in the very nature of things, the Legislature must have anticipated that the exercise of the power under S. 6 (2) might cover all the areas in the State and that may mean that the general ceiling prescribed by S. 6 (1) may not apply to any land which is covered by the notification.If S. 6 (1) is not a general rule and S. 6 (2) is not an exception to it, then the consequence flowing from the issue of the impugned notification cannot be characterised as an exception swallowing up the general rule. That, in substance, is the view which the Mysore High Court has taken in the matter and we think that the said view is right.
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be applied to the provisions of S. 6 at all. In this connection, we may, however, point out that both in Maxwell and in Craies, the decision in Macbeths case (1874) 2 Sc and Div 352, appears to have been treated as an authority for the proposition that an order like the one passed by the Magistrates in that case amounted to an evasion of the Parliamentary statute, because it was not in honest and bona fide exercise of the discretion vested in them. (Maxwell on Interpretation of Statutes, 11th Edition, p. 121 and Craies on Statute Law, 5th Edition, p. 75).17. But assuming that the proposition for which Mr. Shukla contends on the authority of the decision in Macbeths case (1874) 2 Sc and Div 352, is sound, does it apply to S. 6 at all and the answer to this question will depend upon the construction of the provisions contained in the twoof S. 6. It would be noticed that S. 6 (1) declares a maximum beyond which no landlord can recover rent from his tenant. In other words, as soon as the Act came into force a ceiling was fixed beyond which the landlord cannot recover rent from his tenant even though it may be justified by agreement usage, decree or order of a Court or any other law. The provisions of this subsection apply individually and severally to all agricultural leases and govern the relations of individual landlords and tenants in respect of payment of rent by the latter to the former. The fixation of the maximum by(1) is really not intended to lay down a general rule as to what a landlord should recover from his tenant and it is in that sense alone that its relation to the provisions of(2) must be judged. In that connection we may point out that there is one proviso to S. 6 (1) which deals with cases of tenants who do not cultivate the land and it lays down that in their case the rent shall be reasonable rent to be fixed by the Amildar.18.(2) is so worded that in terms it cannot be said to be a proviso to(1) and in substance it is not such a proviso nor is it an exception to(1). Having prescribed the maximum beyond which agricultural rent cannot go under S. 6 (1) the legislature has permitted the Government to fix a lower rate of the maximum rent in respect of lands situated in particular areas. The Government has also been authorised to fix the payment of rent on any other suitable basis as it thinks fit. In other words, the authority conferred on the Government is either to fix a lower rate or to fix any other basis on which the rent could be fixed. This provision is an independent provision and so the twomust be read as different, independent, thoughprovisions of the Statute. It would, we think, be erroneous to treat(2) as a proviso or exception to(1) deals with and applies to all leases individually and prescribes a ceiling in that behalf,(2) is intended to prescribe a maximum by reference to different areas in the State. The object of both the provisions is no doubt similar but it is not the same and the relation between them cannot legitimately be treated as the relation between the general rule and the proviso or exception to it.19. The argument that by issuing the notification the Government has purported to amend S. 6 (1) is, in our opinion, not well founded. As we have already seen, S. 6 (1) is intended to apply to all the agricultural leases until a notification is issued under S. 6 (2) in respect of the areas where the leased lands may be situated. It is not suggested that under S. 6 (2) it is necessary that the Government must fix the lower rates by reference to individual lands and so there can be no doubt that even on the appellants argument it would be competent to the Government to fix lower rents, sayIf instead of prescribing the lower ratesafter classifying the lands into two categories which are well recognised, the Government prescribed the rates by reference to the said categories of lands throughout the State, we do not see how the said notification can be said to be inconsistent with S. 6 (2) or with S. 6 (1) either. The scheme of S. 6 does not seem to postulate that after the notifications are issued under S. 6 (2) some area must inevitably be left to be covered by S. 6 (1). Such an assumption would be inconsistent with the object underlying the said provision itself. What S. 6 (1) has done is to fix a general ceiling apart from the areas and without considering the special factors appertaining to them. Having thus fixed a general ceiling the Legislature realised that the ceiling may have to be changed from area to area and so power was conferred on the Government to fix the ceiling at a lower rate. The Government having examined the matter came to the conclusion that the more equitable and reasonable course to adopt would be to divide the agricultural lands into two well known categories and fix the ceiling by reference to them. Now in the very nature of things, the Legislature must have anticipated that the exercise of the power under S. 6 (2) might cover all the areas in the State and that may mean that the general ceiling prescribed by S. 6 (1) may not apply to any land which is covered by the notification.If S. 6 (1) is not a general rule and S. 6 (2) is not an exception to it, then the consequence flowing from the issue of the impugned notification cannot be characterised as an exception swallowing up the general rule. That, in substance, is the view which the Mysore High Court has taken in the matter and we think that the said view is right.
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Nemi Chand Jain Vs. State Transport Appellate Tribunal, M.P., Gwalior & Others | Nawaz Bus Service. The appellant felt aggrieved because, according to him, the tribunal dismissed his appeal without giving him a hearing. The precise grievance was that when the case was taken up for hearing on January 11, 1974, the parties were present, but the tribunal adjourned the case for final hearing on March 11, 1974, at Gwalior. No one however appeared on behalf of Khuwaja Garib Nawaz Bus Service in its appeal 329 of 1972, on March 11, 1974, while counsel for appellant Nemi Chand and one other respondent were present. The tribunal did not hear those present and reserved the appeal for orders along with the connected appeals. One Trivedi however appeared before the tribunal on behalf of Khuwaja Garib Nawaz Bus Service on April 10, 1974. The tribunals order sheet of that date recorded that Shri Trivedi stated before the tribunal that he could not attend on the last date due to unavoidable reasons and that his appeal maybe considered on merits as urged in the memorandum of appeal. The tribunal thereafter passed the aforesaid order dated April 29, 1974 by which it set aside the Regional Transport Authoritys order in favour of appellant Nemi Chand and granted the permit to Khuwaja Garib Nawaz Bus Service. The appellant thereupon filed the aforesaid Miscellaneous Writ Petition 394 of 1974. Two other unsuccessful applicants did the same, but we are not concerned with them. As the High Court has dismissed the appellants writ petition by its impugned order dated January 3, 1975, Nemi Chand has filed the present appeal.3. The short question for consideration is whether there is justification for the argument of the counsel for the appellant that the tribunal disposed of the appeal and set aside the Regional Transport Authoritys order in his favour without hearing the appellant.4. It is not disputed before us, and is in fact quite clear from the notes of the proceedings of the tribunal, that when appeal 320 of 1972 of Khuwaja Garib Nawaz Bus Service was taken up for hearing by the tribunal, on March 11, 1974, no one was present on behalf of Khuwaja Garib Nawaz Bus Service which was the appellant. The counsel for respondent Nemi Chand, who is the present appellant, was present, but the tribunal did not hear anyone and simply reserved the case for order along with the connected appeals. There is therefore justification for the argument of the counsel for appellant Nemi Chand that he remained under the impression that the tribunal did not think it necessary to hear the arguments of the respondents as it had made up its mind not to make an order against them and to dismiss the appeal. It will be recalled that the tribunal simply recorded an order on March 11, 1974 reserving the case for decision along with the other appeals. There could therefore be no question of allowing the appellant to appear thereafter, without notice to the respondents, and at their back. The tribunal however allowed Shri Trivedi to appear on behalf of Khuwaja Garib Nawaz Bus Service on April 10, 1974, which had not been fixed as the date for taking up the case. Moreover the tribunal allowed Shri Trivedi to say that he could not attend the tribunal on the last date due to unavoidable reasons and that his appeal may be considered on merits as urged in the memorandum of appeal. Surprisingly enough, the tribunal gave that hearing to Shri Trivedi at the back of the respondents and did not even inform them that it had done so. The tribunal followed that up by its order dated April 29, 1974 by which the order granting the permit to Nemi Chand was set aside and the permit was granted to Khuwaja Garib Nawaz Bus Service. Nemi Chand was therefore taken by surprise for, as has been urged by his counsel, he could justifiably conclude that as appellant Khuwaja Garib Nawaz Bus Service did not appear on March 11, 1974, and the tribunal did not hear the respondents who were present, and reserved the appeal for order, the tribunal was not going to make an adverse order. At any rate, there can be no doubt that Nemi Chand was condemned unheard. His grievance in that respect is justified and should be removed.5. Mr. Mehta appearing for the respondent has argued that the tribunal was justified in not dismissing the appeal on March 11, 1974 for non-prosecution on behalf of appellant Khuwaja Garib Nawaz Bus Service for, according to him, that was not permissible under Section 64 of the Motor Vehicles Act. Reference in this connection has been made to Vajesingh Salambhai Naik v. State of Gujarat [1966 Supp SCR 139 : AIR 1967 SC 148 ] and to the decision of the Madhya Pradesh High Court dated December 3, 1975 in Asghar Ali Haji Mulla Tayyabali [Miscellaneous Petition 1225 of 1975 decided on December 3, 1975 (MP)]. We do not think it necessary to examine the correctness of the legal proposition advanced by Mr. Mehta, but even if it were assumed that the appeal could not be dismissed for want of prosecution on March 11, 1974, it was not, for reasons already stated, permissible for the tribunal to allow Shri Trivedi to appear before it on April 10, 1974, and to make his submissions at the back of the respondents. So also, it was not permissible for the tribunal to give a decision adverse to the respondents on the merits, on the basis of the grounds which had been urged in the memorandum of the appeal and to condemn respondent Nemi Chand without informing him of the developments which had taken place on April 10, 1974 and without giving him a hearing. The decision in Vajesingh Salambhai Naiks case which was followed in Asghar Ali Haji Mulla Tayyabali turned on the provisions of Section 17(1) and 20 of the Bombay Merged Territories and Areas (Jagir Abolition) Act, 1953, were quite different, and is not directly in point. | 1[ds]We do not think it necessary to examine the correctness of the legal proposition advanced by Mr. Mehta, but even if it were assumed that the appeal could not be dismissed for want of prosecution on March 11, 1974, it was not, for reasons already stated, permissible for the tribunal to allow Shri Trivedi to appear before it on April 10, 1974, and to make his submissions at the back of the respondents. So also, it was not permissible for the tribunal to give a decision adverse to the respondents on the merits, on the basis of the grounds which had been urged in the memorandum of the appeal and to condemn respondent Nemi Chand without informing him of the developments which had taken place on April 10, 1974 and without giving him a hearing. The decision in Vajesingh Salambhai Naiks case which was followed in Asghar Ali Haji Mulla Tayyabali turned on the provisions of Section 17(1) and 20 of the Bombay Merged Territories and Areas (Jagir Abolition) Act, 1953, were quite different, and is not directly in point. | 1 | 1,275 | 205 | ### Instruction:
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Nawaz Bus Service. The appellant felt aggrieved because, according to him, the tribunal dismissed his appeal without giving him a hearing. The precise grievance was that when the case was taken up for hearing on January 11, 1974, the parties were present, but the tribunal adjourned the case for final hearing on March 11, 1974, at Gwalior. No one however appeared on behalf of Khuwaja Garib Nawaz Bus Service in its appeal 329 of 1972, on March 11, 1974, while counsel for appellant Nemi Chand and one other respondent were present. The tribunal did not hear those present and reserved the appeal for orders along with the connected appeals. One Trivedi however appeared before the tribunal on behalf of Khuwaja Garib Nawaz Bus Service on April 10, 1974. The tribunals order sheet of that date recorded that Shri Trivedi stated before the tribunal that he could not attend on the last date due to unavoidable reasons and that his appeal maybe considered on merits as urged in the memorandum of appeal. The tribunal thereafter passed the aforesaid order dated April 29, 1974 by which it set aside the Regional Transport Authoritys order in favour of appellant Nemi Chand and granted the permit to Khuwaja Garib Nawaz Bus Service. The appellant thereupon filed the aforesaid Miscellaneous Writ Petition 394 of 1974. Two other unsuccessful applicants did the same, but we are not concerned with them. As the High Court has dismissed the appellants writ petition by its impugned order dated January 3, 1975, Nemi Chand has filed the present appeal.3. The short question for consideration is whether there is justification for the argument of the counsel for the appellant that the tribunal disposed of the appeal and set aside the Regional Transport Authoritys order in his favour without hearing the appellant.4. It is not disputed before us, and is in fact quite clear from the notes of the proceedings of the tribunal, that when appeal 320 of 1972 of Khuwaja Garib Nawaz Bus Service was taken up for hearing by the tribunal, on March 11, 1974, no one was present on behalf of Khuwaja Garib Nawaz Bus Service which was the appellant. The counsel for respondent Nemi Chand, who is the present appellant, was present, but the tribunal did not hear anyone and simply reserved the case for order along with the connected appeals. There is therefore justification for the argument of the counsel for appellant Nemi Chand that he remained under the impression that the tribunal did not think it necessary to hear the arguments of the respondents as it had made up its mind not to make an order against them and to dismiss the appeal. It will be recalled that the tribunal simply recorded an order on March 11, 1974 reserving the case for decision along with the other appeals. There could therefore be no question of allowing the appellant to appear thereafter, without notice to the respondents, and at their back. The tribunal however allowed Shri Trivedi to appear on behalf of Khuwaja Garib Nawaz Bus Service on April 10, 1974, which had not been fixed as the date for taking up the case. Moreover the tribunal allowed Shri Trivedi to say that he could not attend the tribunal on the last date due to unavoidable reasons and that his appeal may be considered on merits as urged in the memorandum of appeal. Surprisingly enough, the tribunal gave that hearing to Shri Trivedi at the back of the respondents and did not even inform them that it had done so. The tribunal followed that up by its order dated April 29, 1974 by which the order granting the permit to Nemi Chand was set aside and the permit was granted to Khuwaja Garib Nawaz Bus Service. Nemi Chand was therefore taken by surprise for, as has been urged by his counsel, he could justifiably conclude that as appellant Khuwaja Garib Nawaz Bus Service did not appear on March 11, 1974, and the tribunal did not hear the respondents who were present, and reserved the appeal for order, the tribunal was not going to make an adverse order. At any rate, there can be no doubt that Nemi Chand was condemned unheard. His grievance in that respect is justified and should be removed.5. Mr. Mehta appearing for the respondent has argued that the tribunal was justified in not dismissing the appeal on March 11, 1974 for non-prosecution on behalf of appellant Khuwaja Garib Nawaz Bus Service for, according to him, that was not permissible under Section 64 of the Motor Vehicles Act. Reference in this connection has been made to Vajesingh Salambhai Naik v. State of Gujarat [1966 Supp SCR 139 : AIR 1967 SC 148 ] and to the decision of the Madhya Pradesh High Court dated December 3, 1975 in Asghar Ali Haji Mulla Tayyabali [Miscellaneous Petition 1225 of 1975 decided on December 3, 1975 (MP)]. We do not think it necessary to examine the correctness of the legal proposition advanced by Mr. Mehta, but even if it were assumed that the appeal could not be dismissed for want of prosecution on March 11, 1974, it was not, for reasons already stated, permissible for the tribunal to allow Shri Trivedi to appear before it on April 10, 1974, and to make his submissions at the back of the respondents. So also, it was not permissible for the tribunal to give a decision adverse to the respondents on the merits, on the basis of the grounds which had been urged in the memorandum of the appeal and to condemn respondent Nemi Chand without informing him of the developments which had taken place on April 10, 1974 and without giving him a hearing. The decision in Vajesingh Salambhai Naiks case which was followed in Asghar Ali Haji Mulla Tayyabali turned on the provisions of Section 17(1) and 20 of the Bombay Merged Territories and Areas (Jagir Abolition) Act, 1953, were quite different, and is not directly in point.
### Response:
1
### Explanation:
We do not think it necessary to examine the correctness of the legal proposition advanced by Mr. Mehta, but even if it were assumed that the appeal could not be dismissed for want of prosecution on March 11, 1974, it was not, for reasons already stated, permissible for the tribunal to allow Shri Trivedi to appear before it on April 10, 1974, and to make his submissions at the back of the respondents. So also, it was not permissible for the tribunal to give a decision adverse to the respondents on the merits, on the basis of the grounds which had been urged in the memorandum of the appeal and to condemn respondent Nemi Chand without informing him of the developments which had taken place on April 10, 1974 and without giving him a hearing. The decision in Vajesingh Salambhai Naiks case which was followed in Asghar Ali Haji Mulla Tayyabali turned on the provisions of Section 17(1) and 20 of the Bombay Merged Territories and Areas (Jagir Abolition) Act, 1953, were quite different, and is not directly in point.
|
Anjana Saraiya Vs. The State of U.P. & Ors | on 16.06.2006. Out of payment of Rs.1,39,000/- on 16.06.2006, an amount of Rs.1,04,128/- (for last four instalments) was towards principal amount and Rs.34,872/- was towards interest amount. Thus, as on 16.06.2006 the appellant deposited the entire amount and cleared all the instalments along with the interest. Thereafter the appellant herein, the allottee, filed the writ petition before the High Court and prayed for the following reliefs: (i) Issue a writ, order or direction in the nature of certiorari to quash the letter/notice/order dated 14.06.2006 against the allotment of Plot No.415, issued by the respondent no.3 (Annexure No.1 to this writ petition). (ii) Issue a writ, order or direction in the nature of mandamus commanding the respondents not to initiate any proceedings against the Plot No.415 of the petitioner in pursuance of letter/notice/order dated 14.06.2006 issued by respondent no.3. (iii) Issue a writ, order or direction in the nature of mandamus directing the respondents to complete the registration proceedings and also direct the respondents not to allot the aforesaid plot No.415 to any other person except to the petitioner. 2.1 That pursuant to the interim order passed by the High Court the appellant deposited a further sum of Rs.50,000/- on 21.11.2006. Therefore, by the time the petition was heard by the High Court, against the total value of the plot i.e. 2,70,000/-, the appellant deposited a total sum of Rs.3,84,546/- (including interest). By the impugned judgment and order, the High Court has dismissed the said writ petition solely on the ground and by observing that the appellant did not fulfil the terms and conditions as provided under the Scheme and did not deposit the instalments regularly and as and when due and payable, therefore the authorities were within their rights to cancel the allotment. At this stage, it is required to be noted that in the meantime and on cancellation of the allotment the respondents refunded the entire money after deducting 20% of the deposited amount which was sent to the appellant through cheque which is not encashed by the appellant. By the impugned judgment and order the High Court has dismissed the writ petition which has given rise to the present appeal. 3. Shri Kavin Gulati, learned Senior Advocate appearing on behalf of the appellant has submitted that as such against the total sale consideration of Rs.2,70,000/-, by now the appellant has deposited a total sum of Rs.3,84,546/- (including interest) which is lying with the respondent. 3.1 It is submitted that as such there was no deliberate and/or willful default on the part of the appellant in not depositing the instalments regularly as and when due and payable. It is submitted that due to the illhealth of her husband and she, being in financial difficulty, could not make the deposit of instalments in time. It is submitted that over and above the amount of Rs.50,000/- which has been deposited by the appellant pursuant to the interim order passed by the High Court, the appellant was ready and willing to pay Rupees two lakhs for the compensation for the delayed payment. It is submitted that even as of now also the appellant is ready and willing to deposit a further sum of Rs.2 lakhs towards the compensation for the delayed payment and/or to regularize the payment of instalments. 4. Shri V.K. Shukla, learned Senior Advocate, appearing on behalf of the State of Uttar Pradesh and Shri Dinesh Kumar Garg, learned Senior Advocate, appearing on behalf of the respondent No.3 have supported the impugned judgment and order passed by the High Court. 4.1 It is submitted that under the Scheme and as per the allotment letter the appellant was required to deposit the amount of instalments regularly and as and when due and payable. It is submitted that after the first three instalments were paid, the appellant did not make the payment of the next four instalments and therefore the authority was well within its right to cancel the allotment. It is submitted that thereafter having found that the appellant had not made the payment of the instalments regularly and as and when due and payable the allotment was cancelled. It is submitted that the High Court has rightly dismissed the writ petition. 5. Having heard learned counsel for the respective parties and in the facts and circumstances of the case, we are of the opinion that if on payment of a further sum of Rs.2 lakhs towards the compensation for the delayed payment of instalments, the account of the appellant be regularized and the allotment made under the Middle-Income Scheme in favour of the appellant who is a lady can be saved. 5.1 At this stage, it is required to be noted and it is not in dispute that at the time of allotment, the appellant made the upfront payment of Rs.94,500/- and thereafter made payment towards the first three instalments. However, thereafter because of the illhealth of her husband she was in financial difficulty and therefore she could not make the payment of the remaining four instalments which she made on 16.06.2006 with interest. The aforesaid payments show her bonafides and that there was no deliberate, willful delay on the part of the appellant in not making the payment of instalments in time. Even thereafter the appellant has deposited a further sum of Rs.50,000/- pursuant to the interim order passed by the High Court and therefore by now the appellant has deposited a total sum of Rs.3,84,546/- (including interest) against the total value/cost of Rs.2,70,000/-. Therefore, now when the appellant is ready and willing to pay a further sum of Rupees two lakhs towards compensation for the delay in making the payment of instalments, we are of the opinion that the offer made by the appellant is a fair offer and by which, allotment of plot in favour of a lady which is made under the Middle-Income Group Scheme and the plot being still vacant and not allotted to any other person, the order of cancellation may be set aside. | 1[ds]5. Having heard learned counsel for the respective parties and in the facts and circumstances of the case, we are of the opinion that if on payment of a further sum of Rs.2 lakhs towards the compensation for the delayed payment of instalments, the account of the appellant be regularized and the allotment made under the Middle-Income Scheme in favour of the appellant who is a lady can be saved.5.1 At this stage, it is required to be noted and it is not in dispute that at the time of allotment, the appellant made the upfront payment of Rs.94,500/- and thereafter made payment towards the first three instalments. However, thereafter because of the illhealth of her husband she was in financial difficulty and therefore she could not make the payment of the remaining four instalments which she made on 16.06.2006 with interest. The aforesaid payments show her bonafides and that there was no deliberate, willful delay on the part of the appellant in not making the payment of instalments in time. Even thereafter the appellant has deposited a further sum of Rs.50,000/- pursuant to the interim order passed by the High Court and therefore by now the appellant has deposited a total sum of Rs.3,84,546/- (including interest) against the total value/cost of Rs.2,70,000/-. Therefore, now when the appellant is ready and willing to pay a further sum of Rupees two lakhs towards compensation for the delay in making the payment of instalments, we are of the opinion that the offer made by the appellant is a fair offer and by which, allotment of plot in favour of a lady which is made under the Middle-Income Group Scheme and the plot being still vacant and not allotted to any other person, the order of cancellation may be set aside. | 1 | 1,382 | 320 | ### Instruction:
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on 16.06.2006. Out of payment of Rs.1,39,000/- on 16.06.2006, an amount of Rs.1,04,128/- (for last four instalments) was towards principal amount and Rs.34,872/- was towards interest amount. Thus, as on 16.06.2006 the appellant deposited the entire amount and cleared all the instalments along with the interest. Thereafter the appellant herein, the allottee, filed the writ petition before the High Court and prayed for the following reliefs: (i) Issue a writ, order or direction in the nature of certiorari to quash the letter/notice/order dated 14.06.2006 against the allotment of Plot No.415, issued by the respondent no.3 (Annexure No.1 to this writ petition). (ii) Issue a writ, order or direction in the nature of mandamus commanding the respondents not to initiate any proceedings against the Plot No.415 of the petitioner in pursuance of letter/notice/order dated 14.06.2006 issued by respondent no.3. (iii) Issue a writ, order or direction in the nature of mandamus directing the respondents to complete the registration proceedings and also direct the respondents not to allot the aforesaid plot No.415 to any other person except to the petitioner. 2.1 That pursuant to the interim order passed by the High Court the appellant deposited a further sum of Rs.50,000/- on 21.11.2006. Therefore, by the time the petition was heard by the High Court, against the total value of the plot i.e. 2,70,000/-, the appellant deposited a total sum of Rs.3,84,546/- (including interest). By the impugned judgment and order, the High Court has dismissed the said writ petition solely on the ground and by observing that the appellant did not fulfil the terms and conditions as provided under the Scheme and did not deposit the instalments regularly and as and when due and payable, therefore the authorities were within their rights to cancel the allotment. At this stage, it is required to be noted that in the meantime and on cancellation of the allotment the respondents refunded the entire money after deducting 20% of the deposited amount which was sent to the appellant through cheque which is not encashed by the appellant. By the impugned judgment and order the High Court has dismissed the writ petition which has given rise to the present appeal. 3. Shri Kavin Gulati, learned Senior Advocate appearing on behalf of the appellant has submitted that as such against the total sale consideration of Rs.2,70,000/-, by now the appellant has deposited a total sum of Rs.3,84,546/- (including interest) which is lying with the respondent. 3.1 It is submitted that as such there was no deliberate and/or willful default on the part of the appellant in not depositing the instalments regularly as and when due and payable. It is submitted that due to the illhealth of her husband and she, being in financial difficulty, could not make the deposit of instalments in time. It is submitted that over and above the amount of Rs.50,000/- which has been deposited by the appellant pursuant to the interim order passed by the High Court, the appellant was ready and willing to pay Rupees two lakhs for the compensation for the delayed payment. It is submitted that even as of now also the appellant is ready and willing to deposit a further sum of Rs.2 lakhs towards the compensation for the delayed payment and/or to regularize the payment of instalments. 4. Shri V.K. Shukla, learned Senior Advocate, appearing on behalf of the State of Uttar Pradesh and Shri Dinesh Kumar Garg, learned Senior Advocate, appearing on behalf of the respondent No.3 have supported the impugned judgment and order passed by the High Court. 4.1 It is submitted that under the Scheme and as per the allotment letter the appellant was required to deposit the amount of instalments regularly and as and when due and payable. It is submitted that after the first three instalments were paid, the appellant did not make the payment of the next four instalments and therefore the authority was well within its right to cancel the allotment. It is submitted that thereafter having found that the appellant had not made the payment of the instalments regularly and as and when due and payable the allotment was cancelled. It is submitted that the High Court has rightly dismissed the writ petition. 5. Having heard learned counsel for the respective parties and in the facts and circumstances of the case, we are of the opinion that if on payment of a further sum of Rs.2 lakhs towards the compensation for the delayed payment of instalments, the account of the appellant be regularized and the allotment made under the Middle-Income Scheme in favour of the appellant who is a lady can be saved. 5.1 At this stage, it is required to be noted and it is not in dispute that at the time of allotment, the appellant made the upfront payment of Rs.94,500/- and thereafter made payment towards the first three instalments. However, thereafter because of the illhealth of her husband she was in financial difficulty and therefore she could not make the payment of the remaining four instalments which she made on 16.06.2006 with interest. The aforesaid payments show her bonafides and that there was no deliberate, willful delay on the part of the appellant in not making the payment of instalments in time. Even thereafter the appellant has deposited a further sum of Rs.50,000/- pursuant to the interim order passed by the High Court and therefore by now the appellant has deposited a total sum of Rs.3,84,546/- (including interest) against the total value/cost of Rs.2,70,000/-. Therefore, now when the appellant is ready and willing to pay a further sum of Rupees two lakhs towards compensation for the delay in making the payment of instalments, we are of the opinion that the offer made by the appellant is a fair offer and by which, allotment of plot in favour of a lady which is made under the Middle-Income Group Scheme and the plot being still vacant and not allotted to any other person, the order of cancellation may be set aside.
### Response:
1
### Explanation:
5. Having heard learned counsel for the respective parties and in the facts and circumstances of the case, we are of the opinion that if on payment of a further sum of Rs.2 lakhs towards the compensation for the delayed payment of instalments, the account of the appellant be regularized and the allotment made under the Middle-Income Scheme in favour of the appellant who is a lady can be saved.5.1 At this stage, it is required to be noted and it is not in dispute that at the time of allotment, the appellant made the upfront payment of Rs.94,500/- and thereafter made payment towards the first three instalments. However, thereafter because of the illhealth of her husband she was in financial difficulty and therefore she could not make the payment of the remaining four instalments which she made on 16.06.2006 with interest. The aforesaid payments show her bonafides and that there was no deliberate, willful delay on the part of the appellant in not making the payment of instalments in time. Even thereafter the appellant has deposited a further sum of Rs.50,000/- pursuant to the interim order passed by the High Court and therefore by now the appellant has deposited a total sum of Rs.3,84,546/- (including interest) against the total value/cost of Rs.2,70,000/-. Therefore, now when the appellant is ready and willing to pay a further sum of Rupees two lakhs towards compensation for the delay in making the payment of instalments, we are of the opinion that the offer made by the appellant is a fair offer and by which, allotment of plot in favour of a lady which is made under the Middle-Income Group Scheme and the plot being still vacant and not allotted to any other person, the order of cancellation may be set aside.
|
State of Andhra Pradesh & Another Vs. K. Jayaraman & Others | as they were promoted on and after 1-11-1956. The real controversy, therefore, was whether petitioners Nos. 1 to 5 were or were not promoted already before 1-11-1956.3. It is clear that, if there had been an averment, on behalf of the petitioners, that the rule was invalid for, violating Articles 14 and 16 of the Constitution, relevant facts showing how it was discriminatory ought to have been set out. After this had been done, the respondents, including the State of Andhra Pradesh, could have been in a position to set up other facts which may have indicated why the rule was not discriminatory. Such questions cannot be decided without relevant assertions on questions of fact which may have to be investigated if controverted. It is only after facts affecting the validity of such a rule have been set out and an opportunity given to controvert them that a set of either admitted facts or established facts emerges by reference to which the validity of such a rule could be tested and a decision on the question could be given. The petitioners had only prayed for the quashing of the G. O. No. 929 of 29-11-1971 of the Health and Municipal Department fixing the gradation of the petitioners vis-a-vis other employees. They had not prayed for any declaration of invalidity of the A. T. A. Rule. The question of its validity would have affected a number of persons who were not before the Court.4. The case was referred by a learned Single Judge for decision to a Division Bench on the ground that it raised questions of importance which were likely to affect a large number of people. The judgment of the Division Bench, in the course of a consideration of the contentions of the parties, contained the observation that the Court had already had occasion to consider the validity of the relevant A. T. A. rules in Writ Appeal No. 170 of 1967 on 20-1-1970 (Andh Pra) and that it had held there that the A.T. A. rule was inconsistent with the provisions of the Constitution and was, therefore, invalid. It also said that the same principle had been reiterated in Sathya Kumar v. State of Andhra Pradesh, AIR 1971 Andh Pra 320.5. We have been taken through the judgment of the Andhra Pradesh High Court in Writ Appeal No. 170 of 1967, a copy of which has been filed. In that case, the validity of certain State Government Orders and Departmental orders of the Director of Public Instructions, relating to promotions of some employees contrary to relevant rules, was assailed. We do not finds in that decision, any discussion of the validity of the A. T. A. rule involved in the case before us.6. In Sathya Kumars case AIR 1971 Andh Pra 320 (supra), the validity of certain special rules for Andhra Pradesh State Judicial service was considered. It was held that they were invalid for having been introduced without obtaining the prior permission of the Government of India under Sec. 115, sub-section (7) of the States Reorganisation Act. Principles of valid classification in order to afford equality of opportunity for promotion to all those who belonged to a single class were also considered. But, here again, we find no pronouncement on the validity of the A. T. A. Rule 22 mentioned above.7. Thus, the High Court of Andhra Pradesh seems to us to have assumed, under some erroneous impression, that it had already decided the question of validity of the relevant. T. A. Rule. We think that such an assumption, on the strength of the decisions cited, was unwarranted.8. It appears from the judgment under appeal that only the cases of petitioners 1 to 5 were argued before the High Court. Evidently, petitioners Nos. to 9 had, by the time the matter came up for arguments, decided that they were not adversely affected by the A. T. A. rule. Although no violation of the A. T. A. rule or of rules of natural justice could be found by the High Court, it allowed the petition only by holding the relevant A. T. A. rule to be invalid. It said :"Since no other contention was raised, we would allow the writ petition pertly by quashing the impugned order, in so far as it is not confirmed by us, by holding that the A. T. A. rules do not apply. We direct the State and the Central Governments to give effect to the views held by the Government of India and confirmed by us that the petitioners came to Andhra Pradesh on 1-11-1956 as U. D. Cs. The relevant final common gradation lists therefore would suitably be amended after giving notice to the parties concerned and the seniority fixed accordingly."9. We think that the High Court was wholly in error in declaring the rule invalid suo motu, against the common case of both sides, found in the petition and the returns filed before the High Court, that the A. T. A. rule was valid. No cogent reason could be advanced before us for holding, on merits, that the rule was really invalid. We, however, retrain from deciding the question of its validity as that was not put in issue by the averments made by the parties to the case. It was not, we think, a pure question of law. The invalidity of the A. T. A. rule, could not, for the reasons given above, be urged on the Writ Petition before the High Court without even an amendment of the petition so as to give the respondents an opportunity to meet a case of alleged invalidity of the rule.10. Furthermore, as the petitioners 1 to 5 were held to have come to the State of Andhra Pradesh as Upper Division Clerks on 1-11-1956, they could not show how they would be adversely affected. by the application of the relevant A. T. A. rule.Thus, the petitioners, concerned, who are respondents before us, failed to prove that they were even "aggrieved" persons. | 1[ds]3. It is clear that, if there had been an averment, on behalf of the petitioners, that the rule was invalid for, violating Articles 14 and 16 of the Constitution, relevant facts showing how it was discriminatory ought to have been set out. After this had been done, the respondents, including the State of Andhra Pradesh, could have been in a position to set up other facts which may have indicated why the rule was not discriminatory. Such questions cannot be decided without relevant assertions on questions of fact which may have to be investigated if controverted. It is only after facts affecting the validity of such a rule have been set out and an opportunity given to controvert them that a set of either admitted facts or established facts emerges by reference to which the validity of such a rule could be tested and a decision on the question could be given. The petitioners had only prayed for the quashing of the G. O. No. 929 ofof the Health and Municipal Department fixing the gradation of the petitionersother employees. They had not prayed for any declaration of invalidity of the A. T. A. Rule. The question of its validity would have affected a number of persons who were not before the Court.4. The case was referred by a learned Single Judge for decision to a Division Bench on the ground that it raised questions of importance which were likely to affect a large number of people. The judgment of the Division Bench, in the course of a consideration of the contentions of the parties, contained the observation that the Court had already had occasion to consider the validity of the relevant A. T. A. rules in Writ Appeal No. 170 of 1967 on(Andh Pra) and that it had held there that the A.T. A. rule was inconsistent with the provisions of the Constitution and was, therefore, invalid. It also said that the same principle had been reiterated in Sathya Kumar v. State of Andhra Pradesh, AIR 1971 Andh Pra 320.Thus, the High Court of Andhra Pradesh seems to us to have assumed, under some erroneous impression, that it had already decided the question of validity of the relevant. T. A. Rule. We think that such an assumption, on the strength of the decisions cited, was unwarranted.8. It appears from the judgment under appeal that only the cases of petitioners 1 to 5 were argued before the High Court. Evidently, petitioners Nos. to 9 had, by the time the matter came up for arguments, decided that they were not adversely affected by the A. T. A. rule. Although no violation of the A. T. A. rule or of rules of natural justice could be found by the High Court, it allowed the petition only by holding the relevant A. T. A. rule to be invalid. It saidno other contention was raised, we would allow the writ petition pertly by quashing the impugned order, in so far as it is not confirmed by us, by holding that the A. T. A. rules do not apply. We direct the State and the Central Governments to give effect to the views held by the Government of India and confirmed by us that the petitioners came to Andhra Pradesh onas U. D. Cs. The relevant final common gradation lists therefore would suitably be amended after giving notice to the parties concerned and the seniority fixed accordingly.We think that the High Court was wholly in error in declaring the rule invalid suo motu, against the common case of both sides, found in the petition and the returns filed before the High Court, that the A. T. A. rule was valid. No cogent reason could be advanced before us for holding, on merits, that the rule was really invalid. We, however, retrain from deciding the question of its validity as that was not put in issue by the averments made by the parties to the case. It was not, we think, a pure question of law. The invalidity of the A. T. A. rule, could not, for the reasons given above, be urged on the Writ Petition before the High Court without even an amendment of the petition so as to give the respondents an opportunity to meet a case of alleged invalidity of the rule.10. Furthermore, as the petitioners 1 to 5 were held to have come to the State of Andhra Pradesh as Upper Division Clerks onthey could not show how they would be adversely affected. by the application of the relevant A. T. A. rule.Thus, the petitioners, concerned, who are respondents before us, failed to prove that they were even "aggrieved" persons. | 1 | 1,444 | 862 | ### Instruction:
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as they were promoted on and after 1-11-1956. The real controversy, therefore, was whether petitioners Nos. 1 to 5 were or were not promoted already before 1-11-1956.3. It is clear that, if there had been an averment, on behalf of the petitioners, that the rule was invalid for, violating Articles 14 and 16 of the Constitution, relevant facts showing how it was discriminatory ought to have been set out. After this had been done, the respondents, including the State of Andhra Pradesh, could have been in a position to set up other facts which may have indicated why the rule was not discriminatory. Such questions cannot be decided without relevant assertions on questions of fact which may have to be investigated if controverted. It is only after facts affecting the validity of such a rule have been set out and an opportunity given to controvert them that a set of either admitted facts or established facts emerges by reference to which the validity of such a rule could be tested and a decision on the question could be given. The petitioners had only prayed for the quashing of the G. O. No. 929 of 29-11-1971 of the Health and Municipal Department fixing the gradation of the petitioners vis-a-vis other employees. They had not prayed for any declaration of invalidity of the A. T. A. Rule. The question of its validity would have affected a number of persons who were not before the Court.4. The case was referred by a learned Single Judge for decision to a Division Bench on the ground that it raised questions of importance which were likely to affect a large number of people. The judgment of the Division Bench, in the course of a consideration of the contentions of the parties, contained the observation that the Court had already had occasion to consider the validity of the relevant A. T. A. rules in Writ Appeal No. 170 of 1967 on 20-1-1970 (Andh Pra) and that it had held there that the A.T. A. rule was inconsistent with the provisions of the Constitution and was, therefore, invalid. It also said that the same principle had been reiterated in Sathya Kumar v. State of Andhra Pradesh, AIR 1971 Andh Pra 320.5. We have been taken through the judgment of the Andhra Pradesh High Court in Writ Appeal No. 170 of 1967, a copy of which has been filed. In that case, the validity of certain State Government Orders and Departmental orders of the Director of Public Instructions, relating to promotions of some employees contrary to relevant rules, was assailed. We do not finds in that decision, any discussion of the validity of the A. T. A. rule involved in the case before us.6. In Sathya Kumars case AIR 1971 Andh Pra 320 (supra), the validity of certain special rules for Andhra Pradesh State Judicial service was considered. It was held that they were invalid for having been introduced without obtaining the prior permission of the Government of India under Sec. 115, sub-section (7) of the States Reorganisation Act. Principles of valid classification in order to afford equality of opportunity for promotion to all those who belonged to a single class were also considered. But, here again, we find no pronouncement on the validity of the A. T. A. Rule 22 mentioned above.7. Thus, the High Court of Andhra Pradesh seems to us to have assumed, under some erroneous impression, that it had already decided the question of validity of the relevant. T. A. Rule. We think that such an assumption, on the strength of the decisions cited, was unwarranted.8. It appears from the judgment under appeal that only the cases of petitioners 1 to 5 were argued before the High Court. Evidently, petitioners Nos. to 9 had, by the time the matter came up for arguments, decided that they were not adversely affected by the A. T. A. rule. Although no violation of the A. T. A. rule or of rules of natural justice could be found by the High Court, it allowed the petition only by holding the relevant A. T. A. rule to be invalid. It said :"Since no other contention was raised, we would allow the writ petition pertly by quashing the impugned order, in so far as it is not confirmed by us, by holding that the A. T. A. rules do not apply. We direct the State and the Central Governments to give effect to the views held by the Government of India and confirmed by us that the petitioners came to Andhra Pradesh on 1-11-1956 as U. D. Cs. The relevant final common gradation lists therefore would suitably be amended after giving notice to the parties concerned and the seniority fixed accordingly."9. We think that the High Court was wholly in error in declaring the rule invalid suo motu, against the common case of both sides, found in the petition and the returns filed before the High Court, that the A. T. A. rule was valid. No cogent reason could be advanced before us for holding, on merits, that the rule was really invalid. We, however, retrain from deciding the question of its validity as that was not put in issue by the averments made by the parties to the case. It was not, we think, a pure question of law. The invalidity of the A. T. A. rule, could not, for the reasons given above, be urged on the Writ Petition before the High Court without even an amendment of the petition so as to give the respondents an opportunity to meet a case of alleged invalidity of the rule.10. Furthermore, as the petitioners 1 to 5 were held to have come to the State of Andhra Pradesh as Upper Division Clerks on 1-11-1956, they could not show how they would be adversely affected. by the application of the relevant A. T. A. rule.Thus, the petitioners, concerned, who are respondents before us, failed to prove that they were even "aggrieved" persons.
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3. It is clear that, if there had been an averment, on behalf of the petitioners, that the rule was invalid for, violating Articles 14 and 16 of the Constitution, relevant facts showing how it was discriminatory ought to have been set out. After this had been done, the respondents, including the State of Andhra Pradesh, could have been in a position to set up other facts which may have indicated why the rule was not discriminatory. Such questions cannot be decided without relevant assertions on questions of fact which may have to be investigated if controverted. It is only after facts affecting the validity of such a rule have been set out and an opportunity given to controvert them that a set of either admitted facts or established facts emerges by reference to which the validity of such a rule could be tested and a decision on the question could be given. The petitioners had only prayed for the quashing of the G. O. No. 929 ofof the Health and Municipal Department fixing the gradation of the petitionersother employees. They had not prayed for any declaration of invalidity of the A. T. A. Rule. The question of its validity would have affected a number of persons who were not before the Court.4. The case was referred by a learned Single Judge for decision to a Division Bench on the ground that it raised questions of importance which were likely to affect a large number of people. The judgment of the Division Bench, in the course of a consideration of the contentions of the parties, contained the observation that the Court had already had occasion to consider the validity of the relevant A. T. A. rules in Writ Appeal No. 170 of 1967 on(Andh Pra) and that it had held there that the A.T. A. rule was inconsistent with the provisions of the Constitution and was, therefore, invalid. It also said that the same principle had been reiterated in Sathya Kumar v. State of Andhra Pradesh, AIR 1971 Andh Pra 320.Thus, the High Court of Andhra Pradesh seems to us to have assumed, under some erroneous impression, that it had already decided the question of validity of the relevant. T. A. Rule. We think that such an assumption, on the strength of the decisions cited, was unwarranted.8. It appears from the judgment under appeal that only the cases of petitioners 1 to 5 were argued before the High Court. Evidently, petitioners Nos. to 9 had, by the time the matter came up for arguments, decided that they were not adversely affected by the A. T. A. rule. Although no violation of the A. T. A. rule or of rules of natural justice could be found by the High Court, it allowed the petition only by holding the relevant A. T. A. rule to be invalid. It saidno other contention was raised, we would allow the writ petition pertly by quashing the impugned order, in so far as it is not confirmed by us, by holding that the A. T. A. rules do not apply. We direct the State and the Central Governments to give effect to the views held by the Government of India and confirmed by us that the petitioners came to Andhra Pradesh onas U. D. Cs. The relevant final common gradation lists therefore would suitably be amended after giving notice to the parties concerned and the seniority fixed accordingly.We think that the High Court was wholly in error in declaring the rule invalid suo motu, against the common case of both sides, found in the petition and the returns filed before the High Court, that the A. T. A. rule was valid. No cogent reason could be advanced before us for holding, on merits, that the rule was really invalid. We, however, retrain from deciding the question of its validity as that was not put in issue by the averments made by the parties to the case. It was not, we think, a pure question of law. The invalidity of the A. T. A. rule, could not, for the reasons given above, be urged on the Writ Petition before the High Court without even an amendment of the petition so as to give the respondents an opportunity to meet a case of alleged invalidity of the rule.10. Furthermore, as the petitioners 1 to 5 were held to have come to the State of Andhra Pradesh as Upper Division Clerks onthey could not show how they would be adversely affected. by the application of the relevant A. T. A. rule.Thus, the petitioners, concerned, who are respondents before us, failed to prove that they were even "aggrieved" persons.
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P. Raghava Kurup Vs. V. Ananthakumari | than what has been intended by the rule framing authorities. 11. Learned counsel for the appellants invited our attention to a decision of this Court in Maharaja Pratap Singh Bahadur v. Thakur Manmohan Deo& Ors. ([1966] 3 S.C.R.663). In this case a comparative study of two Acts i.e. The Bengal Ghatwali Lands Act, 1859 and the Courts of Wards Act, 1870 were considered and their Lordships observed that the Act of 1859 namely the Bengal Ghatwali Lands Act, 1859 was a special Act dealing with ghatwali lands. The Court of Wards Act, 1870 was a general enactment. Their Lordships held that special statute will override the general statute. In that context, their Lordships quoted from Maxwell on the Interpretation of Statutes which reads as under: A general later law does not abrogate an earlier special one by mere implication. Generalia specialibus non derogant, or in other words, where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislature indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so. In such cases it is presumed to have only general cases in view, and not particular cases which have been already otherwise provided for by the special Act. 12. Therefore, the general principle which emerges is that the general law does not abrogate any special law by mere implication. This principle so far as the present case is concerned, is not of much relevance because here the intention of the Rule framing authority was to provide for the non-teaching staff an opportunity, in case eligible persons from the promotional quota are not available. Therefore, it is a particular provision for particular contingency which does not run counter to the general principles. The general principle as contained in Rule 43B is that first priority will be given to the categories of persons mentioned under sub-rule (1). In case, persons are not available, then this class of persons will also be eligible for promotion. This does not override the general provisions, it only caters for a particular contingency i.e. in the event the particular class of persons are not available, then another category of persons has also been made eligible. 13. Our attention was invited to a decision of this Court in S. Prakash & Anr. v. K.M.Kurian & Ors. [(1999) 5 SCC 624] their Lordships have very clearly held that if language of general provision is clear and unqualified, it prevails over special provision, and special provision must give way to general provision if legislative intent was to establish a rule of universal application. Their Lordships have further held by referring to an earlier decision of this Court in Ajoy Kumar Banerjee & Ors.v. Union of India & Ors. [(1984) 3 SCC 127] as follows The general rule to be followed in case of conflict between two statutes is that the later abrogates the earlier one. In other words, a prior special law would yield to a later general law, if either of the two following conditions is satisfied: (i) The two are inconsistent with each other. (ii) There is some express reference in the later to the earlier enactment. If either of these two conditions is fulfilled, the later law, even though general, would prevail. 14. But so far as the present case is concerned, there is no such conflict. In fact the situation is to the contrary i.e. the particular law has followed the general law. The general law was to fill up the post mentioned in Rule 43B and in case if any person is not available in the category mentioned in Rule 43B, then persons belonging to the non-teaching category could be considered provided they possess necessary qualification. 15. Our attention was invited to a decision of this Court in The Bengal Immunity Company Limited v. The State of Bhiar & Ors. ([1955] 2 S.C.R.603). In this case their Lordships have clearly mentioned at page 791 as follows: It is a cardinal rule of construction that when there are in a Statute two provisions which are in conflict with each other such that both of them cannot stand, they should, if possible, be so interpreted that effect can be given to both, and that a construction which renders either of them inoperative and useless should not be adopted except in the last resort. This is what is known as the rule of harmonious construction. 16. Both these provisions appear in Chapter XIV and both are dealt with the method of recruitment and so far as non-teaching staff is concerned it is provided under Note (1) to Rule 1 as a particular provision but that is not derogatory to Rule 43B. It is rather supplemental that if persons mentioned in Rule 43B are not available for promotion then persons in the category of non-teaching staff are available with requisite qualification then such person can be considered for appointment. These two provisions can be read together and the purpose for which this rule has been made can be achieved. Therefore, the Note 1 to Rule 1 read with Rule 43B can be read harmoniously, it will effectuate the intention of the rule framing authority. Therefore, this rule which was inserted in 1982, can be harmoniously read and it is not derogatory to Rule 43B. 17. In the case of P.S. Sathappan (Dead) by LRs. v. Andhra Bank Ltd. & Ors. [(2004) 11 SCC 672] this Court held that harmonious construction should be preferred than the purposive construction and in the guise of purposive construction one cannot interpret a section in a manner which would lead to a conflict between two sub-sections of the same section. Therefore, the Constitution Bench by majority held that as far as possible harmonious construction should be preferred and this is what has been held by us above. 18. | 0[ds]12. Therefore, the general principle which emerges is that the general law does not abrogate any special law by mere implication. This principle so far as the present case is concerned, is not of much relevance because here the intention of the Rule framing authority was to provide for theg staff an opportunity, in case eligible persons from the promotional quota are not available. Therefore, it is a particular provision for particular contingency which does not run counter to the general principles. The general principle as contained in Rule 43B is that first priority will be given to the categories of persons mentioned undere (1). In case, persons are not available, then this class of persons will also be eligible for promotion. This does not override the general provisions, it only caters for a particular contingency i.e. in the event the particular class of persons are not available, then another category of persons has also been made eligible13. Our attention was invited to a decision of this Court in S. Prakash & Anr. v. K.M.Kurian & Ors. [(1999) 5 SCC 624] their Lordships have very clearly held that if language of general provision is clear and unqualified, it prevails over special provision, and special provision must give way to general provision if legislative intent was to establish a rule of universal application14. But so far as the present case is concerned, there is no such conflict. In fact the situation is to the contrary i.e. the particular law has followed the general law. The general law was to fill up the post mentioned in Rule 43B and in case if any person is not available in the category mentioned in Rule 43B, then persons belonging to theg category could be considered provided they possess necessary qualification15. Our attention was invited to a decision of this Court in The Bengal Immunity Company Limited v. The State of Bhiar & Ors. ([1955] 2 S.C.R.603).16. Both these provisions appear in Chapter XIV and both are dealt with the method of recruitment and so far asg staff is concerned it is provided under Note (1) to Rule 1 as a particular provision but that is not derogatory to Rule 43B. It is rather supplemental that if persons mentioned in Rule 43B are not available for promotion then persons in the category ofg staff are available with requisite qualification then such person can be considered for appointment. These two provisions can be read together and the purpose for which this rule has been made can be achieved. Therefore, the Note 1 to Rule 1 read with Rule 43B can be read harmoniously, it will effectuate the intention of the rule framing authority. Therefore, this rule which was inserted in 1982, can be harmoniously read and it is not derogatory to Rule 43B17. In the case of P.S. Sathappan (Dead) by LRs. v. Andhra Bank Ltd. & Ors. [(2004) 11 SCC 672] this Court held that harmonious construction should be preferred than the purposive construction and in the guise of purposive construction one cannot interpret a section in a manner which would lead to a conflict between twos of the same section. Therefore, the Constitution Bench by majority held that as far as possible harmonious construction should be preferred and this is what has been held by us above. | 0 | 3,854 | 621 | ### 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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than what has been intended by the rule framing authorities. 11. Learned counsel for the appellants invited our attention to a decision of this Court in Maharaja Pratap Singh Bahadur v. Thakur Manmohan Deo& Ors. ([1966] 3 S.C.R.663). In this case a comparative study of two Acts i.e. The Bengal Ghatwali Lands Act, 1859 and the Courts of Wards Act, 1870 were considered and their Lordships observed that the Act of 1859 namely the Bengal Ghatwali Lands Act, 1859 was a special Act dealing with ghatwali lands. The Court of Wards Act, 1870 was a general enactment. Their Lordships held that special statute will override the general statute. In that context, their Lordships quoted from Maxwell on the Interpretation of Statutes which reads as under: A general later law does not abrogate an earlier special one by mere implication. Generalia specialibus non derogant, or in other words, where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislature indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so. In such cases it is presumed to have only general cases in view, and not particular cases which have been already otherwise provided for by the special Act. 12. Therefore, the general principle which emerges is that the general law does not abrogate any special law by mere implication. This principle so far as the present case is concerned, is not of much relevance because here the intention of the Rule framing authority was to provide for the non-teaching staff an opportunity, in case eligible persons from the promotional quota are not available. Therefore, it is a particular provision for particular contingency which does not run counter to the general principles. The general principle as contained in Rule 43B is that first priority will be given to the categories of persons mentioned under sub-rule (1). In case, persons are not available, then this class of persons will also be eligible for promotion. This does not override the general provisions, it only caters for a particular contingency i.e. in the event the particular class of persons are not available, then another category of persons has also been made eligible. 13. Our attention was invited to a decision of this Court in S. Prakash & Anr. v. K.M.Kurian & Ors. [(1999) 5 SCC 624] their Lordships have very clearly held that if language of general provision is clear and unqualified, it prevails over special provision, and special provision must give way to general provision if legislative intent was to establish a rule of universal application. Their Lordships have further held by referring to an earlier decision of this Court in Ajoy Kumar Banerjee & Ors.v. Union of India & Ors. [(1984) 3 SCC 127] as follows The general rule to be followed in case of conflict between two statutes is that the later abrogates the earlier one. In other words, a prior special law would yield to a later general law, if either of the two following conditions is satisfied: (i) The two are inconsistent with each other. (ii) There is some express reference in the later to the earlier enactment. If either of these two conditions is fulfilled, the later law, even though general, would prevail. 14. But so far as the present case is concerned, there is no such conflict. In fact the situation is to the contrary i.e. the particular law has followed the general law. The general law was to fill up the post mentioned in Rule 43B and in case if any person is not available in the category mentioned in Rule 43B, then persons belonging to the non-teaching category could be considered provided they possess necessary qualification. 15. Our attention was invited to a decision of this Court in The Bengal Immunity Company Limited v. The State of Bhiar & Ors. ([1955] 2 S.C.R.603). In this case their Lordships have clearly mentioned at page 791 as follows: It is a cardinal rule of construction that when there are in a Statute two provisions which are in conflict with each other such that both of them cannot stand, they should, if possible, be so interpreted that effect can be given to both, and that a construction which renders either of them inoperative and useless should not be adopted except in the last resort. This is what is known as the rule of harmonious construction. 16. Both these provisions appear in Chapter XIV and both are dealt with the method of recruitment and so far as non-teaching staff is concerned it is provided under Note (1) to Rule 1 as a particular provision but that is not derogatory to Rule 43B. It is rather supplemental that if persons mentioned in Rule 43B are not available for promotion then persons in the category of non-teaching staff are available with requisite qualification then such person can be considered for appointment. These two provisions can be read together and the purpose for which this rule has been made can be achieved. Therefore, the Note 1 to Rule 1 read with Rule 43B can be read harmoniously, it will effectuate the intention of the rule framing authority. Therefore, this rule which was inserted in 1982, can be harmoniously read and it is not derogatory to Rule 43B. 17. In the case of P.S. Sathappan (Dead) by LRs. v. Andhra Bank Ltd. & Ors. [(2004) 11 SCC 672] this Court held that harmonious construction should be preferred than the purposive construction and in the guise of purposive construction one cannot interpret a section in a manner which would lead to a conflict between two sub-sections of the same section. Therefore, the Constitution Bench by majority held that as far as possible harmonious construction should be preferred and this is what has been held by us above. 18.
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12. Therefore, the general principle which emerges is that the general law does not abrogate any special law by mere implication. This principle so far as the present case is concerned, is not of much relevance because here the intention of the Rule framing authority was to provide for theg staff an opportunity, in case eligible persons from the promotional quota are not available. Therefore, it is a particular provision for particular contingency which does not run counter to the general principles. The general principle as contained in Rule 43B is that first priority will be given to the categories of persons mentioned undere (1). In case, persons are not available, then this class of persons will also be eligible for promotion. This does not override the general provisions, it only caters for a particular contingency i.e. in the event the particular class of persons are not available, then another category of persons has also been made eligible13. Our attention was invited to a decision of this Court in S. Prakash & Anr. v. K.M.Kurian & Ors. [(1999) 5 SCC 624] their Lordships have very clearly held that if language of general provision is clear and unqualified, it prevails over special provision, and special provision must give way to general provision if legislative intent was to establish a rule of universal application14. But so far as the present case is concerned, there is no such conflict. In fact the situation is to the contrary i.e. the particular law has followed the general law. The general law was to fill up the post mentioned in Rule 43B and in case if any person is not available in the category mentioned in Rule 43B, then persons belonging to theg category could be considered provided they possess necessary qualification15. Our attention was invited to a decision of this Court in The Bengal Immunity Company Limited v. The State of Bhiar & Ors. ([1955] 2 S.C.R.603).16. Both these provisions appear in Chapter XIV and both are dealt with the method of recruitment and so far asg staff is concerned it is provided under Note (1) to Rule 1 as a particular provision but that is not derogatory to Rule 43B. It is rather supplemental that if persons mentioned in Rule 43B are not available for promotion then persons in the category ofg staff are available with requisite qualification then such person can be considered for appointment. These two provisions can be read together and the purpose for which this rule has been made can be achieved. Therefore, the Note 1 to Rule 1 read with Rule 43B can be read harmoniously, it will effectuate the intention of the rule framing authority. Therefore, this rule which was inserted in 1982, can be harmoniously read and it is not derogatory to Rule 43B17. In the case of P.S. Sathappan (Dead) by LRs. v. Andhra Bank Ltd. & Ors. [(2004) 11 SCC 672] this Court held that harmonious construction should be preferred than the purposive construction and in the guise of purposive construction one cannot interpret a section in a manner which would lead to a conflict between twos of the same section. Therefore, the Constitution Bench by majority held that as far as possible harmonious construction should be preferred and this is what has been held by us above.
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Deep Chand and Another Vs. State of Uttar Pradesh and Another | disadvantages also. The level of the land was lower than the level of the Bhopa Road; during rainy season water collected on it. There were some pits here and there, which needed filling up. Nonetheless the value fixed by the courts below, in our judgment, is too low and unjust. If these defects would not have been there the value of the land would have been not less than Rs. 5 per square yard. In any event we shall immediately show that the value cannot be less than Rs. 2/6/- per square yard. 6. The market value of the land had to be fixed as prevailing on the date of the notification under Section 4 of the Land Acquisition Act, which, as already stated, was issued on November 25, 1948. It would appear from the site plan that Uggra Sens land was not abutting the Bhopa Road although it was near it. It was land locked as it was surrounded on all sides by the appellants land in question. Uggra Sen had purchased his land by Ex. 7 the sale deed dated May 15, 1946 @ Rs. 1/6/- per square yard. We find from the records that land comprised in plot No. 110 which is adjacent West to the Railway line was purchased by sale deed dated May 15, 1945, Ex. 11 @ Rs. 5 per square yard. It was resold by sale deed dated October 4, 1948, Ex. 12 @ Rs. 10 per square yard. It would thus be seen that the price of the land in the locality was doubled in the course of three years near about the time the notification under Section 4 had been issued. Thus the value of the land in question could be taken at Rs. 2/12/- per square yard on the basis of Uggra Sens sale deed. But we are taking not the double figure because the doubling of the price in regard to plot No. 110 was in respect of a land which was to the West of the Railway line. Ex. 40 is a sale deed dated February 15, 1947 which is in respect of a small piece of land to the South of the Bhopa Road but very near the land in question. This sale deed shows the sale price of the land at Rs. 10 per square yard. We are leaving this sale deed out of consideration as the area covered by it is very small being only 424 square yards. But the High Court was not right in completely brushing aside the sale deed dated March 11, 1948, Ex. 9 by which about 5 bighas of land in plot No. 220 was sold approximately @ Rs. 7 per square yard. This sale deed has been rejected on the ground that plot No. 220 is near the Railway crossing; it contained a mango grove and that it was a small plot compared to the land in question. We are not impressed by any of these reasons. Since the plots is to the East of the Railway line its nearness to the Railway crossing cannot bring about a huge difference in value in comparison with the appellants land. So also the existence of the mango grove cannot justify the large difference between Rs. 7 per square yard and 6 annas per square yard. It is not a small plot of land. Although it is smaller in area than the appellants land, yet it is big enough for throwing light on the prevailing market value of the land in the locality at the relevant time. 7. Appellant Deep Chand was Vice-President and Secretary of S.D. College, Muzaffarnagar. For the purpose of the college a large chunk of his land situated further east was acquired in the year 1955. The appellant agreed before the Acquisition Officer to accept the price of his land for the purpose of the college @ 5 annas per square yard. This seems to have heavily weighed with the courts below in fixing 6 annas per square yard as the value of the land in question. But in our opinion wrongly. The appellant and his family were interested in the establishment of the college. Deep Chand was the Vice-President and the Secretary. Obviously, therefore, he accepted a nominal price by way of compromise before the Land Acquisition Officer as a good gesture and benevolent disposition. He did not contest the valuation matter nor did he ask for any reference. In respect of the land in question he had already started making his claim by way of reference and claim Rs. 6 per square yard. It does not stand to reason, therefore, that he would accept 5 annas per square yard for the college land thinking that was the proper market value of the land in or about the year 1955. 8. For the reasons stated above we fix the market value of the land in question prevailing at the relevant time at Rs. 2/6/- per square yard that is to say the appellant is entitled over and above the amount fixed by the District Judge an extra rate of Rs. 2 per square yard in respect of his land. The value of his khudkasht land measuring 6, 860 square yards will be Rs. 13, 720. The value of his 61, 012 square yards, the tenants land, will be Rs. 1, 22, 024. Calculating it at the rate of 10 annas in a rupee the value of the appellants share will be Rs. 76, 265. The total value of this land thus comes to Rs. 89, 985. Solatium of 15 per cent on the said amount comes to Rs. 13, 497.75 paise. Thus the total extra amount awarded by us over and above the amount awarded by the courts below comes to Rs. 1, 03, 482.75 paise. The appellant will be entitled to interest on this amount also @ 6 per cent per annum from the date of dispossession i.e. May 1, 1951 till the date of payment. | 1[ds]In our opinion it was a fit case where the appeal ought to have been substantially allowed and by committing obvious error in appreciation of the legal position and the facts and circumstances of the case the High Court maintained the valuation fixed by the District Judge5. As noticed by the High Court the land had certain disadvantages also. The level of the land was lower than the level of the Bhopa Road; during rainy season water collected on it. There were some pits here and there, which needed filling up. Nonetheless the value fixed by the courts below, in our judgment, is too low and unjust. If these defects would not have been there the value of the land would have been not less than Rs. 5 per square yard. In any event we shall immediately show that the value cannot be less than Rs. 2/6/per square yard6. The market value of the land had to be fixed as prevailing on the date of the notification under Section 4 of the Land Acquisition Act, which, as already stated, was issued on November 25, 1948. It would appear from the site plan that Uggra Sens land was not abutting the Bhopa Road although it was near it. It was land locked as it was surrounded on all sides by the appellants land in question. Uggra Sen had purchased his land by Ex. 7 the sale deed dated May 15, 1946 @ Rs. 1/6/per square. We find from the records that land comprised in plot No. 110 which is adjacent West to the Railway line was purchased by sale deed dated May 15, 1945, Ex. 11 @ Rs. 5per square. It was resold by sale deed dated October 4, 1948, Ex. 12 @ Rs. 10per square. It would thus be seen that the price of the land in the locality was doubled in the course of three years near about the time the notification under Section 4 had been issued. Thus the value of the land in question could be taken at Rs. 2/12/per squareyardon the basis of Uggra Sens sale deed. But we are taking not the double figure because the doubling of the price in regard to plot No. 110 was in respect of a land which was to the West of the Railway line. Ex. 40 is a sale deed dated February 15, 1947 which is in respect of a small piece of land to the South of the Bhopa Road but very near the land in question. This sale deed shows the sale price of the land at Rs. 10per square. We are leaving this sale deed out of consideration as the area covered by it is very small being only 424 square. But the High Court was not right in completely brushing aside the sale deed dated March 11, 1948, Ex. 9 by which about 5 bighas of land in plot No. 220 was sold approximately @ Rs. 7per square. This sale deed has been rejected on the ground that plot No. 220 is near the Railway crossing; it contained a mango grove and that it was a small plot compared to the land in question. We are not impressed by any of these reasons. Since the plots is to the East of the Railway line its nearness to the Railway crossing cannot bring about a huge difference in value in comparison with the appellants land. So also the existence of the mango grove cannot justify the large difference between Rs. 7per squareyardand 6 annasper square. It is not a small plot of land. Although it is smaller in area than the appellants land, yet it is big enough for throwing light on the prevailing market value of the land in the locality at the relevant time7. Appellant Deep Chand wast and Secretary of S.D. College, Muzaffarnagar. For the purpose of the college a large chunk of his land situated further east was acquired in the year 1955. The appellant agreed before the Acquisition Officer to accept the price of his land for the purpose of the college @ 5 annasper square. This seems to have heavily weighed with the courts below in fixing 6 annasper squareyardas the value of the land in question. But in our opinion wrongly. The appellant and his family were interested in the establishment of the college. Deep Chand was thet and the Secretary. Obviously, therefore, he accepted a nominal price by way of compromise before the Land Acquisition Officer as a good gesture and benevolent disposition. He did not contest the valuation matter nor did he ask for any reference. In respect of the land in question he had already started making his claim by way of reference and claim Rs. 6per square. It does not stand to reason, therefore, that he would accept 5 annasper squareyardfor the college land thinking that was the proper market value of the land in or about the year 19558. For the reasons stated above we fix the market value of the land in question prevailing at the relevant time at Rs. 2/6/per squareyardthat is to say the appellant is entitled over and above the amount fixed by the District Judge an extra rate of Rs. 2per squareyardin respect of his land. The value of his khudkasht land measuring 6, 860 squares will be Rs. 13, 720. The value of his 61, 012 square, the tenants land, will be Rs. 1, 22, 024. Calculating it at the rate of 10 annas in a rupee the value of the appellants share will be Rs. 76, 265. The total value of this land thus comes to Rs. 89, 985. Solatium of 15 per cent on the said amount comes to Rs. 13, 497.75 paise. Thus the total extra amount awarded by us over and above the amount awarded by the courts below comes to Rs. 1, 03, 482.75 paise. The appellant will be entitled to interest on this amount also @ 6 per cent per annum from the date of dispossession i.e. May 1, 1951 till the date of payment. | 1 | 2,219 | 1,131 | ### Instruction:
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disadvantages also. The level of the land was lower than the level of the Bhopa Road; during rainy season water collected on it. There were some pits here and there, which needed filling up. Nonetheless the value fixed by the courts below, in our judgment, is too low and unjust. If these defects would not have been there the value of the land would have been not less than Rs. 5 per square yard. In any event we shall immediately show that the value cannot be less than Rs. 2/6/- per square yard. 6. The market value of the land had to be fixed as prevailing on the date of the notification under Section 4 of the Land Acquisition Act, which, as already stated, was issued on November 25, 1948. It would appear from the site plan that Uggra Sens land was not abutting the Bhopa Road although it was near it. It was land locked as it was surrounded on all sides by the appellants land in question. Uggra Sen had purchased his land by Ex. 7 the sale deed dated May 15, 1946 @ Rs. 1/6/- per square yard. We find from the records that land comprised in plot No. 110 which is adjacent West to the Railway line was purchased by sale deed dated May 15, 1945, Ex. 11 @ Rs. 5 per square yard. It was resold by sale deed dated October 4, 1948, Ex. 12 @ Rs. 10 per square yard. It would thus be seen that the price of the land in the locality was doubled in the course of three years near about the time the notification under Section 4 had been issued. Thus the value of the land in question could be taken at Rs. 2/12/- per square yard on the basis of Uggra Sens sale deed. But we are taking not the double figure because the doubling of the price in regard to plot No. 110 was in respect of a land which was to the West of the Railway line. Ex. 40 is a sale deed dated February 15, 1947 which is in respect of a small piece of land to the South of the Bhopa Road but very near the land in question. This sale deed shows the sale price of the land at Rs. 10 per square yard. We are leaving this sale deed out of consideration as the area covered by it is very small being only 424 square yards. But the High Court was not right in completely brushing aside the sale deed dated March 11, 1948, Ex. 9 by which about 5 bighas of land in plot No. 220 was sold approximately @ Rs. 7 per square yard. This sale deed has been rejected on the ground that plot No. 220 is near the Railway crossing; it contained a mango grove and that it was a small plot compared to the land in question. We are not impressed by any of these reasons. Since the plots is to the East of the Railway line its nearness to the Railway crossing cannot bring about a huge difference in value in comparison with the appellants land. So also the existence of the mango grove cannot justify the large difference between Rs. 7 per square yard and 6 annas per square yard. It is not a small plot of land. Although it is smaller in area than the appellants land, yet it is big enough for throwing light on the prevailing market value of the land in the locality at the relevant time. 7. Appellant Deep Chand was Vice-President and Secretary of S.D. College, Muzaffarnagar. For the purpose of the college a large chunk of his land situated further east was acquired in the year 1955. The appellant agreed before the Acquisition Officer to accept the price of his land for the purpose of the college @ 5 annas per square yard. This seems to have heavily weighed with the courts below in fixing 6 annas per square yard as the value of the land in question. But in our opinion wrongly. The appellant and his family were interested in the establishment of the college. Deep Chand was the Vice-President and the Secretary. Obviously, therefore, he accepted a nominal price by way of compromise before the Land Acquisition Officer as a good gesture and benevolent disposition. He did not contest the valuation matter nor did he ask for any reference. In respect of the land in question he had already started making his claim by way of reference and claim Rs. 6 per square yard. It does not stand to reason, therefore, that he would accept 5 annas per square yard for the college land thinking that was the proper market value of the land in or about the year 1955. 8. For the reasons stated above we fix the market value of the land in question prevailing at the relevant time at Rs. 2/6/- per square yard that is to say the appellant is entitled over and above the amount fixed by the District Judge an extra rate of Rs. 2 per square yard in respect of his land. The value of his khudkasht land measuring 6, 860 square yards will be Rs. 13, 720. The value of his 61, 012 square yards, the tenants land, will be Rs. 1, 22, 024. Calculating it at the rate of 10 annas in a rupee the value of the appellants share will be Rs. 76, 265. The total value of this land thus comes to Rs. 89, 985. Solatium of 15 per cent on the said amount comes to Rs. 13, 497.75 paise. Thus the total extra amount awarded by us over and above the amount awarded by the courts below comes to Rs. 1, 03, 482.75 paise. The appellant will be entitled to interest on this amount also @ 6 per cent per annum from the date of dispossession i.e. May 1, 1951 till the date of payment.
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been substantially allowed and by committing obvious error in appreciation of the legal position and the facts and circumstances of the case the High Court maintained the valuation fixed by the District Judge5. As noticed by the High Court the land had certain disadvantages also. The level of the land was lower than the level of the Bhopa Road; during rainy season water collected on it. There were some pits here and there, which needed filling up. Nonetheless the value fixed by the courts below, in our judgment, is too low and unjust. If these defects would not have been there the value of the land would have been not less than Rs. 5 per square yard. In any event we shall immediately show that the value cannot be less than Rs. 2/6/per square yard6. The market value of the land had to be fixed as prevailing on the date of the notification under Section 4 of the Land Acquisition Act, which, as already stated, was issued on November 25, 1948. It would appear from the site plan that Uggra Sens land was not abutting the Bhopa Road although it was near it. It was land locked as it was surrounded on all sides by the appellants land in question. Uggra Sen had purchased his land by Ex. 7 the sale deed dated May 15, 1946 @ Rs. 1/6/per square. We find from the records that land comprised in plot No. 110 which is adjacent West to the Railway line was purchased by sale deed dated May 15, 1945, Ex. 11 @ Rs. 5per square. It was resold by sale deed dated October 4, 1948, Ex. 12 @ Rs. 10per square. It would thus be seen that the price of the land in the locality was doubled in the course of three years near about the time the notification under Section 4 had been issued. Thus the value of the land in question could be taken at Rs. 2/12/per squareyardon the basis of Uggra Sens sale deed. But we are taking not the double figure because the doubling of the price in regard to plot No. 110 was in respect of a land which was to the West of the Railway line. Ex. 40 is a sale deed dated February 15, 1947 which is in respect of a small piece of land to the South of the Bhopa Road but very near the land in question. This sale deed shows the sale price of the land at Rs. 10per square. We are leaving this sale deed out of consideration as the area covered by it is very small being only 424 square. But the High Court was not right in completely brushing aside the sale deed dated March 11, 1948, Ex. 9 by which about 5 bighas of land in plot No. 220 was sold approximately @ Rs. 7per square. This sale deed has been rejected on the ground that plot No. 220 is near the Railway crossing; it contained a mango grove and that it was a small plot compared to the land in question. We are not impressed by any of these reasons. Since the plots is to the East of the Railway line its nearness to the Railway crossing cannot bring about a huge difference in value in comparison with the appellants land. So also the existence of the mango grove cannot justify the large difference between Rs. 7per squareyardand 6 annasper square. It is not a small plot of land. Although it is smaller in area than the appellants land, yet it is big enough for throwing light on the prevailing market value of the land in the locality at the relevant time7. Appellant Deep Chand wast and Secretary of S.D. College, Muzaffarnagar. For the purpose of the college a large chunk of his land situated further east was acquired in the year 1955. The appellant agreed before the Acquisition Officer to accept the price of his land for the purpose of the college @ 5 annasper square. This seems to have heavily weighed with the courts below in fixing 6 annasper squareyardas the value of the land in question. But in our opinion wrongly. The appellant and his family were interested in the establishment of the college. Deep Chand was thet and the Secretary. Obviously, therefore, he accepted a nominal price by way of compromise before the Land Acquisition Officer as a good gesture and benevolent disposition. He did not contest the valuation matter nor did he ask for any reference. In respect of the land in question he had already started making his claim by way of reference and claim Rs. 6per square. It does not stand to reason, therefore, that he would accept 5 annasper squareyardfor the college land thinking that was the proper market value of the land in or about the year 19558. For the reasons stated above we fix the market value of the land in question prevailing at the relevant time at Rs. 2/6/per squareyardthat is to say the appellant is entitled over and above the amount fixed by the District Judge an extra rate of Rs. 2per squareyardin respect of his land. The value of his khudkasht land measuring 6, 860 squares will be Rs. 13, 720. The value of his 61, 012 square, the tenants land, will be Rs. 1, 22, 024. Calculating it at the rate of 10 annas in a rupee the value of the appellants share will be Rs. 76, 265. The total value of this land thus comes to Rs. 89, 985. Solatium of 15 per cent on the said amount comes to Rs. 13, 497.75 paise. Thus the total extra amount awarded by us over and above the amount awarded by the courts below comes to Rs. 1, 03, 482.75 paise. The appellant will be entitled to interest on this amount also @ 6 per cent per annum from the date of dispossession i.e. May 1, 1951 till the date of payment.
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P. Lakshmi Reddy Vs. L. Lakshmi Reddy | legis, for the benefit of whoever may be ultimately determined to be entitled thereto". But does this doctrine enable a person who was not previously in possession of the suit properties, to claim that the Receiver must be deemed to have taken possession adversely to the true owner, on this behalf, merely because he ultimately succeeds in getting a decree for possession against the defendant therein who was previously in possession without title? A Receiver is an officer of Court and is not a particular agent of any party to the suit, notwithstanding that in law his possession is ultimately treated as possession of the successful party on the termination of the suit. To treat such Receiver as plaintiffs agent for the purpose of initiating adverse possession by the plaintiff would be to impute wrong-doing to the Court and its officers. The doctrine of the Receivers possession being that of the successful party cannot, in our opinion, be pushed to the extent of enabling a person who was initially out of possession to claim the tacking on of Receivers possession to his subsequent adverse possession. The position may conceivably be different where the defendant in the suit was previously in adverse possession against the real owner and the Receiver has taken possession from him and restores it back to him on the successful termination of the suit in his favour. In such a case the question that would arise would be different, viz., whether the interim possession of the Receiver would be a discontinuance or abandonment of possession or interruption of the adverse possession. We are not concerned with it in this case and express no opinion on it. 7. The matter may be looked at from another point of view. It is well-settled that limitation cannot begin to run against a person unless at the time that person is legally in a position to vindicate his title by action. In Mitras Tagort Law Lectures on Limitation and Prescription (6th Edition) Vol. I, Lecture VI, at Page 159, quoting from Angell on Limitation, this principle is stated in the following terms :"An adverse holding is an actual and exclusive appropriation of land commenced and continued under a claim of right, either under an openly avowed claim, or under a constructive claim (arising from the acts and circumstances attending the appropriation), to hold the land against him(sic) who was in possession. (Angell, sections 390 and 398). It is the intention to claim adversely accompanied by such an invasion of the rights of the opposite party as gives him a cause of action which constitutes adverse possession". Consonant with this principle the commencement of adverse possession, in favour of a person, implies that that person is in actual possession, at the time, with a notorious hostile claim of exclusive title, to repel which, the true owner would then be in a position to maintain an action. It would follow that whatever may be the animus or intention of a person wanting to acquire title by adverse possession his adverse possession cannot commence until site animus. In the leading case of Agency Company v. Short, (1888) 13 AC 793 (G) the Privy Council points out that there is discontinuance of adverse possession when possession has been abandoned and gives as the reason therefor, at page 798, as follows:"There is no one against whom he (the rightful owner) can bring his action". It is clearly implied therein that adverse possession cannot commence without actual possession which can furnish cause of action. This principle has been also explained in Dwijendra Narain Roy v. Joges Chandra De, AIR 1924 Cal 600 (H) at page 609 by Mookerjee, J. as follows:"The substance of the matter is that time runs when the cause of action on accrues, an a cause of action accrues when there is in existence a person who can sue and another who can be used ................... The cause of action arises when and only when the aggrieved party has the right to apply to the proper tribunals for relief. The statute (of limitation) does not attach to the claim for which there is as yet no right of action and does not run against a right for which there is no corresponding remedy or for which judgment cannot be obtained. Consequently the true test to determine when a cause of action has accrued is to ascertain the time when plaintiff could first have maintained his action to a successful result". In the present case, the co-heirs out of possession such as plaintiff and the second defendant were not obliged to bring a suit for possession, against Hanimi Reddy until such time as Hanimi Reddy obtained actual possession. Indeed during the time when the Receiver was in possession, obviously, they could not sue him for possession to vindicate their title. Nor were they obliged during that time to file a futile suit for possession either against Hanimi Reddy or against the defendants in Hanimi Reddys suit when neither of them was in possession. It appears to us, therefore, that the adverse possession of Hanimi Reddy, if any, as against his co-heirs could not commence when the Receiver was in possession. It follows that assuming that the possession of Hanimi Reddy from January 20, 1930, was in fact adverse and amounted to ouster of the co-heirs such adverse possession was not adequate in time by October 23,1941 the date of suit to displace the title of the plaintiff. It follows that the plaintiff- respondent before us, is entitled to the decree which he has obtained and that the decision of the High Court is, in our view, correct, though on different grounds.It may be mentioned that objection has been raised on behalf of the respondent before us that the question of tacking on Receivers possession was not in issue in the lower courts and should not be allowed to be raised here. In the view we have taken it is unnecessary to deal with this objection. | 0[ds]5. In the present case there can be no doubt that Hanimi Reddy obtained sole possession of the suit properties after the death of Venkata Reddy on the basis of an action against third parties in which he claimed to be the sole nearest male agnate having title to all the properties. After obtaining possession he was in continuous and undisputed possession of the properties till his death enjoying all the profits thereof. No doubt in an ordinary case such possession and enjoyment has to be attributed to his lawful title, he being one of the co-heirs. But the plaint in the suit of 1927 and the decree therein, render it reasonably clear that he filed the suit and obtained possession on the basis of his having exclusive title ignoring his co-heirs. It is urged that knowledge of the assertion of such exclusive title averred in a plaint cannot be imputed to other co-heirs who are not parties to the suit. But in this case it is not difficult on the evidence to say that the plaintiff and the second defendant must have been fully aware, at the time, of the nature of the claim made by Hanimi Reddy in the prior litigation and on the basis of which he obtained possession. That knowledge is implicit in the very case that they have put forward in the present plaint. Their case is that the prior suit was brought by Hanimi Reddy with the consent of the plaintiff and the second defendant and on their behalf. No doubt that specific case has been found against them and that finding is res judicata between the parties. But there is no reason why the admission as to the knowledge of the nature of the litigation and the contents of the plaint which such a case necessarily implies should not be attributed at least to the present plaintiff. It appears reasonable to think that the plaintiff being unable to explain his inaction for over fourteen years after the death of Venkata Reddy has been constrained to put forward a false case that the prior suit by Hanimi Reddy was with his consent and on his behalf. It is significant that the plaintiff has remained silent without asserting his right during Hanimi Reddys life time, and comes forward with this suit after his death, rendering it difficult to ascertain whether the fact of Hanimi Reddy completely ignoring the existence of the plaintiff and the second defendant as co-heirs was not in denial of their relationship and consequently of their title as co-heirs to their knowledge. The fact that even so late as in the written-statement of the first defendant relationship is denied may be indicative as to why Hanimi Reddy ignored the plaintiff and the second defendant and why they remained silent. The learned Judges of the High Court thought that there was nothing to show that Hanimi Reddy was aware that plaintiff and second defendant had any rights in the properties as co-heirs. This assumption is contrary to the admission of mutual knowledge of each others rights implicit in the plaintiffs case that Hanimi Reddy brought his suit with the consent of the plaintiff. In such circumstances and especially having regard to the fact that both the plaintiff and Hanimi Reddy were living in the same village and the plaintiff has put forward a false explanation to account for his inaction, a court of fact might well have inferred ouster. Sitting on an appeal in special leave, however, we do not feel it desirable to decide the case on this ground. We, therefore, proceed to consider the further question that arises in the case, viz, whether the Receivers possession can be tacked on to Hanimi Reddys possession on the assumption that Hanimi Reddys possession on and from January 20,1930, was adverse to the plaintiff. The doctrine of the Receivers possession being that of the successful party cannot, in our opinion, be pushed to the extent of enabling a person who was initially out of possession to claim the tacking on of Receivers possession to his subsequent adverse possession. The position may conceivably be different where the defendant in the suit was previously in adverse possession against the real owner and the Receiver has taken possession from him and restores it back to him on the successful termination of the suit in his favour. In such a case the question that would arise would be different, viz., whether the interim possession of the Receiver would be a discontinuance or abandonment of possession or interruption of the adverse possession. We are not concerned with it in this case and express no opinion on it7. The matter may be looked at from another point of view. It is well-settled that limitation cannot begin to run against a person unless at the time that person is legally in a position to vindicate his title by action.In the present case, the co-heirs out of possession such as plaintiff and the second defendant were not obliged to bring a suit for possession, against Hanimi Reddy until such time as Hanimi Reddy obtained actual possession. Indeed during the time when the Receiver was in possession, obviously, they could not sue him for possession to vindicate their title. Nor were they obliged during that time to file a futile suit for possession either against Hanimi Reddy or against the defendants in Hanimi Reddys suit when neither of them was in possession. It appears to us, therefore, that the adverse possession of Hanimi Reddy, if any, as against his co-heirs could not commence when the Receiver was in possession. It follows that assuming that the possession of Hanimi Reddy from January 20, 1930, was in fact adverse and amounted to ouster of the co-heirs such adverse possession was not adequate in time by October 23,1941 the date of suit to displace the title of the plaintiff. It follows that the plaintiff- respondent before us, is entitled to the decree which he has obtained and that the decision of the High Court is, in our view, correct, though on different grounds.It may be mentioned that objection has been raised on behalf of the respondent before us that the question of tacking on Receivers possession was not in issue in the lower courts and should not be allowed to be raised here. In the view we have taken it is unnecessary to deal with this objection | 0 | 4,550 | 1,140 | ### 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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legis, for the benefit of whoever may be ultimately determined to be entitled thereto". But does this doctrine enable a person who was not previously in possession of the suit properties, to claim that the Receiver must be deemed to have taken possession adversely to the true owner, on this behalf, merely because he ultimately succeeds in getting a decree for possession against the defendant therein who was previously in possession without title? A Receiver is an officer of Court and is not a particular agent of any party to the suit, notwithstanding that in law his possession is ultimately treated as possession of the successful party on the termination of the suit. To treat such Receiver as plaintiffs agent for the purpose of initiating adverse possession by the plaintiff would be to impute wrong-doing to the Court and its officers. The doctrine of the Receivers possession being that of the successful party cannot, in our opinion, be pushed to the extent of enabling a person who was initially out of possession to claim the tacking on of Receivers possession to his subsequent adverse possession. The position may conceivably be different where the defendant in the suit was previously in adverse possession against the real owner and the Receiver has taken possession from him and restores it back to him on the successful termination of the suit in his favour. In such a case the question that would arise would be different, viz., whether the interim possession of the Receiver would be a discontinuance or abandonment of possession or interruption of the adverse possession. We are not concerned with it in this case and express no opinion on it. 7. The matter may be looked at from another point of view. It is well-settled that limitation cannot begin to run against a person unless at the time that person is legally in a position to vindicate his title by action. In Mitras Tagort Law Lectures on Limitation and Prescription (6th Edition) Vol. I, Lecture VI, at Page 159, quoting from Angell on Limitation, this principle is stated in the following terms :"An adverse holding is an actual and exclusive appropriation of land commenced and continued under a claim of right, either under an openly avowed claim, or under a constructive claim (arising from the acts and circumstances attending the appropriation), to hold the land against him(sic) who was in possession. (Angell, sections 390 and 398). It is the intention to claim adversely accompanied by such an invasion of the rights of the opposite party as gives him a cause of action which constitutes adverse possession". Consonant with this principle the commencement of adverse possession, in favour of a person, implies that that person is in actual possession, at the time, with a notorious hostile claim of exclusive title, to repel which, the true owner would then be in a position to maintain an action. It would follow that whatever may be the animus or intention of a person wanting to acquire title by adverse possession his adverse possession cannot commence until site animus. In the leading case of Agency Company v. Short, (1888) 13 AC 793 (G) the Privy Council points out that there is discontinuance of adverse possession when possession has been abandoned and gives as the reason therefor, at page 798, as follows:"There is no one against whom he (the rightful owner) can bring his action". It is clearly implied therein that adverse possession cannot commence without actual possession which can furnish cause of action. This principle has been also explained in Dwijendra Narain Roy v. Joges Chandra De, AIR 1924 Cal 600 (H) at page 609 by Mookerjee, J. as follows:"The substance of the matter is that time runs when the cause of action on accrues, an a cause of action accrues when there is in existence a person who can sue and another who can be used ................... The cause of action arises when and only when the aggrieved party has the right to apply to the proper tribunals for relief. The statute (of limitation) does not attach to the claim for which there is as yet no right of action and does not run against a right for which there is no corresponding remedy or for which judgment cannot be obtained. Consequently the true test to determine when a cause of action has accrued is to ascertain the time when plaintiff could first have maintained his action to a successful result". In the present case, the co-heirs out of possession such as plaintiff and the second defendant were not obliged to bring a suit for possession, against Hanimi Reddy until such time as Hanimi Reddy obtained actual possession. Indeed during the time when the Receiver was in possession, obviously, they could not sue him for possession to vindicate their title. Nor were they obliged during that time to file a futile suit for possession either against Hanimi Reddy or against the defendants in Hanimi Reddys suit when neither of them was in possession. It appears to us, therefore, that the adverse possession of Hanimi Reddy, if any, as against his co-heirs could not commence when the Receiver was in possession. It follows that assuming that the possession of Hanimi Reddy from January 20, 1930, was in fact adverse and amounted to ouster of the co-heirs such adverse possession was not adequate in time by October 23,1941 the date of suit to displace the title of the plaintiff. It follows that the plaintiff- respondent before us, is entitled to the decree which he has obtained and that the decision of the High Court is, in our view, correct, though on different grounds.It may be mentioned that objection has been raised on behalf of the respondent before us that the question of tacking on Receivers possession was not in issue in the lower courts and should not be allowed to be raised here. In the view we have taken it is unnecessary to deal with this objection.
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profits thereof. No doubt in an ordinary case such possession and enjoyment has to be attributed to his lawful title, he being one of the co-heirs. But the plaint in the suit of 1927 and the decree therein, render it reasonably clear that he filed the suit and obtained possession on the basis of his having exclusive title ignoring his co-heirs. It is urged that knowledge of the assertion of such exclusive title averred in a plaint cannot be imputed to other co-heirs who are not parties to the suit. But in this case it is not difficult on the evidence to say that the plaintiff and the second defendant must have been fully aware, at the time, of the nature of the claim made by Hanimi Reddy in the prior litigation and on the basis of which he obtained possession. That knowledge is implicit in the very case that they have put forward in the present plaint. Their case is that the prior suit was brought by Hanimi Reddy with the consent of the plaintiff and the second defendant and on their behalf. No doubt that specific case has been found against them and that finding is res judicata between the parties. But there is no reason why the admission as to the knowledge of the nature of the litigation and the contents of the plaint which such a case necessarily implies should not be attributed at least to the present plaintiff. It appears reasonable to think that the plaintiff being unable to explain his inaction for over fourteen years after the death of Venkata Reddy has been constrained to put forward a false case that the prior suit by Hanimi Reddy was with his consent and on his behalf. It is significant that the plaintiff has remained silent without asserting his right during Hanimi Reddys life time, and comes forward with this suit after his death, rendering it difficult to ascertain whether the fact of Hanimi Reddy completely ignoring the existence of the plaintiff and the second defendant as co-heirs was not in denial of their relationship and consequently of their title as co-heirs to their knowledge. The fact that even so late as in the written-statement of the first defendant relationship is denied may be indicative as to why Hanimi Reddy ignored the plaintiff and the second defendant and why they remained silent. The learned Judges of the High Court thought that there was nothing to show that Hanimi Reddy was aware that plaintiff and second defendant had any rights in the properties as co-heirs. This assumption is contrary to the admission of mutual knowledge of each others rights implicit in the plaintiffs case that Hanimi Reddy brought his suit with the consent of the plaintiff. In such circumstances and especially having regard to the fact that both the plaintiff and Hanimi Reddy were living in the same village and the plaintiff has put forward a false explanation to account for his inaction, a court of fact might well have inferred ouster. Sitting on an appeal in special leave, however, we do not feel it desirable to decide the case on this ground. We, therefore, proceed to consider the further question that arises in the case, viz, whether the Receivers possession can be tacked on to Hanimi Reddys possession on the assumption that Hanimi Reddys possession on and from January 20,1930, was adverse to the plaintiff. The doctrine of the Receivers possession being that of the successful party cannot, in our opinion, be pushed to the extent of enabling a person who was initially out of possession to claim the tacking on of Receivers possession to his subsequent adverse possession. The position may conceivably be different where the defendant in the suit was previously in adverse possession against the real owner and the Receiver has taken possession from him and restores it back to him on the successful termination of the suit in his favour. In such a case the question that would arise would be different, viz., whether the interim possession of the Receiver would be a discontinuance or abandonment of possession or interruption of the adverse possession. We are not concerned with it in this case and express no opinion on it7. The matter may be looked at from another point of view. It is well-settled that limitation cannot begin to run against a person unless at the time that person is legally in a position to vindicate his title by action.In the present case, the co-heirs out of possession such as plaintiff and the second defendant were not obliged to bring a suit for possession, against Hanimi Reddy until such time as Hanimi Reddy obtained actual possession. Indeed during the time when the Receiver was in possession, obviously, they could not sue him for possession to vindicate their title. Nor were they obliged during that time to file a futile suit for possession either against Hanimi Reddy or against the defendants in Hanimi Reddys suit when neither of them was in possession. It appears to us, therefore, that the adverse possession of Hanimi Reddy, if any, as against his co-heirs could not commence when the Receiver was in possession. It follows that assuming that the possession of Hanimi Reddy from January 20, 1930, was in fact adverse and amounted to ouster of the co-heirs such adverse possession was not adequate in time by October 23,1941 the date of suit to displace the title of the plaintiff. It follows that the plaintiff- respondent before us, is entitled to the decree which he has obtained and that the decision of the High Court is, in our view, correct, though on different grounds.It may be mentioned that objection has been raised on behalf of the respondent before us that the question of tacking on Receivers possession was not in issue in the lower courts and should not be allowed to be raised here. In the view we have taken it is unnecessary to deal with this objection
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Commissioner Of Income Tax Vs. S. N. A. S. A. Annamalai Chettiar | assessment year 1942-43. This loss was claimed as a business loss. The Income-tax Officer rejected that claim. The Appellate Assistant Commissioner affirmed the order of the Income-tax Officer. The assessee did not succeed before the Tribunal as well. The Tribunal rejected the claim of the assessee on the sole ground that bombing, which caused the loss, was not incidental to the business of the assessee. The Tribunal held that the loss in question was a loss of stock-in-trade. That finding of the Tribunal has not been challenged. Hence we have to proceed on the basis that the loss caused to the assessee was a loss of stock-in-trade.3. It was contended on behalf of the department that the loss in question cannot be given deduction to, as a business loss in computing the net income of the assessee under Section 10 (1). According to the department that was not a loss incidental to the business carried on by the assessee.4. We are unable to appreciate the contention of the department. It is established that the assessee was carrying on business in Malaya when the war was going on. Malaya was within the war zone and, therefore, there was every possibility of that area being bombed. If the assessee had earned any profits out of his business during the war, the department undoubtedly would have considered those profits as assessable income.It is strange that when loss had occurred in such a situation the department should contend that the loss in question was not a business loss. In our opinion, taking into consideration the facts and circumstances of the case, the loss occurred must be held to be a loss incidental to the business carried on by the assessee in Malaya during the war.5. We are fortified in our conclusion by the decision of the Bombay High Court in Pohoomal Bros. v. Commissioner of Income-tax, Bombay City, 34 ITR 64 = (AIR 1958 Bom 461 ). The facts of that case are somewhat similar to the facts before us. The assessee therein, which had its head office in Bombay and branches in various parts of the world, claimed deduction of the losses resulting from the destruction of its stock-in-trade in three foreign branches at Manila, Saigon and Kuala Lumpur, by enemy invasion, in computing its profits and gains for the purpose of income tax. The department resisted that claim but the High Court held that the losses in question were trading losses. This decision of the High Court was cited with approval by this Court in Commr. of Income-tax, U. P. v. Nainital Bank Ltd., 55 ITR 707 = (AIR 1965 SC 1227 ). In this connection we may also refer to two English decisions. The first case is Green v. J. Gliksten, (1929) 14 Tax Cas 364. The facts of that case were as follows :6. A fire occurred on the companys premises in August, 1921 and destroyed timber the written down value of which in the companys books was ? 160.824; the companys valuation of its stock based on cost or market value whichever was the lower, had been accepted for purposes of taxation. The timber had been insured for many years and the company had been allowed to deduct the insurance premiums in computing its assesable profits. In due course the company received from the insurers a sum of ? 477.838 representing the replacement value of the destroyed timber, but only a small part of this timber was in fact replaced because the current demand was for timber of a different character. The company accordingly credited in its profit and loss account as a trading receipt only ? 160.824 of the insurance payment; the balance did not appear in the profit and loss account but was entered as a reserve in the balance sheet. The Special Commissioners held that no part of the sum of ? 477.838 recovered from the insurers was a trading receipt. But the House of Lords held that the whole sum recovered was trading receipt to be taken into account in computing the profits assessable to Income-tax under case I of Schedule D and to Corporation Profits Tax. This court in Nainital Banks case, 55 ITR 707 = (AIR 1965 SC 1227 ) (supra) quoting that decision with approval observed. "If receipt from an insurance company towards loss of stock was a trading receipt, conversely to the extent of the loss not so recouped it should be trading loss."7. Next we shall refer to the decision of the Court of Appeal in London Investment and Mortgage Co. Ltd. v. Inland Revenue Commissioners, (1957) 1 All ER 277. The facts of that case were as follows :The assessee were paying compulsory war damage contributions during the war in respect of the properties in which they were dealing. They received payments under the War Damage Act, 1943, in respect of the properties damaged by enemy action. They disposed of some of the properties but retained others as part of their stock-in-trade and either were having them rebuilt or would have them rebuilt. Under the War Damage Act, 1943, contributions made and indemnities given under Part 1 were to be treated for all purposes as outgoings of a capital nature and expenditure on making good war damage was not deductible in computing profits for income tax purposes. On the question whether the value payments should be included in the receipts of the taxpayers trade for the purpose of their assessments to income under Case 1 of Schedule D and to profit tax, the Court of Appeal held that the value payments should properly be treated as part of the taxpayers trading receipts, since they were money into which their stock-in-trade had been converted. This decision is an authority for the proposition that the compensation received in lieu of loss of stock in trade as a result of enemy action is a trading receipt; conversely a loss of stock-in-trade occasioned by enemy action must be considered as a trading loss.8 | 0[ds]5. We are fortified in our conclusion by the decision of the Bombay High Court in Pohoomal Bros. v. Commissioner of Income-tax, Bombay City, 34 ITR 64 = (AIR 1958 Bom 461 ). The facts of that case are somewhat similar to the facts before us. The assessee therein, which had its head office in Bombay and branches in various parts of the world, claimed deduction of the losses resulting from the destruction of its stock-in-trade in three foreign branches at Manila, Saigon and Kuala Lumpur, by enemy invasion, in computing its profits and gains for the purpose of income tax. The department resisted that claim but the High Court held that the losses in question were trading losses. This decision of the High Court was cited with approval by this Court in Commr. of Income-tax, U. P. v. Nainital Bank Ltd., 55 ITR 707 = (AIR 1965 SC 1227 ). In this connection we may also refer to two English decisions. The first case is Green v. J. Gliksten, (1929) 14 Tax Cas 364. The facts of that case were as follows :6. A fire occurred on the companys premises in August, 1921 and destroyed timber the written down value of which in the companys books was ? 160.824; the companys valuation of its stock based on cost or market value whichever was the lower, had been accepted for purposes of taxation. The timber had been insured for many years and the company had been allowed to deduct the insurance premiums in computing its assesable profits. In due course the company received from the insurers a sum of ? 477.838 representing the replacement value of the destroyed timber, but only a small part of this timber was in fact replaced because the current demand was for timber of a different character. The company accordingly credited in its profit and loss account as a trading receipt only ? 160.824 of the insurance payment; the balance did not appear in the profit and loss account but was entered as a reserve in the balance sheet. The Special Commissioners held that no part of the sum of ? 477.838 recovered from the insurers was a trading receipt. But the House of Lords held that the whole sum recovered was trading receipt to be taken into account in computing the profits assessable to Income-tax under case I of Schedule D and to Corporation Profits Tax. This court in Nainital Banks case, 55 ITR 707 = (AIR 1965 SC 1227 ) (supra) quoting that decision with approval observed. "If receipt from an insurance company towards loss of stock was a trading receipt, conversely to the extent of the loss not so recouped it should be trading loss."7. Next we shall refer to the decision of the Court of Appeal inLondon Investment and Mortgage Co. Ltd. v. Inland Revenue Commissioners, (1957) 1 All ER 277.The facts of that case were as follows :The assessee were paying compulsory war damage contributions during the war in respect of the properties in which they were dealing. They received payments under the War Damage Act, 1943, in respect of the properties damaged by enemy action. They disposed of some of the properties but retained others as part of their stock-in-trade and either were having them rebuilt or would have them rebuilt. Under the War Damage Act, 1943, contributions made and indemnities given under Part 1 were to be treated for all purposes as outgoings of a capital nature and expenditure on making good war damage was not deductible in computing profits for income tax purposes. On the question whether the value payments should be included in the receipts of the taxpayers trade for the purpose of their assessments to income under Case 1 of Schedule D and to profit tax, the Court of Appeal held that the value payments should properly be treated as part of the taxpayers trading receipts, since they were money into which their stock-in-trade had been converted. This decision is an authority for the proposition that the compensation received in lieu of loss of stock in trade as a result of enemy action is a trading receipt; conversely a loss of stock-in-trade occasioned by enemy action must be considered as a trading loss. | 0 | 1,332 | 774 | ### 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:
assessment year 1942-43. This loss was claimed as a business loss. The Income-tax Officer rejected that claim. The Appellate Assistant Commissioner affirmed the order of the Income-tax Officer. The assessee did not succeed before the Tribunal as well. The Tribunal rejected the claim of the assessee on the sole ground that bombing, which caused the loss, was not incidental to the business of the assessee. The Tribunal held that the loss in question was a loss of stock-in-trade. That finding of the Tribunal has not been challenged. Hence we have to proceed on the basis that the loss caused to the assessee was a loss of stock-in-trade.3. It was contended on behalf of the department that the loss in question cannot be given deduction to, as a business loss in computing the net income of the assessee under Section 10 (1). According to the department that was not a loss incidental to the business carried on by the assessee.4. We are unable to appreciate the contention of the department. It is established that the assessee was carrying on business in Malaya when the war was going on. Malaya was within the war zone and, therefore, there was every possibility of that area being bombed. If the assessee had earned any profits out of his business during the war, the department undoubtedly would have considered those profits as assessable income.It is strange that when loss had occurred in such a situation the department should contend that the loss in question was not a business loss. In our opinion, taking into consideration the facts and circumstances of the case, the loss occurred must be held to be a loss incidental to the business carried on by the assessee in Malaya during the war.5. We are fortified in our conclusion by the decision of the Bombay High Court in Pohoomal Bros. v. Commissioner of Income-tax, Bombay City, 34 ITR 64 = (AIR 1958 Bom 461 ). The facts of that case are somewhat similar to the facts before us. The assessee therein, which had its head office in Bombay and branches in various parts of the world, claimed deduction of the losses resulting from the destruction of its stock-in-trade in three foreign branches at Manila, Saigon and Kuala Lumpur, by enemy invasion, in computing its profits and gains for the purpose of income tax. The department resisted that claim but the High Court held that the losses in question were trading losses. This decision of the High Court was cited with approval by this Court in Commr. of Income-tax, U. P. v. Nainital Bank Ltd., 55 ITR 707 = (AIR 1965 SC 1227 ). In this connection we may also refer to two English decisions. The first case is Green v. J. Gliksten, (1929) 14 Tax Cas 364. The facts of that case were as follows :6. A fire occurred on the companys premises in August, 1921 and destroyed timber the written down value of which in the companys books was ? 160.824; the companys valuation of its stock based on cost or market value whichever was the lower, had been accepted for purposes of taxation. The timber had been insured for many years and the company had been allowed to deduct the insurance premiums in computing its assesable profits. In due course the company received from the insurers a sum of ? 477.838 representing the replacement value of the destroyed timber, but only a small part of this timber was in fact replaced because the current demand was for timber of a different character. The company accordingly credited in its profit and loss account as a trading receipt only ? 160.824 of the insurance payment; the balance did not appear in the profit and loss account but was entered as a reserve in the balance sheet. The Special Commissioners held that no part of the sum of ? 477.838 recovered from the insurers was a trading receipt. But the House of Lords held that the whole sum recovered was trading receipt to be taken into account in computing the profits assessable to Income-tax under case I of Schedule D and to Corporation Profits Tax. This court in Nainital Banks case, 55 ITR 707 = (AIR 1965 SC 1227 ) (supra) quoting that decision with approval observed. "If receipt from an insurance company towards loss of stock was a trading receipt, conversely to the extent of the loss not so recouped it should be trading loss."7. Next we shall refer to the decision of the Court of Appeal in London Investment and Mortgage Co. Ltd. v. Inland Revenue Commissioners, (1957) 1 All ER 277. The facts of that case were as follows :The assessee were paying compulsory war damage contributions during the war in respect of the properties in which they were dealing. They received payments under the War Damage Act, 1943, in respect of the properties damaged by enemy action. They disposed of some of the properties but retained others as part of their stock-in-trade and either were having them rebuilt or would have them rebuilt. Under the War Damage Act, 1943, contributions made and indemnities given under Part 1 were to be treated for all purposes as outgoings of a capital nature and expenditure on making good war damage was not deductible in computing profits for income tax purposes. On the question whether the value payments should be included in the receipts of the taxpayers trade for the purpose of their assessments to income under Case 1 of Schedule D and to profit tax, the Court of Appeal held that the value payments should properly be treated as part of the taxpayers trading receipts, since they were money into which their stock-in-trade had been converted. This decision is an authority for the proposition that the compensation received in lieu of loss of stock in trade as a result of enemy action is a trading receipt; conversely a loss of stock-in-trade occasioned by enemy action must be considered as a trading loss.8
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0
### Explanation:
5. We are fortified in our conclusion by the decision of the Bombay High Court in Pohoomal Bros. v. Commissioner of Income-tax, Bombay City, 34 ITR 64 = (AIR 1958 Bom 461 ). The facts of that case are somewhat similar to the facts before us. The assessee therein, which had its head office in Bombay and branches in various parts of the world, claimed deduction of the losses resulting from the destruction of its stock-in-trade in three foreign branches at Manila, Saigon and Kuala Lumpur, by enemy invasion, in computing its profits and gains for the purpose of income tax. The department resisted that claim but the High Court held that the losses in question were trading losses. This decision of the High Court was cited with approval by this Court in Commr. of Income-tax, U. P. v. Nainital Bank Ltd., 55 ITR 707 = (AIR 1965 SC 1227 ). In this connection we may also refer to two English decisions. The first case is Green v. J. Gliksten, (1929) 14 Tax Cas 364. The facts of that case were as follows :6. A fire occurred on the companys premises in August, 1921 and destroyed timber the written down value of which in the companys books was ? 160.824; the companys valuation of its stock based on cost or market value whichever was the lower, had been accepted for purposes of taxation. The timber had been insured for many years and the company had been allowed to deduct the insurance premiums in computing its assesable profits. In due course the company received from the insurers a sum of ? 477.838 representing the replacement value of the destroyed timber, but only a small part of this timber was in fact replaced because the current demand was for timber of a different character. The company accordingly credited in its profit and loss account as a trading receipt only ? 160.824 of the insurance payment; the balance did not appear in the profit and loss account but was entered as a reserve in the balance sheet. The Special Commissioners held that no part of the sum of ? 477.838 recovered from the insurers was a trading receipt. But the House of Lords held that the whole sum recovered was trading receipt to be taken into account in computing the profits assessable to Income-tax under case I of Schedule D and to Corporation Profits Tax. This court in Nainital Banks case, 55 ITR 707 = (AIR 1965 SC 1227 ) (supra) quoting that decision with approval observed. "If receipt from an insurance company towards loss of stock was a trading receipt, conversely to the extent of the loss not so recouped it should be trading loss."7. Next we shall refer to the decision of the Court of Appeal inLondon Investment and Mortgage Co. Ltd. v. Inland Revenue Commissioners, (1957) 1 All ER 277.The facts of that case were as follows :The assessee were paying compulsory war damage contributions during the war in respect of the properties in which they were dealing. They received payments under the War Damage Act, 1943, in respect of the properties damaged by enemy action. They disposed of some of the properties but retained others as part of their stock-in-trade and either were having them rebuilt or would have them rebuilt. Under the War Damage Act, 1943, contributions made and indemnities given under Part 1 were to be treated for all purposes as outgoings of a capital nature and expenditure on making good war damage was not deductible in computing profits for income tax purposes. On the question whether the value payments should be included in the receipts of the taxpayers trade for the purpose of their assessments to income under Case 1 of Schedule D and to profit tax, the Court of Appeal held that the value payments should properly be treated as part of the taxpayers trading receipts, since they were money into which their stock-in-trade had been converted. This decision is an authority for the proposition that the compensation received in lieu of loss of stock in trade as a result of enemy action is a trading receipt; conversely a loss of stock-in-trade occasioned by enemy action must be considered as a trading loss.
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State Of Goa Vs. Subhash Ghogle | DR. Arijit Pasayat, J. 1. Challenge in this appeal is to the judgement of acquittal passed by a Division Bench of Bombay High Court at Goa. 2. The Learned Additional Session Judge, Mapusa had convicted the respondent for offence punishable under Section 302 of the Indian Penal Code, 1860 (for short IPC). 3. The allegation was that on the night of 4th January, 1999 the respondent herein had killed Smt. Bendita Perriera (hereinafter referred to as the deceased) by strangulation. The prosecution relied upon circumstantial evidence to further its version. The Trial Court found that the circumstances were sufficient to fasten the guilt on the accused and accordingly convicted him and sentenced him to undergo imprisonment for life. In appeal, the High Court found that the circumstances highlighted were not sufficient to hold the accused guilty and, therefore, directed acquittal.4. Learned counsel for the appellant submitted with reference to the evidence of PWs 5 and 9, that their evidence was sufficient to hold the respondent guilty. Learned counsel for the respondent on the other hand supported the judgment of the High Court. 5. The circumstances highlighted by the prosecution are as follows: "1. The relations between the appellant/accused and the deceased were strained and the strained relations furnishes a motive.2. The appellant/accused used to usually stay in the company of the deceased on the first floor of the hotel.3. The appellant/accused and the deceased were alone on the first floor at about 11.30 P.M. This circumstances emerges from the evidence of P.Ws. 9 and 10.4. Shouts of quarrels were heard from the first floor by P.Ws. 5, 9 and 10.5. The appellant/accused has not offered any explanation regarding his presence at 11.30 P.M. on the first floor.6. Both the doors were initially found closed by the witnesses and later on P.W.9 noticed the rear door to be opened. Thus an inference can be drawn that the accused had escaped from the rear door after committing the crime.7. Death is homicidal.8. Injury on the accused is consistent with the prosecution case and which is not explained by the accused.9. Statement made by the accused to P.W.1 when he was being examined.10. Blood of B group found on the wristwatch, which was identified to be that of the appellant/accused.11. The false defence taken by the accused furnishes the additional link." 6. So far as some of the circumstances are concerned they have no relevance to be question as to whether the respondent was guilty of the charged offence. The prosecution primarily relied on the evidence of PWs 5,9 and 10. So far as the evidence of these witnesses are concerned the only question(s) of any remote substance out of the questions which were put to the accused in the examination under Section 313 of the Code of Criminal Procedure 1973 (in short the Code) are as follows: "Q.35:- It is in evidence of PW5 that in front of his STD booth there is Lobster pot bar and restaurant run by you and one Bernadette and during night time he presumed that you and her were staying in the said restaurant on the first floor. What do you want to say?Q.45:- It is in the evidence of PW.9 that at mid night at 12.30 he heard the noise of fights between you and Madam Pereira and Madam Pereira shouting and calling him as John. He stated that she was calling him John. He heard her shouts "John help me". What do you want to say? 7. They do not in any way relate to any incriminating material against the accused. 8. So far as PW-10 is concerned his evidence is really of no assistance to the prosecution. They related primarily to the engagement of persons in the restaurant. He has only stated that he heard some noise from outside and heard gagging sound of the deceased on the first floor of the restaurant. 9. In view of the insufficiency of the evidence, as rightly noted by the High Court, the prosecution has failed to establish the accusations, so far as the respondent is concerned. 10. The judgment of acquittal passed by the High Court does not suffer from infirmity to warrant interference.11. | 0[ds]So far as some of the circumstances are concerned they have no relevance to be question as to whether the respondent was guilty of the charged offence. The prosecution primarily relied on the evidence of PWs 5,9 and 10. So far as the evidence of these witnesses are concerned the only question(s) of any remote substance out of the questions which were put to the accused in the examination under Section 313 of the Code of Criminal Procedure 1973 (in short the Code) are asIt is in evidence of PW5 that in front of his STD booth there is Lobster pot bar and restaurant run by you and one Bernadette and during night time he presumed that you and her were staying in the said restaurant on the first floor. What do you want to say?Q.45:- It is in the evidence of PW.9 that at mid night at 12.30 he heard the noise of fights between you and Madam Pereira and Madam Pereira shouting and calling him as John. He stated that she was calling him John. He heard her shouts "John help me". What do you want todo not in any way relate to any incriminating material against thefar as PW-10 is concerned his evidence is really of no assistance to the prosecution. They related primarily to the engagement of persons in the restaurant. He has only stated that he heard some noise from outside and heard gagging sound of the deceased on the first floor of theview of the insufficiency of the evidence, as rightly noted by the High Court, the prosecution has failed to establish the accusations, so far as the respondent is concerned.The judgment of acquittal passed by the High Court does not suffer from infirmity to warrant interference. | 0 | 782 | 320 | ### 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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DR. Arijit Pasayat, J. 1. Challenge in this appeal is to the judgement of acquittal passed by a Division Bench of Bombay High Court at Goa. 2. The Learned Additional Session Judge, Mapusa had convicted the respondent for offence punishable under Section 302 of the Indian Penal Code, 1860 (for short IPC). 3. The allegation was that on the night of 4th January, 1999 the respondent herein had killed Smt. Bendita Perriera (hereinafter referred to as the deceased) by strangulation. The prosecution relied upon circumstantial evidence to further its version. The Trial Court found that the circumstances were sufficient to fasten the guilt on the accused and accordingly convicted him and sentenced him to undergo imprisonment for life. In appeal, the High Court found that the circumstances highlighted were not sufficient to hold the accused guilty and, therefore, directed acquittal.4. Learned counsel for the appellant submitted with reference to the evidence of PWs 5 and 9, that their evidence was sufficient to hold the respondent guilty. Learned counsel for the respondent on the other hand supported the judgment of the High Court. 5. The circumstances highlighted by the prosecution are as follows: "1. The relations between the appellant/accused and the deceased were strained and the strained relations furnishes a motive.2. The appellant/accused used to usually stay in the company of the deceased on the first floor of the hotel.3. The appellant/accused and the deceased were alone on the first floor at about 11.30 P.M. This circumstances emerges from the evidence of P.Ws. 9 and 10.4. Shouts of quarrels were heard from the first floor by P.Ws. 5, 9 and 10.5. The appellant/accused has not offered any explanation regarding his presence at 11.30 P.M. on the first floor.6. Both the doors were initially found closed by the witnesses and later on P.W.9 noticed the rear door to be opened. Thus an inference can be drawn that the accused had escaped from the rear door after committing the crime.7. Death is homicidal.8. Injury on the accused is consistent with the prosecution case and which is not explained by the accused.9. Statement made by the accused to P.W.1 when he was being examined.10. Blood of B group found on the wristwatch, which was identified to be that of the appellant/accused.11. The false defence taken by the accused furnishes the additional link." 6. So far as some of the circumstances are concerned they have no relevance to be question as to whether the respondent was guilty of the charged offence. The prosecution primarily relied on the evidence of PWs 5,9 and 10. So far as the evidence of these witnesses are concerned the only question(s) of any remote substance out of the questions which were put to the accused in the examination under Section 313 of the Code of Criminal Procedure 1973 (in short the Code) are as follows: "Q.35:- It is in evidence of PW5 that in front of his STD booth there is Lobster pot bar and restaurant run by you and one Bernadette and during night time he presumed that you and her were staying in the said restaurant on the first floor. What do you want to say?Q.45:- It is in the evidence of PW.9 that at mid night at 12.30 he heard the noise of fights between you and Madam Pereira and Madam Pereira shouting and calling him as John. He stated that she was calling him John. He heard her shouts "John help me". What do you want to say? 7. They do not in any way relate to any incriminating material against the accused. 8. So far as PW-10 is concerned his evidence is really of no assistance to the prosecution. They related primarily to the engagement of persons in the restaurant. He has only stated that he heard some noise from outside and heard gagging sound of the deceased on the first floor of the restaurant. 9. In view of the insufficiency of the evidence, as rightly noted by the High Court, the prosecution has failed to establish the accusations, so far as the respondent is concerned. 10. The judgment of acquittal passed by the High Court does not suffer from infirmity to warrant interference.11.
### Response:
0
### Explanation:
So far as some of the circumstances are concerned they have no relevance to be question as to whether the respondent was guilty of the charged offence. The prosecution primarily relied on the evidence of PWs 5,9 and 10. So far as the evidence of these witnesses are concerned the only question(s) of any remote substance out of the questions which were put to the accused in the examination under Section 313 of the Code of Criminal Procedure 1973 (in short the Code) are asIt is in evidence of PW5 that in front of his STD booth there is Lobster pot bar and restaurant run by you and one Bernadette and during night time he presumed that you and her were staying in the said restaurant on the first floor. What do you want to say?Q.45:- It is in the evidence of PW.9 that at mid night at 12.30 he heard the noise of fights between you and Madam Pereira and Madam Pereira shouting and calling him as John. He stated that she was calling him John. He heard her shouts "John help me". What do you want todo not in any way relate to any incriminating material against thefar as PW-10 is concerned his evidence is really of no assistance to the prosecution. They related primarily to the engagement of persons in the restaurant. He has only stated that he heard some noise from outside and heard gagging sound of the deceased on the first floor of theview of the insufficiency of the evidence, as rightly noted by the High Court, the prosecution has failed to establish the accusations, so far as the respondent is concerned.The judgment of acquittal passed by the High Court does not suffer from infirmity to warrant interference.
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Bharat Steel Tubes Limited and Another Vs. State of Haryana and Another | indicated that a further notice has to be given. The question that fell for determination before the Court did not require examination as to whether such a notice was necessary. In view of the position as has emerged in the matter before us, we also do not think it necessary to finally indicate as to whether such a notice has to be issued and failure to issue such a notice would prevent the assessing officer from making a best judgment assessment. Though we are of the opinion that such a notice is not a statutory prescription, we do not intend to say anything more about it as judicial propriety would require a larger bench of the Court to examine the correctness of the view in the Indian Aluminium case. On an appropriate occasion, we hope the question as to whether such a notice is a condition precedent to completion of assessment would be examined.In Indian Aluminium case (supra) this Court has approved the earlier decision in Gurbax Singh v. Union of India, [1976] 3 SCR 247. The ratio in Gurbax Singhs case is that in the absence of a period provided by statute for completion of assessment, an order of assessment made with some delay would not be without jurisdiction. Even in Indian Aluminium case (supra), where the statute requires assessment to be completed within a reasonable time, the Court indicated that the argument of the learned counsel that the assessment had to be completed within a reasonable time in order to be sustainable was not acceptable as a sound one. 7. The short question that really falls for examination in this case is whether an order of assessment under sub- section (3) o f section 11 of the Punjab Act or section 28(3) of the Haryana Act can now be completed or would that be barred by limitation. Undoubtedly, the assessment proceedings have been very delayed. As the material placed before us shows, the assessee had gone before different courts from time to time to ask for injunction against the completion of assessment but that trial appears be have started in December, 1980 when a suit was filed and injunction was obtained. Though not ices were issued under sections 11(2) of the Punjab Act or 28(2) of the Haryana Act within a reasonable period from the filing of returns for the respective quarters in the assessment years under consideration, further action has not been tak en by the assessing officer to complete the assessments. But as we have said above, in the absence of any prescribed period of limitation, the assessment has to be completed within a reasonable period. What such reasonable period would be, would depend upon facts of each case. One view can be that it should be a period not exceeding five years as the Legislature has fixed the limitation of five years for completing assessments in case of escaped turnover. Unless then be an assessment made soon after the period to which such assessment relates, the question of consideration of escapement would indeed become difficult to consider and examine. We, are, however, not inclined to extend into a situation like the one before us, a period of limitation for completion of assessments under sections 11(3) or 28(3) of the respective Acts. The assessee has made returns for all the quarters and must have paid its admitted tax. Now that the assessing authority intends t o complete assessments under section 11(3) of the Act, we see no prejudice to the assessee if the assessing authority is permitted to complete the assessment now. On the other hand, if no assessment is made an anomalous situation might arise and eve n though the assessee has collected the sales tax on its sale turnover, it might raise a claim for refund of it in the absence of an assessment. We do not propose to create such a situation. It would suffice to say that in the situation which has a risen it the matter before us, it would be appropriate to call upon the assessing authority to complete all these pending assessments within a total period of four months from today on the basis of available material in the record before him and such other material as the authority may obtain. We, however, make it clear that such assessment has to be only under section 11(3) of the Act.Before we part with the case, we would like to indicate that assessment of tax should be completed with expedition. It involves the revenue to the state. In the case of a registered dealer who collects sales-tax on behalf of the State, there is no justification for him to withhold the payment of the tax so collected. If a timely assessment is completed, the dues of the State can be conveniently ascertained and collected. Delay in completion of assessment often creates problems. The assessee would be required to keep up all the evidence in support of his transactions. Where evidence is necessary, with the lapse of time, there is scope for its being lost. Oral evidence as and when required to be produced by the assessing authority may not be available if a long period intervenes between the transactions an d the consideration of the matter by the assessing authority. Long delay thus is not in the interest of either the assessee or the State. In view of the fact that a period of limitation has been prescribed for bringing the escaped turn-over into the net of taxation, such an eventuality cannot be grappled with appropriately unless timely assessment is completed. In several taxing statutes, even in a situation like this, where assessment under sections 11(3) or 28(3) of the respective Acts is contemplated, a period of limitation is provided. Until by statute, such a limitation is provided, it is proper for the State Governments to require, by statutory rules or appropriate instructions, to ensure completion of assessments with expedition and reasonable haste but subject to rules of natural justice. 8. | 0[ds]Undoubtedly, the assessment proceedings have been very delayed. As the material placed before us shows, the assessee had gone before different courts from time to time to ask for injunction against the completion of assessment but that trial appears be have started in December, 1980 when a suit was filed and injunction was obtained. Though not ices were issued under sections 11(2) of the Punjab Act or 28(2) of the Haryana Act within a reasonable period from the filing of returns for the respective quarters in the assessment years under consideration, further action has not been tak en by the assessing officer to complete the assessments. But as we have said above, in the absence of any prescribed period of limitation, the assessment has to be completed within a reasonable period. What such reasonable period would be, would depend upon facts of each case. One view can be that it should be a period not exceeding five years as the Legislature has fixed the limitation of five years for completing assessments in case of escaped turnover. Unless then be an assessment made soon after the period to which such assessment relates, the question of consideration of escapement would indeed become difficult to consider and examine. We, are, however, not inclined to extend into a situation like the one before us, a period of limitation for completion of assessments under sections 11(3) or 28(3) of the respective Acts. The assessee has made returns for all the quarters and must have paid its admitted tax. Now that the assessing authority intends t o complete assessments under section 11(3) of the Act, we see no prejudice to the assessee if the assessing authority is permitted to complete the assessment now. On the other hand, if no assessment is made an anomalous situation might arise and eve n though the assessee has collected the sales tax on its sale turnover, it might raise a claim for refund of it in the absence of an assessment. We do not propose to create such a situation. It would suffice to say that in the situation which has a risen it the matter before us, it would be appropriate to call upon the assessing authority to complete all these pending assessments within a total period of four months from today on the basis of available material in the record before him and such other material as the authority may obtain. We, however, make it clear that such assessment has to be only under section 11(3) of the Act.Before we part with the case, we would like to indicate that assessment of tax should be completed with expedition. It involves the revenue to the state. In the case of a registered dealer who collects sales-tax on behalf of the State, there is no justification for him to withhold the payment of the tax so collected. If a timely assessment is completed, the dues of the State can be conveniently ascertained and collected. Delay in completion of assessment often creates problems. The assessee would be required to keep up all the evidence in support of his transactions. Where evidence is necessary, with the lapse of time, there is scope for its being lost. Oral evidence as and when required to be produced by the assessing authority may not be available if a long period intervenes between the transactions an d the consideration of the matter by the assessing authority. Long delay thus is not in the interest of either the assessee or the State. In view of the fact that a period of limitation has been prescribed for bringing the escaped turn-over into the net of taxation, such an eventuality cannot be grappled with appropriately unless timely assessment is completed. In several taxing statutes, even in a situation like this, where assessment under sections 11(3) or 28(3) of the respective Acts is contemplated, a period of limitation is provided. Until by statute, such a limitation is provided, it is proper for the State Governments to require, by statutory rules or appropriate instructions, to ensure completion of assessments with expedition and reasonable haste but subject to rules of natural justice. | 0 | 3,990 | 775 | ### 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:
indicated that a further notice has to be given. The question that fell for determination before the Court did not require examination as to whether such a notice was necessary. In view of the position as has emerged in the matter before us, we also do not think it necessary to finally indicate as to whether such a notice has to be issued and failure to issue such a notice would prevent the assessing officer from making a best judgment assessment. Though we are of the opinion that such a notice is not a statutory prescription, we do not intend to say anything more about it as judicial propriety would require a larger bench of the Court to examine the correctness of the view in the Indian Aluminium case. On an appropriate occasion, we hope the question as to whether such a notice is a condition precedent to completion of assessment would be examined.In Indian Aluminium case (supra) this Court has approved the earlier decision in Gurbax Singh v. Union of India, [1976] 3 SCR 247. The ratio in Gurbax Singhs case is that in the absence of a period provided by statute for completion of assessment, an order of assessment made with some delay would not be without jurisdiction. Even in Indian Aluminium case (supra), where the statute requires assessment to be completed within a reasonable time, the Court indicated that the argument of the learned counsel that the assessment had to be completed within a reasonable time in order to be sustainable was not acceptable as a sound one. 7. The short question that really falls for examination in this case is whether an order of assessment under sub- section (3) o f section 11 of the Punjab Act or section 28(3) of the Haryana Act can now be completed or would that be barred by limitation. Undoubtedly, the assessment proceedings have been very delayed. As the material placed before us shows, the assessee had gone before different courts from time to time to ask for injunction against the completion of assessment but that trial appears be have started in December, 1980 when a suit was filed and injunction was obtained. Though not ices were issued under sections 11(2) of the Punjab Act or 28(2) of the Haryana Act within a reasonable period from the filing of returns for the respective quarters in the assessment years under consideration, further action has not been tak en by the assessing officer to complete the assessments. But as we have said above, in the absence of any prescribed period of limitation, the assessment has to be completed within a reasonable period. What such reasonable period would be, would depend upon facts of each case. One view can be that it should be a period not exceeding five years as the Legislature has fixed the limitation of five years for completing assessments in case of escaped turnover. Unless then be an assessment made soon after the period to which such assessment relates, the question of consideration of escapement would indeed become difficult to consider and examine. We, are, however, not inclined to extend into a situation like the one before us, a period of limitation for completion of assessments under sections 11(3) or 28(3) of the respective Acts. The assessee has made returns for all the quarters and must have paid its admitted tax. Now that the assessing authority intends t o complete assessments under section 11(3) of the Act, we see no prejudice to the assessee if the assessing authority is permitted to complete the assessment now. On the other hand, if no assessment is made an anomalous situation might arise and eve n though the assessee has collected the sales tax on its sale turnover, it might raise a claim for refund of it in the absence of an assessment. We do not propose to create such a situation. It would suffice to say that in the situation which has a risen it the matter before us, it would be appropriate to call upon the assessing authority to complete all these pending assessments within a total period of four months from today on the basis of available material in the record before him and such other material as the authority may obtain. We, however, make it clear that such assessment has to be only under section 11(3) of the Act.Before we part with the case, we would like to indicate that assessment of tax should be completed with expedition. It involves the revenue to the state. In the case of a registered dealer who collects sales-tax on behalf of the State, there is no justification for him to withhold the payment of the tax so collected. If a timely assessment is completed, the dues of the State can be conveniently ascertained and collected. Delay in completion of assessment often creates problems. The assessee would be required to keep up all the evidence in support of his transactions. Where evidence is necessary, with the lapse of time, there is scope for its being lost. Oral evidence as and when required to be produced by the assessing authority may not be available if a long period intervenes between the transactions an d the consideration of the matter by the assessing authority. Long delay thus is not in the interest of either the assessee or the State. In view of the fact that a period of limitation has been prescribed for bringing the escaped turn-over into the net of taxation, such an eventuality cannot be grappled with appropriately unless timely assessment is completed. In several taxing statutes, even in a situation like this, where assessment under sections 11(3) or 28(3) of the respective Acts is contemplated, a period of limitation is provided. Until by statute, such a limitation is provided, it is proper for the State Governments to require, by statutory rules or appropriate instructions, to ensure completion of assessments with expedition and reasonable haste but subject to rules of natural justice. 8.
### Response:
0
### Explanation:
Undoubtedly, the assessment proceedings have been very delayed. As the material placed before us shows, the assessee had gone before different courts from time to time to ask for injunction against the completion of assessment but that trial appears be have started in December, 1980 when a suit was filed and injunction was obtained. Though not ices were issued under sections 11(2) of the Punjab Act or 28(2) of the Haryana Act within a reasonable period from the filing of returns for the respective quarters in the assessment years under consideration, further action has not been tak en by the assessing officer to complete the assessments. But as we have said above, in the absence of any prescribed period of limitation, the assessment has to be completed within a reasonable period. What such reasonable period would be, would depend upon facts of each case. One view can be that it should be a period not exceeding five years as the Legislature has fixed the limitation of five years for completing assessments in case of escaped turnover. Unless then be an assessment made soon after the period to which such assessment relates, the question of consideration of escapement would indeed become difficult to consider and examine. We, are, however, not inclined to extend into a situation like the one before us, a period of limitation for completion of assessments under sections 11(3) or 28(3) of the respective Acts. The assessee has made returns for all the quarters and must have paid its admitted tax. Now that the assessing authority intends t o complete assessments under section 11(3) of the Act, we see no prejudice to the assessee if the assessing authority is permitted to complete the assessment now. On the other hand, if no assessment is made an anomalous situation might arise and eve n though the assessee has collected the sales tax on its sale turnover, it might raise a claim for refund of it in the absence of an assessment. We do not propose to create such a situation. It would suffice to say that in the situation which has a risen it the matter before us, it would be appropriate to call upon the assessing authority to complete all these pending assessments within a total period of four months from today on the basis of available material in the record before him and such other material as the authority may obtain. We, however, make it clear that such assessment has to be only under section 11(3) of the Act.Before we part with the case, we would like to indicate that assessment of tax should be completed with expedition. It involves the revenue to the state. In the case of a registered dealer who collects sales-tax on behalf of the State, there is no justification for him to withhold the payment of the tax so collected. If a timely assessment is completed, the dues of the State can be conveniently ascertained and collected. Delay in completion of assessment often creates problems. The assessee would be required to keep up all the evidence in support of his transactions. Where evidence is necessary, with the lapse of time, there is scope for its being lost. Oral evidence as and when required to be produced by the assessing authority may not be available if a long period intervenes between the transactions an d the consideration of the matter by the assessing authority. Long delay thus is not in the interest of either the assessee or the State. In view of the fact that a period of limitation has been prescribed for bringing the escaped turn-over into the net of taxation, such an eventuality cannot be grappled with appropriately unless timely assessment is completed. In several taxing statutes, even in a situation like this, where assessment under sections 11(3) or 28(3) of the respective Acts is contemplated, a period of limitation is provided. Until by statute, such a limitation is provided, it is proper for the State Governments to require, by statutory rules or appropriate instructions, to ensure completion of assessments with expedition and reasonable haste but subject to rules of natural justice.
|
Bachan Singh & Anr Vs. Union Of India & Ors | whereof 5 were allocated for direct recruits and 6 for departmental promotees. In 1964 there were 9 permanent posts whereof 8 were allocated for direct recruits and one for departmental promotee. In 1965 there were 15 permanent posts whereof 13 were allocated for direct recruits and two for departmental promotees. In 1966 there were 113 permanent posts whereof 82 were allocated for direct recruits and 11 or departmental promotees and 20 for released officers in accordance with the revised rule in the year 1967. In 1967 there were 45 permanent posts whereof 40 were allocated for direct recruits and 5 for departmental promotees. In 1968 there were 14 permanent posts available whereof 13 were allocated for direct recruits and one for departmental promotee.12. The position with regard to filling of permanent posts shows that during the years 1951 to 1958 the quota was 10 per cent for departmental promotees and 90 per cent for direct recruitment but during the years 1959 to 1963 the quota was changed with the result that half of the permanent posts were filled by departmental promotion and the other half by direct recruitment. From 1964 to 1968 the old quota of 10 per cent for departmental promotion and the remaining 90 per cent for direct recruitment was resorted to. In 1969 rule 4 was changed with the result that there were 25 per cent for departmental promotion and the remaining 75 per cent for direct recruitment. In the year 1959 the direct recruits who were confirmed in permanent posts were recruited by the Union Public Service Commission by interview during the years 1951 to 1957. In 1960 the direct recruits through interview who were confirmed had been selected through interview by the Union Public Service Commission between the years 1953 and 1956. In 1961 the direct recruits who were confirmed in permanent posts were those who had been selected by the Union Public Service Commission through interview during the years 1956 to 1957. In 1962 the direct recruits who were confirmed in permanent posts were those who had been selected by the Union Public Service Commission through interview during the years 1956 to 1958. In 1963 the direct recruits who were confirmed in permanent posts were those who had been selected by the Union Public Service Commission through interview between the years 1958 to 1961. In 1964 the direct recruits who were confirmed in permanent posts were those recruited in 1962 by the Union Public Service Commission through interview. In 1965 the direct recruits who were confirmed in permanent posts were those recruited by the Union Public Service Commission through interview in 1962 and 1963. In 1965 13 direct recruits were confirmed and they included some of the respondents. In 1966, 82 direct recruits were confirmed against permanent posts and they were persons who had been selected by the Union Public Service Commission through interview during the year 1963 and they included some of the respondents.13. In the year 1959 when the Government in consultation with the Union Public Service Commission revised as an interim measure the increase of the quota of departmental promotion of candidates from 10 to 50 per cent and followed that system up to the end of 1963 a question arose as to how the then existing permanent vacancies to be filled and the Union Public Service Commission advised that the same might be filled by confirmation of direct recruits, namely, those recruited on the basis of competitive examination and by advertisement and selection and promotees in the ratio of 1:1. The advice of the Union Public Service Commission was accepted and the Departmental Promotion Committee acted on that basis. It is apparent that during those years there was a relaxation in the observance of rules in the case of appellants and the other departmental promotees. The Union Government all throughout acted in consultation with the Union Public Service Commission. The departmental promotees gained considerable advantage by relaxation of the rules. The direct recruits were not shown any preference at all. The proportion of confirmation of departmental promotees and of direct recruits by interview was 1:1.14. In the year 1967, the Government was again faced with the question of confirmation of direct recruits by interview as well as by competitive examination against permanent vacancies in the grade falling in the direct recruitment quota prescribed in the rules. The Union Public Service Commission advised that direct recruits by interview and by competitive examination could be confirmed against permanent vacancies within the fixed quota of direct recruits. The result was that in 1969 the Class I Service Rules were amended and the quota for departmental promotion was raised from 10 to 25 per cent and the quota of direct recruits was reduced from 90 to 75 per cent.15. The appellants can have no grievance with regard to confirmation. The departmental promotees have been confirmed against permanent posts within their quota in order of seniority. Departmental promotees who have been confirmed up to the year 1970 had been promoted to Class I Service before the appellants. On the other hand, direct recruits consisting of those recruited by competitive examination as well as by interview have been confirmed against permanent vacancies within their quota. As a matter of fact between the years 1959 and 1963 inclusive, the quota fixed for departmental promotees was increased from 10 to 50 per cent and thereby the confirmation of departmental promotees and direct recruits was equally balanced.16. The direct recruits who were appointed by interview fell within the class of direct recruits. The quota fixed for direct recruits was never infringed by absorbing direct recruits by interview beyond the quota. The confirmation of direct recruits and departmental promotees against permanent vacancies was in accordance with the quota fixed. By reason of relaxation of rules in regard to increase of quota for departmental promotees they gained advantage during the years 1959 to 1963 when because of the emergency direct recruits by interview were selected by the Union Public Service Commission.17. | 0[ds]In this background the recruitment against temporary posts between the years 1951 and 1971 was indicated by a chart prepared by the Government and accepted to be correct. The recruitment against temporary posts indicated the following features: Between 1951 and 1956 the total recruitment against temporary posts was 84 whereof 75 were allocated for direct recruits and 9 for departmental promotees. But in fact the recruitment by interview was for 29 and by departmental promotion for 55. There was no recruitment by competitive examination. During the years 1957 and 1963 the number of vacancies for recruitment to temporary posts was 675 whereof 339 were allocated for direct recruits and 336 for departmental promotees. Only 20 were recruited by competitive examination and 171 by interview and the remaining 484 were instances of departmental promotion. Between the years 1964 and 1968 the total recruitment was 264 whereof 238 were allocated for direct recruits and 26 for departmental promotees. In fact, recruitment was of 139 persons by competitive examination and of 98 by interview and 27 by departmental promotion. Between the years 1969 and 1971 there were 45 vacancies to temporary posts whereof 33 were allocated for direct recruits and 12 for departmental promotees. 11 were recruited by competitive examination and 34 were promoted departmentally. The recruitment against temporary posts during the years 1951 and 1971 shows that during the relevant years 1959 to 1963 the Union Government relaxed the quota and increased the quota of 10 per cent to 50 per cent for departmental promotion. It cannot therefore be said that any injustice was done to the departmental promotees or that any advantage was gained by the persons who were recruited by interview. It is because of the conditions of emergency that the quota for filling the temporary posts was half for departmental promotees and half for directappellants were to be confirmed in permanent posts. The respondents who were appointed by competitive examination and by interview were also appointed to temporary posts. They were also to be confirmed in permanent posts after having served the period of probation in accordance with the rules. The recruitment to Class I Service during the years 1951 to 1958 was on the quotas fixed by rule 4 of the Class I Rules on the ratio of 10 per cent for departmental promotion and 90 per cent for direct recruitment. Though rule 4 fixed the quotas on the ratio of 10 per cent for departmental promotion and 90 per cent for direct recruitment the Union Government in consultation with the Union Public Service Commission relaxed the rules and revised as an interim measures the existing quota of 10 per cent of departmental candidates for promotion to 50 per cent in the years 1959 to 1963 inclusive. From 1964 to 1968 the quota fixed by rule 4 was followed again. Finally, the 1969 the rules were amended and the quota for departmental promotion was 25 per cent and for direct recruitment at 75 per cent.The appellants can have no grievance with regard to confirmation. The departmental promotees have been confirmed against permanent posts within their quota in order of seniority. Departmental promotees who have been confirmed up to the year 1970 had been promoted to Class I Service before the appellants. On the other hand, direct recruits consisting of those recruited by competitive examination as well as by interview have been confirmed against permanent vacancies within their quota. As a matter of fact between the years 1959 and 1963 inclusive, the quota fixed for departmental promotees was increased from 10 to 50 per cent and thereby the confirmation of departmental promotees and direct recruits was equallydirect recruits who were appointed by interview fell within the class of direct recruits. The quota fixed for direct recruits was never infringed by absorbing direct recruits by interview beyond the quota. The confirmation of direct recruits and departmental promotees against permanent vacancies was in accordance with the quota fixed. By reason of relaxation of rules in regard to increase of quota for departmental promotees they gained advantage during the years 1959 to 1963 when because of the emergency direct recruits by interview were selected by the Union Public Service Commission. | 0 | 3,099 | 734 | ### 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:
whereof 5 were allocated for direct recruits and 6 for departmental promotees. In 1964 there were 9 permanent posts whereof 8 were allocated for direct recruits and one for departmental promotee. In 1965 there were 15 permanent posts whereof 13 were allocated for direct recruits and two for departmental promotees. In 1966 there were 113 permanent posts whereof 82 were allocated for direct recruits and 11 or departmental promotees and 20 for released officers in accordance with the revised rule in the year 1967. In 1967 there were 45 permanent posts whereof 40 were allocated for direct recruits and 5 for departmental promotees. In 1968 there were 14 permanent posts available whereof 13 were allocated for direct recruits and one for departmental promotee.12. The position with regard to filling of permanent posts shows that during the years 1951 to 1958 the quota was 10 per cent for departmental promotees and 90 per cent for direct recruitment but during the years 1959 to 1963 the quota was changed with the result that half of the permanent posts were filled by departmental promotion and the other half by direct recruitment. From 1964 to 1968 the old quota of 10 per cent for departmental promotion and the remaining 90 per cent for direct recruitment was resorted to. In 1969 rule 4 was changed with the result that there were 25 per cent for departmental promotion and the remaining 75 per cent for direct recruitment. In the year 1959 the direct recruits who were confirmed in permanent posts were recruited by the Union Public Service Commission by interview during the years 1951 to 1957. In 1960 the direct recruits through interview who were confirmed had been selected through interview by the Union Public Service Commission between the years 1953 and 1956. In 1961 the direct recruits who were confirmed in permanent posts were those who had been selected by the Union Public Service Commission through interview during the years 1956 to 1957. In 1962 the direct recruits who were confirmed in permanent posts were those who had been selected by the Union Public Service Commission through interview during the years 1956 to 1958. In 1963 the direct recruits who were confirmed in permanent posts were those who had been selected by the Union Public Service Commission through interview between the years 1958 to 1961. In 1964 the direct recruits who were confirmed in permanent posts were those recruited in 1962 by the Union Public Service Commission through interview. In 1965 the direct recruits who were confirmed in permanent posts were those recruited by the Union Public Service Commission through interview in 1962 and 1963. In 1965 13 direct recruits were confirmed and they included some of the respondents. In 1966, 82 direct recruits were confirmed against permanent posts and they were persons who had been selected by the Union Public Service Commission through interview during the year 1963 and they included some of the respondents.13. In the year 1959 when the Government in consultation with the Union Public Service Commission revised as an interim measure the increase of the quota of departmental promotion of candidates from 10 to 50 per cent and followed that system up to the end of 1963 a question arose as to how the then existing permanent vacancies to be filled and the Union Public Service Commission advised that the same might be filled by confirmation of direct recruits, namely, those recruited on the basis of competitive examination and by advertisement and selection and promotees in the ratio of 1:1. The advice of the Union Public Service Commission was accepted and the Departmental Promotion Committee acted on that basis. It is apparent that during those years there was a relaxation in the observance of rules in the case of appellants and the other departmental promotees. The Union Government all throughout acted in consultation with the Union Public Service Commission. The departmental promotees gained considerable advantage by relaxation of the rules. The direct recruits were not shown any preference at all. The proportion of confirmation of departmental promotees and of direct recruits by interview was 1:1.14. In the year 1967, the Government was again faced with the question of confirmation of direct recruits by interview as well as by competitive examination against permanent vacancies in the grade falling in the direct recruitment quota prescribed in the rules. The Union Public Service Commission advised that direct recruits by interview and by competitive examination could be confirmed against permanent vacancies within the fixed quota of direct recruits. The result was that in 1969 the Class I Service Rules were amended and the quota for departmental promotion was raised from 10 to 25 per cent and the quota of direct recruits was reduced from 90 to 75 per cent.15. The appellants can have no grievance with regard to confirmation. The departmental promotees have been confirmed against permanent posts within their quota in order of seniority. Departmental promotees who have been confirmed up to the year 1970 had been promoted to Class I Service before the appellants. On the other hand, direct recruits consisting of those recruited by competitive examination as well as by interview have been confirmed against permanent vacancies within their quota. As a matter of fact between the years 1959 and 1963 inclusive, the quota fixed for departmental promotees was increased from 10 to 50 per cent and thereby the confirmation of departmental promotees and direct recruits was equally balanced.16. The direct recruits who were appointed by interview fell within the class of direct recruits. The quota fixed for direct recruits was never infringed by absorbing direct recruits by interview beyond the quota. The confirmation of direct recruits and departmental promotees against permanent vacancies was in accordance with the quota fixed. By reason of relaxation of rules in regard to increase of quota for departmental promotees they gained advantage during the years 1959 to 1963 when because of the emergency direct recruits by interview were selected by the Union Public Service Commission.17.
### Response:
0
### Explanation:
In this background the recruitment against temporary posts between the years 1951 and 1971 was indicated by a chart prepared by the Government and accepted to be correct. The recruitment against temporary posts indicated the following features: Between 1951 and 1956 the total recruitment against temporary posts was 84 whereof 75 were allocated for direct recruits and 9 for departmental promotees. But in fact the recruitment by interview was for 29 and by departmental promotion for 55. There was no recruitment by competitive examination. During the years 1957 and 1963 the number of vacancies for recruitment to temporary posts was 675 whereof 339 were allocated for direct recruits and 336 for departmental promotees. Only 20 were recruited by competitive examination and 171 by interview and the remaining 484 were instances of departmental promotion. Between the years 1964 and 1968 the total recruitment was 264 whereof 238 were allocated for direct recruits and 26 for departmental promotees. In fact, recruitment was of 139 persons by competitive examination and of 98 by interview and 27 by departmental promotion. Between the years 1969 and 1971 there were 45 vacancies to temporary posts whereof 33 were allocated for direct recruits and 12 for departmental promotees. 11 were recruited by competitive examination and 34 were promoted departmentally. The recruitment against temporary posts during the years 1951 and 1971 shows that during the relevant years 1959 to 1963 the Union Government relaxed the quota and increased the quota of 10 per cent to 50 per cent for departmental promotion. It cannot therefore be said that any injustice was done to the departmental promotees or that any advantage was gained by the persons who were recruited by interview. It is because of the conditions of emergency that the quota for filling the temporary posts was half for departmental promotees and half for directappellants were to be confirmed in permanent posts. The respondents who were appointed by competitive examination and by interview were also appointed to temporary posts. They were also to be confirmed in permanent posts after having served the period of probation in accordance with the rules. The recruitment to Class I Service during the years 1951 to 1958 was on the quotas fixed by rule 4 of the Class I Rules on the ratio of 10 per cent for departmental promotion and 90 per cent for direct recruitment. Though rule 4 fixed the quotas on the ratio of 10 per cent for departmental promotion and 90 per cent for direct recruitment the Union Government in consultation with the Union Public Service Commission relaxed the rules and revised as an interim measures the existing quota of 10 per cent of departmental candidates for promotion to 50 per cent in the years 1959 to 1963 inclusive. From 1964 to 1968 the quota fixed by rule 4 was followed again. Finally, the 1969 the rules were amended and the quota for departmental promotion was 25 per cent and for direct recruitment at 75 per cent.The appellants can have no grievance with regard to confirmation. The departmental promotees have been confirmed against permanent posts within their quota in order of seniority. Departmental promotees who have been confirmed up to the year 1970 had been promoted to Class I Service before the appellants. On the other hand, direct recruits consisting of those recruited by competitive examination as well as by interview have been confirmed against permanent vacancies within their quota. As a matter of fact between the years 1959 and 1963 inclusive, the quota fixed for departmental promotees was increased from 10 to 50 per cent and thereby the confirmation of departmental promotees and direct recruits was equallydirect recruits who were appointed by interview fell within the class of direct recruits. The quota fixed for direct recruits was never infringed by absorbing direct recruits by interview beyond the quota. The confirmation of direct recruits and departmental promotees against permanent vacancies was in accordance with the quota fixed. By reason of relaxation of rules in regard to increase of quota for departmental promotees they gained advantage during the years 1959 to 1963 when because of the emergency direct recruits by interview were selected by the Union Public Service Commission.
|
State Of Tamil Nadu Vs. Dharangadhara Trading Co. Ltd | Company as well as the Trading Company filed appeals before the Appellate Assistant Commissioner contending that both the said sales were inter-State sales. It was contended by the assessee that the sales by the Trading Company to the out of State purchasers were admittedly inter-State sales and as far as sales by the Chemical Company to the Trading Company were concerned, these were also inter-State sales as the sales were completed by the delivery of railway receipts and invoices only after the inter-State journey of the goods had commenced. These contentions were rejected by the Appellant Commissioner, who dismissed the appeals. Both the assesses filed appeals against the decisions of the Appellate Assistant Commissioner to the Tribunal. The Tribunal allowed both the appeals. 4. The Tribunal pointed out that there were two sets of sales, the second set of sales by the Trading Company to out of State buyers was admittedly inter-State in character. The Trading Company had filed necessary E-1 forms and C forms in these cases and the transactions, therefore, fell within the scope of Section 6(2)(b) of the Central Sales Tax Act and were exempt from tax under local Sales Tax Act as well as the Central Sales Tax Act. As far as first set of sales, namely, by the Chemical Company to Trading Company were concerned, it was pointed out that although under the agreement dated August 9, 1957 the sales agreed to be FOR Booking Stations and the booking station was in Tamil Nadu, the delivery of goods could be either by physical delivery or by handing over documents of title. The delivery contemplated in the agreement was not actual physical delivery, as the place of delivery was neither sellers place of business, nor the buyers place of business. Considering the manner in which the sales were effected and dispatches made by the Chemical Company, and after examining some specimen orders placed by the Trading Company with the Chemical Company, the Tribunal came to conclusion that the delivery was effected by the Chemical Company to the Trading Company by delivery of documents of title, namely, the respective invoices and the railway receipts. The nature of sales by the Chemical Company to the Trading Company and the question whether they were inter-State sales had to be decided after further taking into account the further instructions given by the buyers. The actual terms of the sales have to be determined not merely under the agreement dated August 9, 1957 as that agreement was a general agreement which did not specify the quantities to be sold, the sale price, booking stations, the destination stations, and so on, but these actual terms could be determined only by taking into account the terms on which and the manner in which the actual sales were made by the Chemical Company to the Trading Company. For ascertaining these terms, the Tribunal examined some of the subsequent orders placed by that Trading Company on the Chemical Company. Taking into account all these, the Tribunal found that as the orders were placed for booking specified goods to out of station buyers, and the Chemical Company never gave physical delivery of the goods to the Trading Company, but booked the goods to the destinations as required by the out of State buyers and merely handed over documents of title to the Trading Company, it was clear that the movement of the goods from the State of Tamil Nadu to the outside States was occasioned by the terms of the contract themselves and the sales were inter-State sales falling within Section 3, sub-section (a) of the Central Sales Tax Act, 1956. Alternatively, if a view were taken that the sales did not fall under sub-section (a) of Section 3, the deliveries of goods sold were effected by the transfer of documents after the movement of the goods from Tamil Nadu to the other States had commenced and the sales could be regarded as covered under sub-section (b) of Section 3 of the Central Sales Tax Act. From this decision of the Tribunal, revision petitions under Section 38 of the Tamil Nadu General Sales Tax Act were preferred by the State of Tamil Nadu to the Madras High Court. The High Court upheld the views of the Tribunal and dismissed both the revision petitions which were numbered as Tax Cases Nos. 2 and 3 respectively. An appeal was preferred by the State in the case of the Trading Company, namely, the case pertaining to the assessment of the sales from Chemical Company to the Trading Company. 5. The only submission advanced by Mr Mahajan, learned counsel for the appellant, was that there were two sets of sales, namely, by the Chemical Company to the Trading Company and by the Trading Company to the out of State buyers. It was submitted by him that the first set of sales, namely, by the Chemical Company to the Trading Company were local or intra-State sales because under the agreement dated August 9, 1957 the delivery was to be effected at the booking station. In our view, as the Tribunal has rightly pointed out, the agreement dated August 9, 1957, is merely a general agreement and the actual terms of the contracts of sales as well as the instructions of the out of State buyers have to be taken into account in determining the nature of the sales in question. In view of this, the conclusions arrived at by the Tribunal as well as the High Court that the sales by the Chemical Company to the Trading Company were inter-State sales cannot be faulted and the learned counsel for the appellant has not advanced a single reason showing how that conclusion is incorrect. In fact, this conclusion finds some support from the observations of this Court in Union of India v. K. G. Khosla & Co. (P) Ltd. [(1979) 2 SCC 242, 248 : (1979) 3 SCR 453 , 460 : 1979 SCC (Tax) 101 : (1979) 43 STC 457 ]. | 0[ds]5. The only submission advanced by Mr Mahajan, learned counsel for the appellant, was that there were two sets of sales, namely, by the Chemical Company to the Trading Company and by the Trading Company to the out of State buyers. It was submitted by him that the first set of sales, namely, by the Chemical Company to the Trading Company were local or intra-State sales because under the agreement dated August 9, 1957 the delivery was to be effected at the booking station. In our view, as the Tribunal has rightly pointed out, the agreement dated August 9, 1957, is merely a general agreement and the actual terms of the contracts of sales as well as the instructions of the out of State buyers have to be taken into account in determining the nature of the sales in question. In view of this, the conclusions arrived at by the Tribunal as well as the High Court that the sales by the Chemical Company to the Trading Company were inter-State sales cannot be faulted and the learned counsel for the appellant has not advanced a single reason showing how that conclusion is incorrect. In fact, this conclusion finds some support from the observations of this Court in Union of India v. K. G. Khosla & Co. (P) Ltd. [(1979) 2 SCC 242, 248 : (1979) 3 SCR 453 , 460 : 1979 SCC (Tax) 101 : (1979) 43 STC 457 ] | 0 | 1,857 | 276 | ### 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:
Company as well as the Trading Company filed appeals before the Appellate Assistant Commissioner contending that both the said sales were inter-State sales. It was contended by the assessee that the sales by the Trading Company to the out of State purchasers were admittedly inter-State sales and as far as sales by the Chemical Company to the Trading Company were concerned, these were also inter-State sales as the sales were completed by the delivery of railway receipts and invoices only after the inter-State journey of the goods had commenced. These contentions were rejected by the Appellant Commissioner, who dismissed the appeals. Both the assesses filed appeals against the decisions of the Appellate Assistant Commissioner to the Tribunal. The Tribunal allowed both the appeals. 4. The Tribunal pointed out that there were two sets of sales, the second set of sales by the Trading Company to out of State buyers was admittedly inter-State in character. The Trading Company had filed necessary E-1 forms and C forms in these cases and the transactions, therefore, fell within the scope of Section 6(2)(b) of the Central Sales Tax Act and were exempt from tax under local Sales Tax Act as well as the Central Sales Tax Act. As far as first set of sales, namely, by the Chemical Company to Trading Company were concerned, it was pointed out that although under the agreement dated August 9, 1957 the sales agreed to be FOR Booking Stations and the booking station was in Tamil Nadu, the delivery of goods could be either by physical delivery or by handing over documents of title. The delivery contemplated in the agreement was not actual physical delivery, as the place of delivery was neither sellers place of business, nor the buyers place of business. Considering the manner in which the sales were effected and dispatches made by the Chemical Company, and after examining some specimen orders placed by the Trading Company with the Chemical Company, the Tribunal came to conclusion that the delivery was effected by the Chemical Company to the Trading Company by delivery of documents of title, namely, the respective invoices and the railway receipts. The nature of sales by the Chemical Company to the Trading Company and the question whether they were inter-State sales had to be decided after further taking into account the further instructions given by the buyers. The actual terms of the sales have to be determined not merely under the agreement dated August 9, 1957 as that agreement was a general agreement which did not specify the quantities to be sold, the sale price, booking stations, the destination stations, and so on, but these actual terms could be determined only by taking into account the terms on which and the manner in which the actual sales were made by the Chemical Company to the Trading Company. For ascertaining these terms, the Tribunal examined some of the subsequent orders placed by that Trading Company on the Chemical Company. Taking into account all these, the Tribunal found that as the orders were placed for booking specified goods to out of station buyers, and the Chemical Company never gave physical delivery of the goods to the Trading Company, but booked the goods to the destinations as required by the out of State buyers and merely handed over documents of title to the Trading Company, it was clear that the movement of the goods from the State of Tamil Nadu to the outside States was occasioned by the terms of the contract themselves and the sales were inter-State sales falling within Section 3, sub-section (a) of the Central Sales Tax Act, 1956. Alternatively, if a view were taken that the sales did not fall under sub-section (a) of Section 3, the deliveries of goods sold were effected by the transfer of documents after the movement of the goods from Tamil Nadu to the other States had commenced and the sales could be regarded as covered under sub-section (b) of Section 3 of the Central Sales Tax Act. From this decision of the Tribunal, revision petitions under Section 38 of the Tamil Nadu General Sales Tax Act were preferred by the State of Tamil Nadu to the Madras High Court. The High Court upheld the views of the Tribunal and dismissed both the revision petitions which were numbered as Tax Cases Nos. 2 and 3 respectively. An appeal was preferred by the State in the case of the Trading Company, namely, the case pertaining to the assessment of the sales from Chemical Company to the Trading Company. 5. The only submission advanced by Mr Mahajan, learned counsel for the appellant, was that there were two sets of sales, namely, by the Chemical Company to the Trading Company and by the Trading Company to the out of State buyers. It was submitted by him that the first set of sales, namely, by the Chemical Company to the Trading Company were local or intra-State sales because under the agreement dated August 9, 1957 the delivery was to be effected at the booking station. In our view, as the Tribunal has rightly pointed out, the agreement dated August 9, 1957, is merely a general agreement and the actual terms of the contracts of sales as well as the instructions of the out of State buyers have to be taken into account in determining the nature of the sales in question. In view of this, the conclusions arrived at by the Tribunal as well as the High Court that the sales by the Chemical Company to the Trading Company were inter-State sales cannot be faulted and the learned counsel for the appellant has not advanced a single reason showing how that conclusion is incorrect. In fact, this conclusion finds some support from the observations of this Court in Union of India v. K. G. Khosla & Co. (P) Ltd. [(1979) 2 SCC 242, 248 : (1979) 3 SCR 453 , 460 : 1979 SCC (Tax) 101 : (1979) 43 STC 457 ].
### Response:
0
### Explanation:
5. The only submission advanced by Mr Mahajan, learned counsel for the appellant, was that there were two sets of sales, namely, by the Chemical Company to the Trading Company and by the Trading Company to the out of State buyers. It was submitted by him that the first set of sales, namely, by the Chemical Company to the Trading Company were local or intra-State sales because under the agreement dated August 9, 1957 the delivery was to be effected at the booking station. In our view, as the Tribunal has rightly pointed out, the agreement dated August 9, 1957, is merely a general agreement and the actual terms of the contracts of sales as well as the instructions of the out of State buyers have to be taken into account in determining the nature of the sales in question. In view of this, the conclusions arrived at by the Tribunal as well as the High Court that the sales by the Chemical Company to the Trading Company were inter-State sales cannot be faulted and the learned counsel for the appellant has not advanced a single reason showing how that conclusion is incorrect. In fact, this conclusion finds some support from the observations of this Court in Union of India v. K. G. Khosla & Co. (P) Ltd. [(1979) 2 SCC 242, 248 : (1979) 3 SCR 453 , 460 : 1979 SCC (Tax) 101 : (1979) 43 STC 457 ]
|
National Insurance Co. Ltd Vs. General Insurance Dev. Officers Asson. & Others | is excessive delegation in framing schemes and reading the preamble, the scheme and the other provisions of the enactment taking note of the general economic situation in the country, the authorities concerned had to frame appropriate schemes. Therefore, it is not open to the petitioners to contend that there is excessive delegation in relation to the enactment to frame schemes.19. In Ajoy Kumar Banerjee case this Court after holding that there is no excessive delegation observed that the Scheme framed was ultra vires the enactment for the Scheme could only be framed once. Now the argument is that once a scheme is framed no further scheme should be allowed to be framed. If the legislature recognises the fact the rationalisation resulting from the merger of several companies are not yet over and on that basis enacts a law to enable the Government to frame appropriate schemes, we do not think that such step by the legislature is arbitrary or irrational as to be violative of Article 14 of the Constitution. In Ajoy Kumar Banerjee case this Court pointed out that though there is power in the Government to revise the pay scales, it cannot exercise the power more than once at the time of merging different companies for the purpose of rationalisation and this power could have been exercised no further. But now the enactment itself specifically provides that every scheme framed or purporting to have been framed by the Central Government under Section 16(1) of the principal Act and every notification made or purporting to have been made thereunder insofar as such scheme or notification provides for rationalisation or revision of pay scales or other terms and conditions of the officers and other employees of the Corporation are deemed always to have been for all purposes as valid and effective as made under Section 17-A of the Act. The retrospective effect given to the scheme is only to overcome the difficulty pointed out by this Court in Ajoy Kumar Banerjee case. That lacuna having been overcome, it is not open to the petitioners to contend that retrospective effect given is violative of Articles 14, 19 and 21 of the Constitution. Validation of invalid rule by amending the main enactment under which it is made is a well-known legislative device approved by this Court.Xx xx xx24. The Central Government, in exercise of the powers conferred under Section 16(1)(g) of the Act, framed three Schemes for three different categories of employees relating to (i) supervisory, clerical and subordinate staff; (ii) officers; and (iii) development staff. The Schemes also provided, inter alia, various provisions like fixation of pay on promotion, increments, provident fund and gratuity, etc. When the process of categorisation and rationalisation was in progress, it was noticed that as per the 1974 Scheme, contribution to the provident fund was @ 8 per cent of the basic salary and dearness allowance with an equal contribution of GIC or any of its subsidiaries. However, LIC and nationalised banks were giving provident fund at different rates. So as to keep parity with other similar organisations, the Scheme was corrected by an amending notification issued on 1-6-1976 and it was provided that the provident fund shall be contributed by every employee at the rate of 10% of the basic pay plus personal pay and special pay, if any, in place of 8% of the basic salary and dearness allowance.Xx xx xx26. The stand of the respondents is that amendments were made while the process of rationalisation of pay scales and other service conditions were still in progress and the process had not been finally completed to achieve uniformity and inter se rationalisation in terms and conditions of service of different categories of employees of merged companies. In 1977 various labour unions presented a charter of demands in relation to revision of pay scales and service conditions. The Scheme of 1974 contained a provision to the effect that the provisions of the Scheme relating to scales of pay, dearness allowance etc. will continue to be in force till the Government modified the same. After considering the demands of the unions and the view of the management, the Government formulated guidelines and requested the management to hold consultations and discussions with the unions so that final views of the unions may be known and may be taken into account by the Government before modifying the pay scales, etc. But this course will not indicate that there was an obligation cast on the Government to formally negotiate with the unions. However, in keeping with the democratic tradition and to maintain harmonious industrial relations the management had several rounds of discussions with the four major registered unions. The procedure of consultations and discussions was adopted in order to narrow down the differences to the minimum and to ensure that the viewpoint of the employees was kept in mind before any scheme was finalised by the Government. 20. It was further clarified that if the scheme is prima facie discriminated it is open to challenge.21. In para 28 it was held that there was no need for any consultation with the employees. When the changes introduced by the scheme are considered in the background of the position in law and the decision of this Court by a Constitution Bench in Prakash Sharmas case (supra) there is no scope for interference in these appeals. However, it would be in the interests of the officers and the insurance companies if the Development Officers who work within the cost ratio are not transferred unless the transfer is required to be done in public interest. So far as the promotional prospects and the wage revision are concerned, a draft policy stated to have been formulated for the latter be finalized within a period of three months. The writ petitions filed in different High Courts stand dismissed because of this judgment. Consequentially, the interim orders passed which form the subject matter of challenge in the appeals are vacated subject to the directions given supra. | 1[ds]18. It is true as contended by learned counsel for the writ petitioners that a personal factor has a role to play notwithstanding the overall importance of the entity. With opening of economy there is a remarkable change in the various sectors including the insurance sector. Since modifications appear to have been done for the purpose of rationalization, there is no scope for interference because essentially a policy decision is immune from judicial review unless it is founded on no rational basis or material to justify the change in policy.So far as the delegated legislation is concerned, the case-law will throw light as to the manner in which the same has to be understood and in each given case we have to understand the scope of the provisions and no uniform rule could be laid down. The legislatures in India have been held to possess wide power of legislation subject, however, to certain limitations such as the legislature cannot delegate essential legislative functions which consist in the determination or choosing of the legislative policy and of formally enacting that policy into a binding rule of conduct. The legislature cannot delegate uncanalised and uncontrolled power. The legislature must set the limits of the power delegated by declaring the policy of the law and by laying down standards for guidance of those on whom the power to execute the law is conferred. Thus the delegation is valid only when the legislative policy and guidelines to implement it are adequately laid down and the delegate is only empowered to carry out the policy within the guidelines laid down by the legislature. The legislature may, after laying down the legislative policy, confer discretion on an administrative agency as to the execution of the policy and leave it to the agency to work out the details within the framework of the policy. When the Constitution entrusts the duty of law-making to Parliament and the legislatures of States, it impliedly prohibits them to throw away that responsibility on the shoulders of some other authority. An area of compromise is struck that Parliament cannot work in detail the various requirements of giving effect to the enactment and, therefore, that area will be left to be filled in by the delegatee. Thus, the question is whether any particular legislation suffers from excessive delegation and in ascertaining the same, the scheme, the provisions of the statute including its preamble, and the facts and circumstances in the background of which the statute is enacted, the history of the legislation, the complexity of the problems which a modern State has to face, will have to be taken note of and if, on a liberal construction given to a statute, a legislative policy and guidelines for its execution are brought out, the statute, even if skeletal, will be upheld to be valid but this rule of liberal construction should not be carried by the court to the extent of always trying to discover a dormant or latent legislative policy to sustain an arbitrary power conferred on the executive. These very tests were adopted in Ajoy Kumar Banerjee case also to examine whether there is excessive delegation in framing schemes and reading the preamble, the scheme and the other provisions of the enactment taking note of the general economic situation in the country, the authorities concerned had to frame appropriate schemes. Therefore, it is not open to the petitioners to contend that there is excessive delegation in relation to the enactment to frame schemes.It was further clarified that if the scheme is prima facie discriminated it is open to challenge.21. In para 28 it was held that there was no need for any consultation with the employees. When the changes introduced by the scheme are considered in the background of the position in law and the decision of this Court by a Constitution Bench in Prakash Sharmas case (supra) there is no scope for interference in these appeals. However, it would be in the interests of the officers and the insurance companies if the Development Officers who work within the cost ratio are not transferred unless the transfer is required to be done in public interest. So far as the promotional prospects and the wage revision are concerned, a draft policy stated to have been formulated for the latter be finalized within a period of three months. The writ petitions filed in different High Courts stand dismissed because of this judgment. Consequentially, the interim orders passed which form the subject matter of challenge in the appeals are vacated subject to the directions given supra. | 1 | 6,123 | 817 | ### 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:
is excessive delegation in framing schemes and reading the preamble, the scheme and the other provisions of the enactment taking note of the general economic situation in the country, the authorities concerned had to frame appropriate schemes. Therefore, it is not open to the petitioners to contend that there is excessive delegation in relation to the enactment to frame schemes.19. In Ajoy Kumar Banerjee case this Court after holding that there is no excessive delegation observed that the Scheme framed was ultra vires the enactment for the Scheme could only be framed once. Now the argument is that once a scheme is framed no further scheme should be allowed to be framed. If the legislature recognises the fact the rationalisation resulting from the merger of several companies are not yet over and on that basis enacts a law to enable the Government to frame appropriate schemes, we do not think that such step by the legislature is arbitrary or irrational as to be violative of Article 14 of the Constitution. In Ajoy Kumar Banerjee case this Court pointed out that though there is power in the Government to revise the pay scales, it cannot exercise the power more than once at the time of merging different companies for the purpose of rationalisation and this power could have been exercised no further. But now the enactment itself specifically provides that every scheme framed or purporting to have been framed by the Central Government under Section 16(1) of the principal Act and every notification made or purporting to have been made thereunder insofar as such scheme or notification provides for rationalisation or revision of pay scales or other terms and conditions of the officers and other employees of the Corporation are deemed always to have been for all purposes as valid and effective as made under Section 17-A of the Act. The retrospective effect given to the scheme is only to overcome the difficulty pointed out by this Court in Ajoy Kumar Banerjee case. That lacuna having been overcome, it is not open to the petitioners to contend that retrospective effect given is violative of Articles 14, 19 and 21 of the Constitution. Validation of invalid rule by amending the main enactment under which it is made is a well-known legislative device approved by this Court.Xx xx xx24. The Central Government, in exercise of the powers conferred under Section 16(1)(g) of the Act, framed three Schemes for three different categories of employees relating to (i) supervisory, clerical and subordinate staff; (ii) officers; and (iii) development staff. The Schemes also provided, inter alia, various provisions like fixation of pay on promotion, increments, provident fund and gratuity, etc. When the process of categorisation and rationalisation was in progress, it was noticed that as per the 1974 Scheme, contribution to the provident fund was @ 8 per cent of the basic salary and dearness allowance with an equal contribution of GIC or any of its subsidiaries. However, LIC and nationalised banks were giving provident fund at different rates. So as to keep parity with other similar organisations, the Scheme was corrected by an amending notification issued on 1-6-1976 and it was provided that the provident fund shall be contributed by every employee at the rate of 10% of the basic pay plus personal pay and special pay, if any, in place of 8% of the basic salary and dearness allowance.Xx xx xx26. The stand of the respondents is that amendments were made while the process of rationalisation of pay scales and other service conditions were still in progress and the process had not been finally completed to achieve uniformity and inter se rationalisation in terms and conditions of service of different categories of employees of merged companies. In 1977 various labour unions presented a charter of demands in relation to revision of pay scales and service conditions. The Scheme of 1974 contained a provision to the effect that the provisions of the Scheme relating to scales of pay, dearness allowance etc. will continue to be in force till the Government modified the same. After considering the demands of the unions and the view of the management, the Government formulated guidelines and requested the management to hold consultations and discussions with the unions so that final views of the unions may be known and may be taken into account by the Government before modifying the pay scales, etc. But this course will not indicate that there was an obligation cast on the Government to formally negotiate with the unions. However, in keeping with the democratic tradition and to maintain harmonious industrial relations the management had several rounds of discussions with the four major registered unions. The procedure of consultations and discussions was adopted in order to narrow down the differences to the minimum and to ensure that the viewpoint of the employees was kept in mind before any scheme was finalised by the Government. 20. It was further clarified that if the scheme is prima facie discriminated it is open to challenge.21. In para 28 it was held that there was no need for any consultation with the employees. When the changes introduced by the scheme are considered in the background of the position in law and the decision of this Court by a Constitution Bench in Prakash Sharmas case (supra) there is no scope for interference in these appeals. However, it would be in the interests of the officers and the insurance companies if the Development Officers who work within the cost ratio are not transferred unless the transfer is required to be done in public interest. So far as the promotional prospects and the wage revision are concerned, a draft policy stated to have been formulated for the latter be finalized within a period of three months. The writ petitions filed in different High Courts stand dismissed because of this judgment. Consequentially, the interim orders passed which form the subject matter of challenge in the appeals are vacated subject to the directions given supra.
### Response:
1
### Explanation:
18. It is true as contended by learned counsel for the writ petitioners that a personal factor has a role to play notwithstanding the overall importance of the entity. With opening of economy there is a remarkable change in the various sectors including the insurance sector. Since modifications appear to have been done for the purpose of rationalization, there is no scope for interference because essentially a policy decision is immune from judicial review unless it is founded on no rational basis or material to justify the change in policy.So far as the delegated legislation is concerned, the case-law will throw light as to the manner in which the same has to be understood and in each given case we have to understand the scope of the provisions and no uniform rule could be laid down. The legislatures in India have been held to possess wide power of legislation subject, however, to certain limitations such as the legislature cannot delegate essential legislative functions which consist in the determination or choosing of the legislative policy and of formally enacting that policy into a binding rule of conduct. The legislature cannot delegate uncanalised and uncontrolled power. The legislature must set the limits of the power delegated by declaring the policy of the law and by laying down standards for guidance of those on whom the power to execute the law is conferred. Thus the delegation is valid only when the legislative policy and guidelines to implement it are adequately laid down and the delegate is only empowered to carry out the policy within the guidelines laid down by the legislature. The legislature may, after laying down the legislative policy, confer discretion on an administrative agency as to the execution of the policy and leave it to the agency to work out the details within the framework of the policy. When the Constitution entrusts the duty of law-making to Parliament and the legislatures of States, it impliedly prohibits them to throw away that responsibility on the shoulders of some other authority. An area of compromise is struck that Parliament cannot work in detail the various requirements of giving effect to the enactment and, therefore, that area will be left to be filled in by the delegatee. Thus, the question is whether any particular legislation suffers from excessive delegation and in ascertaining the same, the scheme, the provisions of the statute including its preamble, and the facts and circumstances in the background of which the statute is enacted, the history of the legislation, the complexity of the problems which a modern State has to face, will have to be taken note of and if, on a liberal construction given to a statute, a legislative policy and guidelines for its execution are brought out, the statute, even if skeletal, will be upheld to be valid but this rule of liberal construction should not be carried by the court to the extent of always trying to discover a dormant or latent legislative policy to sustain an arbitrary power conferred on the executive. These very tests were adopted in Ajoy Kumar Banerjee case also to examine whether there is excessive delegation in framing schemes and reading the preamble, the scheme and the other provisions of the enactment taking note of the general economic situation in the country, the authorities concerned had to frame appropriate schemes. Therefore, it is not open to the petitioners to contend that there is excessive delegation in relation to the enactment to frame schemes.It was further clarified that if the scheme is prima facie discriminated it is open to challenge.21. In para 28 it was held that there was no need for any consultation with the employees. When the changes introduced by the scheme are considered in the background of the position in law and the decision of this Court by a Constitution Bench in Prakash Sharmas case (supra) there is no scope for interference in these appeals. However, it would be in the interests of the officers and the insurance companies if the Development Officers who work within the cost ratio are not transferred unless the transfer is required to be done in public interest. So far as the promotional prospects and the wage revision are concerned, a draft policy stated to have been formulated for the latter be finalized within a period of three months. The writ petitions filed in different High Courts stand dismissed because of this judgment. Consequentially, the interim orders passed which form the subject matter of challenge in the appeals are vacated subject to the directions given supra.
|
P. Radhakrishna Murthy Vs. M/s. N.B.C.C. Ltd | they think fit, so long as they are not opposed to law. (The proviso to Section 41 and Section 3 of Arbitration Act illustrate this point). All the same, the agreement must be in conformity with law. The Arbitrator must also act and make his award in accordance with the general law of the land and the agreement. (iv) Over the years, the English and Indian courts have acted on the assumption that where the agreement does not prohibit and a party to the reference makes a claim for interest, the Arbitrator must have the power to award interest pendente lite. Thawardas has not been followed in the later decisions of this Court. It has been explained and distinguished on the basis that in that case there was no claim for interest but only a claim for unliquidated damages. It has been said repeatedly that observations in the said judgment were not intended to lay down any such absolute or universal rule as they appear to, on first impression. Until Jena case almost all the courts in the country had upheld the power of the Arbitrator to award interest pendente lite. Continuity and certainty is a highly desirable feature of law. (v) Interest pendente lite is not a matter of substantive law, like interest for the period anterior to reference (pre-reference period). For doing complete justice between the parties, such power has always been inferred. 44. Having regard to the above consideration, we think that the following is the correct principle which should be followed in this behalf: Where the agreement between the parties does not prohibit grant of interest and where a party claims interest and that dispute (along with the claim for principal amount or independently) is referred to the Arbitrator, he shall have the power to award interest pendente lite. This is for the reason that in such a case it must be presumed that interest was an implied term of the agreement between the parties and therefore when the parties refer all their disputes ? or refer the dispute as to interest as such ? to the Arbitrator, he shall have the power to award interest. This does not mean that in every case the Arbitrator should necessarily award interest pendente lite. It is a matter within his discretion to be exercised in the light of all the facts and circumstances of the case, keeping the ends of justice in view. 46. In view of the above discussion we hold that in two appeals namely Civil Appeal No. 1403 of 1986 and Civil Appeal No. 2586 of 1985 the Arbitrator acted with jurisdiction in awarding pendente lite interest and the High Court rightly upheld the award. In the result both the appeals fail and are, accordingly, dismissed but there will be no order as to costs. Even though we have held that the decision in Jena case does not lay down good law, we would like to direct that our decision shall only be prospective in operation, which means that this decision shall not entitle any party nor shall it empower any court to reopen proceedings which have already become final. In other words, the law declared herein shall apply only to pending proceedings.?20. The High Court has examined the rate of interest at 16.5% on the amount awarded in favour of the Contractor by the civil court and has considered the contention urged on behalf of NBCC that the rate of interest awarded is excessive and also the contention that there is no contract of payment of interest on the same and alternatively contended that the interest rate should not normally exceed 6% per annum. These contentions have been seriously contested by appellant?s counsel contending that the award of interest between 15% to 18% per annum on the basis of bank lending rates should be allowed as NBCC itself has claimed interest at the rate of 18.5% per annum on the amount claimed from the contractor. Keeping the aforesaid aspect in mind and in the absence of contract with regard to rate of interest to be awarded in favour of the contractor and having regard to the facts and circumstances of the case, the High Court has come to the right conclusion and awarded interest at the rate of 12% per annum on the amounts due to the contractor on the basis of the rate of interest paid by the Banks to its customers on long term deposits prevailing in 1988. The same cannot be found fault with by this Court for the reason that the High Court taking relevant aspects into consideration has rightly reduced the rate of interest to 12% per annum from 16.5% per annum after holding that exercise of discretionary power by the Arbitrator under Section 34 of CPC is a discretionary power and the same cannot be interfered with by the High Court.21. In our considered view the reasons recorded by the High Court on the contentious issues while examining the claims allowed by the Arbitrator in the award with reasons which is affirmed by the civil court, wherein certain claims have been rightly disallowed, certain other claims accepted and yet some other claims modified by the High Court by adding certain amounts, are based on sound legal principles and after coming to the conclusion that the findings of the Arbitrator and the court are erroneous and contrary to law. Therefore, the High Court has held that the impugned award passed by the Arbitrator which was made the rule of the court by the civil court is erroneous in law and it amounts to misconduct. Accordingly, the High Court has rightly set aside certain claims of the contractor and affirmed the award and granted extra amount on certain claims. It has also interfered with the damages awarded in favour of NBCC and partly allowed the appeal of the respondent NBCC by allowing certain claims, setting aside certain other claims and also reducing the rate of interest at 12% from 16.5%. | 0[ds]20. The High Court has examined the rate of interest at 16.5% on the amount awarded in favour of the Contractor by the civil court and has considered the contention urged on behalf of NBCC that the rate of interest awarded is excessive and also the contention that there is no contract of payment of interest on the same and alternatively contended that the interest rate should not normally exceed 6% per annum. These contentions have been seriously contested by appellant?s counsel contending that the award of interest between 15% to 18% per annum on the basis of bank lending rates should be allowed as NBCC itself has claimed interest at the rate of 18.5% per annum on the amount claimed from the contractor. Keeping the aforesaid aspect in mind and in the absence of contract with regard to rate of interest to be awarded in favour of the contractor and having regard to the facts and circumstances of the case, the High Court has come to the right conclusion and awarded interest at the rate of 12% per annum on the amounts due to the contractor on the basis of the rate of interest paid by the Banks to its customers on long term deposits prevailing in 1988. The same cannot be found fault with by this Court for the reason that the High Court taking relevant aspects into consideration has rightly reduced the rate of interest to 12% per annum from 16.5% per annum after holding that exercise of discretionary power by the Arbitrator under Section 34 of CPC is a discretionary power and the same cannot be interfered with by the High Court.21. In our considered view the reasons recorded by the High Court on the contentious issues while examining the claims allowed by the Arbitrator in the award with reasons which is affirmed by the civil court, wherein certain claims have been rightly disallowed, certain other claims accepted and yet some other claims modified by the High Court by adding certain amounts, are based on sound legal principles and after coming to the conclusion that the findings of the Arbitrator and the court are erroneous and contrary to law. Therefore, the High Court has held that the impugned award passed by the Arbitrator which was made the rule of the court by the civil court is erroneous in law and it amounts to misconduct. Accordingly, the High Court has rightly set aside certain claims of the contractor and affirmed the award and granted extra amount on certain claims. It has also interfered with the damages awarded in favour of NBCC and partly allowed the appeal of the respondent NBCC by allowing certain claims, setting aside certain other claims and also reducing the rate of interest at 12% from 16.5%. | 0 | 7,467 | 497 | ### 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:
they think fit, so long as they are not opposed to law. (The proviso to Section 41 and Section 3 of Arbitration Act illustrate this point). All the same, the agreement must be in conformity with law. The Arbitrator must also act and make his award in accordance with the general law of the land and the agreement. (iv) Over the years, the English and Indian courts have acted on the assumption that where the agreement does not prohibit and a party to the reference makes a claim for interest, the Arbitrator must have the power to award interest pendente lite. Thawardas has not been followed in the later decisions of this Court. It has been explained and distinguished on the basis that in that case there was no claim for interest but only a claim for unliquidated damages. It has been said repeatedly that observations in the said judgment were not intended to lay down any such absolute or universal rule as they appear to, on first impression. Until Jena case almost all the courts in the country had upheld the power of the Arbitrator to award interest pendente lite. Continuity and certainty is a highly desirable feature of law. (v) Interest pendente lite is not a matter of substantive law, like interest for the period anterior to reference (pre-reference period). For doing complete justice between the parties, such power has always been inferred. 44. Having regard to the above consideration, we think that the following is the correct principle which should be followed in this behalf: Where the agreement between the parties does not prohibit grant of interest and where a party claims interest and that dispute (along with the claim for principal amount or independently) is referred to the Arbitrator, he shall have the power to award interest pendente lite. This is for the reason that in such a case it must be presumed that interest was an implied term of the agreement between the parties and therefore when the parties refer all their disputes ? or refer the dispute as to interest as such ? to the Arbitrator, he shall have the power to award interest. This does not mean that in every case the Arbitrator should necessarily award interest pendente lite. It is a matter within his discretion to be exercised in the light of all the facts and circumstances of the case, keeping the ends of justice in view. 46. In view of the above discussion we hold that in two appeals namely Civil Appeal No. 1403 of 1986 and Civil Appeal No. 2586 of 1985 the Arbitrator acted with jurisdiction in awarding pendente lite interest and the High Court rightly upheld the award. In the result both the appeals fail and are, accordingly, dismissed but there will be no order as to costs. Even though we have held that the decision in Jena case does not lay down good law, we would like to direct that our decision shall only be prospective in operation, which means that this decision shall not entitle any party nor shall it empower any court to reopen proceedings which have already become final. In other words, the law declared herein shall apply only to pending proceedings.?20. The High Court has examined the rate of interest at 16.5% on the amount awarded in favour of the Contractor by the civil court and has considered the contention urged on behalf of NBCC that the rate of interest awarded is excessive and also the contention that there is no contract of payment of interest on the same and alternatively contended that the interest rate should not normally exceed 6% per annum. These contentions have been seriously contested by appellant?s counsel contending that the award of interest between 15% to 18% per annum on the basis of bank lending rates should be allowed as NBCC itself has claimed interest at the rate of 18.5% per annum on the amount claimed from the contractor. Keeping the aforesaid aspect in mind and in the absence of contract with regard to rate of interest to be awarded in favour of the contractor and having regard to the facts and circumstances of the case, the High Court has come to the right conclusion and awarded interest at the rate of 12% per annum on the amounts due to the contractor on the basis of the rate of interest paid by the Banks to its customers on long term deposits prevailing in 1988. The same cannot be found fault with by this Court for the reason that the High Court taking relevant aspects into consideration has rightly reduced the rate of interest to 12% per annum from 16.5% per annum after holding that exercise of discretionary power by the Arbitrator under Section 34 of CPC is a discretionary power and the same cannot be interfered with by the High Court.21. In our considered view the reasons recorded by the High Court on the contentious issues while examining the claims allowed by the Arbitrator in the award with reasons which is affirmed by the civil court, wherein certain claims have been rightly disallowed, certain other claims accepted and yet some other claims modified by the High Court by adding certain amounts, are based on sound legal principles and after coming to the conclusion that the findings of the Arbitrator and the court are erroneous and contrary to law. Therefore, the High Court has held that the impugned award passed by the Arbitrator which was made the rule of the court by the civil court is erroneous in law and it amounts to misconduct. Accordingly, the High Court has rightly set aside certain claims of the contractor and affirmed the award and granted extra amount on certain claims. It has also interfered with the damages awarded in favour of NBCC and partly allowed the appeal of the respondent NBCC by allowing certain claims, setting aside certain other claims and also reducing the rate of interest at 12% from 16.5%.
### Response:
0
### Explanation:
20. The High Court has examined the rate of interest at 16.5% on the amount awarded in favour of the Contractor by the civil court and has considered the contention urged on behalf of NBCC that the rate of interest awarded is excessive and also the contention that there is no contract of payment of interest on the same and alternatively contended that the interest rate should not normally exceed 6% per annum. These contentions have been seriously contested by appellant?s counsel contending that the award of interest between 15% to 18% per annum on the basis of bank lending rates should be allowed as NBCC itself has claimed interest at the rate of 18.5% per annum on the amount claimed from the contractor. Keeping the aforesaid aspect in mind and in the absence of contract with regard to rate of interest to be awarded in favour of the contractor and having regard to the facts and circumstances of the case, the High Court has come to the right conclusion and awarded interest at the rate of 12% per annum on the amounts due to the contractor on the basis of the rate of interest paid by the Banks to its customers on long term deposits prevailing in 1988. The same cannot be found fault with by this Court for the reason that the High Court taking relevant aspects into consideration has rightly reduced the rate of interest to 12% per annum from 16.5% per annum after holding that exercise of discretionary power by the Arbitrator under Section 34 of CPC is a discretionary power and the same cannot be interfered with by the High Court.21. In our considered view the reasons recorded by the High Court on the contentious issues while examining the claims allowed by the Arbitrator in the award with reasons which is affirmed by the civil court, wherein certain claims have been rightly disallowed, certain other claims accepted and yet some other claims modified by the High Court by adding certain amounts, are based on sound legal principles and after coming to the conclusion that the findings of the Arbitrator and the court are erroneous and contrary to law. Therefore, the High Court has held that the impugned award passed by the Arbitrator which was made the rule of the court by the civil court is erroneous in law and it amounts to misconduct. Accordingly, the High Court has rightly set aside certain claims of the contractor and affirmed the award and granted extra amount on certain claims. It has also interfered with the damages awarded in favour of NBCC and partly allowed the appeal of the respondent NBCC by allowing certain claims, setting aside certain other claims and also reducing the rate of interest at 12% from 16.5%.
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MAHABIR INDUSTRIES Vs. PRINCIPAL COMMISSIONER OF INCOME TAX | the case of such industries in the North-Eastern Region, as may be notified by the Central Government, the amount of deduction shall be hundred per cent. of profits and gains for a period of ten assessment years, and the total period of deduction shall in such a case not exceed ten assessment years.?This provision pertains to those industries which are in the North-Eastern Region.(c) When the deduction is claimed under Section 10C. It is again a special provision in respect of certain industrial undertakings in North-Eastern Region.11. The assessee in the instant case has not got deduction under Section 80-IC for a period of ten years as he started claiming deduction under this provision w.e.f. Assessment Year 2006-07. Situation Nos. (b) and (c) mentioned above would not apply to the assessee as it?s undertaking/enterprise is not established in North-Eastern Region. It is, thus, clear that the High Court has failed to appreciate that the provisions of Section 80-IC(6) of the Act state that the total period of deduction under Section 80-IC and Section 80-IB cannot exceed ten assessment years only if the manufacturing unit was claiming deduction under second proviso to Section 80-IB(4) of the Act i.e. units located in the North-Eastern State.12. The matter can be looked into from another angle. Under Section 80-IA, deduction is provided to such industrial undertakings or enterprises which are engaged in infrastructure development etc. provided they fulfill the conditions mentioned in sub-section (4) thereof. Section 80-IB makes provisions for deduction in respect of those industrial undertakings, other than infrastructure development undertakings, which are enumerated in the said provision. On the other hand, the intention behind Section 80-IC is to grant deduction to the units making new investments in the State by establishing new manufacturing unit or even to the existing manufacturing unit which carried out substantial expansions. The purport behind the three types of deductions specified in Section 80-IA, Section 80-IB and Section 80-IC is, thus, different. Section 80-IC stipulates the period for which hundred per cent deduction is to be given and then deduction at reduced rates is to be given. If the assessee had earlier availed deduction under Section 80-IA and Section 80-IB, that would be of no concern inasmuch as on carrying out substantial expansion, which was carried out and completed in the Assessment Year 2006-07, the assessee became entitled to deduction under Section 80-IC from the initial year. The term ‘initial year? is referable to the year in which substantial expansion has been completed, which legal position is stated by the High Court itself and even accepted by the Department as it has not challenged that part of the judgment. The inclusion of period for the deduction is availed under Section 80-IA and Section 80-IB, for the purpose of counting ten years, is provided in sub-section (6) of Section 80-IC and it is limited to those industrial undertakings or enterprises which are set-up in the North-Eastern Region. By making specific provision of this kind, the Legislature has shown its intent, namely, where the industry is not located in North- Eastern State, the period for which deduction is availed earlier by an assessee under Section 80-IA and Section 80-IB will not be reckoned for the purpose of availing benefit of deduction under Section 80-IC of the Act.13. Learned counsel for the Revenue could not dispute that sub- section (6) of Section 80-IC would get attracted when the industry is located in the North-Eastern Region. Having faced with this situation, he raised an altogether different argument for consideration by referring to Section 15C of the Income Tax Act, 1922 (hereinafter referred to as the ‘1922 Act?), which was also a provision which granted exemption from income in respect of newly established industrial undertaking. He submitted that this Court in Textile Machinery Corporation Limited, Calcutta v. The Commissioner of Income Tax, West Bengal, Calcutta 1 has held that the true test for ascertaining whether industrial undertaking is ‘formed by reconstruction of business already in existence? (which was the expression used in Section 15C of 1922 Act), is not whether the new industrial undertaking connotes expansion of the existing business of the assessee but whether it is a new and identifiable undertaking separate and distinct from existing business. In fine, the endeavour of learned senior counsel was that the assessee cannot be treated as an industrial undertaking which has reconstructed the business i.e. made substantial expansion. This argument has to be rejected for at least two reasons: (i) Section 15C of the 1922 Act provided exemption from tax to newly established industrial undertaking if they are not ‘formed by reconstruction of business already in existence?. Thus, under the said provision, if it was found that an industrial undertaking is formed by reconstruction of business already in existence, then it was entitled to any exemption under Section 15C. It is in that context the Court was considering the meaning of reconstruction of business. On the other hand, the words under Section 80-IC are ‘substantial expansion?. Thus, discussion contained in the said judgment would have no application to the instant case.(ii) Insofar as the factum of substantial expansion of the assessee?s unit in the Assessment Year 2006-07 is concerned, the same is not subject matter of any controversy in the instant case. It has been accepted by the Department that assessee had carried out substantial expansion. Precisely, for this reason, the AO had allowed deduction for Assessment Years 2006-07 and 2007-08. Therefore, issue is not as to whether there is a substantial expansion or not. The issue is only as to how a period of ten years is to be calculated, namely, whether those Assessment Years in respect of which deduction under Section 80-IA and Section 80-IB was allowed are to be counted for the purpose of giving deduction under Section 80-IC.14. Thus, we are of the opinion that it was wrong on the part of the AO not to allow deduction to the assessee under Section 80-IC for the Assessment Years 2008-09 and 2009-2010. | 1[ds]11. The assessee in the instant case has not got deduction under Sectionfor a period of ten years as he started claiming deduction under this provision w.e.f. Assessment YearSituation Nos. (b) and (c) mentioned above would not apply to the assessee as it?s undertaking/enterprise is not established inRegion. It is, thus, clear that the High Court has failed to appreciate that the provisions of Sectionof the Act state that the total period of deduction under Sectioncannot exceed ten assessment years only if the manufacturing unit was claiming deduction under second proviso to Sectionof the Act i.e. units located in the. Learned counsel for the Revenue could not dispute that subsection (6) of Sectionwould get attracted when the industry is located in theRegion. Having faced with this situation, he raised an altogether different argument for consideration by referring to Section 15C of the Income Tax Act, 1922 (hereinafter referred to as the ‘1922 Act?), which was also a provision which granted exemption from income in respect of newly established industrial undertaking.He submitted that this Court in Textile Machinery Corporation Limited, Calcutta v. The Commissioner of Income Tax, West Bengal, Calcutta 1 has held that the true test for ascertaining whether industrial undertaking is ‘formed by reconstruction of business already in existence? (which was the expression used in Section 15C of 1922 Act), is not whether the new industrial undertaking connotes expansion of the existing business of the assessee but whether it is a new and identifiable undertaking separate and distinct from existing business. In fine, the endeavour of learned senior counsel was that the assessee cannot be treated as an industrial undertaking which has reconstructed the business i.e. made substantial expansion.This argument has to be rejected for at least two reasons: (i) Section 15C of the 1922 Act provided exemption from tax to newly established industrial undertaking if they are not ‘formed by reconstruction of business already in existence?. Thus, under the said provision, if it was found that an industrial undertaking is formed by reconstruction of business already in existence, then it was entitled to any exemption under Section 15C. It is in that context the Court was considering the meaning of reconstruction of business. On the other hand, the words under Sectionare ‘substantial expansion?. Thus, discussion contained in the said judgment would have no application to the instant case.(ii) Insofar as the factum of substantial expansion of the assessee?s unit in the Assessment Yearis concerned, the same is not subject matter of any controversy in the instant case. It has been accepted by the Department that assessee had carried out substantial expansion. Precisely, for this reason, the AO had allowed deduction for Assessment Years8. Therefore, issue is not as to whether there is a substantial expansion or not. The issue is only as to how a period of ten years is to be calculated, namely, whether those Assessment Years in respect of which deduction under SectionThus, we are of the opinion that it was wrong on the part of the AO not to allow deduction to the assessee under Sectionfor the Assessment Years | 1 | 3,722 | 587 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
the case of such industries in the North-Eastern Region, as may be notified by the Central Government, the amount of deduction shall be hundred per cent. of profits and gains for a period of ten assessment years, and the total period of deduction shall in such a case not exceed ten assessment years.?This provision pertains to those industries which are in the North-Eastern Region.(c) When the deduction is claimed under Section 10C. It is again a special provision in respect of certain industrial undertakings in North-Eastern Region.11. The assessee in the instant case has not got deduction under Section 80-IC for a period of ten years as he started claiming deduction under this provision w.e.f. Assessment Year 2006-07. Situation Nos. (b) and (c) mentioned above would not apply to the assessee as it?s undertaking/enterprise is not established in North-Eastern Region. It is, thus, clear that the High Court has failed to appreciate that the provisions of Section 80-IC(6) of the Act state that the total period of deduction under Section 80-IC and Section 80-IB cannot exceed ten assessment years only if the manufacturing unit was claiming deduction under second proviso to Section 80-IB(4) of the Act i.e. units located in the North-Eastern State.12. The matter can be looked into from another angle. Under Section 80-IA, deduction is provided to such industrial undertakings or enterprises which are engaged in infrastructure development etc. provided they fulfill the conditions mentioned in sub-section (4) thereof. Section 80-IB makes provisions for deduction in respect of those industrial undertakings, other than infrastructure development undertakings, which are enumerated in the said provision. On the other hand, the intention behind Section 80-IC is to grant deduction to the units making new investments in the State by establishing new manufacturing unit or even to the existing manufacturing unit which carried out substantial expansions. The purport behind the three types of deductions specified in Section 80-IA, Section 80-IB and Section 80-IC is, thus, different. Section 80-IC stipulates the period for which hundred per cent deduction is to be given and then deduction at reduced rates is to be given. If the assessee had earlier availed deduction under Section 80-IA and Section 80-IB, that would be of no concern inasmuch as on carrying out substantial expansion, which was carried out and completed in the Assessment Year 2006-07, the assessee became entitled to deduction under Section 80-IC from the initial year. The term ‘initial year? is referable to the year in which substantial expansion has been completed, which legal position is stated by the High Court itself and even accepted by the Department as it has not challenged that part of the judgment. The inclusion of period for the deduction is availed under Section 80-IA and Section 80-IB, for the purpose of counting ten years, is provided in sub-section (6) of Section 80-IC and it is limited to those industrial undertakings or enterprises which are set-up in the North-Eastern Region. By making specific provision of this kind, the Legislature has shown its intent, namely, where the industry is not located in North- Eastern State, the period for which deduction is availed earlier by an assessee under Section 80-IA and Section 80-IB will not be reckoned for the purpose of availing benefit of deduction under Section 80-IC of the Act.13. Learned counsel for the Revenue could not dispute that sub- section (6) of Section 80-IC would get attracted when the industry is located in the North-Eastern Region. Having faced with this situation, he raised an altogether different argument for consideration by referring to Section 15C of the Income Tax Act, 1922 (hereinafter referred to as the ‘1922 Act?), which was also a provision which granted exemption from income in respect of newly established industrial undertaking. He submitted that this Court in Textile Machinery Corporation Limited, Calcutta v. The Commissioner of Income Tax, West Bengal, Calcutta 1 has held that the true test for ascertaining whether industrial undertaking is ‘formed by reconstruction of business already in existence? (which was the expression used in Section 15C of 1922 Act), is not whether the new industrial undertaking connotes expansion of the existing business of the assessee but whether it is a new and identifiable undertaking separate and distinct from existing business. In fine, the endeavour of learned senior counsel was that the assessee cannot be treated as an industrial undertaking which has reconstructed the business i.e. made substantial expansion. This argument has to be rejected for at least two reasons: (i) Section 15C of the 1922 Act provided exemption from tax to newly established industrial undertaking if they are not ‘formed by reconstruction of business already in existence?. Thus, under the said provision, if it was found that an industrial undertaking is formed by reconstruction of business already in existence, then it was entitled to any exemption under Section 15C. It is in that context the Court was considering the meaning of reconstruction of business. On the other hand, the words under Section 80-IC are ‘substantial expansion?. Thus, discussion contained in the said judgment would have no application to the instant case.(ii) Insofar as the factum of substantial expansion of the assessee?s unit in the Assessment Year 2006-07 is concerned, the same is not subject matter of any controversy in the instant case. It has been accepted by the Department that assessee had carried out substantial expansion. Precisely, for this reason, the AO had allowed deduction for Assessment Years 2006-07 and 2007-08. Therefore, issue is not as to whether there is a substantial expansion or not. The issue is only as to how a period of ten years is to be calculated, namely, whether those Assessment Years in respect of which deduction under Section 80-IA and Section 80-IB was allowed are to be counted for the purpose of giving deduction under Section 80-IC.14. Thus, we are of the opinion that it was wrong on the part of the AO not to allow deduction to the assessee under Section 80-IC for the Assessment Years 2008-09 and 2009-2010.
### Response:
1
### Explanation:
11. The assessee in the instant case has not got deduction under Sectionfor a period of ten years as he started claiming deduction under this provision w.e.f. Assessment YearSituation Nos. (b) and (c) mentioned above would not apply to the assessee as it?s undertaking/enterprise is not established inRegion. It is, thus, clear that the High Court has failed to appreciate that the provisions of Sectionof the Act state that the total period of deduction under Sectioncannot exceed ten assessment years only if the manufacturing unit was claiming deduction under second proviso to Sectionof the Act i.e. units located in the. Learned counsel for the Revenue could not dispute that subsection (6) of Sectionwould get attracted when the industry is located in theRegion. Having faced with this situation, he raised an altogether different argument for consideration by referring to Section 15C of the Income Tax Act, 1922 (hereinafter referred to as the ‘1922 Act?), which was also a provision which granted exemption from income in respect of newly established industrial undertaking.He submitted that this Court in Textile Machinery Corporation Limited, Calcutta v. The Commissioner of Income Tax, West Bengal, Calcutta 1 has held that the true test for ascertaining whether industrial undertaking is ‘formed by reconstruction of business already in existence? (which was the expression used in Section 15C of 1922 Act), is not whether the new industrial undertaking connotes expansion of the existing business of the assessee but whether it is a new and identifiable undertaking separate and distinct from existing business. In fine, the endeavour of learned senior counsel was that the assessee cannot be treated as an industrial undertaking which has reconstructed the business i.e. made substantial expansion.This argument has to be rejected for at least two reasons: (i) Section 15C of the 1922 Act provided exemption from tax to newly established industrial undertaking if they are not ‘formed by reconstruction of business already in existence?. Thus, under the said provision, if it was found that an industrial undertaking is formed by reconstruction of business already in existence, then it was entitled to any exemption under Section 15C. It is in that context the Court was considering the meaning of reconstruction of business. On the other hand, the words under Sectionare ‘substantial expansion?. Thus, discussion contained in the said judgment would have no application to the instant case.(ii) Insofar as the factum of substantial expansion of the assessee?s unit in the Assessment Yearis concerned, the same is not subject matter of any controversy in the instant case. It has been accepted by the Department that assessee had carried out substantial expansion. Precisely, for this reason, the AO had allowed deduction for Assessment Years8. Therefore, issue is not as to whether there is a substantial expansion or not. The issue is only as to how a period of ten years is to be calculated, namely, whether those Assessment Years in respect of which deduction under SectionThus, we are of the opinion that it was wrong on the part of the AO not to allow deduction to the assessee under Sectionfor the Assessment Years
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Sher Singh and Others Vs. Union of India and Others | the legislature to provide that an application for renewal of a permit shall be made and disposed of as if it were an application for a fresh permit. The expression as if is used to make one applicable in respect of other. Therefore, the expression as if used in Sec. 58 (2) would mean and imply that the application for renewal must be made in the same manner and to same extent an application for a fresh permi t and must be processed as such. This would mean that even where an existing permit holder applies for a renewal of his permit, it has to be advertised and fresh applicants can as well apply for a permit to ply vehicles on the same route for which the previous holder of permit has applied for renewal of his permit. After considering all such applications, other conditions being equal, an existing operator who has applied for renewal will have preference. Therefore, by necessary interpretation, Sec. 47 (1-H) would also come into play when an application is for renewal of a permit on an inter-State route. There is no conflict between Sec. 47 (1-H) and Sec. 58 (2). It is therefore, not possible to accept the submission that while considering the application for renewal of a permit, Sec. 47 (1-H) is not attracted.9. It appears that the State of Rajasthan had amended Sec. 58 (2) in its application to that State by engrafting a third proviso to sub-sec. (2) of Sec. 58 by Rajasthan Act 8 of 1973, which reads as under:"Provided also that other conditions being equal, an application for stage carriage permit by a State Transport Undertakings, as defined in Section 68-A, whether an application for renewal or a new application shall be given preference over all other applications for renewal."Addition of this proviso merely makes explicit what was implicit in sub-sec. (2) of Sec. 58. Nothing was pointed out to us to ho ld that the Rajasthan State Legislature lacked competence to add the aforementioned proviso to sub-sec. (2) of Sec. 58.Re: S.L.Ps. Nos. 9678 to 9680/82:10. In this group of petitions for special leave, it was contended before the High Court that as Pallavan Transport Corporation Ltd., the first respondent, did not make provision for night halt cleaners, the application for permits made by them were liable to be screened. The High Court declined to examine this contention on t he short ground that this contention was not raised before the State Transport Appellate Tribunal. For the same reason, we could as well have declined to examine this contention. However, it may as well be pointed out that even if the contention is to be examined on merits, there is no substance in it. The State of Tamil Nadu has framed what are styled as Tamil Nadu Motor Vehicles Rules. Rule 155-A provides for a marking system under different heads to rival claimants for permit to objectively assess who amongst them is the best to whom permit should be granted. Before proceeding to assign marks under different heads, the Transport Authority has to screen applications so as to weed out those unsuitable on one or the other ground mentioned in the rule. One such disqualification is the failure to provide for night halt cleaners. It was urged that after the Transport Authority made the enquiry from the first respondent-Corporation whether it has provision for night halt cleaners, without waiting for the clarification, the Transport Authority proceeded to dispose of the application. It was next pointed out that Rule 155-A (3) (d) provides that 5 marks shall be awarded to the applicant falling within the proviso to cl. (c) of Sec. 62 of the Act which means and implies a State Transport Undertaking. The grievance is that such adhoc assignment of marks and failure to weed out the application on the ground of disqualification for not providing night halt cleaners has vitiated the decision of the Transport Authority. The validity of Rule 155-A and its various sub clauses came up for consideration of this Court in D.R. Venkachalam &Ors. vs. Dy. Transport Commissioner &Ors.(1) This Court repelled the challenge especially to the provision for assigning 5 marks to a State Transport Undertaking observing as under:"A State enterprise, in a truly Welfare State, is charged with a social consciousness and responsibility for its citizens, an attention to serve them and a willingness to embark on public utility undertakings better to fulfil peoples demands. The public sector enterprises are expected to be model employers and mod el servants planning their budgets, subjecting themselves to public audit and criticism and inquest by legislative committees and the Houses of the legislature. Profits are their concern but, more importantly, public weal is their commitment. Such is the philosophy of the State sector in our socialistic pattern of society."11. On the question of assignment of 5 marks to State Transport Undertaking this Court held that this is not an arbitrary stroke of favouritism because there are many promotional factors bearing on the interest of the travelling public which a State enterprise qua State enterprise will, but a private enterprise qua private enterprise will not, take care of. After al l, private enterprise has its primary motivation in profit. The Court further observed that the superiority in many respects of State Transport Undertakings, in the legislative judgment, has led to r. 155-A. The Court ultimately held that the assignment of marks under r. 155-A is geared to public interest, which is the desideratum of s. 47 (1) of the Act. Once the assignment of 5 marks to State Transport Authority Undertaking is held to be valid, the Transport Authority was perfectly justified in refusing renewal of permits to the petitioners in comparison to the State Transport Undertaking. As for failure to explain absence of night halt cleaners, in the absence of concerte evidence, no inference can be drawn. This was the only additional contention in this group of petitions and we find no substance in it. Thes | 0[ds]In this group of petitions for special leave, it was contended before the High Court that as Pallavan Transport Corporation Ltd., the first respondent, did not make provision for night halt cleaners, the application for permits made by them were liable to be screened. The High Court declined to examine this contention on t he short ground that this contention was not raised before the State Transport Appellate Tribunal. For the same reason, we could as well have declined to examine this contention. However, it may as well be pointed out that even if the contention is to be examined on merits, there is no substance in it. The State of Tamil Nadu has framed what are styled as Tamil Nadu Motor Vehicles Rules. Rule 155-A provides for a marking system under different heads to rival claimants for permit to objectively assess who amongst them is the best to whom permit should be granted. Before proceeding to assign marks under different heads, the Transport Authority has to screen applications so as to weed out those unsuitable on one or the other ground mentioned in the rule. One such disqualification is the failure to provide for night halt cleaners. It was urged that after the Transport Authority made the enquiry from the first respondent-Corporation whether it has provision for night halt cleaners, without waiting for the clarification, the Transport Authority proceeded to dispose of the application. It was next pointed out that Rule 155-A (3) (d) provides that 5 marks shall be awarded to the applicant falling within the proviso to cl. (c) of Sec. 62 of the Act which means and implies a State Transport Undertaking. The grievance is that such adhoc assignment of marks and failure to weed out the application on the ground of disqualification for not providing night halt cleaners has vitiated the decision of the Transport Authority. The validity of Rule 155-A and its various sub clauses came up for consideration of this Court in D.R. Venkachalam &Ors. vs. Dy. Transport Commissioner &Ors.(1) This Court repelled the challenge especially to the provision for assigning 5 marks to a State Transport Undertaking observing asState enterprise, in a truly Welfare State, is charged with a social consciousness and responsibility for its citizens, an attention to serve them and a willingness to embark on public utility undertakings better to fulfil peoples demands. The public sector enterprises are expected to be model employers and mod el servants planning their budgets, subjecting themselves to public audit and criticism and inquest by legislative committees and the Houses of the legislature. Profits are their concern but, more importantly, public weal is their commitment. Such is the philosophy of the State sector in our socialistic pattern ofthe question of assignment of 5 marks to State Transport Undertaking this Court held that this is not an arbitrary stroke of favouritism because there are many promotional factors bearing on the interest of the travelling public which a State enterprise qua State enterprise will, but a private enterprise qua private enterprise will not, take care of. After al l, private enterprise has its primary motivation in profit. The Court further observed that the superiority in many respects of State Transport Undertakings, in the legislative judgment, has led to r. 155-A. The Court ultimately held that the assignment of marks under r. 155-A is geared to public interest, which is the desideratum of s. 47 (1) of the Act. Once the assignment of 5 marks to State Transport Authority Undertaking is held to be valid, the Transport Authority was perfectly justified in refusing renewal of permits to the petitioners in comparison to the State Transport Undertaking. As for failure to explain absence of night halt cleaners, in the absence of concerte evidence, no inference can be drawn. This was the only additional contention in this group of petitions and we find no substance in it. These are all the contentions in this group of petitions and as we find no substance in any of them, all the petitions are dismissed with no order as to costs. | 0 | 4,864 | 749 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
the legislature to provide that an application for renewal of a permit shall be made and disposed of as if it were an application for a fresh permit. The expression as if is used to make one applicable in respect of other. Therefore, the expression as if used in Sec. 58 (2) would mean and imply that the application for renewal must be made in the same manner and to same extent an application for a fresh permi t and must be processed as such. This would mean that even where an existing permit holder applies for a renewal of his permit, it has to be advertised and fresh applicants can as well apply for a permit to ply vehicles on the same route for which the previous holder of permit has applied for renewal of his permit. After considering all such applications, other conditions being equal, an existing operator who has applied for renewal will have preference. Therefore, by necessary interpretation, Sec. 47 (1-H) would also come into play when an application is for renewal of a permit on an inter-State route. There is no conflict between Sec. 47 (1-H) and Sec. 58 (2). It is therefore, not possible to accept the submission that while considering the application for renewal of a permit, Sec. 47 (1-H) is not attracted.9. It appears that the State of Rajasthan had amended Sec. 58 (2) in its application to that State by engrafting a third proviso to sub-sec. (2) of Sec. 58 by Rajasthan Act 8 of 1973, which reads as under:"Provided also that other conditions being equal, an application for stage carriage permit by a State Transport Undertakings, as defined in Section 68-A, whether an application for renewal or a new application shall be given preference over all other applications for renewal."Addition of this proviso merely makes explicit what was implicit in sub-sec. (2) of Sec. 58. Nothing was pointed out to us to ho ld that the Rajasthan State Legislature lacked competence to add the aforementioned proviso to sub-sec. (2) of Sec. 58.Re: S.L.Ps. Nos. 9678 to 9680/82:10. In this group of petitions for special leave, it was contended before the High Court that as Pallavan Transport Corporation Ltd., the first respondent, did not make provision for night halt cleaners, the application for permits made by them were liable to be screened. The High Court declined to examine this contention on t he short ground that this contention was not raised before the State Transport Appellate Tribunal. For the same reason, we could as well have declined to examine this contention. However, it may as well be pointed out that even if the contention is to be examined on merits, there is no substance in it. The State of Tamil Nadu has framed what are styled as Tamil Nadu Motor Vehicles Rules. Rule 155-A provides for a marking system under different heads to rival claimants for permit to objectively assess who amongst them is the best to whom permit should be granted. Before proceeding to assign marks under different heads, the Transport Authority has to screen applications so as to weed out those unsuitable on one or the other ground mentioned in the rule. One such disqualification is the failure to provide for night halt cleaners. It was urged that after the Transport Authority made the enquiry from the first respondent-Corporation whether it has provision for night halt cleaners, without waiting for the clarification, the Transport Authority proceeded to dispose of the application. It was next pointed out that Rule 155-A (3) (d) provides that 5 marks shall be awarded to the applicant falling within the proviso to cl. (c) of Sec. 62 of the Act which means and implies a State Transport Undertaking. The grievance is that such adhoc assignment of marks and failure to weed out the application on the ground of disqualification for not providing night halt cleaners has vitiated the decision of the Transport Authority. The validity of Rule 155-A and its various sub clauses came up for consideration of this Court in D.R. Venkachalam &Ors. vs. Dy. Transport Commissioner &Ors.(1) This Court repelled the challenge especially to the provision for assigning 5 marks to a State Transport Undertaking observing as under:"A State enterprise, in a truly Welfare State, is charged with a social consciousness and responsibility for its citizens, an attention to serve them and a willingness to embark on public utility undertakings better to fulfil peoples demands. The public sector enterprises are expected to be model employers and mod el servants planning their budgets, subjecting themselves to public audit and criticism and inquest by legislative committees and the Houses of the legislature. Profits are their concern but, more importantly, public weal is their commitment. Such is the philosophy of the State sector in our socialistic pattern of society."11. On the question of assignment of 5 marks to State Transport Undertaking this Court held that this is not an arbitrary stroke of favouritism because there are many promotional factors bearing on the interest of the travelling public which a State enterprise qua State enterprise will, but a private enterprise qua private enterprise will not, take care of. After al l, private enterprise has its primary motivation in profit. The Court further observed that the superiority in many respects of State Transport Undertakings, in the legislative judgment, has led to r. 155-A. The Court ultimately held that the assignment of marks under r. 155-A is geared to public interest, which is the desideratum of s. 47 (1) of the Act. Once the assignment of 5 marks to State Transport Authority Undertaking is held to be valid, the Transport Authority was perfectly justified in refusing renewal of permits to the petitioners in comparison to the State Transport Undertaking. As for failure to explain absence of night halt cleaners, in the absence of concerte evidence, no inference can be drawn. This was the only additional contention in this group of petitions and we find no substance in it. Thes
### Response:
0
### Explanation:
In this group of petitions for special leave, it was contended before the High Court that as Pallavan Transport Corporation Ltd., the first respondent, did not make provision for night halt cleaners, the application for permits made by them were liable to be screened. The High Court declined to examine this contention on t he short ground that this contention was not raised before the State Transport Appellate Tribunal. For the same reason, we could as well have declined to examine this contention. However, it may as well be pointed out that even if the contention is to be examined on merits, there is no substance in it. The State of Tamil Nadu has framed what are styled as Tamil Nadu Motor Vehicles Rules. Rule 155-A provides for a marking system under different heads to rival claimants for permit to objectively assess who amongst them is the best to whom permit should be granted. Before proceeding to assign marks under different heads, the Transport Authority has to screen applications so as to weed out those unsuitable on one or the other ground mentioned in the rule. One such disqualification is the failure to provide for night halt cleaners. It was urged that after the Transport Authority made the enquiry from the first respondent-Corporation whether it has provision for night halt cleaners, without waiting for the clarification, the Transport Authority proceeded to dispose of the application. It was next pointed out that Rule 155-A (3) (d) provides that 5 marks shall be awarded to the applicant falling within the proviso to cl. (c) of Sec. 62 of the Act which means and implies a State Transport Undertaking. The grievance is that such adhoc assignment of marks and failure to weed out the application on the ground of disqualification for not providing night halt cleaners has vitiated the decision of the Transport Authority. The validity of Rule 155-A and its various sub clauses came up for consideration of this Court in D.R. Venkachalam &Ors. vs. Dy. Transport Commissioner &Ors.(1) This Court repelled the challenge especially to the provision for assigning 5 marks to a State Transport Undertaking observing asState enterprise, in a truly Welfare State, is charged with a social consciousness and responsibility for its citizens, an attention to serve them and a willingness to embark on public utility undertakings better to fulfil peoples demands. The public sector enterprises are expected to be model employers and mod el servants planning their budgets, subjecting themselves to public audit and criticism and inquest by legislative committees and the Houses of the legislature. Profits are their concern but, more importantly, public weal is their commitment. Such is the philosophy of the State sector in our socialistic pattern ofthe question of assignment of 5 marks to State Transport Undertaking this Court held that this is not an arbitrary stroke of favouritism because there are many promotional factors bearing on the interest of the travelling public which a State enterprise qua State enterprise will, but a private enterprise qua private enterprise will not, take care of. After al l, private enterprise has its primary motivation in profit. The Court further observed that the superiority in many respects of State Transport Undertakings, in the legislative judgment, has led to r. 155-A. The Court ultimately held that the assignment of marks under r. 155-A is geared to public interest, which is the desideratum of s. 47 (1) of the Act. Once the assignment of 5 marks to State Transport Authority Undertaking is held to be valid, the Transport Authority was perfectly justified in refusing renewal of permits to the petitioners in comparison to the State Transport Undertaking. As for failure to explain absence of night halt cleaners, in the absence of concerte evidence, no inference can be drawn. This was the only additional contention in this group of petitions and we find no substance in it. These are all the contentions in this group of petitions and as we find no substance in any of them, all the petitions are dismissed with no order as to costs.
|
Chander Kali Bai & Ors Vs. Jagdish Singh Thakur | be payable for any accommodation and includes any person occupying the accommodation as a sub-tenant and also, any person continuing in possession after the termination of his tenancy whether before or after the commencement of this Act; but shall not include any person against whom any order or decree for eviction has been made.On a plain reading of the definition aforesaid it is clear that a tenant even after the termination of his contractual tenancy does not become an unauthorised occupant of the accommodation but remains a tenant. It has been pointed out by this Court in Damadilal v. Parashram [1976 Supp SCR 645 : (1976) 4 SCC 855.] that such a tenant is conveniently called a statutory tenant. Whether the expression aforesaid borrowed from the English Law is quite apposite or not, but, what is certain is that a person continuing in possession of the accommodation even after the termination of his contractual tenancy is a tenant within the meaning of the Act and on such termination his possession does not become wrongful, until and unless a decree for eviction is made. If he continues to be in possession even after the passing of the decree, he does so as a wrongful occupant of the accommodation."9. Mrs. Seth in support of her argument rightly pressed into service a few other provisions of the Act. Section 13(1) giving protection against eviction on the ground of default in payment of rent provides therein that even after the institution of the suit if he clears off the amount of rent due within a period specified in the section and thereafter "continue to deposit or pay, month by month, by the fifteenth of each succeeding month a sum equivalent to the rent at that rate" calculated at the rate of rent at which he was paying earlier, no decree for eviction can be passed. The conclusion is inevitable, therefore, that if a suit is filed on the ground of non-payment of rent after termination of the contractual tenancy, the tenant still continues to be a tenant liable to pay rent not only for the past period but in future also. In absence of a decree of eviction the person in occupation of the accommodation continues to be a tenant and is not liable to pay any damages as his occupation is not unauthorised or wrongful even after the termination of the contractual tenancy. In Damadilals case (supra), Gupta, J. delivering the judgment of this Court has said at page 653 (SCC p. 864) with reference to the definition of tenant in Section 2(i) of the Act :The definition makes a person continuing in possession after the determination of his tenancy a tenant unless a decree or order for eviction has been made against him, thus putting him on par with a person whose contractual tenancy still subsists. The incidents of such tenancy and a contractual tenancy must therefore to be the same unless any provision of the Act conveyed a contrary intention. That under this Act such a tenant retains an interest in the premises, and not merely a personal right of occupation, will also appear from Section 14 which contains provisions restricting the tenants power of sub-letting.10. In Kikabhai Abdul Hussain v. Kamlakar [1974 MPJ 485] a Bench of the Madhya Pradesh High Court seems to have opined even with reference to the 1961 Act that if a person continues to be in occupation after the termination of the contractual tenancy then on the passing of the decree for eviction he becomes a wrongful occupant of the accommodation since the date of termination. It seems a theory akin to the theory of "relation back" has been applied in the sense that if no decree for eviction is passed then the person is not in unlawful occupation but on the passing of such a decree his possession becomes unlawful not from the date of the decree but such a decree makes his occupation unlawful from the date of the termination of the contractual tenancy. Whatever could be said with reference to the provisions of 1955 Act it is clear to us that the law so enunciated by the High Court with reference to 1961 Act is not correct.11. Mr. Goswami, appearing for the plaintiff-respondent relied upon the decision of this Court in Ganga Dutt Murarka v. Kartik Chandra Das [(1961) 3 SCR 813 : AIR 1961 SC 1067 ]. In our opinion the said decision is of no help to the respondent. The question for determination there was a different one. With reference to the provisions of the West Bengal Premises Rent Control Act the argument advanced before this Court was that if after the determination of the tenancy by efflux of time or by a notice to quit the tenant continued in possession of the premises and the landlord accepted rent from his because no decree for eviction could be made in view of the subsequent Control Acts it was tantamount to holding over within the meaning of Section 116 of the Transfer of Property Act. This argument was repelled. Whether a new contractual tenancy would come into existence by acceptance of rent by the landlord in such a situation is a different matter. But this case does not lay down that the occupation of the premises by the tenant whose tenancy has been terminated by efflux of time or by notice to quit becomes unauthorised or wrongful.12. For the reasons stated above it is manifest that the defendants remained in occupation of the accommodation on and from January 1, 1973 as a tenant, conveniently to be called statutory tenant, under the Act. Their occupation was not unauthorised or wrongful until a decree for eviction was passed by the first appellate Court on August 11, 1975. Their occupation became unauthorised or wrongful only from that date. They are not, therefore, liable to pay any damages or mesne profits for the period commencing from January 1, 1973 and ending on August 10, 1975. | 1[ds]9. Mrs. Seth in support of her argument rightly pressed into service a few other provisions of the Act. Section 13(1) giving protection against eviction on the ground of default in payment of rent provides therein that even after the institution of the suit if he clears off the amount of rent due within a period specified in the section and thereafter "continue to deposit or pay, month by month, by the fifteenth of each succeeding month a sum equivalent to the rent at that rate" calculated at the rate of rent at which he was paying earlier, no decree for eviction can be passed. The conclusion is inevitable, therefore, that if a suit is filed on the ground of non-payment of rent after termination of the contractual tenancy, the tenant still continues to be a tenant liable to pay rent not only for the past period but in future also. In absence of a decree of eviction the person in occupation of the accommodation continues to be a tenant and is not liable to pay any damages as his occupation is not unauthorised or wrongful even after the termination of the contractual tenancy. In Damadilals case (supra), Gupta, J. delivering the judgment of this Court has said at page 653 (SCC p. 864) with reference to the definition of tenant in Section 2(i) of the Act :The definition makes a person continuing in possession after the determination of his tenancy a tenant unless a decree or order for eviction has been made against him, thus putting him on par with a person whose contractual tenancy still subsists. The incidents of such tenancy and a contractual tenancy must therefore to be the same unless any provision of the Act conveyed a contrary intention. That under this Act such a tenant retains an interest in the premises, and not merely a personal right of occupation, will also appear from Section 14 which contains provisions restricting the tenants power ofquestion for determination there was a different one. With reference to the provisions of the West Bengal Premises Rent Control Act the argument advanced before this Court was that if after the determination of the tenancy by efflux of time or by a notice to quit the tenant continued in possession of the premises and the landlord accepted rent from his because no decree for eviction could be made in view of the subsequent Control Acts it was tantamount to holding over within the meaning of Section 116 of the Transfer of Propertya new contractual tenancy would come into existence by acceptance of rent by the landlord in such a situation is a different matter. But this case does not lay down that the occupation of the premises by the tenant whose tenancy has been terminated by efflux of time or by notice to quit becomes unauthorised or wrongful.12. For the reasons stated above it is manifest that the defendants remained in occupation of the accommodation on and from January 1, 1973 as a tenant, conveniently to be called statutory tenant, under the Act. Their occupation was not unauthorised or wrongful until a decree for eviction was passed by the first appellate Court on August 11, 1975. Their occupation became unauthorised or wrongful only from that date. They are not, therefore, liable to pay any damages or mesne profits for the period commencing from January 1, 1973 and ending on August 10, 1975.Apropos the second point it would be useful to point out that the Act replaced an earlier Act of 1955 entitled as The Madhya Pradesh Accommodation Control Act, 1955. In a similar provision as contained in Section 4(h) of the 1955 Act, the expression used was that the landlord "is not in occupation of any other accommodation in the city or town for that purpose". There is a clear departure in the 1961 Act where the phraseology is that the landlord "has no other reasonably suitableaccommodation of his own in his occupation in the city or town concerned", in the second part of clause (f) of Section 12(1). A tenanted shop in mere occupation of the landlord filing a suit for eviction against his tenant was sufficient to deny him a decree on the ground of clause (h) of Section 4 of the 1955 Act. But under the 1961 Act, mere occupation of another premises is not sufficient. The premises must be his own, meaning thereby that they must be owned by or belong to the landlord and he must be in occupation of the same. It is, therefore, plain that the tenanted shop in occupation of the plaintiff was not sufficient to deny him a decree for eviction against his tenant under Section 12(1)(f) of thethe expression aforesaid borrowed from the English Law is quite apposite or not, but, what is certain is that a person continuing in possession of the accommodation even after the termination of his contractual tenancy is a tenant within the meaning of the Act and on such termination his possession does not become wrongful, until and unless a decree for eviction is made. If he continues to be in possession even after the passing of the decree, he does so as a wrongful occupant of theour opinion the said decision is of no help to the respondent. Thequestion for determination there was a different one. With reference to the provisions of the West Bengal Premises Rent Control Act the argument advanced before this Court was that if after the determination of the tenancy by efflux of time or by a notice to quit the tenant continued in possession of the premises and the landlord accepted rent from his because no decree for eviction could be made in view of the subsequent Control Acts it was tantamount to holding over within the meaning of Section 116 of the Transfer of PropertyAct. This argument was repelled. Whethera new contractual tenancy would come into existence by acceptance of rent by the landlord in such a situation is a different matter. But this case does not lay down that the occupation of the premises by the tenant whose tenancy has been terminated by efflux of time or by notice to quit becomes unauthorised or wrongful. | 1 | 2,455 | 1,129 | ### 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:
be payable for any accommodation and includes any person occupying the accommodation as a sub-tenant and also, any person continuing in possession after the termination of his tenancy whether before or after the commencement of this Act; but shall not include any person against whom any order or decree for eviction has been made.On a plain reading of the definition aforesaid it is clear that a tenant even after the termination of his contractual tenancy does not become an unauthorised occupant of the accommodation but remains a tenant. It has been pointed out by this Court in Damadilal v. Parashram [1976 Supp SCR 645 : (1976) 4 SCC 855.] that such a tenant is conveniently called a statutory tenant. Whether the expression aforesaid borrowed from the English Law is quite apposite or not, but, what is certain is that a person continuing in possession of the accommodation even after the termination of his contractual tenancy is a tenant within the meaning of the Act and on such termination his possession does not become wrongful, until and unless a decree for eviction is made. If he continues to be in possession even after the passing of the decree, he does so as a wrongful occupant of the accommodation."9. Mrs. Seth in support of her argument rightly pressed into service a few other provisions of the Act. Section 13(1) giving protection against eviction on the ground of default in payment of rent provides therein that even after the institution of the suit if he clears off the amount of rent due within a period specified in the section and thereafter "continue to deposit or pay, month by month, by the fifteenth of each succeeding month a sum equivalent to the rent at that rate" calculated at the rate of rent at which he was paying earlier, no decree for eviction can be passed. The conclusion is inevitable, therefore, that if a suit is filed on the ground of non-payment of rent after termination of the contractual tenancy, the tenant still continues to be a tenant liable to pay rent not only for the past period but in future also. In absence of a decree of eviction the person in occupation of the accommodation continues to be a tenant and is not liable to pay any damages as his occupation is not unauthorised or wrongful even after the termination of the contractual tenancy. In Damadilals case (supra), Gupta, J. delivering the judgment of this Court has said at page 653 (SCC p. 864) with reference to the definition of tenant in Section 2(i) of the Act :The definition makes a person continuing in possession after the determination of his tenancy a tenant unless a decree or order for eviction has been made against him, thus putting him on par with a person whose contractual tenancy still subsists. The incidents of such tenancy and a contractual tenancy must therefore to be the same unless any provision of the Act conveyed a contrary intention. That under this Act such a tenant retains an interest in the premises, and not merely a personal right of occupation, will also appear from Section 14 which contains provisions restricting the tenants power of sub-letting.10. In Kikabhai Abdul Hussain v. Kamlakar [1974 MPJ 485] a Bench of the Madhya Pradesh High Court seems to have opined even with reference to the 1961 Act that if a person continues to be in occupation after the termination of the contractual tenancy then on the passing of the decree for eviction he becomes a wrongful occupant of the accommodation since the date of termination. It seems a theory akin to the theory of "relation back" has been applied in the sense that if no decree for eviction is passed then the person is not in unlawful occupation but on the passing of such a decree his possession becomes unlawful not from the date of the decree but such a decree makes his occupation unlawful from the date of the termination of the contractual tenancy. Whatever could be said with reference to the provisions of 1955 Act it is clear to us that the law so enunciated by the High Court with reference to 1961 Act is not correct.11. Mr. Goswami, appearing for the plaintiff-respondent relied upon the decision of this Court in Ganga Dutt Murarka v. Kartik Chandra Das [(1961) 3 SCR 813 : AIR 1961 SC 1067 ]. In our opinion the said decision is of no help to the respondent. The question for determination there was a different one. With reference to the provisions of the West Bengal Premises Rent Control Act the argument advanced before this Court was that if after the determination of the tenancy by efflux of time or by a notice to quit the tenant continued in possession of the premises and the landlord accepted rent from his because no decree for eviction could be made in view of the subsequent Control Acts it was tantamount to holding over within the meaning of Section 116 of the Transfer of Property Act. This argument was repelled. Whether a new contractual tenancy would come into existence by acceptance of rent by the landlord in such a situation is a different matter. But this case does not lay down that the occupation of the premises by the tenant whose tenancy has been terminated by efflux of time or by notice to quit becomes unauthorised or wrongful.12. For the reasons stated above it is manifest that the defendants remained in occupation of the accommodation on and from January 1, 1973 as a tenant, conveniently to be called statutory tenant, under the Act. Their occupation was not unauthorised or wrongful until a decree for eviction was passed by the first appellate Court on August 11, 1975. Their occupation became unauthorised or wrongful only from that date. They are not, therefore, liable to pay any damages or mesne profits for the period commencing from January 1, 1973 and ending on August 10, 1975.
### Response:
1
### Explanation:
that even after the institution of the suit if he clears off the amount of rent due within a period specified in the section and thereafter "continue to deposit or pay, month by month, by the fifteenth of each succeeding month a sum equivalent to the rent at that rate" calculated at the rate of rent at which he was paying earlier, no decree for eviction can be passed. The conclusion is inevitable, therefore, that if a suit is filed on the ground of non-payment of rent after termination of the contractual tenancy, the tenant still continues to be a tenant liable to pay rent not only for the past period but in future also. In absence of a decree of eviction the person in occupation of the accommodation continues to be a tenant and is not liable to pay any damages as his occupation is not unauthorised or wrongful even after the termination of the contractual tenancy. In Damadilals case (supra), Gupta, J. delivering the judgment of this Court has said at page 653 (SCC p. 864) with reference to the definition of tenant in Section 2(i) of the Act :The definition makes a person continuing in possession after the determination of his tenancy a tenant unless a decree or order for eviction has been made against him, thus putting him on par with a person whose contractual tenancy still subsists. The incidents of such tenancy and a contractual tenancy must therefore to be the same unless any provision of the Act conveyed a contrary intention. That under this Act such a tenant retains an interest in the premises, and not merely a personal right of occupation, will also appear from Section 14 which contains provisions restricting the tenants power ofquestion for determination there was a different one. With reference to the provisions of the West Bengal Premises Rent Control Act the argument advanced before this Court was that if after the determination of the tenancy by efflux of time or by a notice to quit the tenant continued in possession of the premises and the landlord accepted rent from his because no decree for eviction could be made in view of the subsequent Control Acts it was tantamount to holding over within the meaning of Section 116 of the Transfer of Propertya new contractual tenancy would come into existence by acceptance of rent by the landlord in such a situation is a different matter. But this case does not lay down that the occupation of the premises by the tenant whose tenancy has been terminated by efflux of time or by notice to quit becomes unauthorised or wrongful.12. For the reasons stated above it is manifest that the defendants remained in occupation of the accommodation on and from January 1, 1973 as a tenant, conveniently to be called statutory tenant, under the Act. Their occupation was not unauthorised or wrongful until a decree for eviction was passed by the first appellate Court on August 11, 1975. Their occupation became unauthorised or wrongful only from that date. They are not, therefore, liable to pay any damages or mesne profits for the period commencing from January 1, 1973 and ending on August 10, 1975.Apropos the second point it would be useful to point out that the Act replaced an earlier Act of 1955 entitled as The Madhya Pradesh Accommodation Control Act, 1955. In a similar provision as contained in Section 4(h) of the 1955 Act, the expression used was that the landlord "is not in occupation of any other accommodation in the city or town for that purpose". There is a clear departure in the 1961 Act where the phraseology is that the landlord "has no other reasonably suitableaccommodation of his own in his occupation in the city or town concerned", in the second part of clause (f) of Section 12(1). A tenanted shop in mere occupation of the landlord filing a suit for eviction against his tenant was sufficient to deny him a decree on the ground of clause (h) of Section 4 of the 1955 Act. But under the 1961 Act, mere occupation of another premises is not sufficient. The premises must be his own, meaning thereby that they must be owned by or belong to the landlord and he must be in occupation of the same. It is, therefore, plain that the tenanted shop in occupation of the plaintiff was not sufficient to deny him a decree for eviction against his tenant under Section 12(1)(f) of thethe expression aforesaid borrowed from the English Law is quite apposite or not, but, what is certain is that a person continuing in possession of the accommodation even after the termination of his contractual tenancy is a tenant within the meaning of the Act and on such termination his possession does not become wrongful, until and unless a decree for eviction is made. If he continues to be in possession even after the passing of the decree, he does so as a wrongful occupant of theour opinion the said decision is of no help to the respondent. Thequestion for determination there was a different one. With reference to the provisions of the West Bengal Premises Rent Control Act the argument advanced before this Court was that if after the determination of the tenancy by efflux of time or by a notice to quit the tenant continued in possession of the premises and the landlord accepted rent from his because no decree for eviction could be made in view of the subsequent Control Acts it was tantamount to holding over within the meaning of Section 116 of the Transfer of PropertyAct. This argument was repelled. Whethera new contractual tenancy would come into existence by acceptance of rent by the landlord in such a situation is a different matter. But this case does not lay down that the occupation of the premises by the tenant whose tenancy has been terminated by efflux of time or by notice to quit becomes unauthorised or wrongful.
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Hira Rai Vs. State of Bihar | and Suraj Kumari could have no claim to it. Still on the morning of 23-2-1965 Kamlarai and his son went to the plot with some ten to fifteen labourers for harvesting the crop. Chhedirai and others on his behalf including the appellant Hirarai where already on the spot. They were obviously armed with lathis and spears ready to resist if Kamlarai proceeded to harvest the crop forcibly. There was an altercation in which some five persons on the side of Kamlarai were injured. One of them Biharirai succumbed to the injuries. On the side of Chhedirai, Chhedirai alone appears to have been injured. In due course information was filed at the Police Station and, as already stated, 19 persons were put up for trial out of whom 18 have been acquitted and we are now concerned with the case of only one, namely, the present appellant. 4. The High Court found that Kamlarai and the members of the prosecution party had gone to the scene of offence also armed. Kamlarai and his associates encountered opposition from Chhedirai and others and the shouting brought on the scene Kaushal Kishorerai (P. W. 1), Nand Biharirai (P. W. 3), Sheo Biharirai (P. W. 4), Biharirai the deceased and Ram Naginarai (P. W. 5). The prosecution case was that these persons had come on the scene only to implore the parties not to quarrel. But that does not appear to be the case. It is a point worth noting that Kamlarai and his other associates did not receive any injuries. The injuries were received only by these five, who it is stated, had come there to intercede. There can be no doubt that they had not come to intercede but to help Kamlarai to forcibly harvest the crop. 5. The High Court also found that as soon as these five persons came, the prosecution party must have clearly showed their intention to cut the crop whereupon Chhedirai who was one of the owners of the crop obstructed. Chhedirais obstruction was sought to be overcome by beating him up. Chhedirai received no less than six injuries and the nature of these injuries shows that lathis and a sharp weapon like Bhala were used against him. The prosecution insisted that the prosecution party had not been armed. But that case has been rejected by the High Court. The High Court was of the opinion that the members of the prosecution party must have carried some arms with them in order to deal with the opposition from the side of Chhedirai and his men. When Chhedirai was beaten with lathis and a bhala, his men, including the present appellant, used their weapons and in the assault four of the prosecution witnesses already referred to and Biharirai received injuries of which Biharirai died subsequently. The High Court further held that there was reasonable apprehension that grievous hurt would be caused by the members of the prosecution party and in those circumstances the members of Chhedirais party, who were the accused, including the present appellant, were entitled to exercise the right of private defence as contemplated by Section 103-IPC. On that finding the appellant should have been also acquitted because under Section 103-IPC the right of private defence extends to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of theft "under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised." Chhedirai was being attacked with lathis and a bhala. Apart from the fact that Chhedirai had actually sustained a fracture of his arm, there was reasonable apprehension that the person who was using the bhala against him may cause either death of or grievous hurt to Chhedirai. If at that juncture, the appellant used his bhala against Biharirai reasonably apprehending grievous hurt to or death of his companion Chhedirai, he would be entitled to be acquitted. But the High Court thought that in the circumstances the appellant appeared to have exceeded the right of private defence. Section 99-IPC says that the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. According to the High Court the appellant had caused more harm than was necessary and hence came to the conclusion that the conviction under Sec. 304, Part-I was justified. 6-7. It is contended by Mr. Singh for the appellant that the High Court was in error in thinking that the right of private defence had been exceeded. Chhedirai was being assaulted by a number of members of the prosecution party and deceased Biharirai was one of them. The case that Biharirai and his four companions had come there only to intercede has been rejected and must be rejected, the reason being that it is only these five persons who have received injuries in the assault on the prosecution side. It, therefore, stands to reason that Chhedirai was being assaulted by these five persons and it might well have been that Biharirai was the person who was using the bhala. Although the prosecution party was armed with lathis and bhalas, the prosecution insisted on saying that they were not so armed. Therefore, the possibility of Biharirai being armed with a bhala cannot be eliminated. The very fact that the appellant had used his bhala against Biharirai would go to show that Biharirai might have been using a more deadly weapon than the others. In any case since the prosecution has not been able to show that Biharirai was unarmed when he took part in the assault on Chhedirai, it is difficult to say that the appellant had exceeded the right of private defence. In any event the benefit of doubt must be given to the appellant and he must be acquitted. | 1[ds]It is contended by Mr. Singh for the appellant that the High Court was in error in thinking that the right of private defence had been exceeded. Chhedirai was being assaulted by a number of members of the prosecution party and deceased Biharirai was one of them. The case that Biharirai and his four companions had come there only to intercede has been rejected and must be rejected, the reason being that it is only these five persons who have received injuries in the assault on the prosecution side. It, therefore, stands to reason that Chhedirai was being assaulted by these five persons and it might well have been that Biharirai was the person who was using the bhala. Although the prosecution party was armed with lathis and bhalas, the prosecution insisted on saying that they were not so armed. Therefore, the possibility of Biharirai being armed with a bhala cannot be eliminated. The very fact that the appellant had used his bhala against Biharirai would go to show that Biharirai might have been using a more deadly weapon than the others. In any case since the prosecution has not been able to show that Biharirai was unarmed when he took part in the assault on Chhedirai, it is difficult to say that the appellant had exceeded the right of private defence. In any event the benefit of doubt must be given to the appellant and he must be acquitted. | 1 | 1,345 | 260 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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and Suraj Kumari could have no claim to it. Still on the morning of 23-2-1965 Kamlarai and his son went to the plot with some ten to fifteen labourers for harvesting the crop. Chhedirai and others on his behalf including the appellant Hirarai where already on the spot. They were obviously armed with lathis and spears ready to resist if Kamlarai proceeded to harvest the crop forcibly. There was an altercation in which some five persons on the side of Kamlarai were injured. One of them Biharirai succumbed to the injuries. On the side of Chhedirai, Chhedirai alone appears to have been injured. In due course information was filed at the Police Station and, as already stated, 19 persons were put up for trial out of whom 18 have been acquitted and we are now concerned with the case of only one, namely, the present appellant. 4. The High Court found that Kamlarai and the members of the prosecution party had gone to the scene of offence also armed. Kamlarai and his associates encountered opposition from Chhedirai and others and the shouting brought on the scene Kaushal Kishorerai (P. W. 1), Nand Biharirai (P. W. 3), Sheo Biharirai (P. W. 4), Biharirai the deceased and Ram Naginarai (P. W. 5). The prosecution case was that these persons had come on the scene only to implore the parties not to quarrel. But that does not appear to be the case. It is a point worth noting that Kamlarai and his other associates did not receive any injuries. The injuries were received only by these five, who it is stated, had come there to intercede. There can be no doubt that they had not come to intercede but to help Kamlarai to forcibly harvest the crop. 5. The High Court also found that as soon as these five persons came, the prosecution party must have clearly showed their intention to cut the crop whereupon Chhedirai who was one of the owners of the crop obstructed. Chhedirais obstruction was sought to be overcome by beating him up. Chhedirai received no less than six injuries and the nature of these injuries shows that lathis and a sharp weapon like Bhala were used against him. The prosecution insisted that the prosecution party had not been armed. But that case has been rejected by the High Court. The High Court was of the opinion that the members of the prosecution party must have carried some arms with them in order to deal with the opposition from the side of Chhedirai and his men. When Chhedirai was beaten with lathis and a bhala, his men, including the present appellant, used their weapons and in the assault four of the prosecution witnesses already referred to and Biharirai received injuries of which Biharirai died subsequently. The High Court further held that there was reasonable apprehension that grievous hurt would be caused by the members of the prosecution party and in those circumstances the members of Chhedirais party, who were the accused, including the present appellant, were entitled to exercise the right of private defence as contemplated by Section 103-IPC. On that finding the appellant should have been also acquitted because under Section 103-IPC the right of private defence extends to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of theft "under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised." Chhedirai was being attacked with lathis and a bhala. Apart from the fact that Chhedirai had actually sustained a fracture of his arm, there was reasonable apprehension that the person who was using the bhala against him may cause either death of or grievous hurt to Chhedirai. If at that juncture, the appellant used his bhala against Biharirai reasonably apprehending grievous hurt to or death of his companion Chhedirai, he would be entitled to be acquitted. But the High Court thought that in the circumstances the appellant appeared to have exceeded the right of private defence. Section 99-IPC says that the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. According to the High Court the appellant had caused more harm than was necessary and hence came to the conclusion that the conviction under Sec. 304, Part-I was justified. 6-7. It is contended by Mr. Singh for the appellant that the High Court was in error in thinking that the right of private defence had been exceeded. Chhedirai was being assaulted by a number of members of the prosecution party and deceased Biharirai was one of them. The case that Biharirai and his four companions had come there only to intercede has been rejected and must be rejected, the reason being that it is only these five persons who have received injuries in the assault on the prosecution side. It, therefore, stands to reason that Chhedirai was being assaulted by these five persons and it might well have been that Biharirai was the person who was using the bhala. Although the prosecution party was armed with lathis and bhalas, the prosecution insisted on saying that they were not so armed. Therefore, the possibility of Biharirai being armed with a bhala cannot be eliminated. The very fact that the appellant had used his bhala against Biharirai would go to show that Biharirai might have been using a more deadly weapon than the others. In any case since the prosecution has not been able to show that Biharirai was unarmed when he took part in the assault on Chhedirai, it is difficult to say that the appellant had exceeded the right of private defence. In any event the benefit of doubt must be given to the appellant and he must be acquitted.
### Response:
1
### Explanation:
It is contended by Mr. Singh for the appellant that the High Court was in error in thinking that the right of private defence had been exceeded. Chhedirai was being assaulted by a number of members of the prosecution party and deceased Biharirai was one of them. The case that Biharirai and his four companions had come there only to intercede has been rejected and must be rejected, the reason being that it is only these five persons who have received injuries in the assault on the prosecution side. It, therefore, stands to reason that Chhedirai was being assaulted by these five persons and it might well have been that Biharirai was the person who was using the bhala. Although the prosecution party was armed with lathis and bhalas, the prosecution insisted on saying that they were not so armed. Therefore, the possibility of Biharirai being armed with a bhala cannot be eliminated. The very fact that the appellant had used his bhala against Biharirai would go to show that Biharirai might have been using a more deadly weapon than the others. In any case since the prosecution has not been able to show that Biharirai was unarmed when he took part in the assault on Chhedirai, it is difficult to say that the appellant had exceeded the right of private defence. In any event the benefit of doubt must be given to the appellant and he must be acquitted.
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CENTURY RAYON LIMITED Vs. IVP LIMITED | with regard to the sufficiency of the compensation to be paid under clause (d) to Section 10, the District Judge within whose jurisdiction the property is situated shall determine the compensation. On the legal effect of these provisions, this Court had observed:?21. It is not in dispute that in exercise of powers under the aforesaid provision, the appropriate Government has conferred the powers of telegraph authority vide Notification dated 24-12-2003 exercisable under the Telegraph Act, 1885 upon the Power Grid. It may also be mentioned that a Central transmission utility (CTU) is a deemed licensee under the second proviso to Section 14 of the Electricity Act, 2003. Power Grid is a Central transmission utility and is, therefore, a deemed licensee under the Electricity Act, 2003. This coupled with the fact that Power Grid is treated as authority under the Telegraph Act, 1885, it acquires all such powers which are vested in a telegraph authority under the provisions of the Telegraph Act, 1885 including power to eliminate any obstruction in the laying down of power transmission lines. As per the provisions of the Telegraph Act, 1885, unobstructed access to lay down telegraph and/or electricity transmission lines is an imperative in the larger public interest. Electrification of villages all over the country and availability of telegraph lines are the most essential requirements for growth and development of any country, economy and the well-being/progress of the citizens. The legislature has not permitted any kind of impediment/obstruction in achieving this objective and through the scheme of the Telegraph Act, 1885 empowering the licensee to lay telegraph lines, applied the same, as it is, for laying down the electricity transmission lines. xx xx xx 23. Section 10 of the Telegraph Act, 1885 empowers the telegraph authority to place and maintain a telegraph line under, over, along or across and posts in or upon any immovable property. The provision of Section 10(b) of the Telegraph Act, 1885 makes it abundantly clear that while acquiring the power to lay down telegraph lines, the Central Government does not acquire any right other than that of user in the property. Further, Section 10(d) of the Telegraph Act, 1885 obliges the telegraph authority to ensure that it causes as little damage as possible and that the telegraph authority shall also be obliged to pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers. xx xx xx 26. We also do not find that the action of the Power Grid, in the given circumstances, by not shifting the transmission lines was arbitrary. From the facts noted above, it becomes apparent that not only it was unfeasible to change the alignment as almost entire work had already been completed by the time the writ petitioner started protesting against this move, even otherwise, the Power Grid has given sufficient explanation to point out that all relevant factors/aspects were kept in mind while laying down the impugned transmission lines. Such transmission lines had to be in straight line to the extent possible for eliminating loss of transmission. It is also explained that electricity transmission is usually laid or crossed over agricultural land where minimum extent of land gets utilised for erecting towers and where agricultural activities are not prejudiced/obstructed in any manner. The purpose is to avoid buildings, religious places, ponds, etc. while laying down these transmission lines. It is only when it becomes inevitable that towers are placed on the private lands to the minimum and least extent possible. That is what was tried to achieve in the instant case. Another important factor, which needs repetition at this stage is that no blasting is permissible within 300 m from the 400 kV line (already existing) or the tower structure. Mining of limestone can be taken up by adopting the methods other than use of explosive/blasting — without damage to the tower foundation/tower structure or the line, which can be accomplished by using jack hammer/pneumatic hammer with compressor so as to avoid any damage to the line or tower. This aspect has also been taken note of by the learned Single Judge of the High Court in the judgment dated 11-3-2008. The Division Bench did not differ with any of these findings.?The decision highlights the imperative and the need for unobstructed access for laying down the electricity transmission lines in the larger public interest as these are essential requirements for growth and development of the country, economy and well-being of the citizens. 8. Counsel for the first respondent had submitted that the ratio of the aforesaid decision is not applicable as the electricity transmission line in the present case is for the benefit of the appellant and not for the public at large. This is factually disputed by the appellant. The MSETCL in its affidavit has stated that the installation of transmission lines for the generation of High Voltage Electricity is a policy decision of the Government and for the public benefit at large. The service line even if is in the nature of ?Dedicated Distribution Facilities? has no exclusivity and the MSETCL would be entitled to tap the said service line for providing electricity to other consumers. This factual aspect would be a subject matter of Civil Appeal arising out of SLP (C) No. 6243 of 20 the trial. It would not be appropriate at this stage to disregard the statement made by the MSETCL to stall the setting up and activation of the electricity transmission lines. 9. During the course of hearing, attempts were made by the parties, that is, the appellant and the first respondent, to settle the matter albeit the talks had failed as the first respondent wanted the appellant to purchase a substantial portion of the land owned by it. The appellant expressed its inability to purchase a substantial portion of the land as demanded by the first respondent. It was stated by the appellant that it does not require ownership of such a large area of land. | 1[ds]5. A number of issues and contentions have been raised before us but we are not inclined to enter into a detailed discussion, for we are dealing with an interim injunction order and are inclined to grant relief to the appellant subject to certain conditions, leaving the main issues to be decided and adjudicated in the civil suit and under the provisions of the Indian Telegraph Act, 1885 (‘Telegraph Act? for short) read with the Electricity Act, 2003 (‘Electricity Act? for short).There were certain lapses on the part of the MSETCL/MSEDC and the appellant, as has been noticed in the impugned order, on account of the failure to take necessary permission from the District Magistrate when there was obstruction and objection to the work of erecting the electricity transmission towers on the first respondent?s land. However, it is an accepted and admitted position that pursuant to the interim order passed by the first appellate court on 25 th April 2018, the appellant had initiated appropriate proceedings through licensing authority before the District Magistrate, Thane and thereupon vide order dated 28 th August 2018 necessary permission for erection of the towers and setting up transmission line has been granted subject to payment of compensation to the first respondent in terms of Section 16(1) to Section 16(4) read with Section 10 of the Telegraph Act. It is correct that the interim order dated 25 th April 2018 was set aside by the Bombay High Court vide order dated 17 th May 2018, albeit it is an accepted position that as a matter of fact the electricity transmission towers on the land of the first respondent have already been constructed. Therefore, and in a way, the MSEDC is already using the land of the first respondent. The appellant has highlighted and the MSEDC affirms that 80% of the work of laying the transmission line is already over and but for the injunction order under challenge the transmission line would have been activated and operationalised. Clearly, therefore, the balance of convenience does not justify passing of an interim injunction order in favour of the first respondent. It is also accepted that the District Magistrate, Thane vide order dated 28 th August 2018 has granted the necessary permission for erection of the towers and setting up of the transmission line on the land of the firstfactual aspect would be a subject matter of Civil Appeal arising out of SLP (C) No. 6243 of 20 the trial. It would not be appropriate at this stage to disregard the statement made by the MSETCL to stall the setting up and activation of the electricity transmission lines.During the course of hearing, attempts were made by the parties, that is, the appellant and the first respondent, to settle the matter albeit the talks had failed as the first respondent wanted the appellant to purchase a substantial portion of the land owned by it. | 1 | 2,369 | 537 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
with regard to the sufficiency of the compensation to be paid under clause (d) to Section 10, the District Judge within whose jurisdiction the property is situated shall determine the compensation. On the legal effect of these provisions, this Court had observed:?21. It is not in dispute that in exercise of powers under the aforesaid provision, the appropriate Government has conferred the powers of telegraph authority vide Notification dated 24-12-2003 exercisable under the Telegraph Act, 1885 upon the Power Grid. It may also be mentioned that a Central transmission utility (CTU) is a deemed licensee under the second proviso to Section 14 of the Electricity Act, 2003. Power Grid is a Central transmission utility and is, therefore, a deemed licensee under the Electricity Act, 2003. This coupled with the fact that Power Grid is treated as authority under the Telegraph Act, 1885, it acquires all such powers which are vested in a telegraph authority under the provisions of the Telegraph Act, 1885 including power to eliminate any obstruction in the laying down of power transmission lines. As per the provisions of the Telegraph Act, 1885, unobstructed access to lay down telegraph and/or electricity transmission lines is an imperative in the larger public interest. Electrification of villages all over the country and availability of telegraph lines are the most essential requirements for growth and development of any country, economy and the well-being/progress of the citizens. The legislature has not permitted any kind of impediment/obstruction in achieving this objective and through the scheme of the Telegraph Act, 1885 empowering the licensee to lay telegraph lines, applied the same, as it is, for laying down the electricity transmission lines. xx xx xx 23. Section 10 of the Telegraph Act, 1885 empowers the telegraph authority to place and maintain a telegraph line under, over, along or across and posts in or upon any immovable property. The provision of Section 10(b) of the Telegraph Act, 1885 makes it abundantly clear that while acquiring the power to lay down telegraph lines, the Central Government does not acquire any right other than that of user in the property. Further, Section 10(d) of the Telegraph Act, 1885 obliges the telegraph authority to ensure that it causes as little damage as possible and that the telegraph authority shall also be obliged to pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers. xx xx xx 26. We also do not find that the action of the Power Grid, in the given circumstances, by not shifting the transmission lines was arbitrary. From the facts noted above, it becomes apparent that not only it was unfeasible to change the alignment as almost entire work had already been completed by the time the writ petitioner started protesting against this move, even otherwise, the Power Grid has given sufficient explanation to point out that all relevant factors/aspects were kept in mind while laying down the impugned transmission lines. Such transmission lines had to be in straight line to the extent possible for eliminating loss of transmission. It is also explained that electricity transmission is usually laid or crossed over agricultural land where minimum extent of land gets utilised for erecting towers and where agricultural activities are not prejudiced/obstructed in any manner. The purpose is to avoid buildings, religious places, ponds, etc. while laying down these transmission lines. It is only when it becomes inevitable that towers are placed on the private lands to the minimum and least extent possible. That is what was tried to achieve in the instant case. Another important factor, which needs repetition at this stage is that no blasting is permissible within 300 m from the 400 kV line (already existing) or the tower structure. Mining of limestone can be taken up by adopting the methods other than use of explosive/blasting — without damage to the tower foundation/tower structure or the line, which can be accomplished by using jack hammer/pneumatic hammer with compressor so as to avoid any damage to the line or tower. This aspect has also been taken note of by the learned Single Judge of the High Court in the judgment dated 11-3-2008. The Division Bench did not differ with any of these findings.?The decision highlights the imperative and the need for unobstructed access for laying down the electricity transmission lines in the larger public interest as these are essential requirements for growth and development of the country, economy and well-being of the citizens. 8. Counsel for the first respondent had submitted that the ratio of the aforesaid decision is not applicable as the electricity transmission line in the present case is for the benefit of the appellant and not for the public at large. This is factually disputed by the appellant. The MSETCL in its affidavit has stated that the installation of transmission lines for the generation of High Voltage Electricity is a policy decision of the Government and for the public benefit at large. The service line even if is in the nature of ?Dedicated Distribution Facilities? has no exclusivity and the MSETCL would be entitled to tap the said service line for providing electricity to other consumers. This factual aspect would be a subject matter of Civil Appeal arising out of SLP (C) No. 6243 of 20 the trial. It would not be appropriate at this stage to disregard the statement made by the MSETCL to stall the setting up and activation of the electricity transmission lines. 9. During the course of hearing, attempts were made by the parties, that is, the appellant and the first respondent, to settle the matter albeit the talks had failed as the first respondent wanted the appellant to purchase a substantial portion of the land owned by it. The appellant expressed its inability to purchase a substantial portion of the land as demanded by the first respondent. It was stated by the appellant that it does not require ownership of such a large area of land.
### Response:
1
### Explanation:
5. A number of issues and contentions have been raised before us but we are not inclined to enter into a detailed discussion, for we are dealing with an interim injunction order and are inclined to grant relief to the appellant subject to certain conditions, leaving the main issues to be decided and adjudicated in the civil suit and under the provisions of the Indian Telegraph Act, 1885 (‘Telegraph Act? for short) read with the Electricity Act, 2003 (‘Electricity Act? for short).There were certain lapses on the part of the MSETCL/MSEDC and the appellant, as has been noticed in the impugned order, on account of the failure to take necessary permission from the District Magistrate when there was obstruction and objection to the work of erecting the electricity transmission towers on the first respondent?s land. However, it is an accepted and admitted position that pursuant to the interim order passed by the first appellate court on 25 th April 2018, the appellant had initiated appropriate proceedings through licensing authority before the District Magistrate, Thane and thereupon vide order dated 28 th August 2018 necessary permission for erection of the towers and setting up transmission line has been granted subject to payment of compensation to the first respondent in terms of Section 16(1) to Section 16(4) read with Section 10 of the Telegraph Act. It is correct that the interim order dated 25 th April 2018 was set aside by the Bombay High Court vide order dated 17 th May 2018, albeit it is an accepted position that as a matter of fact the electricity transmission towers on the land of the first respondent have already been constructed. Therefore, and in a way, the MSEDC is already using the land of the first respondent. The appellant has highlighted and the MSEDC affirms that 80% of the work of laying the transmission line is already over and but for the injunction order under challenge the transmission line would have been activated and operationalised. Clearly, therefore, the balance of convenience does not justify passing of an interim injunction order in favour of the first respondent. It is also accepted that the District Magistrate, Thane vide order dated 28 th August 2018 has granted the necessary permission for erection of the towers and setting up of the transmission line on the land of the firstfactual aspect would be a subject matter of Civil Appeal arising out of SLP (C) No. 6243 of 20 the trial. It would not be appropriate at this stage to disregard the statement made by the MSETCL to stall the setting up and activation of the electricity transmission lines.During the course of hearing, attempts were made by the parties, that is, the appellant and the first respondent, to settle the matter albeit the talks had failed as the first respondent wanted the appellant to purchase a substantial portion of the land owned by it.
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S.A.A. Biyabani Vs. State of Madras | has to be considered whether the accused ceased to perform the duties of his office by his own free will or compelled by circumstances beyond his control to stay away from duty. The communal disturbances in Hyderabad were notorious facts of which judicial notice can be taken. Even according to the prosecution, the accused was in Hyderabad at that time. The prosecution has not shown satisfactorily why the evidence on behalf of the defence should be discredited".The learned Magistrate accordingly gave the benefit of doubt to the appellant and acquitted him. On appeal by the State against the acquittal, the learned Judge of the High Court stated the point rightly when he said that the whole question depends on whether the explanation of the accused is to be accepted, viz. that on the 10th July, 1948, he heard that his son was seen at Secunderabad and that, therefore, he had to leave in search of him and that when he went to Hyderabad, he became a captive to the Razakars and was not able to get out until December, 1948.The learned Judge noticed that the appellant gave positive evidence in support of his explanation, but in his opinion, the witnesses were not speaking the truth.Now it is to be remembered that the appeal before the high Court was one against acquittal. While no doubt on such an appeal the High Court was entitled to go into the facts and arrive at its own estimate of the evidence, it is also settled law that, where the case turns on oral evidence of witnesses, the estimate of such evidence by the trial court is not to be lightly set aside. This has been laid down by this Court in -Surajpal Singh v. The State, AIR 1952 SC 52 at p. 54 (A) and reiterated more than once. See also the latest decision in - Madan Mohan Singh v. State of Uttar Pradesh, AIR 1954 SC 637 (B).As pointed out above, the trial court was inclined to accept the evidence of the defence witnesses through whom the explanation put forward by the accused was sought to be proved.We have not been able to find any sufficient reason given by the learned Judge, why, differing from the trial court, these witnesses are to be considered unreliable. The learned Judge appears to have discredited their evidence on certain comments not touching their reliability but on general considerations said to indicate that the explanation was not probable. It was said that if the explanation was true, the appellant might have done a number of things which he did not do. The appellant was not asked about any of these supposed omissions by him.The reasons for which the learned Judge discredited the evidence of the defence witnesses, whom the learned trial Magistrate was inclined to accept are no more than a general suspicion against the truth of the story put forward by the appellant. It is no doubt remarkable that the appellant, according to him, came to know from D. W. 13 about his having seen his missing son at Secunderabad on the very date on which he had to present himself for medical examination, i. e. 10th July, 1948.But such general suspicions are not by themselves enough in an appeal against acquittal to dispute the credibility of witnesses, whom a trial Magistrate was inclined to accept.3. Apart, however, from any question whether the appellant has been able to make out positively the truth of his explanation the material question in the case which the learned Judge appears not to have noticed is that the prosecution has to make out that the cessation of the appellant from duty was intentional. It is not disputed that under section 44 of the Madras District Police Act it is the prosecution that has to make out the cessation intentional. No doubt in an ordinary case where no other special circumstances appear on the record, the Court might well assume, that cessation as a fact, was intentional cessation. But where as in this case other circumstances appear, the requisite intention has to be clearly made out.The prosecution apparently realising this have in the charge put forward a positive case that the appellant left for Hyderabad to seek a job, but gave no evidence to substantiate it. The learned Government advocate for the State also laid particular stress on the following portion of the answer of the appellant to the charge framed against him."Owing to the very disturbed conditions and explosive situation immediately after the Police action I could not make bold to show out. After the situation considerably eased up by December 1948 I returned to Kurnool, and came to know that I was treated by the Madras Government as a deserter. I immediately sent up a petition on 22nd December, 1948, to the Inspector-General of Police".In view of the admitted fact that the Police Action in Hyderabad took police in September, 1948, the learned Government Advocate urged that this portion of the appellants explanation shows that he could not have been under such restraint after September, 1948 and right up to December, 1948, so as not to be able to return to duty or to send up a petition to his superiors informing them about his situation shortly after the Police Action. There is nothing in the evidence to show when exactly normal conditions in Hyderabad were restored.It is not to be assumed that the Police Action brought about normal conditions from that very date. Nor is it fair to read the portion of the appellants explanation above extracted as constituting an admission that the normal conditions became more or less restored though not to the full extent, immediately after the Police Action.4. In our opinion the judgment of the High Court discloses no adequate reason for the reversal of the acquittal with reference to the standards laid down by this Court. The appellant was entitled to the benefit of doubt and the acquittal should not have been set aside. | 1[ds]As pointed out above, the trial court was inclined to accept the evidence of the defence witnesses through whom the explanation put forward by the accused was sought to be proved.We have not been able to find any sufficient reason given by the learned Judge, why, differing from the trial court, these witnesses are to be considered unreliable. The learned Judge appears to have discredited their evidence on certain comments not touching their reliability but on general considerations said to indicate that the explanation was not probable. It was said that if the explanation was true, the appellant might have done a number of things which he did not do. The appellant was not asked about any of these supposed omissions by him.The reasons for which the learned Judge discredited the evidence of the defence witnesses, whom the learned trial Magistrate was inclined to accept are no more than a general suspicion against the truth of the story put forward by the appellant. It is no doubt remarkable that the appellant, according to him, came to know from D. W. 13 about his having seen his missing son at Secunderabad on the very date on which he had to present himself for medical examination, i. e. 10th July, 1948.But such general suspicions are not by themselves enough in an appeal against acquittal to dispute the credibility of witnesses, whom a trial Magistrate was inclined toview of the admitted fact that the Police Action in Hyderabad took police in September, 1948, the learned Government Advocate urged that this portion of the appellants explanation shows that he could not have been under such restraint after September, 1948 and right up to December, 1948, so as not to be able to return to duty or to send up a petition to his superiors informing them about his situation shortly after the Police Action. There is nothing in the evidence to show when exactly normal conditions in Hyderabad wereis not to be assumed that the Police Action brought about normal conditions from that very date. Nor is it fair to read the portion of the appellants explanation above extracted as constituting an admission that the normal conditions became more or less restored though not to the full extent, immediately after the Police Action.4. In our opinion the judgment of the High Court discloses no adequate reason for the reversal of the acquittal with reference to the standards laid down by this Court. The appellant was entitled to the benefit of doubt and the acquittal should not have been set aside. | 1 | 1,990 | 456 | ### 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:
has to be considered whether the accused ceased to perform the duties of his office by his own free will or compelled by circumstances beyond his control to stay away from duty. The communal disturbances in Hyderabad were notorious facts of which judicial notice can be taken. Even according to the prosecution, the accused was in Hyderabad at that time. The prosecution has not shown satisfactorily why the evidence on behalf of the defence should be discredited".The learned Magistrate accordingly gave the benefit of doubt to the appellant and acquitted him. On appeal by the State against the acquittal, the learned Judge of the High Court stated the point rightly when he said that the whole question depends on whether the explanation of the accused is to be accepted, viz. that on the 10th July, 1948, he heard that his son was seen at Secunderabad and that, therefore, he had to leave in search of him and that when he went to Hyderabad, he became a captive to the Razakars and was not able to get out until December, 1948.The learned Judge noticed that the appellant gave positive evidence in support of his explanation, but in his opinion, the witnesses were not speaking the truth.Now it is to be remembered that the appeal before the high Court was one against acquittal. While no doubt on such an appeal the High Court was entitled to go into the facts and arrive at its own estimate of the evidence, it is also settled law that, where the case turns on oral evidence of witnesses, the estimate of such evidence by the trial court is not to be lightly set aside. This has been laid down by this Court in -Surajpal Singh v. The State, AIR 1952 SC 52 at p. 54 (A) and reiterated more than once. See also the latest decision in - Madan Mohan Singh v. State of Uttar Pradesh, AIR 1954 SC 637 (B).As pointed out above, the trial court was inclined to accept the evidence of the defence witnesses through whom the explanation put forward by the accused was sought to be proved.We have not been able to find any sufficient reason given by the learned Judge, why, differing from the trial court, these witnesses are to be considered unreliable. The learned Judge appears to have discredited their evidence on certain comments not touching their reliability but on general considerations said to indicate that the explanation was not probable. It was said that if the explanation was true, the appellant might have done a number of things which he did not do. The appellant was not asked about any of these supposed omissions by him.The reasons for which the learned Judge discredited the evidence of the defence witnesses, whom the learned trial Magistrate was inclined to accept are no more than a general suspicion against the truth of the story put forward by the appellant. It is no doubt remarkable that the appellant, according to him, came to know from D. W. 13 about his having seen his missing son at Secunderabad on the very date on which he had to present himself for medical examination, i. e. 10th July, 1948.But such general suspicions are not by themselves enough in an appeal against acquittal to dispute the credibility of witnesses, whom a trial Magistrate was inclined to accept.3. Apart, however, from any question whether the appellant has been able to make out positively the truth of his explanation the material question in the case which the learned Judge appears not to have noticed is that the prosecution has to make out that the cessation of the appellant from duty was intentional. It is not disputed that under section 44 of the Madras District Police Act it is the prosecution that has to make out the cessation intentional. No doubt in an ordinary case where no other special circumstances appear on the record, the Court might well assume, that cessation as a fact, was intentional cessation. But where as in this case other circumstances appear, the requisite intention has to be clearly made out.The prosecution apparently realising this have in the charge put forward a positive case that the appellant left for Hyderabad to seek a job, but gave no evidence to substantiate it. The learned Government advocate for the State also laid particular stress on the following portion of the answer of the appellant to the charge framed against him."Owing to the very disturbed conditions and explosive situation immediately after the Police action I could not make bold to show out. After the situation considerably eased up by December 1948 I returned to Kurnool, and came to know that I was treated by the Madras Government as a deserter. I immediately sent up a petition on 22nd December, 1948, to the Inspector-General of Police".In view of the admitted fact that the Police Action in Hyderabad took police in September, 1948, the learned Government Advocate urged that this portion of the appellants explanation shows that he could not have been under such restraint after September, 1948 and right up to December, 1948, so as not to be able to return to duty or to send up a petition to his superiors informing them about his situation shortly after the Police Action. There is nothing in the evidence to show when exactly normal conditions in Hyderabad were restored.It is not to be assumed that the Police Action brought about normal conditions from that very date. Nor is it fair to read the portion of the appellants explanation above extracted as constituting an admission that the normal conditions became more or less restored though not to the full extent, immediately after the Police Action.4. In our opinion the judgment of the High Court discloses no adequate reason for the reversal of the acquittal with reference to the standards laid down by this Court. The appellant was entitled to the benefit of doubt and the acquittal should not have been set aside.
### Response:
1
### Explanation:
As pointed out above, the trial court was inclined to accept the evidence of the defence witnesses through whom the explanation put forward by the accused was sought to be proved.We have not been able to find any sufficient reason given by the learned Judge, why, differing from the trial court, these witnesses are to be considered unreliable. The learned Judge appears to have discredited their evidence on certain comments not touching their reliability but on general considerations said to indicate that the explanation was not probable. It was said that if the explanation was true, the appellant might have done a number of things which he did not do. The appellant was not asked about any of these supposed omissions by him.The reasons for which the learned Judge discredited the evidence of the defence witnesses, whom the learned trial Magistrate was inclined to accept are no more than a general suspicion against the truth of the story put forward by the appellant. It is no doubt remarkable that the appellant, according to him, came to know from D. W. 13 about his having seen his missing son at Secunderabad on the very date on which he had to present himself for medical examination, i. e. 10th July, 1948.But such general suspicions are not by themselves enough in an appeal against acquittal to dispute the credibility of witnesses, whom a trial Magistrate was inclined toview of the admitted fact that the Police Action in Hyderabad took police in September, 1948, the learned Government Advocate urged that this portion of the appellants explanation shows that he could not have been under such restraint after September, 1948 and right up to December, 1948, so as not to be able to return to duty or to send up a petition to his superiors informing them about his situation shortly after the Police Action. There is nothing in the evidence to show when exactly normal conditions in Hyderabad wereis not to be assumed that the Police Action brought about normal conditions from that very date. Nor is it fair to read the portion of the appellants explanation above extracted as constituting an admission that the normal conditions became more or less restored though not to the full extent, immediately after the Police Action.4. In our opinion the judgment of the High Court discloses no adequate reason for the reversal of the acquittal with reference to the standards laid down by this Court. The appellant was entitled to the benefit of doubt and the acquittal should not have been set aside.
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Sidhakamal Nayan Ramanuj Das Vs. Bira Naik & Others | Bose, J.1. This is a defendants appeal. The suit was for possession and, if the alternative, for redemption of the plaint properties.2. The first plaintiff was a tenant of the suit lands under the Orissa Tenancy Act. He mortgaged them to the defendant on 13-9-1930 by way of simple mortgage. The rent, payable by the first plaintiff to the landlord, fell into arrears and so the landlord sued him for the arrears. A decree was obtained and the property was put up for sale. In order to safeguard his rights the defendant paid up the arrears and then obtained possession of the property under S. 225, Orissa Tenancy Act.3. This latter fact was at first denied but that is no. longer in dispute, therefore it must be accepted, that the defendant obtained possession under S. 225 on 27-11-1934 and that he has been in possession ever since.4. The rent fell into arrears again and the landlord sued for a second time. This time no. one paid and so the property was put up sale again. It was purchased by the defendant on 24-6-1937 for a nominal sum of Rs. 129/- and he was given possession through the Court in due course, though of course he was then, and always had been at all material times, in actual physical possession. The plaintiffs pleaded that these latter transactions were collusive and fraudulent but the finding is against them and that matter is no. longer in issue.5. On 17-9-1943 the first plaintiff sold the right to redeem to second plaintiff. The plaintiffs case is that the defendant being a mortgagee in possession was bound to pay the rent and so cannot take advantage of his own default to deprive his mortgagors of their property. When the defendant purchased at the auction he held as a basic for the plaintiffs and so is bound to return the property on being reimbursed for whatever he spent over it.6. 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 is either a contract between the parties or a merger or a special statute to debar them.7. No. one pleads a contract and the only statute we need examine is the Orissa Tenancy Act. The defendant obtained possession under S. 225. But under it, even if the defendant had not already been a mortgagee, he became a statutory and would still have been liable to redemption. This however did not destroy his subsisting rights as a mortgagee because sub-s. (2), S. 225 expressly preserved them to him.8. When he purchased under the second sale he did not thereby destroy the plaintiffs right to redeem because he was at that time standing in the plaintiffs shoes as a mortgagee in possession under S. 225(1) and his purchase so far as title was concerned had exactly the same effect as if the plaintiffs, having omitted to the decree and save themselves by all the last minute acts of grace permitted to judgment-debtors, had in the end themselves purchased the property. All that happened was that he regained his position as a mortgagee in possession under S. 225 (1).9. There was equally no. question of extinction by merger of a lower estate in a higher because what the defendant purchased was the tenants estate and not the landlords.10. The first Court and the first Appellate Court dismissed the plaintiffs suit but the High Court decreed it in second appeal giving the plaintiffs a preliminary decree for redemption and making provision therein for adjustment of the equities. We uphold this decree. | 0[ds]6. 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 is either a contract between the parties or a merger or a special statute to debar them.7. No. one pleads a contract and the only statute we need examine is the Orissa Tenancy Act. The defendant obtained possession under S. 225. But under it, even if the defendant had not already been a mortgagee, he became a statutory and would still have been liable to redemption. This however did not destroy his subsisting rights as a mortgagee because(2), S. 225 expressly preserved them to him.8. When he purchased under the second sale he did not thereby destroy the plaintiffs right to redeem because he was at that time standing in the plaintiffs shoes as a mortgagee in possession under S. 225(1) and his purchase so far as title was concerned had exactly the same effect as if the plaintiffs, having omitted to the decree and save themselves by all the last minute acts of grace permitted tohad in the end themselves purchased the property. All that happened was that he regained his position as a mortgagee in possession under S. 225 (1).9. There was equally no. question of extinction by merger of a lower estate in a higher because what the defendant purchased was the tenants estate and not the landlords.10. The first Court and the first Appellate Court dismissed the plaintiffs suit but the High Court decreed it in second appeal giving the plaintiffs a preliminary decree for redemption and making provision therein for adjustment of the equities. We uphold this decree.11. The appeal fails and is dismissed but in the circumstances we direct that each party bear its own costs throughout. The plaintiffs were primarily in the wrong for allowing their rent to fall into arrears and they raised an issue of fraud which they failed to substantiate. That we think justifies our direction about costs. | 0 | 751 | 456 | ### 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:
Bose, J.1. This is a defendants appeal. The suit was for possession and, if the alternative, for redemption of the plaint properties.2. The first plaintiff was a tenant of the suit lands under the Orissa Tenancy Act. He mortgaged them to the defendant on 13-9-1930 by way of simple mortgage. The rent, payable by the first plaintiff to the landlord, fell into arrears and so the landlord sued him for the arrears. A decree was obtained and the property was put up for sale. In order to safeguard his rights the defendant paid up the arrears and then obtained possession of the property under S. 225, Orissa Tenancy Act.3. This latter fact was at first denied but that is no. longer in dispute, therefore it must be accepted, that the defendant obtained possession under S. 225 on 27-11-1934 and that he has been in possession ever since.4. The rent fell into arrears again and the landlord sued for a second time. This time no. one paid and so the property was put up sale again. It was purchased by the defendant on 24-6-1937 for a nominal sum of Rs. 129/- and he was given possession through the Court in due course, though of course he was then, and always had been at all material times, in actual physical possession. The plaintiffs pleaded that these latter transactions were collusive and fraudulent but the finding is against them and that matter is no. longer in issue.5. On 17-9-1943 the first plaintiff sold the right to redeem to second plaintiff. The plaintiffs case is that the defendant being a mortgagee in possession was bound to pay the rent and so cannot take advantage of his own default to deprive his mortgagors of their property. When the defendant purchased at the auction he held as a basic for the plaintiffs and so is bound to return the property on being reimbursed for whatever he spent over it.6. 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 is either a contract between the parties or a merger or a special statute to debar them.7. No. one pleads a contract and the only statute we need examine is the Orissa Tenancy Act. The defendant obtained possession under S. 225. But under it, even if the defendant had not already been a mortgagee, he became a statutory and would still have been liable to redemption. This however did not destroy his subsisting rights as a mortgagee because sub-s. (2), S. 225 expressly preserved them to him.8. When he purchased under the second sale he did not thereby destroy the plaintiffs right to redeem because he was at that time standing in the plaintiffs shoes as a mortgagee in possession under S. 225(1) and his purchase so far as title was concerned had exactly the same effect as if the plaintiffs, having omitted to the decree and save themselves by all the last minute acts of grace permitted to judgment-debtors, had in the end themselves purchased the property. All that happened was that he regained his position as a mortgagee in possession under S. 225 (1).9. There was equally no. question of extinction by merger of a lower estate in a higher because what the defendant purchased was the tenants estate and not the landlords.10. The first Court and the first Appellate Court dismissed the plaintiffs suit but the High Court decreed it in second appeal giving the plaintiffs a preliminary decree for redemption and making provision therein for adjustment of the equities. We uphold this decree.
### Response:
0
### Explanation:
6. 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 is either a contract between the parties or a merger or a special statute to debar them.7. No. one pleads a contract and the only statute we need examine is the Orissa Tenancy Act. The defendant obtained possession under S. 225. But under it, even if the defendant had not already been a mortgagee, he became a statutory and would still have been liable to redemption. This however did not destroy his subsisting rights as a mortgagee because(2), S. 225 expressly preserved them to him.8. When he purchased under the second sale he did not thereby destroy the plaintiffs right to redeem because he was at that time standing in the plaintiffs shoes as a mortgagee in possession under S. 225(1) and his purchase so far as title was concerned had exactly the same effect as if the plaintiffs, having omitted to the decree and save themselves by all the last minute acts of grace permitted tohad in the end themselves purchased the property. All that happened was that he regained his position as a mortgagee in possession under S. 225 (1).9. There was equally no. question of extinction by merger of a lower estate in a higher because what the defendant purchased was the tenants estate and not the landlords.10. The first Court and the first Appellate Court dismissed the plaintiffs suit but the High Court decreed it in second appeal giving the plaintiffs a preliminary decree for redemption and making provision therein for adjustment of the equities. We uphold this decree.11. The appeal fails and is dismissed but in the circumstances we direct that each party bear its own costs throughout. The plaintiffs were primarily in the wrong for allowing their rent to fall into arrears and they raised an issue of fraud which they failed to substantiate. That we think justifies our direction about costs.
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Inspector Of Police, T.N Vs. Palanisamy @ Selvan | Dr. Arijit Pasayat, J. 1. Heard. 2. The State of Tamil Nadu questions the correctness of the judgment rendered by a Division Bench of the Madras High Court directing acquittal of the respondent. Learned Additional Sessions Judge, Erode had found the respondent guilty of offence punishable under Section 302, Indian Penal Code (in short IPC) and convicted him accordingly and sentenced him to undergo imprisonment for life. The case at hand rests on circumstantial evidence. The first circumstance which was highlighted by the prosecution was that Pws. 1 and 2 allegedly saw the deceased in the company of the as used around 11 o clock in the night. 3. The second was an alleged extra judicial confession before PW3 the village head. Though the trial Court placed reliance on these factors to find the accused guilty the High Court found the evidence of Pws. 1 and 2 to be unreliable so far as the claim to have seen accused and the deceased together around 11 oclock in the night. Similarly the High Court found that the so-called extra judicial confession has not been established by PW3. 4. Learned counsel for the appellant-State submitted that the High Court should not have discarded the evidence of Pws 1 and 2 so far as the last seen aspect is concerned. Similarly, the High Court should not have disbelieved PW3 about the alleged extra judicial confession. Learned counsel for the respondent supported the judgment of the High Court. 5. We find that the High Court has analysed the evidence in great detail and we find that the evidence of PWs 1 and 2 is not truthful so far identification aspect is concerned. Undisputedly it was a dark night. They claimed to have identified them from their voice. Though such identification in some cases is possible in the instant case no evidence was adduced to show that the witnesses were closely acquainted with the accused to even identify him from his voice, that too from a very short replies, purported to have been given. This fact was lost sight of by the Trial court. The High Court found the possibility of identification as claimed by PWs 1 and 2 an impossibility. So far the purported extra judicial confession is concerned the High Court found that the same also has not been established through the evidence of PW3. The reasons given by the High Court to discard the evidence of PW3 do not suffer from any infirmity. The High Court after analysing the evidence concluded as follows: 6. First we analysed the evidence of PW3 to find out whether the prosecution had established that the accused had given the extra judicial confession to him. PW 3 would state that the accused appeared before him on 12.6.1991 around 9.00 a.m. and confessed. The occurence was on 5.6.1991 and Nagarajan was found dead in the early morning on 6.6.1991. PW3 is the former President of the Village Panchayat Board of Kalangapalayam. If really the accused appeared before him and gave the extra judicial confession, then prudence on his part demands that he should have surrendered the accused at the police station. He being responsible witness and on that day not holding any office, nothing prevented him to reduce into writing the extra judicial confession given by the accused. But, he would state that he only advised the accused to go and surrender at the police station for which the accused was not willing. Thereafter, claims to have advised the accused to surrender in court with the help of a lawyer. These two advises as stated above which was given by PW3 shows without any doubt that he is a man who knows what to be done when an offender appears before him. Inspite of the accused appearing before him, he had not chosen to reduce into writing the extra judicial confession of the accused or produce him at the police station. On the contrary, he would state that on 12.6.1991 in the night he went to the police station and informed the police officer about the extra judicial confession given by the accused. What PW3 was doing right from 9.00 a.m. on 12.6.1991, at which point of time the accused appeared before him and gave the extra judicial confession, till late in the night is a suspicious circumstances which make us to disbelieve his oral evidence. 7. | 0[ds]We find that the High Court has analysed the evidence in great detail and we find that the evidence of PWs 1 and 2 is not truthful so far identification aspect is concerned. Undisputedly it was a dark night. They claimed to have identified them from their voice. Though such identification in some cases is possible in the instant case no evidence was adduced to show that the witnesses were closely acquainted with the accused to even identify him from his voice, that too from a very short replies, purported to have been given. This fact was lost sight of by the Trial court. The High Court found the possibility of identification as claimed by PWs 1 and 2 an impossibility. So far the purported extra judicial confession is concerned the High Court found that the same also has not been established through the evidence of PW3. The reasons given by the High Court to discard the evidence of PW3 do not suffer from any infirmity. | 0 | 787 | 180 | ### 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:
Dr. Arijit Pasayat, J. 1. Heard. 2. The State of Tamil Nadu questions the correctness of the judgment rendered by a Division Bench of the Madras High Court directing acquittal of the respondent. Learned Additional Sessions Judge, Erode had found the respondent guilty of offence punishable under Section 302, Indian Penal Code (in short IPC) and convicted him accordingly and sentenced him to undergo imprisonment for life. The case at hand rests on circumstantial evidence. The first circumstance which was highlighted by the prosecution was that Pws. 1 and 2 allegedly saw the deceased in the company of the as used around 11 o clock in the night. 3. The second was an alleged extra judicial confession before PW3 the village head. Though the trial Court placed reliance on these factors to find the accused guilty the High Court found the evidence of Pws. 1 and 2 to be unreliable so far as the claim to have seen accused and the deceased together around 11 oclock in the night. Similarly the High Court found that the so-called extra judicial confession has not been established by PW3. 4. Learned counsel for the appellant-State submitted that the High Court should not have discarded the evidence of Pws 1 and 2 so far as the last seen aspect is concerned. Similarly, the High Court should not have disbelieved PW3 about the alleged extra judicial confession. Learned counsel for the respondent supported the judgment of the High Court. 5. We find that the High Court has analysed the evidence in great detail and we find that the evidence of PWs 1 and 2 is not truthful so far identification aspect is concerned. Undisputedly it was a dark night. They claimed to have identified them from their voice. Though such identification in some cases is possible in the instant case no evidence was adduced to show that the witnesses were closely acquainted with the accused to even identify him from his voice, that too from a very short replies, purported to have been given. This fact was lost sight of by the Trial court. The High Court found the possibility of identification as claimed by PWs 1 and 2 an impossibility. So far the purported extra judicial confession is concerned the High Court found that the same also has not been established through the evidence of PW3. The reasons given by the High Court to discard the evidence of PW3 do not suffer from any infirmity. The High Court after analysing the evidence concluded as follows: 6. First we analysed the evidence of PW3 to find out whether the prosecution had established that the accused had given the extra judicial confession to him. PW 3 would state that the accused appeared before him on 12.6.1991 around 9.00 a.m. and confessed. The occurence was on 5.6.1991 and Nagarajan was found dead in the early morning on 6.6.1991. PW3 is the former President of the Village Panchayat Board of Kalangapalayam. If really the accused appeared before him and gave the extra judicial confession, then prudence on his part demands that he should have surrendered the accused at the police station. He being responsible witness and on that day not holding any office, nothing prevented him to reduce into writing the extra judicial confession given by the accused. But, he would state that he only advised the accused to go and surrender at the police station for which the accused was not willing. Thereafter, claims to have advised the accused to surrender in court with the help of a lawyer. These two advises as stated above which was given by PW3 shows without any doubt that he is a man who knows what to be done when an offender appears before him. Inspite of the accused appearing before him, he had not chosen to reduce into writing the extra judicial confession of the accused or produce him at the police station. On the contrary, he would state that on 12.6.1991 in the night he went to the police station and informed the police officer about the extra judicial confession given by the accused. What PW3 was doing right from 9.00 a.m. on 12.6.1991, at which point of time the accused appeared before him and gave the extra judicial confession, till late in the night is a suspicious circumstances which make us to disbelieve his oral evidence. 7.
### Response:
0
### Explanation:
We find that the High Court has analysed the evidence in great detail and we find that the evidence of PWs 1 and 2 is not truthful so far identification aspect is concerned. Undisputedly it was a dark night. They claimed to have identified them from their voice. Though such identification in some cases is possible in the instant case no evidence was adduced to show that the witnesses were closely acquainted with the accused to even identify him from his voice, that too from a very short replies, purported to have been given. This fact was lost sight of by the Trial court. The High Court found the possibility of identification as claimed by PWs 1 and 2 an impossibility. So far the purported extra judicial confession is concerned the High Court found that the same also has not been established through the evidence of PW3. The reasons given by the High Court to discard the evidence of PW3 do not suffer from any infirmity.
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Mondri Sreenu Vs. State Of Andhra Pradesh | the appellant who are independent witnesses, to a large extent, supported the prosecution case. The strained relationship between appellant and the deceased must be held to have been proved. PW-2 who is the wife of the appellant, had completely supported the prosecution case in that regard. The prosecution case must also be considered from another angle. PW-6, although is a resident of Chinthalagudem Village, who had been earning his livelihood by working as a mason, used to visit Bhadrachalam. He found the appellant talking with his brother at Bhupathiraopeta Colony at about 7.30 P.M. on 22.10.1999. Appellant made an extra judicial confession before him. The reason that the deceased did not allow him to live with his wife (PW-2) was said to be the reason for commission of the offence. It was at that point of time he caught hold of appellant and handed him over to the S.H.O. of the Bhadrachalam Police Station. Yet again in the Police Station, the appellant made a confession. Apart from the Investigating Officer (PW-18), a confession was also made before PW-14 Yalam Kondal Rao, a resident of Bhadrachalam. Appellant did not raise any contention that he did not make any extra judicial confession or a confession before the Judicial Officer as also before the PW-14. Indisputably, he was produced before the Mandal Officer. The investigation of the case was taken up by PW-18 Devadas. He produced the appellant before the Mandal Magistrate R. Veera Reddy on 4.11.1999. His statement was recorded under Section 164 of the Code of Criminal Procedure. Submission of the learned counsel for the appellant Mr. Ansar Ahmad Chowdhary that PW-15 Veera Reddy did not comply with the provisions contained in Section 164 Cr.P.C. may not be of much significance. Bhadrachalam falls within a scheduled area in the State of A.P. The State of A.P., this Court can take judicial notice, had not extended the provisions of the new Cr.P.C. to the scheduled areas of the State of A.P. This fact would be evident from the fact that appellant was examined in terms of Section 342 of old Cr.P.C. As there is no separation of the Judicial and Executive Officers, appellant was produced before the Executive Officer for recording his statement under Section 164 of Cr.P.C. As the provisions of the old Code were applicable, the precautions which were required to be taken in terms of Section 164 of the 1973 Code were not complied with. Be that as it may, appellant never retracted the said confession. A statement made by the accused under Section 164 of Cr.P.C. is admissible in evidence. Apart from the judicial confession, as noticed hereinbefore, the appellant has also made extra judicial confession before PW-6. PW-17 Dr. Jhansi Lakshmi, Civil Assistant Surgeon, Area Hospital, Bhadrachalam, who conducted the post-mortem over the dead body of Chandramma, found the following ante-mortem injuries: 1. Lacerated wound 3 x 2 x 2 cms. over the forehead. 2. Loss of right eye-ball. 3. Lacerated would 3 x 4 x 1 cms. over dorsal aspect of left foot. 4. Lacerated would 3 x 1 x 1 cms. over left side of abdomen. 5. Abrasion 3 x 2 cms. over right elbow region. 6. Contusion 5 x 6 cms. on right temporal region. 7. Contusion 3 x 3 cms. over right cheek. The said Dr. Jhansi Lakshmi was examined as PW-17. In her deposition before the learned Sessions Judge, she categorically stated that those ante-mortem injuries were possible to have been caused by a blunt object like stone or stick. She found a fracture of ribs on the right side of the deceased, as a result of which a laceration of the right lung was found to be present. She also found 300 CC fluids blood in the right plural cavity, ligature mark on the neck of the deceased, congestion and haemorrhage by the side of the ligature mark and sub-dural haemotoma on right temporal region. In the aforementioned background, PW-1 had not been able to specifically state the cause of death and he must be held to be a truthful witness. The exact cause of the death of the deceased, thus, in the aforementioned situation could not have been certain to a layman, like PW-1 and other witnesses. It may be true that the stone was found in an open place. But unless and until the site thereof was pointed out, as the Investigating Officer (PW-18) categorically stated, he could not have identified the weapon which was used for commission of the offence. It was found to be blood stained. Apart from the stone, a stick was also pointed out by the appellant which led to its discovery. It is, therefore, not a case where the Courts below could have totally ignored recovery of the said articles. Furthermore, although not strictly admissible, even a confession was made by appellant in the Police Station before PW-14 and one Seetha Ramulu. Their statements before the Court are also now not in dispute.Submission of the learned counsel for appellant that the last seen theory propounded by the prosecution cannot be relied upon, is, in our opinion, not of much substance. It has not been denied or disputed that the brothers of PW-1, namely, Batta Pedda Veeraiah (PW-3) and Batta China Veeraiah (PW-4) had lands by the side of the land of the deceased and PW-1. PW-3 in his statement, categorically stated that although appellant and the deceased were found to be quarrelling with each other, he ignored the same as that had become almost a routine affair. He came to know about non-return of the deceased from the field only in the evening.Furthermore, not only PW-3 and PW-4 but other prosecution witnesses whose independence is not in question, also proved the presence of appellant near the place of occurrence on the date of occurrence between 1.00 P.M. and 3.00 P.M.According to the post-mortem report, that was the probable period during which the offence is said to have been committed. For the reasons aforementioned, we | 0[ds]It is, therefore, not a case where the Courts below could have totally ignored recovery of the said articles. Furthermore, although not strictly admissible, even a confession was made by appellant in the Police Station before PW-14 and one Seetha Ramulu. Their statements before the Court are also now not in dispute.Submission of the learned counsel for appellant that the last seen theory propounded by the prosecution cannot be relied upon, is, in our opinion, not of much substance. It has not been denied or disputed that the brothers of PW-1, namely, Batta Pedda Veeraiah (PW-3) and Batta China Veeraiah (PW-4) had lands by the side of the land of the deceased and PW-1. PW-3 in his statement, categorically stated that although appellant and the deceased were found to be quarrelling with each other, he ignored the same as that had become almost a routine affair. He came to know about non-return of the deceased from the field only in the evening.Furthermore, not only PW-3 and PW-4 but other prosecution witnesses whose independence is not in question, also proved the presence of appellant near the place of occurrence on the date of occurrence between 1.00 P.M. and 3.00 P.M.According to the post-mortem report, that was the probable period during which the offence is said to have been committed. | 0 | 2,446 | 247 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
### Input:
the appellant who are independent witnesses, to a large extent, supported the prosecution case. The strained relationship between appellant and the deceased must be held to have been proved. PW-2 who is the wife of the appellant, had completely supported the prosecution case in that regard. The prosecution case must also be considered from another angle. PW-6, although is a resident of Chinthalagudem Village, who had been earning his livelihood by working as a mason, used to visit Bhadrachalam. He found the appellant talking with his brother at Bhupathiraopeta Colony at about 7.30 P.M. on 22.10.1999. Appellant made an extra judicial confession before him. The reason that the deceased did not allow him to live with his wife (PW-2) was said to be the reason for commission of the offence. It was at that point of time he caught hold of appellant and handed him over to the S.H.O. of the Bhadrachalam Police Station. Yet again in the Police Station, the appellant made a confession. Apart from the Investigating Officer (PW-18), a confession was also made before PW-14 Yalam Kondal Rao, a resident of Bhadrachalam. Appellant did not raise any contention that he did not make any extra judicial confession or a confession before the Judicial Officer as also before the PW-14. Indisputably, he was produced before the Mandal Officer. The investigation of the case was taken up by PW-18 Devadas. He produced the appellant before the Mandal Magistrate R. Veera Reddy on 4.11.1999. His statement was recorded under Section 164 of the Code of Criminal Procedure. Submission of the learned counsel for the appellant Mr. Ansar Ahmad Chowdhary that PW-15 Veera Reddy did not comply with the provisions contained in Section 164 Cr.P.C. may not be of much significance. Bhadrachalam falls within a scheduled area in the State of A.P. The State of A.P., this Court can take judicial notice, had not extended the provisions of the new Cr.P.C. to the scheduled areas of the State of A.P. This fact would be evident from the fact that appellant was examined in terms of Section 342 of old Cr.P.C. As there is no separation of the Judicial and Executive Officers, appellant was produced before the Executive Officer for recording his statement under Section 164 of Cr.P.C. As the provisions of the old Code were applicable, the precautions which were required to be taken in terms of Section 164 of the 1973 Code were not complied with. Be that as it may, appellant never retracted the said confession. A statement made by the accused under Section 164 of Cr.P.C. is admissible in evidence. Apart from the judicial confession, as noticed hereinbefore, the appellant has also made extra judicial confession before PW-6. PW-17 Dr. Jhansi Lakshmi, Civil Assistant Surgeon, Area Hospital, Bhadrachalam, who conducted the post-mortem over the dead body of Chandramma, found the following ante-mortem injuries: 1. Lacerated wound 3 x 2 x 2 cms. over the forehead. 2. Loss of right eye-ball. 3. Lacerated would 3 x 4 x 1 cms. over dorsal aspect of left foot. 4. Lacerated would 3 x 1 x 1 cms. over left side of abdomen. 5. Abrasion 3 x 2 cms. over right elbow region. 6. Contusion 5 x 6 cms. on right temporal region. 7. Contusion 3 x 3 cms. over right cheek. The said Dr. Jhansi Lakshmi was examined as PW-17. In her deposition before the learned Sessions Judge, she categorically stated that those ante-mortem injuries were possible to have been caused by a blunt object like stone or stick. She found a fracture of ribs on the right side of the deceased, as a result of which a laceration of the right lung was found to be present. She also found 300 CC fluids blood in the right plural cavity, ligature mark on the neck of the deceased, congestion and haemorrhage by the side of the ligature mark and sub-dural haemotoma on right temporal region. In the aforementioned background, PW-1 had not been able to specifically state the cause of death and he must be held to be a truthful witness. The exact cause of the death of the deceased, thus, in the aforementioned situation could not have been certain to a layman, like PW-1 and other witnesses. It may be true that the stone was found in an open place. But unless and until the site thereof was pointed out, as the Investigating Officer (PW-18) categorically stated, he could not have identified the weapon which was used for commission of the offence. It was found to be blood stained. Apart from the stone, a stick was also pointed out by the appellant which led to its discovery. It is, therefore, not a case where the Courts below could have totally ignored recovery of the said articles. Furthermore, although not strictly admissible, even a confession was made by appellant in the Police Station before PW-14 and one Seetha Ramulu. Their statements before the Court are also now not in dispute.Submission of the learned counsel for appellant that the last seen theory propounded by the prosecution cannot be relied upon, is, in our opinion, not of much substance. It has not been denied or disputed that the brothers of PW-1, namely, Batta Pedda Veeraiah (PW-3) and Batta China Veeraiah (PW-4) had lands by the side of the land of the deceased and PW-1. PW-3 in his statement, categorically stated that although appellant and the deceased were found to be quarrelling with each other, he ignored the same as that had become almost a routine affair. He came to know about non-return of the deceased from the field only in the evening.Furthermore, not only PW-3 and PW-4 but other prosecution witnesses whose independence is not in question, also proved the presence of appellant near the place of occurrence on the date of occurrence between 1.00 P.M. and 3.00 P.M.According to the post-mortem report, that was the probable period during which the offence is said to have been committed. For the reasons aforementioned, we
### Response:
0
### Explanation:
It is, therefore, not a case where the Courts below could have totally ignored recovery of the said articles. Furthermore, although not strictly admissible, even a confession was made by appellant in the Police Station before PW-14 and one Seetha Ramulu. Their statements before the Court are also now not in dispute.Submission of the learned counsel for appellant that the last seen theory propounded by the prosecution cannot be relied upon, is, in our opinion, not of much substance. It has not been denied or disputed that the brothers of PW-1, namely, Batta Pedda Veeraiah (PW-3) and Batta China Veeraiah (PW-4) had lands by the side of the land of the deceased and PW-1. PW-3 in his statement, categorically stated that although appellant and the deceased were found to be quarrelling with each other, he ignored the same as that had become almost a routine affair. He came to know about non-return of the deceased from the field only in the evening.Furthermore, not only PW-3 and PW-4 but other prosecution witnesses whose independence is not in question, also proved the presence of appellant near the place of occurrence on the date of occurrence between 1.00 P.M. and 3.00 P.M.According to the post-mortem report, that was the probable period during which the offence is said to have been committed.
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Pratap Narain Singh Deo Vs. Srinivas Sabata And Anr | 092/-.2. The appellant felt aggrieved and filed a writ petition in the High Court of Orissa, but it was dismissed summarily on October 10, 1969. He has therefore come up in appeal to this Court by special leave.3. It has not been disputed before us that the injury in question was caused to the respondent by an accident which arose out of and in the course of h is employment with the appellant. It is also not in dispute that the injury resulted in amputation of his left arm at the elbow. It has however been argued that the injury did not result in permanent total disablement of the respondent, an d that the Commissioner committed a gross error of law in taking that view as there was only partial disablement within the meaning of section 2(1)(g) of the Act which should have been deemed to have resulted in permanent partial disablement of t he nature referred to in item 3 of Part II of Schedule I of the Act. This argument has been advanced on the ground that the amputation was from 8" from tip of acromion and less than 41/2" below tip of olecranon. As will appear, there is no force in t his argument.4. The expression "total disablement" has been defined in section 2(i) (1) of the Act as follows:"(1) "total disablement" means such disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement."5. It has not been disputed before us that the injury was of such a nature as to cause permanent disablement to the respondent, and the question for consideration is whether the disablement incapacitated the respondent for all work which he was capable of performing at the time of the accident. The Commissioner has examined the question and record ed his finding as follows:"The injured workman in this case is carpenter by profession....By loss of the left hand above the elbow, he has evidently been rendered unfit for the work of carpenter as the work of carpentry can not be done by one hand only."6. This is obviously a reasonable and correct finding. Counsel for the appellant has not been able to assail it on any ground and it does not require to be corrected in this appeal. There is also no justification for the other argument which has been advanced with reference to item 3 of Part II of Schedule I, because it was not the appellants case before the Commissioner that amputation of the arm was from 8" from tip of acromion to less than 41/2 " below the tip of olecranon. A new case cannot therefore be allowed to be set up on facts which have not been admitted or established.7. It has next been argued that the Commissioner committed serious error of law in imposing a penalty on the appellant under section 4A(3) of the Act as the compensation had not fallen due until it was settled by the Commissioner under section 19 by his impugned order dated May 6, 1969. There is however no force in this argument.8. Section 3 of the Act deals with the employers liability for compensation. Sub-section (1) of that section provides that the employer shall be liable to pay compensation if "personal injury is caused to a workman by accident arising out of and in the course of his employment." It was not the case of the employer that the right to compensation was taken away under sub-section (5) of section 3 because of the institution of a suit in a civil court for damages, in respect of the injury, against the employer or any other person. The employer therefore became liable to pay the compensation as soon as the aforesaid personal injury was caused to the workman by the accident which admittedly arose out of and in the course of the employment. It is therefore futile to contend that the compensation did not fall due with after the Commissioners order dated May 6, 1969 under section 19. What the section provides is that if any question arises in any proceeding under the Act as to the liability of any person to pay compensation or as to the amount or duration of the compensation it shall, in default of a agreement, be settled by the Commissioner. There is therefore nothing to justify the argument that the employers liability to pay compensation under section 3, in respect of the injury, was suspended until after the settlement contemplated by section 19. The appellant was thus liable to pay compensation as soon as the aforesaid personal injury was caused to the appellant, and there is no justification for the argument to the contrary.It was the duty of the appellant, under section 4A(1) of the Act, to pay the compensation at the rate provided by section 4 as soon as the personal injury was caused to the respondent. He failed to do so. What is worse, he did not even make a provisional payment under sub-section (2) of section 4 for, as has been stated, he went to the extent of taking the false pleas that the respondent was a casual contractor and that the accident occurred solely because of his negligence. Then there is the further fact that he paid no heed to the respondents personal approach for obtaining the compensation. It will be recalled that the respondent was driven to the necessity of making and application to the Commissioner for settling the claim, and even there the appellant raised a frivolous objection as to the jurisdiction of the Commissioner and prevailed on the respondent to file a memorandum of agreement setting the claim for a sum which was so grossly inadequate that it was rejected by the Commissioner. In these facts and circumstances, we have no doubt that the Commissioner was fully justified in making an order for the payment of interest and the penalty. | 0[ds]5. It has not been disputed before us that the injury was of such a nature as to cause permanent disablement to the respondent, and the question for consideration is whether the disablement incapacitated the respondent for all work which he was capable of performing at the time of the accident. The Commissioner has examined the question and record ed his finding as follows:"The injured workman in this case is carpenter by profession....By loss of the left hand above the elbow, he has evidently been rendered unfit for the work of carpenter as the work of carpentry can not be done by one hand only."6. This is obviously a reasonable and correct finding. Counsel for the appellant has not been able to assail it on any ground and it does not require to be corrected in this appeal. There is also no justification for the other argument which has been advanced with reference to item 3 of Part II of Schedule I, because it was not the appellants case before the Commissioner that amputation of the arm was from 8" from tip of acromion to less than 41/2 " below the tip of olecranon. A new case cannot therefore be allowed to be set up on facts which have not been admitted or established.7. It has next been argued that the Commissioner committed serious error of law in imposing a penalty on the appellant under section 4A(3) of the Act as the compensation had not fallen due until it was settled by the Commissioner under section 19 by his impugned order dated May 6, 1969. There is however no force in this argument.8. Section 3 of the Act deals with the employers liability for compensation.(1) of that section provides that the employer shall be liable to pay compensation if "personal injury is caused to a workman by accident arising out of and in the course of his employment." It was not the case of the employer that the right to compensation was taken away under(5) of section 3 because of the institution of a suit in a civil court for damages, in respect of the injury, against the employer or any other person. The employer therefore became liable to pay the compensation as soon as the aforesaid personal injury was caused to the workman by the accident which admittedly arose out of and in the course of the employment. It is therefore futile to contend that the compensation did not fall due with after the Commissioners order dated May 6, 1969 under section 19. What the section provides is that if any question arises in any proceeding under the Act as to the liability of any person to pay compensation or as to the amount or duration of the compensation it shall, in default of a agreement, be settled by the Commissioner. There is therefore nothing to justify the argument that the employers liability to pay compensation under section 3, in respect of the injury, was suspended until after the settlement contemplated by section 19. The appellant was thus liable to pay compensation as soon as the aforesaid personal injury was caused to the appellant, and there is no justification for the argument to the contrary.It was the duty of the appellant, under section 4A(1) of the Act, to pay the compensation at the rate provided by section 4 as soon as the personal injury was caused to the respondent. He failed to do so. What is worse, he did not even make a provisional payment under(2) of section 4 for, as has been stated, he went to the extent of taking the false pleas that the respondent was a casual contractor and that the accident occurred solely because of his negligence. Then there is the further fact that he paid no heed to the respondents personal approach for obtaining the compensation. It will be recalled that the respondent was driven to the necessity of making and application to the Commissioner for settling the claim, and even there the appellant raised a frivolous objection as to the jurisdiction of the Commissioner and prevailed on the respondent to file a memorandum of agreement setting the claim for a sum which was so grossly inadequate that it was rejected by the Commissioner. In these facts and circumstances, we have no doubt that the Commissioner was fully justified in making an order for the payment of interest and the penalty. | 0 | 1,616 | 808 | ### 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:
092/-.2. The appellant felt aggrieved and filed a writ petition in the High Court of Orissa, but it was dismissed summarily on October 10, 1969. He has therefore come up in appeal to this Court by special leave.3. It has not been disputed before us that the injury in question was caused to the respondent by an accident which arose out of and in the course of h is employment with the appellant. It is also not in dispute that the injury resulted in amputation of his left arm at the elbow. It has however been argued that the injury did not result in permanent total disablement of the respondent, an d that the Commissioner committed a gross error of law in taking that view as there was only partial disablement within the meaning of section 2(1)(g) of the Act which should have been deemed to have resulted in permanent partial disablement of t he nature referred to in item 3 of Part II of Schedule I of the Act. This argument has been advanced on the ground that the amputation was from 8" from tip of acromion and less than 41/2" below tip of olecranon. As will appear, there is no force in t his argument.4. The expression "total disablement" has been defined in section 2(i) (1) of the Act as follows:"(1) "total disablement" means such disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement."5. It has not been disputed before us that the injury was of such a nature as to cause permanent disablement to the respondent, and the question for consideration is whether the disablement incapacitated the respondent for all work which he was capable of performing at the time of the accident. The Commissioner has examined the question and record ed his finding as follows:"The injured workman in this case is carpenter by profession....By loss of the left hand above the elbow, he has evidently been rendered unfit for the work of carpenter as the work of carpentry can not be done by one hand only."6. This is obviously a reasonable and correct finding. Counsel for the appellant has not been able to assail it on any ground and it does not require to be corrected in this appeal. There is also no justification for the other argument which has been advanced with reference to item 3 of Part II of Schedule I, because it was not the appellants case before the Commissioner that amputation of the arm was from 8" from tip of acromion to less than 41/2 " below the tip of olecranon. A new case cannot therefore be allowed to be set up on facts which have not been admitted or established.7. It has next been argued that the Commissioner committed serious error of law in imposing a penalty on the appellant under section 4A(3) of the Act as the compensation had not fallen due until it was settled by the Commissioner under section 19 by his impugned order dated May 6, 1969. There is however no force in this argument.8. Section 3 of the Act deals with the employers liability for compensation. Sub-section (1) of that section provides that the employer shall be liable to pay compensation if "personal injury is caused to a workman by accident arising out of and in the course of his employment." It was not the case of the employer that the right to compensation was taken away under sub-section (5) of section 3 because of the institution of a suit in a civil court for damages, in respect of the injury, against the employer or any other person. The employer therefore became liable to pay the compensation as soon as the aforesaid personal injury was caused to the workman by the accident which admittedly arose out of and in the course of the employment. It is therefore futile to contend that the compensation did not fall due with after the Commissioners order dated May 6, 1969 under section 19. What the section provides is that if any question arises in any proceeding under the Act as to the liability of any person to pay compensation or as to the amount or duration of the compensation it shall, in default of a agreement, be settled by the Commissioner. There is therefore nothing to justify the argument that the employers liability to pay compensation under section 3, in respect of the injury, was suspended until after the settlement contemplated by section 19. The appellant was thus liable to pay compensation as soon as the aforesaid personal injury was caused to the appellant, and there is no justification for the argument to the contrary.It was the duty of the appellant, under section 4A(1) of the Act, to pay the compensation at the rate provided by section 4 as soon as the personal injury was caused to the respondent. He failed to do so. What is worse, he did not even make a provisional payment under sub-section (2) of section 4 for, as has been stated, he went to the extent of taking the false pleas that the respondent was a casual contractor and that the accident occurred solely because of his negligence. Then there is the further fact that he paid no heed to the respondents personal approach for obtaining the compensation. It will be recalled that the respondent was driven to the necessity of making and application to the Commissioner for settling the claim, and even there the appellant raised a frivolous objection as to the jurisdiction of the Commissioner and prevailed on the respondent to file a memorandum of agreement setting the claim for a sum which was so grossly inadequate that it was rejected by the Commissioner. In these facts and circumstances, we have no doubt that the Commissioner was fully justified in making an order for the payment of interest and the penalty.
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### Explanation:
5. It has not been disputed before us that the injury was of such a nature as to cause permanent disablement to the respondent, and the question for consideration is whether the disablement incapacitated the respondent for all work which he was capable of performing at the time of the accident. The Commissioner has examined the question and record ed his finding as follows:"The injured workman in this case is carpenter by profession....By loss of the left hand above the elbow, he has evidently been rendered unfit for the work of carpenter as the work of carpentry can not be done by one hand only."6. This is obviously a reasonable and correct finding. Counsel for the appellant has not been able to assail it on any ground and it does not require to be corrected in this appeal. There is also no justification for the other argument which has been advanced with reference to item 3 of Part II of Schedule I, because it was not the appellants case before the Commissioner that amputation of the arm was from 8" from tip of acromion to less than 41/2 " below the tip of olecranon. A new case cannot therefore be allowed to be set up on facts which have not been admitted or established.7. It has next been argued that the Commissioner committed serious error of law in imposing a penalty on the appellant under section 4A(3) of the Act as the compensation had not fallen due until it was settled by the Commissioner under section 19 by his impugned order dated May 6, 1969. There is however no force in this argument.8. Section 3 of the Act deals with the employers liability for compensation.(1) of that section provides that the employer shall be liable to pay compensation if "personal injury is caused to a workman by accident arising out of and in the course of his employment." It was not the case of the employer that the right to compensation was taken away under(5) of section 3 because of the institution of a suit in a civil court for damages, in respect of the injury, against the employer or any other person. The employer therefore became liable to pay the compensation as soon as the aforesaid personal injury was caused to the workman by the accident which admittedly arose out of and in the course of the employment. It is therefore futile to contend that the compensation did not fall due with after the Commissioners order dated May 6, 1969 under section 19. What the section provides is that if any question arises in any proceeding under the Act as to the liability of any person to pay compensation or as to the amount or duration of the compensation it shall, in default of a agreement, be settled by the Commissioner. There is therefore nothing to justify the argument that the employers liability to pay compensation under section 3, in respect of the injury, was suspended until after the settlement contemplated by section 19. The appellant was thus liable to pay compensation as soon as the aforesaid personal injury was caused to the appellant, and there is no justification for the argument to the contrary.It was the duty of the appellant, under section 4A(1) of the Act, to pay the compensation at the rate provided by section 4 as soon as the personal injury was caused to the respondent. He failed to do so. What is worse, he did not even make a provisional payment under(2) of section 4 for, as has been stated, he went to the extent of taking the false pleas that the respondent was a casual contractor and that the accident occurred solely because of his negligence. Then there is the further fact that he paid no heed to the respondents personal approach for obtaining the compensation. It will be recalled that the respondent was driven to the necessity of making and application to the Commissioner for settling the claim, and even there the appellant raised a frivolous objection as to the jurisdiction of the Commissioner and prevailed on the respondent to file a memorandum of agreement setting the claim for a sum which was so grossly inadequate that it was rejected by the Commissioner. In these facts and circumstances, we have no doubt that the Commissioner was fully justified in making an order for the payment of interest and the penalty.
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Commissioner Of Income-Tax, Nagpur Vs. Rai Bahadur Jairam Valji And Others | limestone loaded by him, and the business which he had to do to earn the amount was to raise and supply limestone as provided in the agreement. There is here no profit-making apparatus set up by the agreement apart from the business which is to be carried on under it. We are accordingly unable to agree that the present case is governed by the decision in 1935 A C 431. 23. (3) It remains to deal with the contention of the respondent that the business which he was to have carried on under the contract dated 9th May 1950, was practically the entirety of his trading activities, and that the termination of such a contract is tantamount to stopping his doing business and the compensation paid therefor is a capital receipt. Reliance is placed in support of this argument on the decision in, Glenboig Union Fireclay Co. Ltd. v. Commissioners of Inland Revenue, 1922-12 Tax Cas 427.Now, to appreciate the true position, it is necessary to bear in mind the distinction between compensation on account of business carried on under an agreement with a third party when that is terminated, and compensation which is received on account of a business which the assessee is prevented from carrying on by a third person in exercise of an overriding power.In the former case, the payment would in general be a trading receipt referable to the business activities carried on or to be carried on under the agreement and would be taxable as a revenue receipt. There may be exceptions to this. A familiar instance is when the parties agree, as part of the contract to do business, that one of them shall not carry on similar business for a stated period after the termination of the contract, and a compensation is paid therefor. That has been held to be a capital receipt. Vide Beak v. Robson, 1942-25 Tax Cas33. The reason is that it is a payment made not on account of profits which might have been earned in the carrying on of the business but as soltium for not carrying on the business. A payment made in a similar covenant to operate during the period of the contract, however, has been held to be a revenue receipt, because it arises out of the carrying on of the business. Vide Thompson v. Magnesium Elektron Ltd., (1943) 26 Tax Cas 1. It might also happen that one of the parties to the contract might have, in the carrying out thereof, incurred expenses of a capital character and as a result of the cancellation of the contract, those expenses would have been thrown away. A payment made on account of those expenses would bear the character of a capital receipt.But apart from those and similar instances, it might, in general, be stated that payments made in settlement of rights under a trading contract are trading receipts and are assessable to revenue. But where a person who is carrying on business is prevented from doing so by an external authority in exercise of a paramount power and is awarded compensation therefor, whether that receipt is a capital receipt or a revenue receipt will depend upon whether it is compensation for injury inflicted on a capital asset or on a stock-in-trade.The decision in 1922-14 Tax Cas 427 applies to this category of cases. There, the assessee was carrying on business in the manufacture of fire clay goods and had, for the performance of that business, acquired a fire clay field on lease. The Caledonian Railway which passed over the field prohibited the assessee from excavating the field within a certain distance of the rails, and paid compensation therefor in accordance with the provisions of a statute. It was held by the House of Lords that this was a capital receipt and was not taxable on the ground that the compensation was really the price paid for sterilising the asset from which otherwise profit might have been obtained. That is to say, the fire clay field was a capital asset which was to be utilised for the carrying on of the business of manufacturing fire clay goods and when the assessee was prohibited from exploiting the field, it was an injury inflicted on his capital asset. Where, however, the compensation is referable to injury inflicted on the stock-in-trade, it would be a revenue receipt. Vide Commissioners of Inland Revenue v. Newcastle Breweries, Ltd., 1927-12 Tax Cas 927.The principle of these decisions has no application where the compensation paid is in respect of rights arising under a trading contract. A payment made in settlement of that contract is an adjustment of the rights under that contract, and must be referred to the profits which could be made in the carrying out of that contract. 24. In the present case, the contract dated May 9, 1940 was simply an agreement to carry on business. In settlement of that contract, Rs. 2,50,000 was paid to the respondent. That was not a payment on account of any capital expenditure incurred by him in the execution of the contract that indeed was the point sought to be raised by the respondent, but therein he has failed. It is also to be noted that at no time was he prevented from carrying on business. Clause 6 of the agreement dated May 9, 1940, contemplates that the respondent was to carry on generally the business of supply of limestone even apart from his work in the Gangapur quarry, and the agreement dated August 2, 1941, provides for his supplying limestone for the furnaces at Kulti for a period of 12 years and for loading iron at Monoharpore for a like period. There was, therefore, at no time any agreement which operated as a bar to the carrying on of business by the respondent. 25. On a consideration of all the facts established, we are of opinion that the receipt of Rs. 2,50,000 by the respondent is a revenue receipt and is chargeable to tax. | 1[ds]21. (2) The above discussion answers to a large extent the contention of the respondent that the contract dated 9th May 1940, was merely a framework of his business and not the business itself, and that a receipt on account of it must be treated as a capital receipt. The decision relied on in support of this contention is 1935 A C 431. There, two companies, one English and the other Dutch, which were engaged in the manufacture and sale of margarine entered into certain agreements, the object of which was to avoid competition and to augment their profits. An elaborate scheme was devised under which the two companies were to carry on their business independently but in friendly alliance and in accordance with the scheme; and the profits were to be shared between the two companies in certain proportions. The agreements were to be in operation till 1940, but differences arose between the parties in the working of the scheme and the alliance was terminated in 1927, the Dutch company paying to the English company a sum of ? 450,000 as compensation. The question was as to the character of this receipt, whether it was a capital or a revenue receipt, and it was held by the House of Lords that it was a capital receipt and not taxable22. Now, it will be seen that the contracts which were the source of the receipt in question did not in themselves constitute the business which yielded the profits to the two companies. Those profits were derived by them from the manufacture and sale of margarine, and there was nothing in the agreements providing that the companies were to join in the manufacture and sale of the margarine. The position under the agreement is thus stated by Lord Macmillan, who delivered the leading judgment :The three agreements which the appellants consented to cancel were not ordinary commercial contracts made in the course of carrying on their trade; they were not contracts for the disposal of their products, or for the engagement of agents or other employees necessary for the conduct of their business; nor were they merely agreements as to how their trading profits when earned should be distributed as between the contracting parties. On the contrary the cancelled agreements related to the whole structure of the appellants profit-making apparatus. They regulated the appellants activities, defined what they might and what they might not do, and affected the whole conduct of their businessThus, the agreements in question were intended to ensure that the business in margarine was carried on to the best advantaged but did not, in themselves, form part of the business. They were merely collateral to it. For the reasons given in discussing the nature of agency agreements, the agreements between the two companies must be regarded as not pertaining to the trading activities, which yielded profits, and the payment on account of those agreements must be held to be a capital receipt. But these considerations would be inapplicable to the agreement, with which we are concerned. The business which the respondent was to carry on and which was to yield profits to him was the very business to which the agreement relates. It is under this very agreement that he was to be paid Rs. 2-9-0 per ton of limestone loaded by him, and the business which he had to do to earn the amount was to raise and supply limestone as provided in the agreement. There is here no profit-making apparatus set up by the agreement apart from the business which is to be carried on under it. We are accordingly unable to agree that the present case is governed by the decision in 1935 A C 43123. (3) It remains to deal with the contention of the respondent that the business which he was to have carried on under the contract dated 9th May 1950, was practically the entirety of his trading activities, and that the termination of such a contract is tantamount to stopping his doing business and the compensation paid therefor is a capital receipt. Reliance is placed in support of this argument on the decision in, Glenboig Union Fireclay Co. Ltd. v. Commissioners of Inland Revenue, 1922-12 Tax Cas 427.Now, to appreciate the true position, it is necessary to bear in mind the distinction between compensation on account of business carried on under an agreement with a third party when that is terminated, and compensation which is received on account of a business which the assessee is prevented from carrying on by a third person in exercise of an overriding power.In the former case, the payment would in general be a trading receipt referable to the business activities carried on or to be carried on under the agreement and would be taxable as a revenue receipt. There may be exceptions to this. A familiar instance is when the parties agree, as part of the contract to do business, that one of them shall not carry on similar business for a stated period after the termination of the contract, and a compensation is paid therefor. That has been held to be a capital receipt. Vide Beak v. Robson, 1942-25 Tax Cas33. The reason is that it is a payment made not on account of profits which might have been earned in the carrying on of the business but as soltium for not carrying on the business. A payment made in a similar covenant to operate during the period of the contract, however, has been held to be a revenue receipt, because it arises out of the carrying on of the business. Vide Thompson v. Magnesium Elektron Ltd., (1943) 26 Tax Cas 1. It might also happen that one of the parties to the contract might have, in the carrying out thereof, incurred expenses of a capital character and as a result of the cancellation of the contract, those expenses would have been thrown away. A payment made on account of those expenses would bear the character of a capital receipt.But apart from those and similar instances, it might, in general, be stated that payments made in settlement of rights under a trading contract are trading receipts and are assessable to revenue. But where a person who is carrying on business is prevented from doing so by an external authority in exercise of a paramount power and is awarded compensation therefor, whether that receipt is a capital receipt or a revenue receipt will depend upon whether it is compensation for injury inflicted on a capital asset or on a stock-in-trade.The decision in 1922-14 Tax Cas 427 applies to this category of cases. There, the assessee was carrying on business in the manufacture of fire clay goods and had, for the performance of that business, acquired a fire clay field on lease. The Caledonian Railway which passed over the field prohibited the assessee from excavating the field within a certain distance of the rails, and paid compensation therefor in accordance with the provisions of a statute. It was held by the House of Lords that this was a capital receipt and was not taxable on the ground that the compensation was really the price paid for sterilising the asset from which otherwise profit might have been obtained. That is to say, the fire clay field was a capital asset which was to be utilised for the carrying on of the business of manufacturing fire clay goods and when the assessee was prohibited from exploiting the field, it was an injury inflicted on his capital asset. Where, however, the compensation is referable to injury inflicted on the stock-in-trade, it would be a revenue receipt. Vide Commissioners of Inland Revenue v. Newcastle Breweries, Ltd., 1927-12 Tax Cas 927.The principle of these decisions has no application where the compensation paid is in respect of rights arising under a trading contract. A payment made in settlement of that contract is an adjustment of the rights under that contract, and must be referred to the profits which could be made in the carrying out of that contract24. In the present case, the contract dated May 9, 1940 was simply an agreement to carry on business. In settlement of that contract, Rs. 2,50,000 was paid to the respondent. That was not a payment on account of any capital expenditure incurred by him in the execution of the contract that indeed was the point sought to be raised by the respondent, but therein he has failed. It is also to be noted that at no time was he prevented from carrying on business. Clause 6 of the agreement dated May 9, 1940, contemplates that the respondent was to carry on generally the business of supply of limestone even apart from his work in the Gangapur quarry, and the agreement dated August 2, 1941, provides for his supplying limestone for the furnaces at Kulti for a period of 12 years and for loading iron at Monoharpore for a like period. There was, therefore, at no time any agreement which operated as a bar to the carrying on of business by the respondent25. On a consideration of all the facts established, we are of opinion that the receipt of Rs. 2,50,000 by the respondent is a revenue receipt and is chargeable to tax | 1 | 8,455 | 1,680 | ### 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:
limestone loaded by him, and the business which he had to do to earn the amount was to raise and supply limestone as provided in the agreement. There is here no profit-making apparatus set up by the agreement apart from the business which is to be carried on under it. We are accordingly unable to agree that the present case is governed by the decision in 1935 A C 431. 23. (3) It remains to deal with the contention of the respondent that the business which he was to have carried on under the contract dated 9th May 1950, was practically the entirety of his trading activities, and that the termination of such a contract is tantamount to stopping his doing business and the compensation paid therefor is a capital receipt. Reliance is placed in support of this argument on the decision in, Glenboig Union Fireclay Co. Ltd. v. Commissioners of Inland Revenue, 1922-12 Tax Cas 427.Now, to appreciate the true position, it is necessary to bear in mind the distinction between compensation on account of business carried on under an agreement with a third party when that is terminated, and compensation which is received on account of a business which the assessee is prevented from carrying on by a third person in exercise of an overriding power.In the former case, the payment would in general be a trading receipt referable to the business activities carried on or to be carried on under the agreement and would be taxable as a revenue receipt. There may be exceptions to this. A familiar instance is when the parties agree, as part of the contract to do business, that one of them shall not carry on similar business for a stated period after the termination of the contract, and a compensation is paid therefor. That has been held to be a capital receipt. Vide Beak v. Robson, 1942-25 Tax Cas33. The reason is that it is a payment made not on account of profits which might have been earned in the carrying on of the business but as soltium for not carrying on the business. A payment made in a similar covenant to operate during the period of the contract, however, has been held to be a revenue receipt, because it arises out of the carrying on of the business. Vide Thompson v. Magnesium Elektron Ltd., (1943) 26 Tax Cas 1. It might also happen that one of the parties to the contract might have, in the carrying out thereof, incurred expenses of a capital character and as a result of the cancellation of the contract, those expenses would have been thrown away. A payment made on account of those expenses would bear the character of a capital receipt.But apart from those and similar instances, it might, in general, be stated that payments made in settlement of rights under a trading contract are trading receipts and are assessable to revenue. But where a person who is carrying on business is prevented from doing so by an external authority in exercise of a paramount power and is awarded compensation therefor, whether that receipt is a capital receipt or a revenue receipt will depend upon whether it is compensation for injury inflicted on a capital asset or on a stock-in-trade.The decision in 1922-14 Tax Cas 427 applies to this category of cases. There, the assessee was carrying on business in the manufacture of fire clay goods and had, for the performance of that business, acquired a fire clay field on lease. The Caledonian Railway which passed over the field prohibited the assessee from excavating the field within a certain distance of the rails, and paid compensation therefor in accordance with the provisions of a statute. It was held by the House of Lords that this was a capital receipt and was not taxable on the ground that the compensation was really the price paid for sterilising the asset from which otherwise profit might have been obtained. That is to say, the fire clay field was a capital asset which was to be utilised for the carrying on of the business of manufacturing fire clay goods and when the assessee was prohibited from exploiting the field, it was an injury inflicted on his capital asset. Where, however, the compensation is referable to injury inflicted on the stock-in-trade, it would be a revenue receipt. Vide Commissioners of Inland Revenue v. Newcastle Breweries, Ltd., 1927-12 Tax Cas 927.The principle of these decisions has no application where the compensation paid is in respect of rights arising under a trading contract. A payment made in settlement of that contract is an adjustment of the rights under that contract, and must be referred to the profits which could be made in the carrying out of that contract. 24. In the present case, the contract dated May 9, 1940 was simply an agreement to carry on business. In settlement of that contract, Rs. 2,50,000 was paid to the respondent. That was not a payment on account of any capital expenditure incurred by him in the execution of the contract that indeed was the point sought to be raised by the respondent, but therein he has failed. It is also to be noted that at no time was he prevented from carrying on business. Clause 6 of the agreement dated May 9, 1940, contemplates that the respondent was to carry on generally the business of supply of limestone even apart from his work in the Gangapur quarry, and the agreement dated August 2, 1941, provides for his supplying limestone for the furnaces at Kulti for a period of 12 years and for loading iron at Monoharpore for a like period. There was, therefore, at no time any agreement which operated as a bar to the carrying on of business by the respondent. 25. On a consideration of all the facts established, we are of opinion that the receipt of Rs. 2,50,000 by the respondent is a revenue receipt and is chargeable to tax.
### Response:
1
### Explanation:
per ton of limestone loaded by him, and the business which he had to do to earn the amount was to raise and supply limestone as provided in the agreement. There is here no profit-making apparatus set up by the agreement apart from the business which is to be carried on under it. We are accordingly unable to agree that the present case is governed by the decision in 1935 A C 43123. (3) It remains to deal with the contention of the respondent that the business which he was to have carried on under the contract dated 9th May 1950, was practically the entirety of his trading activities, and that the termination of such a contract is tantamount to stopping his doing business and the compensation paid therefor is a capital receipt. Reliance is placed in support of this argument on the decision in, Glenboig Union Fireclay Co. Ltd. v. Commissioners of Inland Revenue, 1922-12 Tax Cas 427.Now, to appreciate the true position, it is necessary to bear in mind the distinction between compensation on account of business carried on under an agreement with a third party when that is terminated, and compensation which is received on account of a business which the assessee is prevented from carrying on by a third person in exercise of an overriding power.In the former case, the payment would in general be a trading receipt referable to the business activities carried on or to be carried on under the agreement and would be taxable as a revenue receipt. There may be exceptions to this. A familiar instance is when the parties agree, as part of the contract to do business, that one of them shall not carry on similar business for a stated period after the termination of the contract, and a compensation is paid therefor. That has been held to be a capital receipt. Vide Beak v. Robson, 1942-25 Tax Cas33. The reason is that it is a payment made not on account of profits which might have been earned in the carrying on of the business but as soltium for not carrying on the business. A payment made in a similar covenant to operate during the period of the contract, however, has been held to be a revenue receipt, because it arises out of the carrying on of the business. Vide Thompson v. Magnesium Elektron Ltd., (1943) 26 Tax Cas 1. It might also happen that one of the parties to the contract might have, in the carrying out thereof, incurred expenses of a capital character and as a result of the cancellation of the contract, those expenses would have been thrown away. A payment made on account of those expenses would bear the character of a capital receipt.But apart from those and similar instances, it might, in general, be stated that payments made in settlement of rights under a trading contract are trading receipts and are assessable to revenue. But where a person who is carrying on business is prevented from doing so by an external authority in exercise of a paramount power and is awarded compensation therefor, whether that receipt is a capital receipt or a revenue receipt will depend upon whether it is compensation for injury inflicted on a capital asset or on a stock-in-trade.The decision in 1922-14 Tax Cas 427 applies to this category of cases. There, the assessee was carrying on business in the manufacture of fire clay goods and had, for the performance of that business, acquired a fire clay field on lease. The Caledonian Railway which passed over the field prohibited the assessee from excavating the field within a certain distance of the rails, and paid compensation therefor in accordance with the provisions of a statute. It was held by the House of Lords that this was a capital receipt and was not taxable on the ground that the compensation was really the price paid for sterilising the asset from which otherwise profit might have been obtained. That is to say, the fire clay field was a capital asset which was to be utilised for the carrying on of the business of manufacturing fire clay goods and when the assessee was prohibited from exploiting the field, it was an injury inflicted on his capital asset. Where, however, the compensation is referable to injury inflicted on the stock-in-trade, it would be a revenue receipt. Vide Commissioners of Inland Revenue v. Newcastle Breweries, Ltd., 1927-12 Tax Cas 927.The principle of these decisions has no application where the compensation paid is in respect of rights arising under a trading contract. A payment made in settlement of that contract is an adjustment of the rights under that contract, and must be referred to the profits which could be made in the carrying out of that contract24. In the present case, the contract dated May 9, 1940 was simply an agreement to carry on business. In settlement of that contract, Rs. 2,50,000 was paid to the respondent. That was not a payment on account of any capital expenditure incurred by him in the execution of the contract that indeed was the point sought to be raised by the respondent, but therein he has failed. It is also to be noted that at no time was he prevented from carrying on business. Clause 6 of the agreement dated May 9, 1940, contemplates that the respondent was to carry on generally the business of supply of limestone even apart from his work in the Gangapur quarry, and the agreement dated August 2, 1941, provides for his supplying limestone for the furnaces at Kulti for a period of 12 years and for loading iron at Monoharpore for a like period. There was, therefore, at no time any agreement which operated as a bar to the carrying on of business by the respondent25. On a consideration of all the facts established, we are of opinion that the receipt of Rs. 2,50,000 by the respondent is a revenue receipt and is chargeable to tax
|
Competition Commission of India Vs. M/s. Fast Way Transmission Pvt. Ltd. & Others | The Preamble of the Act, read with the aforesaid provisions, would show that the Commission set up by the Competition Act certainly has a positive role to play. A perusal of Sections18 and 19 would show that it is a positive duty of the Commission to eliminate all practices which have an adverse effect on competition. Further the Commission should promote and sustain competition, apart from protecting the interest of consumers, so as to ensure freedom of trade carried on by all participants in markets all over India. Also, a positive role is given to the Commission to inquire, suo motu, into the dominant position of enterprises, and to prohibit anti competitive agreements. Section 60 then gives the Act overriding effect over other statutes in case of a clash between the Act and such statues to effectuate the policy of the Act, keeping in view the economic development of the country as a whole.8. On the facts of the present case, it is clear that "dominant position" is clearly made out. The Explanation to Section 4 specifically refers to a position of strength that is enjoyed by an enterprise or group thereof in the relevant market, which, as is stated hereinbefore, is Punjab and Chandigarh, in the Cable TV market, which enables respondents no. 1-4 to operate independently of competitive forces prevailing in the relevant market. The Commission has found, on facts, that since the aforesaid MSOs group has 85% of the subscribers share in the aforesaid cable TV market in the State of Punjab and Chandigarh, and that they are able to operate independently of competitive forces prevailing in the aforesaid market. This finding has notbeen set aside by the Appellate Tribunal. Also, the respondent would fall within Explanation (a)(ii) as well, though it is enough that it would fall within sub-section a(i) of the Explanation. Sub-section (ii) refers to a position of strength as enjoyed by the respondents which enables them to affect consumers in its favour.9. Replying upon the definition in Section 2(f)(ii), ShriNarsimha, learned ASG has, in our view, correctly argued that a broadcaster would certainly fall within the wide language contained in the aforesaid sub-section. We may also add that in all fairness the learned counsel for the respondent has agreed with the same. This being the case, it is clear that as both sub-sections (i) and (ii) of clause (a) of the Explanation apply, the respondent could be said to be in a "dominant position", for the purpose of Section 4, in the facts of the present case.10. The question which now arises is whether there is an abuse of such dominant position under Section 4(2)(c) where the respondent could be stated to have indulged in a practice resulting in denial of market access in any manner. 11. It can be seen that in the facts of the case, the broadcaster, namely respondent No. 5, had a broadcast agreement which was entered into for a period of one year from 1stAugust, 2010. This was sought to be terminated within the aforesaid period by the respondent by notices dated 19thJanuary, 2011. The TDSAT has, by its order dated 25thApril, 2012, adverted to Regulation 4.2 of the relevant Telecom Regulations, and has found that the respondents have not followed the aforesaid regulations, inasmuch as no reasons for termination have been given in the notices of termination. This being the case, it is clear that, on the present facts, there is an abuse of the dominant position enjoyed by the respondents 1-4 only for the reason that the broadcaster was denied market access on and after 19thFebruary, 2011 until 1st August, 2011. The words "in any manner" one of wide import and must be given their natural meaning. This being the case, it is difficult to appreciate the reasoning of the Appellate Tribunal that, as the broadcaster and MSOs are not in competition with one another, the provisions of Sections 3 and 4 do not get attracted. As has been held by us, the "dominant position" held by the respondent MSOs is clearly established for the purpose of Section 4 in the present case, and the Commission finding in that behalf is also not set aside by the Appellate Tribunal. If this be so, then once a dominant position is made out on facts, whether a broadcaster is in competition with MSOs is a factor that is irrelevant for the purpose of application of Section 4(2)(c) which, as has been found by us, becomes applicable for the simple reason that the broadcaster is denied market access due to an unlawful termination of the agreement between the said broadcaster and the respondents 1-4. 12. Having said this, however, we are of the view that no penalty ought to have been imposed on the facts of the present case. The finding of the Competition Commission that TRP rating of the broadcaster was not so low as it was almost equal to that of other channels, is not correct. In the counter affidavit filed before us by the respondent, they have specifically stated the TAM ratings of the respondent channel, as opposed to other news channels, from the month of September 2010 to January 2011, were as follows: S.No.Name of the ChannelAverage GRP of the Channel during five month period (Sept.’10 – Jan.’11) 1.AAJ TAK33.6 2.Day and Night News3.8 3.IBN724.7 4.MH1 News7.0 5.NDTV India22.5 6.PTC News35.6 7.Star News27.9 8.Zee News21.5 13. A perusal of the aforesaid chart would show that the GRP given to the news channel `Day and Night is much lower than that given to any other channel, and that learned senior counsel for the respondent was correct in stating that this was the reason for terminating the agreement with the broadcaster in mid-stream. Though we find that, on the facts of this case, Section 4(2)(c) has been breached, yet the reason given by respondents 1 to 4 for termination being otherwise justifiable, we feel that no penalty should be levied on the facts of the present case. | 1[ds]7. The Preamble of the Act, read with the aforesaid provisions, would show that the Commission set up by the Competition Act certainly has a positive role to play. A perusal of Sections18 and 19 would show that it is a positive duty of the Commission to eliminate all practices which have an adverse effect on competition. Further the Commission should promote and sustain competition, apart from protecting the interest of consumers, so as to ensure freedom of trade carried on by all participants in markets all over India. Also, a positive role is given to the Commission to inquire, suo motu, into the dominant position of enterprises, and to prohibit anti competitive agreements. Section 60 then gives the Act overriding effect over other statutes in case of a clash between the Act and such statues to effectuate the policy of the Act, keeping in view the economic development of the country as a whole.8. On the facts of the present case, it is clear that "dominant position" is clearly made out. The Explanation to Section 4 specifically refers to a position of strength that is enjoyed by an enterprise or group thereof in the relevant market, which, as is stated hereinbefore, is Punjab and Chandigarh, in the Cable TV market, which enables respondents no.to operate independently of competitive forces prevailing in the relevant market. The Commission has found, on facts, that since the aforesaid MSOs group has 85% of the subscribers share in the aforesaid cable TV market in the State of Punjab and Chandigarh, and that they are able to operate independently of competitive forces prevailing in the aforesaid market. This finding has notbeen set aside by the Appellate Tribunal. Also, the respondent would fall within Explanation (a)(ii) as well, though it is enough that it would fall withina(i) of the Explanation.(ii) refers to a position of strength as enjoyed by the respondents which enables them to affect consumers in its favour.9. Replying upon the definition in Section 2(f)(ii), ShriNarsimha, learned ASG has, in our view, correctly argued that a broadcaster would certainly fall within the wide language contained in the aforesaidWe may also add that in all fairness the learned counsel for the respondent has agreed with the same. This being the case, it is clear that as both(i) and (ii) of clause (a) of the Explanation apply, the respondent could be said to be in a "dominant position", for the purpose of Section 4, in the facts of the present case.It can be seen that in the facts of the case, the broadcaster, namely respondent No. 5, had a broadcast agreement which was entered into for a period of one year from 1stAugust, 2010. This was sought to be terminated within the aforesaid period by the respondent by notices dated 19thJanuary, 2011. The TDSAT has, by its order dated 25thApril, 2012, adverted to Regulation 4.2 of the relevant Telecom Regulations, and has found that the respondents have not followed the aforesaid regulations, inasmuch as no reasons for termination have been given in the notices of termination. This being the case, it is clear that, on the present facts, there is an abuse of the dominant position enjoyed by the respondentsHaving said this, however, we are of the view that no penalty ought to have been imposed on the facts of the present case. The finding of the Competition Commission that TRP rating of the broadcaster was not so low as it was almost equal to that of other channels, is not correct.A perusal of the aforesaid chart would show that the GRP given to the news channel `Day and Night is much lower than that given to any other channel, and that learned senior counsel for the respondent was correct in stating that this was the reason for terminating the agreement with the broadcaster inThough we find that, on the facts of this case, Section 4(2)(c) has been breached, yet the reason given by respondents 1 to 4 for termination being otherwise justifiable, we feel that no penalty should be levied on the facts of the present case. | 1 | 5,120 | 790 | ### 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:
The Preamble of the Act, read with the aforesaid provisions, would show that the Commission set up by the Competition Act certainly has a positive role to play. A perusal of Sections18 and 19 would show that it is a positive duty of the Commission to eliminate all practices which have an adverse effect on competition. Further the Commission should promote and sustain competition, apart from protecting the interest of consumers, so as to ensure freedom of trade carried on by all participants in markets all over India. Also, a positive role is given to the Commission to inquire, suo motu, into the dominant position of enterprises, and to prohibit anti competitive agreements. Section 60 then gives the Act overriding effect over other statutes in case of a clash between the Act and such statues to effectuate the policy of the Act, keeping in view the economic development of the country as a whole.8. On the facts of the present case, it is clear that "dominant position" is clearly made out. The Explanation to Section 4 specifically refers to a position of strength that is enjoyed by an enterprise or group thereof in the relevant market, which, as is stated hereinbefore, is Punjab and Chandigarh, in the Cable TV market, which enables respondents no. 1-4 to operate independently of competitive forces prevailing in the relevant market. The Commission has found, on facts, that since the aforesaid MSOs group has 85% of the subscribers share in the aforesaid cable TV market in the State of Punjab and Chandigarh, and that they are able to operate independently of competitive forces prevailing in the aforesaid market. This finding has notbeen set aside by the Appellate Tribunal. Also, the respondent would fall within Explanation (a)(ii) as well, though it is enough that it would fall within sub-section a(i) of the Explanation. Sub-section (ii) refers to a position of strength as enjoyed by the respondents which enables them to affect consumers in its favour.9. Replying upon the definition in Section 2(f)(ii), ShriNarsimha, learned ASG has, in our view, correctly argued that a broadcaster would certainly fall within the wide language contained in the aforesaid sub-section. We may also add that in all fairness the learned counsel for the respondent has agreed with the same. This being the case, it is clear that as both sub-sections (i) and (ii) of clause (a) of the Explanation apply, the respondent could be said to be in a "dominant position", for the purpose of Section 4, in the facts of the present case.10. The question which now arises is whether there is an abuse of such dominant position under Section 4(2)(c) where the respondent could be stated to have indulged in a practice resulting in denial of market access in any manner. 11. It can be seen that in the facts of the case, the broadcaster, namely respondent No. 5, had a broadcast agreement which was entered into for a period of one year from 1stAugust, 2010. This was sought to be terminated within the aforesaid period by the respondent by notices dated 19thJanuary, 2011. The TDSAT has, by its order dated 25thApril, 2012, adverted to Regulation 4.2 of the relevant Telecom Regulations, and has found that the respondents have not followed the aforesaid regulations, inasmuch as no reasons for termination have been given in the notices of termination. This being the case, it is clear that, on the present facts, there is an abuse of the dominant position enjoyed by the respondents 1-4 only for the reason that the broadcaster was denied market access on and after 19thFebruary, 2011 until 1st August, 2011. The words "in any manner" one of wide import and must be given their natural meaning. This being the case, it is difficult to appreciate the reasoning of the Appellate Tribunal that, as the broadcaster and MSOs are not in competition with one another, the provisions of Sections 3 and 4 do not get attracted. As has been held by us, the "dominant position" held by the respondent MSOs is clearly established for the purpose of Section 4 in the present case, and the Commission finding in that behalf is also not set aside by the Appellate Tribunal. If this be so, then once a dominant position is made out on facts, whether a broadcaster is in competition with MSOs is a factor that is irrelevant for the purpose of application of Section 4(2)(c) which, as has been found by us, becomes applicable for the simple reason that the broadcaster is denied market access due to an unlawful termination of the agreement between the said broadcaster and the respondents 1-4. 12. Having said this, however, we are of the view that no penalty ought to have been imposed on the facts of the present case. The finding of the Competition Commission that TRP rating of the broadcaster was not so low as it was almost equal to that of other channels, is not correct. In the counter affidavit filed before us by the respondent, they have specifically stated the TAM ratings of the respondent channel, as opposed to other news channels, from the month of September 2010 to January 2011, were as follows: S.No.Name of the ChannelAverage GRP of the Channel during five month period (Sept.’10 – Jan.’11) 1.AAJ TAK33.6 2.Day and Night News3.8 3.IBN724.7 4.MH1 News7.0 5.NDTV India22.5 6.PTC News35.6 7.Star News27.9 8.Zee News21.5 13. A perusal of the aforesaid chart would show that the GRP given to the news channel `Day and Night is much lower than that given to any other channel, and that learned senior counsel for the respondent was correct in stating that this was the reason for terminating the agreement with the broadcaster in mid-stream. Though we find that, on the facts of this case, Section 4(2)(c) has been breached, yet the reason given by respondents 1 to 4 for termination being otherwise justifiable, we feel that no penalty should be levied on the facts of the present case.
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### Explanation:
7. The Preamble of the Act, read with the aforesaid provisions, would show that the Commission set up by the Competition Act certainly has a positive role to play. A perusal of Sections18 and 19 would show that it is a positive duty of the Commission to eliminate all practices which have an adverse effect on competition. Further the Commission should promote and sustain competition, apart from protecting the interest of consumers, so as to ensure freedom of trade carried on by all participants in markets all over India. Also, a positive role is given to the Commission to inquire, suo motu, into the dominant position of enterprises, and to prohibit anti competitive agreements. Section 60 then gives the Act overriding effect over other statutes in case of a clash between the Act and such statues to effectuate the policy of the Act, keeping in view the economic development of the country as a whole.8. On the facts of the present case, it is clear that "dominant position" is clearly made out. The Explanation to Section 4 specifically refers to a position of strength that is enjoyed by an enterprise or group thereof in the relevant market, which, as is stated hereinbefore, is Punjab and Chandigarh, in the Cable TV market, which enables respondents no.to operate independently of competitive forces prevailing in the relevant market. The Commission has found, on facts, that since the aforesaid MSOs group has 85% of the subscribers share in the aforesaid cable TV market in the State of Punjab and Chandigarh, and that they are able to operate independently of competitive forces prevailing in the aforesaid market. This finding has notbeen set aside by the Appellate Tribunal. Also, the respondent would fall within Explanation (a)(ii) as well, though it is enough that it would fall withina(i) of the Explanation.(ii) refers to a position of strength as enjoyed by the respondents which enables them to affect consumers in its favour.9. Replying upon the definition in Section 2(f)(ii), ShriNarsimha, learned ASG has, in our view, correctly argued that a broadcaster would certainly fall within the wide language contained in the aforesaidWe may also add that in all fairness the learned counsel for the respondent has agreed with the same. This being the case, it is clear that as both(i) and (ii) of clause (a) of the Explanation apply, the respondent could be said to be in a "dominant position", for the purpose of Section 4, in the facts of the present case.It can be seen that in the facts of the case, the broadcaster, namely respondent No. 5, had a broadcast agreement which was entered into for a period of one year from 1stAugust, 2010. This was sought to be terminated within the aforesaid period by the respondent by notices dated 19thJanuary, 2011. The TDSAT has, by its order dated 25thApril, 2012, adverted to Regulation 4.2 of the relevant Telecom Regulations, and has found that the respondents have not followed the aforesaid regulations, inasmuch as no reasons for termination have been given in the notices of termination. This being the case, it is clear that, on the present facts, there is an abuse of the dominant position enjoyed by the respondentsHaving said this, however, we are of the view that no penalty ought to have been imposed on the facts of the present case. The finding of the Competition Commission that TRP rating of the broadcaster was not so low as it was almost equal to that of other channels, is not correct.A perusal of the aforesaid chart would show that the GRP given to the news channel `Day and Night is much lower than that given to any other channel, and that learned senior counsel for the respondent was correct in stating that this was the reason for terminating the agreement with the broadcaster inThough we find that, on the facts of this case, Section 4(2)(c) has been breached, yet the reason given by respondents 1 to 4 for termination being otherwise justifiable, we feel that no penalty should be levied on the facts of the present case.
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Patel Chunibhai Dajibhai Etc Vs. Narayanrao Khanderao Jambekar Andanother | no ground for interference with the Mahalkaris order. The Collector observed that the appellant had not paid rent for three consecutive years, and his tenancy had been duly terminated by the requisite notice and the findings of the Mahalkari on these points had not been challenged by a regular appeal. The Collector thus upheld and confirmed the Mahalkaris order. He did not specifically deal with the point as to the non-maintainability of the application for eviction in view of the amended S. 32, as the point was not taken either before him or before the Mahalkari. All these orders were passed by the Collector in the exercise of his suo motu power of revision. These orders as also the previous order calling for the record could be passed by the Collector only in the exercise of his revisional power under S. 76A. As he refused to modify, annul or reverse the order of the Mahalkari, he could pass these orders without issuing notice to the respondent No. 2. These orders passed by the Collector in the exercise of his revisional powers were quasi-judicial, and were final. The Act does not empower the Collector to review an order passed by him under. S 76A. In the absence of any power of review the Collector could not subsequently reconsider his previous decisions and hold that there were grounds for annulling or reversing the Mahalkaris order. The subsequent order dated February 17, 1959 reopening the matter was illegal, ultra vires and without jurisdiction. The High Court ought to have quashed the order of the collector dated February 17, 1959 on this ground.24. The High Court was of the opinion that the Collector could exercise his revisional power under S. 76A only after looking into the record of the impugned order of the Mahalkari. We have come to the opposite conclusion. In exercise of his revisional powers under S. 76A, the Collector may or may not call for the record. Without calling for the record and without looking into them, the Collector may, on a perusal of the order along with the representation to him by the aggrieved party or the reference by the Divisional Officer or the State Government, as the case may be, with such other documents as may be submitted to him, come to the conclusion that there is no ground for interference with the impugned order and that, therefore, the order should be confirmed. The contention of the appellant was that the word "thereon" in S. 76A supports the opinion of the High Court. We do not think so. We think that S. 76A(b) means that the Collector is empowered to pass such orders as he deems fit on the legality or propriety of any order passed by any Mamlatdar or tribunal and as to the regularity of the proceedings before them. The Collector can, in our opinion, pass such orders on the materials before him without calling for the record. But having called for the record, the Collector should properly have waited for its arrival before passing any orders. The orders passed by him before the arrival of the record were, however, not without jurisdiction. The mere fact that he called for the records is no ground for saying that he could not thereafter examine the materials before him and pass an order that the order of the Mahalkari or tribunal did not call for interference. By way of analogy, we might point out that if in the case of an application or petition before a Court notice is issued to the respondent to show cause why it should not be granted, the Court is not debarred from dismissing the application or petition without hearing the respondent on the day when it is called for hearing. The calling for the record is no decision which compels the Collector to look into the record before dismissing the petition, though of course he cannot allow the petition without, considering the record and hearing the party supporting the order sought to be revised. However, erroneous those orders of the Collector dismissing the revision might be they were final and could not be reviewed and reopened by him subsequently.25. The High Court also observed that only the act of the final determination by the Collector could be said to be a quasi-judicial act and that his order calling or not calling for the record was not an act of a quasi-judicial nature. But, in the instant case, the Collector not only called for the record but also determined that there was no ground for interference with the Mahalkaris order. The subsequent order of the Collector dated February 17, 1959 reversing the Mahalkaris order was without jurisdiction and was liable to be quashed by the High Court on this ground.26. In the result, the order of the Mahalkari remained the final and operative order, the appellant ceased to be a tenant and could not become the purchaser of the lands on March 1, 1958, when the application filed on March 28, 1957 stood rejected.27. The High Court set aside the Collectors order on the ground that the amended S. 32 could not affect the application for eviction filed on July 10, 1957 and pending when the amending Bombay Act XXXVIII of 1957 came into force; and the application was rightly allowed by the Mahalkari. We have already pointed out that the High Court was in error in quashing the Collectors order on this ground. But this High Court should have set aside the Collectors order on the ground that having already decided that there was no ground for interference with the Mahalkaris order, the Collector could not subsequently revised that order. We, therefore hold that the Collectors order was liable to be quashed, though on grounds different from those on which the High Court proceeded. On this ground in all these appeals the order of the High Court setting aside the order of the Collector and restoring that of the Mahalkari should be affirmed. | 0[ds]Now, on April 1, 1957 the application filed by respondent No. 1 under S. 29 read with S. 31 was pending. Consequently, the appellant could not be deemed to have purchased the lands on April 1, 1957.20. But the application under S. 29 read with S. 14 was not maintainable, as it was filed after April 1, 1957. On this point, we adopt the reasoning and conclusion of the Full Bench of the Bombay High Court in Ramchandra Anant v. Janardan 64 Bom LR 635: (AIR 1963 Bom 79 ). We agree with the following observations of Chainani, C. J., in the aforesaidhas been contended that as there is no provision in the Act that an application on the grounds mentioned in S. 14 cannot be made after April 1, 1957, such an application is maintainable, for since the Legislature has preserved the right to make such an application, it could not have intended that it should not be availed of in any case. There is undoubtedly force in this argument, but it seems to us that the intention of the Legislature in enacting S. 32 clearly was to transfer the ownership of the lands to the tenants on April 1, 1957, except in cases where applications for possession had been made by the landlords before April 1, 1957. Where such an application had been made, the right of purchase given to the tenant is postponed until that application is rejected. It is clear from this section that the Legislature did not intend that the right given to a tenant by this section should be destroyed or affected by any application made after April 1, 1957 if an application for possession made under S. 29 read with S. 14 after April 1, 1957 is decided in favour of the landlord before the application made by him prior to April 1, 1957 is disposed of, it will affect the right of the tenant to become the owner of the land on the postponed date. It seems to us that this was not intended by the Legislature. The fact that the Legislature has provided that only an application made prior to April 1, 1957, should affect the right of the tenant to become the purchaser of the land on April 1, 1957 clearly indicates that the Legislature contemplated that no such application should be made after April 1, 1957.On this construction of S. 32 (1) it would appear that the application under S. 29 read with S. 14 filed on July 10, 1957 was not maintainable since September 22, 1957, when the amending Bombay Act XXXVIII of 1957 came into force. It is true that on July 10, 1957 the other application under S. 29 read with S. 31 was pending, and consequently the appellant was still a tenant and had not become the purchaser. But S. 32 bars all applications filed after April 1, 1957, and it matters not that the application is made against a person who is still thethis contention found favour with the High Court, we are unable to accept it. Section 34 of Bombay Act XXXVIII of 1957 provided that the aforesaid amendment of S. 32 "shall be deemed to have been made and should have come into force on the date on which the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1955 came into force". Now, the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1955 came into force on August 1, 1956. The amended S. 32 must, therefore, be deemed to have been made and to have come into force on August 1, 1956. The section saves all application pending on April 1, 1957, but by necessary implication, it bars all applications filed on and after April 1, 1957. The bar takes within its sweep all applications filed on and after April 1, 1957 whether or not such an application was pending on September 22, 1957; no exception is made in favour of applications filed between April 1 and September 22, 1957 and pending on September 22, 1957. Consequently, the application filed on July 10, 1957, though pending on September 22, 1957, was not maintainable and ought to have been dismissed by thethe instant case, there was no reference by any authority. The Collector could still exercise his revisional powers but he seldom exercises such powers unless some irregularity or illegality is brought to his notice by the aggrieved party. Though S. 76A, unlike S. 76, does not provide for an application for revision by the aggrieved party, the appellant properly drew the attention of the Collector to his grievances and asked him to exercise his revisional powers under S. 76A. Having perused the applications for revision filed by the appellant, the Collector decided to exercise his suo motu powers and called for the record on August 14, 1958 within one year of the order of the Mahalkari. But before the record arrived and without looking into the record, the Collector passed orders on October 3, October 4 and October 17, 1958 rejecting the applications for revision. By these orders, the Collector decided that there was no ground for interference with the Mahalkaris order. The Collector observed that the appellant had not paid rent for three consecutive years, and his tenancy had been duly terminated by the requisite notice and the findings of the Mahalkari on these points had not been challenged by a regular appeal. The Collector thus upheld and confirmed the Mahalkaris order. He did not specifically deal with the point as to theof the application for eviction in view of the amended S. 32, as the point was not taken either before him or before the Mahalkari. All these orders were passed by the Collector in the exercise of his suo motu power of revision. These orders as also the previous order calling for the record could be passed by the Collector only in the exercise of his revisional power under S. 76A. As he refused to modify, annul or reverse the order of the Mahalkari, he could pass these orders without issuing notice to the respondent No. 2. These orders passed by the Collector in the exercise of his revisional powers wereand were final. The Act does not empower the Collector to review an order passed by him under. S 76A. In the absence of any power of review the Collector could not subsequently reconsider his previous decisions and hold that there were grounds for annulling or reversing the Mahalkaris order. The subsequent order dated February 17, 1959 reopening the matter was illegal, ultra vires and without jurisdiction. The High Court ought to have quashed the order of the collector dated February 17, 1959 on this ground.24. The High Court was of the opinion that the Collector could exercise his revisional power under S. 76A only after looking into the record of the impugned order of the Mahalkari. We have come to the opposite conclusion. In exercise of his revisional powers under S. 76A, the Collector may or may not call for the record. Without calling for the record and without looking into them, the Collector may, on a perusal of the order along with the representation to him by the aggrieved party or the reference by the Divisional Officer or the State Government, as the case may be, with such other documents as may be submitted to him, come to the conclusion that there is no ground for interference with the impugned order and that, therefore, the order should be confirmed. The contention of the appellant was that the word "thereon" in S. 76A supports the opinion of the High Court. We do not think so. We think that S. 76A(b) means that the Collector is empowered to pass such orders as he deems fit on the legality or propriety of any order passed by any Mamlatdar or tribunal and as to the regularity of the proceedings before them. The Collector can, in our opinion, pass such orders on the materials before him without calling for the record. But having called for the record, the Collector should properly have waited for its arrival before passing any orders. The orders passed by him before the arrival of the record were, however, not without jurisdiction. The mere fact that he called for the records is no ground for saying that he could not thereafter examine the materials before him and pass an order that the order of the Mahalkari or tribunal did not call for interference. By way of analogy, we might point out that if in the case of an application or petition before a Court notice is issued to the respondent to show cause why it should not be granted, the Court is not debarred from dismissing the application or petition without hearing the respondent on the day when it is called for hearing. The calling for the record is no decision which compels the Collector to look into the record before dismissing the petition, though of course he cannot allow the petition without, considering the record and hearing the party supporting the order sought to be revised. However, erroneous those orders of the Collector dismissing the revision might be they were final and could not be reviewed and reopened by him subsequently.25. The High Court also observed that only the act of the final determination by the Collector could be said to be aact and that his order calling or not calling for the record was not an act of anature. But, in the instant case, the Collector not only called for the record but also determined that there was no ground for interference with the Mahalkaris order. The subsequent order of the Collector dated February 17, 1959 reversing the Mahalkaris order was without jurisdiction and was liable to be quashed by the High Court on this ground.26. In the result, the order of the Mahalkari remained the final and operative order, the appellant ceased to be a tenant and could not become the purchaser of the lands on March 1, 1958, when the application filed on March 28, 1957 stood rejected.27. The High Court set aside the Collectors order on the ground that the amended S. 32 could not affect the application for eviction filed on July 10, 1957 and pending when the amending Bombay Act XXXVIII of 1957 came into force; and the application was rightly allowed by the Mahalkari. We have already pointed out that the High Court was in error in quashing the Collectors order on this ground. But this High Court should have set aside the Collectors order on the ground that having already decided that there was no ground for interference with the Mahalkaris order, the Collector could not subsequently revised that order. We, therefore hold that the Collectors order was liable to be quashed, though on grounds different from those on which the High Court proceeded. On this ground in all these appeals the order of the High Court setting aside the order of the Collector and restoring that of the Mahalkari should be affirmed. | 0 | 9,659 | 2,026 | ### 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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no ground for interference with the Mahalkaris order. The Collector observed that the appellant had not paid rent for three consecutive years, and his tenancy had been duly terminated by the requisite notice and the findings of the Mahalkari on these points had not been challenged by a regular appeal. The Collector thus upheld and confirmed the Mahalkaris order. He did not specifically deal with the point as to the non-maintainability of the application for eviction in view of the amended S. 32, as the point was not taken either before him or before the Mahalkari. All these orders were passed by the Collector in the exercise of his suo motu power of revision. These orders as also the previous order calling for the record could be passed by the Collector only in the exercise of his revisional power under S. 76A. As he refused to modify, annul or reverse the order of the Mahalkari, he could pass these orders without issuing notice to the respondent No. 2. These orders passed by the Collector in the exercise of his revisional powers were quasi-judicial, and were final. The Act does not empower the Collector to review an order passed by him under. S 76A. In the absence of any power of review the Collector could not subsequently reconsider his previous decisions and hold that there were grounds for annulling or reversing the Mahalkaris order. The subsequent order dated February 17, 1959 reopening the matter was illegal, ultra vires and without jurisdiction. The High Court ought to have quashed the order of the collector dated February 17, 1959 on this ground.24. The High Court was of the opinion that the Collector could exercise his revisional power under S. 76A only after looking into the record of the impugned order of the Mahalkari. We have come to the opposite conclusion. In exercise of his revisional powers under S. 76A, the Collector may or may not call for the record. Without calling for the record and without looking into them, the Collector may, on a perusal of the order along with the representation to him by the aggrieved party or the reference by the Divisional Officer or the State Government, as the case may be, with such other documents as may be submitted to him, come to the conclusion that there is no ground for interference with the impugned order and that, therefore, the order should be confirmed. The contention of the appellant was that the word "thereon" in S. 76A supports the opinion of the High Court. We do not think so. We think that S. 76A(b) means that the Collector is empowered to pass such orders as he deems fit on the legality or propriety of any order passed by any Mamlatdar or tribunal and as to the regularity of the proceedings before them. The Collector can, in our opinion, pass such orders on the materials before him without calling for the record. But having called for the record, the Collector should properly have waited for its arrival before passing any orders. The orders passed by him before the arrival of the record were, however, not without jurisdiction. The mere fact that he called for the records is no ground for saying that he could not thereafter examine the materials before him and pass an order that the order of the Mahalkari or tribunal did not call for interference. By way of analogy, we might point out that if in the case of an application or petition before a Court notice is issued to the respondent to show cause why it should not be granted, the Court is not debarred from dismissing the application or petition without hearing the respondent on the day when it is called for hearing. The calling for the record is no decision which compels the Collector to look into the record before dismissing the petition, though of course he cannot allow the petition without, considering the record and hearing the party supporting the order sought to be revised. However, erroneous those orders of the Collector dismissing the revision might be they were final and could not be reviewed and reopened by him subsequently.25. The High Court also observed that only the act of the final determination by the Collector could be said to be a quasi-judicial act and that his order calling or not calling for the record was not an act of a quasi-judicial nature. But, in the instant case, the Collector not only called for the record but also determined that there was no ground for interference with the Mahalkaris order. The subsequent order of the Collector dated February 17, 1959 reversing the Mahalkaris order was without jurisdiction and was liable to be quashed by the High Court on this ground.26. In the result, the order of the Mahalkari remained the final and operative order, the appellant ceased to be a tenant and could not become the purchaser of the lands on March 1, 1958, when the application filed on March 28, 1957 stood rejected.27. The High Court set aside the Collectors order on the ground that the amended S. 32 could not affect the application for eviction filed on July 10, 1957 and pending when the amending Bombay Act XXXVIII of 1957 came into force; and the application was rightly allowed by the Mahalkari. We have already pointed out that the High Court was in error in quashing the Collectors order on this ground. But this High Court should have set aside the Collectors order on the ground that having already decided that there was no ground for interference with the Mahalkaris order, the Collector could not subsequently revised that order. We, therefore hold that the Collectors order was liable to be quashed, though on grounds different from those on which the High Court proceeded. On this ground in all these appeals the order of the High Court setting aside the order of the Collector and restoring that of the Mahalkari should be affirmed.
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these orders, the Collector decided that there was no ground for interference with the Mahalkaris order. The Collector observed that the appellant had not paid rent for three consecutive years, and his tenancy had been duly terminated by the requisite notice and the findings of the Mahalkari on these points had not been challenged by a regular appeal. The Collector thus upheld and confirmed the Mahalkaris order. He did not specifically deal with the point as to theof the application for eviction in view of the amended S. 32, as the point was not taken either before him or before the Mahalkari. All these orders were passed by the Collector in the exercise of his suo motu power of revision. These orders as also the previous order calling for the record could be passed by the Collector only in the exercise of his revisional power under S. 76A. As he refused to modify, annul or reverse the order of the Mahalkari, he could pass these orders without issuing notice to the respondent No. 2. These orders passed by the Collector in the exercise of his revisional powers wereand were final. The Act does not empower the Collector to review an order passed by him under. S 76A. In the absence of any power of review the Collector could not subsequently reconsider his previous decisions and hold that there were grounds for annulling or reversing the Mahalkaris order. The subsequent order dated February 17, 1959 reopening the matter was illegal, ultra vires and without jurisdiction. The High Court ought to have quashed the order of the collector dated February 17, 1959 on this ground.24. The High Court was of the opinion that the Collector could exercise his revisional power under S. 76A only after looking into the record of the impugned order of the Mahalkari. We have come to the opposite conclusion. In exercise of his revisional powers under S. 76A, the Collector may or may not call for the record. Without calling for the record and without looking into them, the Collector may, on a perusal of the order along with the representation to him by the aggrieved party or the reference by the Divisional Officer or the State Government, as the case may be, with such other documents as may be submitted to him, come to the conclusion that there is no ground for interference with the impugned order and that, therefore, the order should be confirmed. The contention of the appellant was that the word "thereon" in S. 76A supports the opinion of the High Court. We do not think so. We think that S. 76A(b) means that the Collector is empowered to pass such orders as he deems fit on the legality or propriety of any order passed by any Mamlatdar or tribunal and as to the regularity of the proceedings before them. The Collector can, in our opinion, pass such orders on the materials before him without calling for the record. But having called for the record, the Collector should properly have waited for its arrival before passing any orders. The orders passed by him before the arrival of the record were, however, not without jurisdiction. The mere fact that he called for the records is no ground for saying that he could not thereafter examine the materials before him and pass an order that the order of the Mahalkari or tribunal did not call for interference. By way of analogy, we might point out that if in the case of an application or petition before a Court notice is issued to the respondent to show cause why it should not be granted, the Court is not debarred from dismissing the application or petition without hearing the respondent on the day when it is called for hearing. The calling for the record is no decision which compels the Collector to look into the record before dismissing the petition, though of course he cannot allow the petition without, considering the record and hearing the party supporting the order sought to be revised. However, erroneous those orders of the Collector dismissing the revision might be they were final and could not be reviewed and reopened by him subsequently.25. The High Court also observed that only the act of the final determination by the Collector could be said to be aact and that his order calling or not calling for the record was not an act of anature. But, in the instant case, the Collector not only called for the record but also determined that there was no ground for interference with the Mahalkaris order. The subsequent order of the Collector dated February 17, 1959 reversing the Mahalkaris order was without jurisdiction and was liable to be quashed by the High Court on this ground.26. In the result, the order of the Mahalkari remained the final and operative order, the appellant ceased to be a tenant and could not become the purchaser of the lands on March 1, 1958, when the application filed on March 28, 1957 stood rejected.27. The High Court set aside the Collectors order on the ground that the amended S. 32 could not affect the application for eviction filed on July 10, 1957 and pending when the amending Bombay Act XXXVIII of 1957 came into force; and the application was rightly allowed by the Mahalkari. We have already pointed out that the High Court was in error in quashing the Collectors order on this ground. But this High Court should have set aside the Collectors order on the ground that having already decided that there was no ground for interference with the Mahalkaris order, the Collector could not subsequently revised that order. We, therefore hold that the Collectors order was liable to be quashed, though on grounds different from those on which the High Court proceeded. On this ground in all these appeals the order of the High Court setting aside the order of the Collector and restoring that of the Mahalkari should be affirmed.
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Janak Raj Vs. Gurdial Singh And Anr | has been set aside in appeal, but there is no general principle which would give him a similar right to look to a third party who has for good consideration purchased the property sold through the Court." In S. Chokalingam v. N. S. Krishna, AIR 1964 Mad 404 . there was a Letters Patent Appeal out of restitution proceedings in the Sub-Court at Madurai. The first respondent was the judgment-debtor, the second respondent was the decree-holder-purchaser and the appellant was a purchaser from the decree-holder-purchaser. A Division Bench of the Madras High Court observed:"If the purchaser were to lose the benefit or his purchase on the contingency of the subsequent reversal of the decree, there will be no inducement to the intending purchasers to buy at execution sale and consequently the property would not fetch its proper price at such sales, and the net result would be that the judgment-debtor would be the ultimate sufferer. This wise policy of protecting the title of the stranger purchaser, even though in any individual case it may work some hardship, is clearly conceived in the interests of the general body of judgment-debtors so that purchasers will freely bid at the auction without any fear of late objection. But in the case of a decree-holder-purchaser the rule is different and in that case the purchase is subject to the final result of the litigation between the decree-holder and the judgment-debtor. 19. In Lalji Sah v. Sat Narain, AIR 1962, Pat 182, the Patna High Court held that auction sale of property belonging to a minor for grossly inadequate price due to gross negligence of the guardian would not affect the auction purchaser for value who was not a creature of the decree-holder and a suit to set aside such sale did not lie. 20. In Mani Lal v. Ganga Prasad, AIR 1951 All 832 , it was held that the mere fact that the auction purchaser knew that the judgment-debtor had filed an appeal against the decree in which the sale was held would not affect the bona fide nature of his purchase even if the decree was ultimately reversed. 21. In Abdul Rahim v. Abdul Haq, AIR 1936 Lah 191, which was a decision of a single Judge of the Lahore High Court, it was held that the sale in execution of a decree could not be set aside merely on the ground that after the date of the sale but before its confirmation, the judgment-debtor was declared to be a member of an agricultural tribe entitled to protection under the provisions of the Punjab Alienation of Land Act. 22. All the judgments so far noticed are against the contention of the respondent. Our attention was, however, drawn to a judgment of the Calcutta High Court in Baburam Lal v. Debdas Lala, AIR 1959 Cal 73 . There is an observation to the effect that where the lower Courts decree has been reversed in appeal, the execution proceedings cannot go on. In that case, there was no sale in execution and the question before the Court was, whether the plaintiff should be allowed to proceed with the execution of a decree for Rs. 1,493-1-6 when as the result of the final decree it was found that the defendant was entitled to Rs. 1,589-0-8 as owelty money from the decree-holder. 23. The decision in Ariatullah v. Seshi Bhusan, AIR 1920 Cal 99, cited by the respondent is really of no help. There a sale was held in execution of a decree for an amount in respect of which there was no decree existing at the time. It was observed that the fact that subsequently to the sale the decree-holder obtained a decree entitling him to the amount for which the sale was held would not validate the sale. 24. For the reasons already given and the decisions noticed, it must be held that the appellant-auction purchaser was entitled to a confirmation of the sale notwithstanding the fact that after the holding of the sale the decree had been set aside. The policy of the Legislature seems to be that unless a stranger auction purchaser is protected against the vicissitudes of the fortunes of the suit, sales in execution would not attract customers and it would be to the detriment of the interest of the borrower and the credition alike if sales were allowed to be impugned merely because the decree was ultimately set aside or modified. The Code of Civil Procedure of 1908 make ample provision for the protection of the interest of the judgment-debtor who feels that the decree ought not to have been passed against him. On the facts of this case, it is difficult to see why the judgment debtor did not take resort to the provision of O. XXI, R. 89.The decree was for small amount and he could have easily deposited the decretal amount besides 5 per cent of the purchase money and thus have the sale set aside. For reasons which are not known to us he did not do so. 25. Lastly, it was contended that the amendment of S. 47 of the Code of Civil Procedure altered the whole situation inasmuch as by the Amending Act of 1956 auction purchasers are to be treated as parties to the suit. We are not here concerned with the question as to whether restitution can be asked for against a stranger auction purchaser at a sale in execution of a decree under S. 144 of the Code of Civil Procedure and express no opinion thereon. In our opinion, on the facts of this case, the sale must be confirmed. 26. Although we have noticed some decisions where the right of the auction purchaser decree-holder in circumstances similar to the case before us was discussed or the right of a purchaser in regard to a sale held after the setting aside of the decree was touched upon, our judgment must not be taken as adjudication upon any of these points. | 1[ds]So far as sales of immovable property are concerned there are some specie provisions in O. XXI beginning with R. 82 and ending with R. 103. If a sale had been validly held, an application for setting the same aside can only be made under the provisions of Rr. 89 to 91 of O. XXI. As is well known, R. 89 gives a judgment-debtor the right to have the sale set aside on his depositing in Court a sum equal to five per cent of the purchase money fetched at the sale besides the amount specified in the proclamation of sale as that for the recovery which the sale was ordered, less any amount which may, since the date of sale, have been received by the decree-holder. Under sub-r . (2) of R.92 the Court is obliged to make an order setting aside the sale if a proper application under R. 89 is made accompanied by a deposit within 30 days from the date of sale. Apart from the provision of R. 89, the judgment-debtor has the right to apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it provided he can satisfy the Court that he has sustained substantial injury by reason of such irregularity or fraud. Under R. 91 it is open to the purchaser to apply to the Court to set aside the sale on the ground that the judgment-debtor had no saleable interest in the property soldRule 92 provides that where no application is made under any of the rules just now mentioned or where such application is made and disallowed the Court shall make an order confirming the sale and thereupon the sale shall become absolute. Rule 94 provides that where the sale of immovable property has become absolute, the Court must grant a certificate specifying the property sold and the name of the person who at the time of sale was declared to be the purchaser. Such certificate is to bear date the day on which the sale becomes absolute. Section 65 of the Code of Civil Procedure lays down that where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when it is sold and not from the time when the sale becomes absolute. The result is that the purchasers title relates back to the date of sale and not the confirmation of sale. There is no provision in the Code of Civil Procedure of 1908 either under O. XXI or elsewhere which provides that the sale is not to be confirmed if it be found that the decree under which the sale as ordered has been reversed before the confirmation of sale. It does not seem ever to have been doubted that once the sale is confirmed the judgment-debtor is not entitled to get back the property even if he succeeds thereafter in having the decree against him reversed. The question is, whether the same result ought to follow when the reversal of the decree takes place before the confirmation of sale5. There does not seem to be any valid reason for making a distinction between the two cases. It is certainly hard on the defendant-judgment-debtor to have to lose his property on the basis of a sale held in execution of a decree which is not ultimately upheld. Once, however, it is held that he cannot complain after confirmation of sale, there seems to be no reason why he should be allowed to do so because the decree was reversed before such confirmation. The Code of Civil Procedure of 1908 contains elaborate provisions which have to be followed in cases of sales of property in execution of a decree. It also lays down how and in what manner such sales may be set aside. Ordinarily, if no application for setting aside a sale is made under any of the provisions of Rr. 89 to 91 of O. XXI, or when any application under any of these rules is made and disallowed, the Court has no choice in the matter of confirming the sale and the sale must be made absolute. If it was the intention of the Legislature that the sale was not to be made absolute because the decree had ceased to exist, we should have expected a provision to that effect either in O. XXI or in Part II of the Code of Civil Procedure of 1908 which contains Ss. 36 to 74 (inclusive)6. It is to be noted, however, that there may be cases in which, apart from the provisions of Rr. 89 to 91, the Court may refuse to confirm a sale, as, for instance, where a sale is held without giving notice to the judgment-debtor, or where the Court is misled in fixing the reserve price or when there was no decree in existence at the time when the sale was held. Leaving aside cases like these, a sale can only be set aside when an application under R. 89 or R. 90 or R. 91 of O. XXI has been successfully made22. All the judgments so far noticed are against the contention of the respondent. Our attention was, however, drawn to a judgment of the Calcutta High Court in Baburam Lal v. Debdas Lala, AIR 1959 Cal 73 . There is an observation to the effect that where the lower Courts decree has been reversed in appeal, the execution proceedings cannot go on. In that case, there was no sale in execution and the question before the Court was, whether the plaintiff should be allowed to proceed with the execution of a decree for Rs. 1,493-1-6 when as the result of the final decree it was found that the defendant was entitled to Rs. 1,589-0-8 as owelty money from the decree-holder23. The decision in Ariatullah v. Seshi Bhusan, AIR 1920 Cal 99, cited by the respondent is really of no help. There a sale was held in execution of a decree for an amount in respect of which there was no decree existing at the time. It was observed that the fact that subsequently to the sale the decree-holder obtained a decree entitling him to the amount for which the sale was held would not validate the sale24. For the reasons already given and the decisions noticed, it must be held that the appellant-auction purchaser was entitled to a confirmation of the sale notwithstanding the fact that after the holding of the sale the decree had been set aside. The policy of the Legislature seems to be that unless a stranger auction purchaser is protected against the vicissitudes of the fortunes of the suit, sales in execution would not attract customers and it would be to the detriment of the interest of the borrower and the credition alike if sales were allowed to be impugned merely because the decree was ultimately set aside or modified. The Code of Civil Procedure of 1908 make ample provision for the protection of the interest of the judgment-debtor who feels that the decree ought not to have been passed against him. On the facts of this case, it is difficult to see why the judgment debtor did not take resort to the provision of O. XXI, R. 89.The decree was for small amount and he could have easily deposited the decretal amount besides 5 per cent of the purchase money and thus have the sale set aside. For reasons which are not known to us he did not do so25. Lastly, it was contended that the amendment of S. 47 of the Code of Civil Procedure altered the whole situation inasmuch as by the Amending Act of 1956 auction purchasers are to be treated as parties to the suit. We are not here concerned with the question as to whether restitution can be asked for against a stranger auction purchaser at a sale in execution of a decree under S. 144 of the Code of Civil Procedure and express no opinion thereon. In our opinion, on the facts of this case, the sale must be confirmed26. Although we have noticed some decisions where the right of the auction purchaser decree-holder in circumstances similar to the case before us was discussed or the right of a purchaser in regard to a sale held after the setting aside of the decree was touched upon, our judgment must not be taken as adjudication upon any of these points. | 1 | 5,023 | 1,524 | ### Instruction:
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has been set aside in appeal, but there is no general principle which would give him a similar right to look to a third party who has for good consideration purchased the property sold through the Court." In S. Chokalingam v. N. S. Krishna, AIR 1964 Mad 404 . there was a Letters Patent Appeal out of restitution proceedings in the Sub-Court at Madurai. The first respondent was the judgment-debtor, the second respondent was the decree-holder-purchaser and the appellant was a purchaser from the decree-holder-purchaser. A Division Bench of the Madras High Court observed:"If the purchaser were to lose the benefit or his purchase on the contingency of the subsequent reversal of the decree, there will be no inducement to the intending purchasers to buy at execution sale and consequently the property would not fetch its proper price at such sales, and the net result would be that the judgment-debtor would be the ultimate sufferer. This wise policy of protecting the title of the stranger purchaser, even though in any individual case it may work some hardship, is clearly conceived in the interests of the general body of judgment-debtors so that purchasers will freely bid at the auction without any fear of late objection. But in the case of a decree-holder-purchaser the rule is different and in that case the purchase is subject to the final result of the litigation between the decree-holder and the judgment-debtor. 19. In Lalji Sah v. Sat Narain, AIR 1962, Pat 182, the Patna High Court held that auction sale of property belonging to a minor for grossly inadequate price due to gross negligence of the guardian would not affect the auction purchaser for value who was not a creature of the decree-holder and a suit to set aside such sale did not lie. 20. In Mani Lal v. Ganga Prasad, AIR 1951 All 832 , it was held that the mere fact that the auction purchaser knew that the judgment-debtor had filed an appeal against the decree in which the sale was held would not affect the bona fide nature of his purchase even if the decree was ultimately reversed. 21. In Abdul Rahim v. Abdul Haq, AIR 1936 Lah 191, which was a decision of a single Judge of the Lahore High Court, it was held that the sale in execution of a decree could not be set aside merely on the ground that after the date of the sale but before its confirmation, the judgment-debtor was declared to be a member of an agricultural tribe entitled to protection under the provisions of the Punjab Alienation of Land Act. 22. All the judgments so far noticed are against the contention of the respondent. Our attention was, however, drawn to a judgment of the Calcutta High Court in Baburam Lal v. Debdas Lala, AIR 1959 Cal 73 . There is an observation to the effect that where the lower Courts decree has been reversed in appeal, the execution proceedings cannot go on. In that case, there was no sale in execution and the question before the Court was, whether the plaintiff should be allowed to proceed with the execution of a decree for Rs. 1,493-1-6 when as the result of the final decree it was found that the defendant was entitled to Rs. 1,589-0-8 as owelty money from the decree-holder. 23. The decision in Ariatullah v. Seshi Bhusan, AIR 1920 Cal 99, cited by the respondent is really of no help. There a sale was held in execution of a decree for an amount in respect of which there was no decree existing at the time. It was observed that the fact that subsequently to the sale the decree-holder obtained a decree entitling him to the amount for which the sale was held would not validate the sale. 24. For the reasons already given and the decisions noticed, it must be held that the appellant-auction purchaser was entitled to a confirmation of the sale notwithstanding the fact that after the holding of the sale the decree had been set aside. The policy of the Legislature seems to be that unless a stranger auction purchaser is protected against the vicissitudes of the fortunes of the suit, sales in execution would not attract customers and it would be to the detriment of the interest of the borrower and the credition alike if sales were allowed to be impugned merely because the decree was ultimately set aside or modified. The Code of Civil Procedure of 1908 make ample provision for the protection of the interest of the judgment-debtor who feels that the decree ought not to have been passed against him. On the facts of this case, it is difficult to see why the judgment debtor did not take resort to the provision of O. XXI, R. 89.The decree was for small amount and he could have easily deposited the decretal amount besides 5 per cent of the purchase money and thus have the sale set aside. For reasons which are not known to us he did not do so. 25. Lastly, it was contended that the amendment of S. 47 of the Code of Civil Procedure altered the whole situation inasmuch as by the Amending Act of 1956 auction purchasers are to be treated as parties to the suit. We are not here concerned with the question as to whether restitution can be asked for against a stranger auction purchaser at a sale in execution of a decree under S. 144 of the Code of Civil Procedure and express no opinion thereon. In our opinion, on the facts of this case, the sale must be confirmed. 26. Although we have noticed some decisions where the right of the auction purchaser decree-holder in circumstances similar to the case before us was discussed or the right of a purchaser in regard to a sale held after the setting aside of the decree was touched upon, our judgment must not be taken as adjudication upon any of these points.
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Code of Civil Procedure of 1908 either under O. XXI or elsewhere which provides that the sale is not to be confirmed if it be found that the decree under which the sale as ordered has been reversed before the confirmation of sale. It does not seem ever to have been doubted that once the sale is confirmed the judgment-debtor is not entitled to get back the property even if he succeeds thereafter in having the decree against him reversed. The question is, whether the same result ought to follow when the reversal of the decree takes place before the confirmation of sale5. There does not seem to be any valid reason for making a distinction between the two cases. It is certainly hard on the defendant-judgment-debtor to have to lose his property on the basis of a sale held in execution of a decree which is not ultimately upheld. Once, however, it is held that he cannot complain after confirmation of sale, there seems to be no reason why he should be allowed to do so because the decree was reversed before such confirmation. The Code of Civil Procedure of 1908 contains elaborate provisions which have to be followed in cases of sales of property in execution of a decree. It also lays down how and in what manner such sales may be set aside. Ordinarily, if no application for setting aside a sale is made under any of the provisions of Rr. 89 to 91 of O. XXI, or when any application under any of these rules is made and disallowed, the Court has no choice in the matter of confirming the sale and the sale must be made absolute. If it was the intention of the Legislature that the sale was not to be made absolute because the decree had ceased to exist, we should have expected a provision to that effect either in O. XXI or in Part II of the Code of Civil Procedure of 1908 which contains Ss. 36 to 74 (inclusive)6. It is to be noted, however, that there may be cases in which, apart from the provisions of Rr. 89 to 91, the Court may refuse to confirm a sale, as, for instance, where a sale is held without giving notice to the judgment-debtor, or where the Court is misled in fixing the reserve price or when there was no decree in existence at the time when the sale was held. Leaving aside cases like these, a sale can only be set aside when an application under R. 89 or R. 90 or R. 91 of O. XXI has been successfully made22. All the judgments so far noticed are against the contention of the respondent. Our attention was, however, drawn to a judgment of the Calcutta High Court in Baburam Lal v. Debdas Lala, AIR 1959 Cal 73 . There is an observation to the effect that where the lower Courts decree has been reversed in appeal, the execution proceedings cannot go on. In that case, there was no sale in execution and the question before the Court was, whether the plaintiff should be allowed to proceed with the execution of a decree for Rs. 1,493-1-6 when as the result of the final decree it was found that the defendant was entitled to Rs. 1,589-0-8 as owelty money from the decree-holder23. The decision in Ariatullah v. Seshi Bhusan, AIR 1920 Cal 99, cited by the respondent is really of no help. There a sale was held in execution of a decree for an amount in respect of which there was no decree existing at the time. It was observed that the fact that subsequently to the sale the decree-holder obtained a decree entitling him to the amount for which the sale was held would not validate the sale24. For the reasons already given and the decisions noticed, it must be held that the appellant-auction purchaser was entitled to a confirmation of the sale notwithstanding the fact that after the holding of the sale the decree had been set aside. The policy of the Legislature seems to be that unless a stranger auction purchaser is protected against the vicissitudes of the fortunes of the suit, sales in execution would not attract customers and it would be to the detriment of the interest of the borrower and the credition alike if sales were allowed to be impugned merely because the decree was ultimately set aside or modified. The Code of Civil Procedure of 1908 make ample provision for the protection of the interest of the judgment-debtor who feels that the decree ought not to have been passed against him. On the facts of this case, it is difficult to see why the judgment debtor did not take resort to the provision of O. XXI, R. 89.The decree was for small amount and he could have easily deposited the decretal amount besides 5 per cent of the purchase money and thus have the sale set aside. For reasons which are not known to us he did not do so25. Lastly, it was contended that the amendment of S. 47 of the Code of Civil Procedure altered the whole situation inasmuch as by the Amending Act of 1956 auction purchasers are to be treated as parties to the suit. We are not here concerned with the question as to whether restitution can be asked for against a stranger auction purchaser at a sale in execution of a decree under S. 144 of the Code of Civil Procedure and express no opinion thereon. In our opinion, on the facts of this case, the sale must be confirmed26. Although we have noticed some decisions where the right of the auction purchaser decree-holder in circumstances similar to the case before us was discussed or the right of a purchaser in regard to a sale held after the setting aside of the decree was touched upon, our judgment must not be taken as adjudication upon any of these points.
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V.T.S. Thyagasundaradoss Thevar & Others Vs. V.T.S. Sevuga Pandia Thevar & Another | debts or alienate properties possessed by an impartible estate-holder in respect of his Estate. The limits of his power are defined by reference to the power of a managing member of a joint Hindu family, not being the father or grandfather of the other co-parceners, to make an alienation of the joint family property or to incur a debt. His power in regard to alienations and debts is equated to that of a manager of a joint Hindu family. While an impartible estate-holder before the Act could alienate the Estate or a part thereof or incur debts binding on the Estate without any restrictions on his power, after the Act he can only do so under the circumstances where a manager of a Hindu joint family can do so. But it is not possible to hold that the sub-section by its own force converted a self-acquired impartible Estate before the Act into a joint family Estate thereafter. The words of the sub-section do not bear any such contention. If so, it follows that though the Seithur Zamin was an impartible Estate under Madras Act II of 1904, it continued to be a self-acquired property of the Zamindar. 12. It is then contended that the Zamindar had voluntarily thrown the impartible Estate into the common stock with the intention of abandoning all his separate claims upon it. Mr. Vedantachari, learned counsel for the Zamindar, argued that there was no scope for the application of the said doctrine of blending in the case of an impartible Estate, as the other members of the family had no present interest in the said property. It is not necessary to express our opinion on this question, as the Tribunal as well as the High Court, on a consideration of the evidence placed before them, came to the conclusion that the evidence adduced for that purpose was wholly insufficient to sustain a finding of blending. The finding is one of fact and no exceptional circumstances have been placed before us to make us interfere with that finding. 13. If the impartible Estate was the self-acquired property of the Zamindar, the next question is whether the appellants would be entitled to share in the compensation under the provisions of the Act. The Act and the Rules made thereunder provide for the deposit of the compensation by the State with the Tribunal, for a procedure to enable the claimants to apply to the said Tribunal for the compensation and for the manner of ascertaining and distributing the compensation among them in accordance with the value of their respective interests in the Estate. The material sections then proceed to state thus:"Section 44. (2) The value of those interests shall be ascertained - (a) in the case of the impartible Estates referred to in S. 45, in accordance with the provisions contained in that section and in such rules, not inconsistent with that section, as may be made by the Government in this behalf; and (b) in the case of other Estates, in accordance with such rules as may be made by the Government in this behalf. Section 45. (1) In the case of an impartible Estate which had to be regarded as the property of a joint Hindu family for the purpose of ascertaining the succession thereto immediately before the notified date, the following provisions shall apply. (2) The Tribunal shall determine the aggregate compensation payable to all the following persons considered as a single group :- (a) the principal landholder and his legitimate sons, grandsons and great-grandsons in the male line living or in the womb on the notified date, including sons, grandsons and great-grandsons adopted before such date (who are hereinafter called "sharers"); Rules made in exercise of the powers conferred by S. 67 read with S. 44(2)(b) of the Act: Rule 1. In the case of an Estate not being an impartible Estate governed by S. 45, the value of the respective interests in the Estate of the principal landholder and the other persons mentioned in S. 44(1) shall be ascertained. Rule 4 (1) In the case of (1) a partible Estate other than that specified in rule (3) or (ii) an impartible. Estate not governed by S. 45 the Tribunal shall determine the aggregate compensation payable to all the following persons considered as a single group:- (i) the persons, who immediately before the notified date, owned the Estate....." The question is whether S. 45(1) of the Act applied to the Estate, in which case the persons mentioned in S. 45(2), i.e., the appellants and the Zamindar, would get the compensation, or whether rule 4 (1) would apply, in which case the persons mentioned therein, i.e., the persons who immediately before the notified date had owned the Estate, would get the compensation. Learned counsel for the appellants contends that the impartible Estate mentioned in S. 45(1) is the same as that described in S. 4(1) of the Impartible Estates Act II of 1904. We do not see any justification for this contention. Section 45(1) only gives the description of an ancestral impartible Estate as evolved by judicial decisions. As noticed earlier it has been held by the Judicial Committee that an impartible Estate, though ancestral, is clothed with the incidents of a self-acquired and separate property, but the right of survivorship alone still remains and to the extent the Estate still retains the character of a joint family property. Section 45(1) of the Act in terms succinctly describes an ancestral impartible Estate in the light of the said decisions. As we have held that Seithur Zamin is not an ancestral impartible Estate in the hands of the Zamindar, it is outside the scope of S. 45 of the Act. It follows that it will be governed by Rr. 1 and 4 (1) of the Rules made under the Act. It is not disputed that if R. 4 (l) applies, the appellants are out of Court, for the Zamindar alone owned the Estate before the notified date. | 1[ds]It is not disputed that on the date the will was executed the holder of an ancestral impartible Estate could validly bequeath it to whomsoever he liked. The answer to the question raised, therefore, depends purely on the construction of the willWe find it impossible to construe the said words to mean that the testator was only recognizing the rights of the son to the Estate if he died intestate: that will be rewriting the will. The appointment of an Executor to administer all the properties, including the A Schedule property, is another indication that the said property was also subject to a bequest, the appointment of an Executor would not have arisen in respect of the A Schedule property if the said property had not been bequeathed under the will. Further, the testator directed all the debts due by him to be paid out of his entire property including the A Schedule property. If the Zamindar was taking the impartible Estate as an heir, he would take it free from the liabilities not binding on the Estate. He was taking it subject to the liabilities not binding on the Estate, because he was taking it as a legatee and not as an heir. For instance in the matter of purchase of Elumalai Zamin, which is admitted to be not a part of the impartible Estate, the testator borrowed money from others; he directed the Executor to discharge the said debt from and out of the A Schedule property and the assets relating to the same irrespective of the property that might have been secured in respect of that debt. In respect of other obligations he directed them to be discharged from and out of the entire property bequathed, including the A Schedule property. For instance, he directed the Executor to spend from the said two zamins amounts necessary to meet the expenses for performing the marriage of his younger brothers son, Muthuswami Pandian, for palace construction and repair and also for making jewels for the wife of Muthuswami Pandian. He also directed him to spend from both the zamins the amounts necessary for performing and conducting festivals. What is more, some items of properties forming part of the impartible Estate, i.e., A Schedule property, were bequeathed to others. The following 3 items prima facie formed part of the Seithur Zamin; (1) a palace in the Seithur Zamin Estate; (2) pannai lands in the Estate purchased from Dalava Madaliar; and (3) Pannai lands in Seithur Zamin in Devadanamkulam village; and pannai lands in Kooraipadugai punja in Pallathavu. Though the palace and pannai lands formed part of the impartible Estate, under the will they were bequeathed to Muthuswami Pandian, Muthathal and others. Under the will the Zamindar got not only the impartible Estate, i.e. the A Schedule property, but also properties other than B, C, D and E Schedules. The Estate as well as other properties were bequeathed to him under the same clause couched in the same language. Therefore, it cannot be said that in respect of the A Schedule property there was no bequest and in respect of other properties there was a bequest. Such a construction will introduce inconsistency and incongruity in the dispositive clause. Briefly stated, the testator did not make any distinction in the matter of bequests between the impartible Estate and his other properties. He divided all his properties into A, B, C, D and E Schedules. He asserted his absolute right to dispose of them. Having regard to the circumstances obtaining at the time of executing the will, by using appropriate words he bequeathed them in the manner described by him in the various clauses of the will. He gave to his only son most of the A Schedule property and also some other properties. A small part of the A Schedule property was bequeathed by him to others also. The A Schedule property and other properties were made equally liable to discharge some of the specified debts. There was a clear bequest of the A Schedule property to the Zamindar, subject to the obligations mentioned above and it is impossible to read into the will the contention of the learned counsel that, though in terms it was a bequest, in fact, having regard to the preamble, it was only a recognition of the Zamindars right to succeed to the Estate. To accept the argument of the appellants is to read into the will something which is not there. Obviously that cannot be doneIt is a well settled principle that a particular will shall be construed on its own terms. Except perhaps when the terms of two wills are exactly or practically the same, it is not possible even to derive any help from the construction of one will in construing the other will. The will we have extracted above differs in many material particulars from the will which is now under our scrutiny. That apart, the judgment of the Privy Council discloses that the parties who appeared before it were not interested to argue that the will contained a bequestWe find it difficult to appreciate this argument. We have already held in dealing with the first point that under the will there was a clear bequest of the Estate in favour of the Zamindar. We have also expressed the view that the preamble to the will had only described the factual position at the time the will was executed and that it had no impact on the dispositive clause. The relevant clauses of the will making the bequest do not even remotely suggest the idea now canvassed before us. In view of the similarity of the clauses of disposition used in regard to different bequests, all of them should be construed in the same way. If so construed, it cannot be suggested that only in the case of the Zamindar a joint family Estate was given, whereas in the case of others an absolute Estate was given. In terms of the bequest, all of them got a similar Estate, namely, an absolute Estate in respect of the properties bequeathed to themAs the law then stood, a holder of an ancestral impartible Estate could alienate the same in favour of a third party by a deed inter vivos or under a will : in either case the alienee or legatee, as the case may be, got an absolute interest therein. The holders son could not interdict the said alienation or bequest as he had no right by birth therein. The son had only a right to take the ancestral Estate by survivorship in case the father died intestate. The exercise of the right by a father to alienate destroyed his sons right to take it by survivorship. If one right was exercised, the other was lost. As the Zamindar got the Estate as a legatee and not as a member of a joint Hindu family by right of survivorship, he got it absolutely in his own right under the terms of the will9. The question may be looked at from a different angle. The testor, as we have interpreted his will, conferred an absolute interest in the impartible Estate on the Zamindar. How did that absolute Estate become a joint family Estate in the hands of the legatee? An absolute Estate so conferred could have been limited by law operating on the bequest or by some inherent disqualification of the legatee to receive in absolute bequest. None of the said two circumstances existed in the present caseOn a construction of the document in that case, the learned Judge held that the gift was given exclusively to the donee and not or the benefit of his branch of the family. The said judgment decided two points, namely, (i) if a son gets the property of his father by inheritance or in partition, it being ancestral property under Hindu law, he becomes ar with his son or sons; and (ii) the father can bequeath hisd property to his son or sons absolutely or to the branch of his or their family. The first depends upon Hindu law and the second on the nature of the bequest made. We have already held on a construction of the will in question that the father bequeathed the property, which he was entitled to do under law, absolutely to the Zamindar and not to the branch of his family. As the Zamindar obtained his fathers property by way of bequest and not by virtue of his right as a son or descendant there is no scope for invoking Hindu law to hold that in his hands the said property became the joint family property. We, therefore, hold that in the hands of the Zamindar the impartible Estate was hisTo appreciate this contention it will be necessary to know briefly the incidents of an impartible Estate before the said Act was enacted. The law is so well settled that it does not call for copious citation or discussionn in terms limits the unrestricted power to incur debts or alienate properties possessed by an impartibler in respect of his Estate. The limits of his power are defined by reference to the power of a managing member of a joint Hindu family, not being the father or grandfather of the other, to make an alienation of the joint family property or to incur a debt. His power in regard to alienations and debts is equated to that of a manager of a joint Hindu family. While an impartibler before the Act could alienate the Estate or a part thereof or incur debts binding on the Estate without any restrictions on his power, after the Act he can only do so under the circumstances where a manager of a Hindu joint family can do so. But it is not possible to hold that then by its own force converted ad impartible Estate before the Act into a joint family Estate thereafter. The words of then do not bear any such contention. If so, it follows that though the Seithur Zamin was an impartible Estate under Madras Act II of 1904, it continued to be ad property of the ZamindarIt is not necessary to express our opinion on this question, as the Tribunal as well as the High Court, on a consideration of the evidence placed before them, came to the conclusion that the evidence adduced for that purpose was wholly insufficient to sustain a finding of blending. The finding is one of fact and no exceptional circumstances have been placed before us to make us interfere with that findingWe do not see any justification for this contention. Section 45(1) only gives the description of an ancestral impartible Estate as evolved by judicial decisions. As noticed earlier it has been held by the Judicial Committee that an impartible Estate, though ancestral, is clothed with the incidents of ad and separate property, but the right of survivorship alone still remains and to the extent the Estate still retains the character of a joint family property. Section 45(1) of the Act in terms succinctly describes an ancestral impartible Estate in the light of the said decisions. As we have held that Seithur Zamin is not an ancestral impartible Estate in the hands of the Zamindar, it is outside the scope of S. 45 of the Act. It follows that it will be governed by Rr. 1 and 4 (1) of the Rules made under the Act. It is not disputed that if R. 4 (l) applies, the appellants are out of Court, for the Zamindar alone owned the Estate before the notified date. | 1 | 6,127 | 2,110 | ### Instruction:
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debts or alienate properties possessed by an impartible estate-holder in respect of his Estate. The limits of his power are defined by reference to the power of a managing member of a joint Hindu family, not being the father or grandfather of the other co-parceners, to make an alienation of the joint family property or to incur a debt. His power in regard to alienations and debts is equated to that of a manager of a joint Hindu family. While an impartible estate-holder before the Act could alienate the Estate or a part thereof or incur debts binding on the Estate without any restrictions on his power, after the Act he can only do so under the circumstances where a manager of a Hindu joint family can do so. But it is not possible to hold that the sub-section by its own force converted a self-acquired impartible Estate before the Act into a joint family Estate thereafter. The words of the sub-section do not bear any such contention. If so, it follows that though the Seithur Zamin was an impartible Estate under Madras Act II of 1904, it continued to be a self-acquired property of the Zamindar. 12. It is then contended that the Zamindar had voluntarily thrown the impartible Estate into the common stock with the intention of abandoning all his separate claims upon it. Mr. Vedantachari, learned counsel for the Zamindar, argued that there was no scope for the application of the said doctrine of blending in the case of an impartible Estate, as the other members of the family had no present interest in the said property. It is not necessary to express our opinion on this question, as the Tribunal as well as the High Court, on a consideration of the evidence placed before them, came to the conclusion that the evidence adduced for that purpose was wholly insufficient to sustain a finding of blending. The finding is one of fact and no exceptional circumstances have been placed before us to make us interfere with that finding. 13. If the impartible Estate was the self-acquired property of the Zamindar, the next question is whether the appellants would be entitled to share in the compensation under the provisions of the Act. The Act and the Rules made thereunder provide for the deposit of the compensation by the State with the Tribunal, for a procedure to enable the claimants to apply to the said Tribunal for the compensation and for the manner of ascertaining and distributing the compensation among them in accordance with the value of their respective interests in the Estate. The material sections then proceed to state thus:"Section 44. (2) The value of those interests shall be ascertained - (a) in the case of the impartible Estates referred to in S. 45, in accordance with the provisions contained in that section and in such rules, not inconsistent with that section, as may be made by the Government in this behalf; and (b) in the case of other Estates, in accordance with such rules as may be made by the Government in this behalf. Section 45. (1) In the case of an impartible Estate which had to be regarded as the property of a joint Hindu family for the purpose of ascertaining the succession thereto immediately before the notified date, the following provisions shall apply. (2) The Tribunal shall determine the aggregate compensation payable to all the following persons considered as a single group :- (a) the principal landholder and his legitimate sons, grandsons and great-grandsons in the male line living or in the womb on the notified date, including sons, grandsons and great-grandsons adopted before such date (who are hereinafter called "sharers"); Rules made in exercise of the powers conferred by S. 67 read with S. 44(2)(b) of the Act: Rule 1. In the case of an Estate not being an impartible Estate governed by S. 45, the value of the respective interests in the Estate of the principal landholder and the other persons mentioned in S. 44(1) shall be ascertained. Rule 4 (1) In the case of (1) a partible Estate other than that specified in rule (3) or (ii) an impartible. Estate not governed by S. 45 the Tribunal shall determine the aggregate compensation payable to all the following persons considered as a single group:- (i) the persons, who immediately before the notified date, owned the Estate....." The question is whether S. 45(1) of the Act applied to the Estate, in which case the persons mentioned in S. 45(2), i.e., the appellants and the Zamindar, would get the compensation, or whether rule 4 (1) would apply, in which case the persons mentioned therein, i.e., the persons who immediately before the notified date had owned the Estate, would get the compensation. Learned counsel for the appellants contends that the impartible Estate mentioned in S. 45(1) is the same as that described in S. 4(1) of the Impartible Estates Act II of 1904. We do not see any justification for this contention. Section 45(1) only gives the description of an ancestral impartible Estate as evolved by judicial decisions. As noticed earlier it has been held by the Judicial Committee that an impartible Estate, though ancestral, is clothed with the incidents of a self-acquired and separate property, but the right of survivorship alone still remains and to the extent the Estate still retains the character of a joint family property. Section 45(1) of the Act in terms succinctly describes an ancestral impartible Estate in the light of the said decisions. As we have held that Seithur Zamin is not an ancestral impartible Estate in the hands of the Zamindar, it is outside the scope of S. 45 of the Act. It follows that it will be governed by Rr. 1 and 4 (1) of the Rules made under the Act. It is not disputed that if R. 4 (l) applies, the appellants are out of Court, for the Zamindar alone owned the Estate before the notified date.
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### Explanation:
In view of the similarity of the clauses of disposition used in regard to different bequests, all of them should be construed in the same way. If so construed, it cannot be suggested that only in the case of the Zamindar a joint family Estate was given, whereas in the case of others an absolute Estate was given. In terms of the bequest, all of them got a similar Estate, namely, an absolute Estate in respect of the properties bequeathed to themAs the law then stood, a holder of an ancestral impartible Estate could alienate the same in favour of a third party by a deed inter vivos or under a will : in either case the alienee or legatee, as the case may be, got an absolute interest therein. The holders son could not interdict the said alienation or bequest as he had no right by birth therein. The son had only a right to take the ancestral Estate by survivorship in case the father died intestate. The exercise of the right by a father to alienate destroyed his sons right to take it by survivorship. If one right was exercised, the other was lost. As the Zamindar got the Estate as a legatee and not as a member of a joint Hindu family by right of survivorship, he got it absolutely in his own right under the terms of the will9. The question may be looked at from a different angle. The testor, as we have interpreted his will, conferred an absolute interest in the impartible Estate on the Zamindar. How did that absolute Estate become a joint family Estate in the hands of the legatee? An absolute Estate so conferred could have been limited by law operating on the bequest or by some inherent disqualification of the legatee to receive in absolute bequest. None of the said two circumstances existed in the present caseOn a construction of the document in that case, the learned Judge held that the gift was given exclusively to the donee and not or the benefit of his branch of the family. The said judgment decided two points, namely, (i) if a son gets the property of his father by inheritance or in partition, it being ancestral property under Hindu law, he becomes ar with his son or sons; and (ii) the father can bequeath hisd property to his son or sons absolutely or to the branch of his or their family. The first depends upon Hindu law and the second on the nature of the bequest made. We have already held on a construction of the will in question that the father bequeathed the property, which he was entitled to do under law, absolutely to the Zamindar and not to the branch of his family. As the Zamindar obtained his fathers property by way of bequest and not by virtue of his right as a son or descendant there is no scope for invoking Hindu law to hold that in his hands the said property became the joint family property. We, therefore, hold that in the hands of the Zamindar the impartible Estate was hisTo appreciate this contention it will be necessary to know briefly the incidents of an impartible Estate before the said Act was enacted. The law is so well settled that it does not call for copious citation or discussionn in terms limits the unrestricted power to incur debts or alienate properties possessed by an impartibler in respect of his Estate. The limits of his power are defined by reference to the power of a managing member of a joint Hindu family, not being the father or grandfather of the other, to make an alienation of the joint family property or to incur a debt. His power in regard to alienations and debts is equated to that of a manager of a joint Hindu family. While an impartibler before the Act could alienate the Estate or a part thereof or incur debts binding on the Estate without any restrictions on his power, after the Act he can only do so under the circumstances where a manager of a Hindu joint family can do so. But it is not possible to hold that then by its own force converted ad impartible Estate before the Act into a joint family Estate thereafter. The words of then do not bear any such contention. If so, it follows that though the Seithur Zamin was an impartible Estate under Madras Act II of 1904, it continued to be ad property of the ZamindarIt is not necessary to express our opinion on this question, as the Tribunal as well as the High Court, on a consideration of the evidence placed before them, came to the conclusion that the evidence adduced for that purpose was wholly insufficient to sustain a finding of blending. The finding is one of fact and no exceptional circumstances have been placed before us to make us interfere with that findingWe do not see any justification for this contention. Section 45(1) only gives the description of an ancestral impartible Estate as evolved by judicial decisions. As noticed earlier it has been held by the Judicial Committee that an impartible Estate, though ancestral, is clothed with the incidents of ad and separate property, but the right of survivorship alone still remains and to the extent the Estate still retains the character of a joint family property. Section 45(1) of the Act in terms succinctly describes an ancestral impartible Estate in the light of the said decisions. As we have held that Seithur Zamin is not an ancestral impartible Estate in the hands of the Zamindar, it is outside the scope of S. 45 of the Act. It follows that it will be governed by Rr. 1 and 4 (1) of the Rules made under the Act. It is not disputed that if R. 4 (l) applies, the appellants are out of Court, for the Zamindar alone owned the Estate before the notified date.
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