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Nilesh Dinkar Paradkar Vs. State Of Maharashtra | and 2 on the one hand and Bharat Nepali and the appellant on the other hand.35. In our opinion, the voice test identification by PW-19, Jagdish Kulkarni is even otherwise unreliable. The voice identification was conducted without taking any precautions similar to the precautions which are normally taken in visual identification of suspects by witnesses. It is a matter of fact that PW-19, Jagdish Kulkarni was informed in advance that he had to identify the voice of the appellant. Similarly, PW-18 was informed that he had to identify the voice of Bharat Nepali. No attempt was made even to mix the voices of Bharat Nepali and the appellant with some other unidentified voices. In such circumstances, the voice identification evidence would have little value. It appears that the exercise was performed only for the record.36. This apart, there is no evidence on record to indicate that the mobile No. 0060133402008 was that of the absconding accused Bharat Nepali. There is also no evidence to indicate that he was using said number except voice identification by Tejasingh Chavan, PW-18. There is no other material on the record to connect the absconding accused Bharat Nepali with the number allegedly used by him. Similarly, there is nothing on the record to indicate that the appellant was having or using any of the following mobile number:- 9892849523, 9892367596, 9892296496 and 9892295687. 37. There is no seizure of any mobile phone or even sim card at the behest of the appellant. The prosecution has failed to produce any evidence from the operators with regard to the registration of the aforesaid phone numbers. In fact, the Investigating Officer, Nagesh Lohar specifically stated in his evidence that "we could not get those four subscription forms and the documents of the company though we enquire. It is true that till today we do not know who are the subscribers of those cell phones". 38. This apart, the High Court erroneously overlooked the infirmities in the evidence with regard to the authenticity of the tape recording produced in Court. The conversation between the appellant and Bharat Nepali was said to have been recorded on 28th October, 2004 by PW-17, P.S.I. Vijay Dalvi. According to him, although, he had been monitoring the Malaysian number of Bharat Nepali from 1st October, 2004 till 27th October, 2004, he had heard no incoming or outgoing calls. The incriminating conversation was said to have been recorded on 28th October, 2004. This conversation was relayed to a police telephone and recorded. He put a slip on the recorded cassette indicating the date and time of the conversation as recorded. He then handed the tape over to the D.C.P., Dhananjay Kamlakar. He heard the tape on the same day. Even though the conversation revealed a conspiracy for commission of a serious offence, like murder of an influential personality in Mumbai city, he took no further action. He just sealed the tape and kept it in his personal custody. 39. Even when the accused A1 to A4 were arrested on 8th November, 2004 the cassette was not produced before the Investigating Officer. It was kept by Kamlakar till 17th January, 2005, when he instructed P.S.I. Vijay Dalvi to hand over the tape to the Inspector of Police. It is a matter of record that the tape was received by the Investigating Officer on 18th January, 2005. Even the trial court refers to the inaction on the part of the D.C.P. Dhananjay Kamlakar as shocking. Thereafter, the High Court observed as follows:- "The evidence of DCP Dhananjay Kamlakar suggest that he had forgotten about the existence of the tape and only when Investigating Officer asked about the tape he remembered, checked his record and then informed the investigating officer that he had such tape in his custody. It is not easy to believe this story given by DCP Dhananjay Kamlakar as he was a highly trained and a Senior IPS Officer. The least which he could had done was to find out from the telephone companies as to who was the recipient of this call from the number under surveillance. He made no efforts to find out as to who had received this call. The conduct of this officer leads me to believe that this tape was suppressed for some reasons which best known to DCP Kamlakar." 40. Having concluded as such, the High Court, however, proceeds to hold that even such lapses cannot enure to the benefit of the appellant. The High Court believed the recording as it had been made upon prior approval by the Home Secretary given on 20th October, 2004. 41. In our opinion, the veracity of the voice identification would not improve merely because a recording has been made after receiving official approval. The crucial identification was of the voice of the person talking on the tape. We are of the considered opinion that the High Court has committed a grave error in confirming the conviction of the appellant as recorded by the trial court only on the evidence of voice identification. 42. Other circumstance relied upon by the High Court in convicting the appellant is the recovery of the alleged revolver from the house of the cousin of the appellant. In our opinion, the recovery from an open space, at the back of the house, which did not even belong to the appellant, could be of little assistance to the prosecution. Even otherwise it needs to be remembered that the trial court had in fact, acquitted the appellant for the offences under Section 3 read with Section 5 of the Arms Act. This acquittal was never challenged by the prosecution in appeal. Therefore, it was wholly inappropriate by the High Court to reverse the findings of the trial court in the absence of an appeal by the State. 43. In view of the above, we are of the considered opinion that the appellant was entitled to the benefit of doubt as the prosecution has failed to prove its case beyond reasonable doubt. | 1[ds]25. We are of the considered opinion that there is much merit in the submissions made by Mr. Naphade. While acquitting accused Nos. 1 to 4, the High Court recorded that the defence had succeeded in creating a grave doubt about the veracity of search and seizure alleged to have taken place on 8th November, 2004. This conclusion has been reached by the High Court on appreciation of the evidence on the record. The High Court disbelieved the prosecution version with regard to the entire sequence of events leading to the raid.In our opinion, these conclusions recorded by the High Court have destroyed the entire substratum of the prosecution case. Having disbelieved the entire prosecution version, the High Court proceeds to distinguish the case of the appellant. The only additional circumstance relied upon by the High Court against the appellant is that his voice was identified by the officer Jagdish Kulkarni, PW-19, who had taken him in custody. The voice of Bharat Nepali was also identified by PW-18, A.C.P. Tejasingh Chavan.28. We are of the considered opinion that the approach adopted by the High Court was wholly erroneous. Having disbelieved the voice identification in the case of accused Nos. 1 and 2, there was no reason to adopt a different yardstick in the case of the appellant herein. The High Court discarded the evidence of PW-36, A.P.I. Dilip Raut and PW-38, A.P.I. Pasalkar mainly on the ground that they were accompanying the raiding party on 8th November, 2004 and had not heard the voice of accused Nos. 1 and 2 prior thereto. Another reason given by the High Court is that these officers being members of the investigating team were interested in successful completion of the investigation. But the same yardstick was not applied to the voice identification of absconding accused Bharat Nepali by Tejasingh Chavan, PW-18. He was also attached to DCP CID when the present offence was registered. He would, therefore, also be equally interested in successful completion of the investigation.In our opinion, the High Court has failed to take into consideration any of the precautions indicated above in accepting the evidence of Tejasingh Chavan, PW-18 and Jagdish Kulkarni, PW-19 with regard to the identification of Bharat Nepali and the appellant. The High Court, in our opinion, has given a wholly erroneous justification by holding that the voice of both the accused are distinctive, clear and identifiable. It is further observed that the conversation between the two accused is not a short conversation as in the case of accused Nos. 1 and 2. The High Court was also influenced by the fact that accused Bharat Nepali was in the custody of Tejasingh Chavan, PW-18 for a period of two weeks. Similarly, appellant was in the custody of Jagdish Kulkarni, PW-19 for a substantial period of time. Therefore, their voice identification was held to be reliable. This reasoning of the High Court is a mere repetition of the reasons given by the trial court.34. We are of the considered opinion that there is hardly any distinction in the evidence with regard to the voice identification of accused Nos. 1 and 2 on the one hand and Bharat Nepali and the appellant on the other hand.35. In our opinion, the voice test identification by PW-19, Jagdish Kulkarni is even otherwise unreliable. The voice identification was conducted without taking any precautions similar to the precautions which are normally taken in visual identification of suspects by witnesses. It is a matter of fact that PW-19, Jagdish Kulkarni was informed in advance that he had to identify the voice of the appellant. Similarly, PW-18 was informed that he had to identify the voice of Bharat Nepali. No attempt was made even to mix the voices of Bharat Nepali and the appellant with some other unidentified voices. In such circumstances, the voice identification evidence would have little value. It appears that the exercise was performed only for the record.36. This apart, there is no evidence on record to indicate that the mobile No. 0060133402008 was that of the absconding accused Bharat Nepali. There is also no evidence to indicate that he was using said number except voice identification by Tejasingh Chavan, PW-18. There is no other material on the record to connect the absconding accused Bharat Nepali with the number allegedly used by him. Similarly, there is nothing on the record to indicate that the appellant was having or using any of the following mobile number:- 9892849523, 9892367596, 9892296496 and 9892295687.This apart, the High Court erroneously overlooked the infirmities in the evidence with regard to the authenticity of the tape recording produced in Court. The conversation between the appellant and Bharat Nepali was said to have been recorded on 28th October, 2004 by PW-17, P.S.I. Vijay Dalvi. According to him, although, he had been monitoring the Malaysian number of Bharat Nepali from 1st October, 2004 till 27th October, 2004, he had heard no incoming or outgoing calls. The incriminating conversation was said to have been recorded on 28th October, 2004. This conversation was relayed to a police telephone and recorded. He put a slip on the recorded cassette indicating the date and time of the conversation as recorded. He then handed the tape over to the D.C.P., Dhananjay Kamlakar. He heard the tape on the same day. Even though the conversation revealed a conspiracy for commission of a serious offence, like murder of an influential personality in Mumbai city, he took no further action. He just sealed the tape and kept it in his personal custody.In our opinion, the veracity of the voice identification would not improve merely because a recording has been made after receiving official approval. The crucial identification was of the voice of the person talking on the tape. We are of the considered opinion that the High Court has committed a grave error in confirming the conviction of the appellant as recorded by the trial court only on the evidence of voice identification.In view of the above, we are of the considered opinion that the appellant was entitled to the benefit of doubt as the prosecution has failed to prove its case beyond reasonable doubt. | 1 | 7,843 | 1,133 | ### Instruction:
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and 2 on the one hand and Bharat Nepali and the appellant on the other hand.35. In our opinion, the voice test identification by PW-19, Jagdish Kulkarni is even otherwise unreliable. The voice identification was conducted without taking any precautions similar to the precautions which are normally taken in visual identification of suspects by witnesses. It is a matter of fact that PW-19, Jagdish Kulkarni was informed in advance that he had to identify the voice of the appellant. Similarly, PW-18 was informed that he had to identify the voice of Bharat Nepali. No attempt was made even to mix the voices of Bharat Nepali and the appellant with some other unidentified voices. In such circumstances, the voice identification evidence would have little value. It appears that the exercise was performed only for the record.36. This apart, there is no evidence on record to indicate that the mobile No. 0060133402008 was that of the absconding accused Bharat Nepali. There is also no evidence to indicate that he was using said number except voice identification by Tejasingh Chavan, PW-18. There is no other material on the record to connect the absconding accused Bharat Nepali with the number allegedly used by him. Similarly, there is nothing on the record to indicate that the appellant was having or using any of the following mobile number:- 9892849523, 9892367596, 9892296496 and 9892295687. 37. There is no seizure of any mobile phone or even sim card at the behest of the appellant. The prosecution has failed to produce any evidence from the operators with regard to the registration of the aforesaid phone numbers. In fact, the Investigating Officer, Nagesh Lohar specifically stated in his evidence that "we could not get those four subscription forms and the documents of the company though we enquire. It is true that till today we do not know who are the subscribers of those cell phones". 38. This apart, the High Court erroneously overlooked the infirmities in the evidence with regard to the authenticity of the tape recording produced in Court. The conversation between the appellant and Bharat Nepali was said to have been recorded on 28th October, 2004 by PW-17, P.S.I. Vijay Dalvi. According to him, although, he had been monitoring the Malaysian number of Bharat Nepali from 1st October, 2004 till 27th October, 2004, he had heard no incoming or outgoing calls. The incriminating conversation was said to have been recorded on 28th October, 2004. This conversation was relayed to a police telephone and recorded. He put a slip on the recorded cassette indicating the date and time of the conversation as recorded. He then handed the tape over to the D.C.P., Dhananjay Kamlakar. He heard the tape on the same day. Even though the conversation revealed a conspiracy for commission of a serious offence, like murder of an influential personality in Mumbai city, he took no further action. He just sealed the tape and kept it in his personal custody. 39. Even when the accused A1 to A4 were arrested on 8th November, 2004 the cassette was not produced before the Investigating Officer. It was kept by Kamlakar till 17th January, 2005, when he instructed P.S.I. Vijay Dalvi to hand over the tape to the Inspector of Police. It is a matter of record that the tape was received by the Investigating Officer on 18th January, 2005. Even the trial court refers to the inaction on the part of the D.C.P. Dhananjay Kamlakar as shocking. Thereafter, the High Court observed as follows:- "The evidence of DCP Dhananjay Kamlakar suggest that he had forgotten about the existence of the tape and only when Investigating Officer asked about the tape he remembered, checked his record and then informed the investigating officer that he had such tape in his custody. It is not easy to believe this story given by DCP Dhananjay Kamlakar as he was a highly trained and a Senior IPS Officer. The least which he could had done was to find out from the telephone companies as to who was the recipient of this call from the number under surveillance. He made no efforts to find out as to who had received this call. The conduct of this officer leads me to believe that this tape was suppressed for some reasons which best known to DCP Kamlakar." 40. Having concluded as such, the High Court, however, proceeds to hold that even such lapses cannot enure to the benefit of the appellant. The High Court believed the recording as it had been made upon prior approval by the Home Secretary given on 20th October, 2004. 41. In our opinion, the veracity of the voice identification would not improve merely because a recording has been made after receiving official approval. The crucial identification was of the voice of the person talking on the tape. We are of the considered opinion that the High Court has committed a grave error in confirming the conviction of the appellant as recorded by the trial court only on the evidence of voice identification. 42. Other circumstance relied upon by the High Court in convicting the appellant is the recovery of the alleged revolver from the house of the cousin of the appellant. In our opinion, the recovery from an open space, at the back of the house, which did not even belong to the appellant, could be of little assistance to the prosecution. Even otherwise it needs to be remembered that the trial court had in fact, acquitted the appellant for the offences under Section 3 read with Section 5 of the Arms Act. This acquittal was never challenged by the prosecution in appeal. Therefore, it was wholly inappropriate by the High Court to reverse the findings of the trial court in the absence of an appeal by the State. 43. In view of the above, we are of the considered opinion that the appellant was entitled to the benefit of doubt as the prosecution has failed to prove its case beyond reasonable doubt.
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4, the High Court recorded that the defence had succeeded in creating a grave doubt about the veracity of search and seizure alleged to have taken place on 8th November, 2004. This conclusion has been reached by the High Court on appreciation of the evidence on the record. The High Court disbelieved the prosecution version with regard to the entire sequence of events leading to the raid.In our opinion, these conclusions recorded by the High Court have destroyed the entire substratum of the prosecution case. Having disbelieved the entire prosecution version, the High Court proceeds to distinguish the case of the appellant. The only additional circumstance relied upon by the High Court against the appellant is that his voice was identified by the officer Jagdish Kulkarni, PW-19, who had taken him in custody. The voice of Bharat Nepali was also identified by PW-18, A.C.P. Tejasingh Chavan.28. We are of the considered opinion that the approach adopted by the High Court was wholly erroneous. Having disbelieved the voice identification in the case of accused Nos. 1 and 2, there was no reason to adopt a different yardstick in the case of the appellant herein. The High Court discarded the evidence of PW-36, A.P.I. Dilip Raut and PW-38, A.P.I. Pasalkar mainly on the ground that they were accompanying the raiding party on 8th November, 2004 and had not heard the voice of accused Nos. 1 and 2 prior thereto. Another reason given by the High Court is that these officers being members of the investigating team were interested in successful completion of the investigation. But the same yardstick was not applied to the voice identification of absconding accused Bharat Nepali by Tejasingh Chavan, PW-18. He was also attached to DCP CID when the present offence was registered. He would, therefore, also be equally interested in successful completion of the investigation.In our opinion, the High Court has failed to take into consideration any of the precautions indicated above in accepting the evidence of Tejasingh Chavan, PW-18 and Jagdish Kulkarni, PW-19 with regard to the identification of Bharat Nepali and the appellant. The High Court, in our opinion, has given a wholly erroneous justification by holding that the voice of both the accused are distinctive, clear and identifiable. It is further observed that the conversation between the two accused is not a short conversation as in the case of accused Nos. 1 and 2. The High Court was also influenced by the fact that accused Bharat Nepali was in the custody of Tejasingh Chavan, PW-18 for a period of two weeks. Similarly, appellant was in the custody of Jagdish Kulkarni, PW-19 for a substantial period of time. Therefore, their voice identification was held to be reliable. This reasoning of the High Court is a mere repetition of the reasons given by the trial court.34. We are of the considered opinion that there is hardly any distinction in the evidence with regard to the voice identification of accused Nos. 1 and 2 on the one hand and Bharat Nepali and the appellant on the other hand.35. In our opinion, the voice test identification by PW-19, Jagdish Kulkarni is even otherwise unreliable. The voice identification was conducted without taking any precautions similar to the precautions which are normally taken in visual identification of suspects by witnesses. It is a matter of fact that PW-19, Jagdish Kulkarni was informed in advance that he had to identify the voice of the appellant. Similarly, PW-18 was informed that he had to identify the voice of Bharat Nepali. No attempt was made even to mix the voices of Bharat Nepali and the appellant with some other unidentified voices. In such circumstances, the voice identification evidence would have little value. It appears that the exercise was performed only for the record.36. This apart, there is no evidence on record to indicate that the mobile No. 0060133402008 was that of the absconding accused Bharat Nepali. There is also no evidence to indicate that he was using said number except voice identification by Tejasingh Chavan, PW-18. There is no other material on the record to connect the absconding accused Bharat Nepali with the number allegedly used by him. Similarly, there is nothing on the record to indicate that the appellant was having or using any of the following mobile number:- 9892849523, 9892367596, 9892296496 and 9892295687.This apart, the High Court erroneously overlooked the infirmities in the evidence with regard to the authenticity of the tape recording produced in Court. The conversation between the appellant and Bharat Nepali was said to have been recorded on 28th October, 2004 by PW-17, P.S.I. Vijay Dalvi. According to him, although, he had been monitoring the Malaysian number of Bharat Nepali from 1st October, 2004 till 27th October, 2004, he had heard no incoming or outgoing calls. The incriminating conversation was said to have been recorded on 28th October, 2004. This conversation was relayed to a police telephone and recorded. He put a slip on the recorded cassette indicating the date and time of the conversation as recorded. He then handed the tape over to the D.C.P., Dhananjay Kamlakar. He heard the tape on the same day. Even though the conversation revealed a conspiracy for commission of a serious offence, like murder of an influential personality in Mumbai city, he took no further action. He just sealed the tape and kept it in his personal custody.In our opinion, the veracity of the voice identification would not improve merely because a recording has been made after receiving official approval. The crucial identification was of the voice of the person talking on the tape. We are of the considered opinion that the High Court has committed a grave error in confirming the conviction of the appellant as recorded by the trial court only on the evidence of voice identification.In view of the above, we are of the considered opinion that the appellant was entitled to the benefit of doubt as the prosecution has failed to prove its case beyond reasonable doubt.
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Andhra Pradesh Pollution Control Board Vs. CCL Products (India) Limited | bank and the beneficiary to whom the guarantee is issued. Such a contract is independent of the underlying contract between the beneficiary and the third party at whose behest the bank guarantee is issued. 18. The principle which we have adopted accords with a consistent line of precedent of this Court. In Ansal Engineering Projects Ltd. v Tehri Hydro Development Corporation Ltd, 2 a three judge Bench of this Court held thus: 4. It is settled law that bank guarantee is an independent and distinct contract between the bank and the beneficiary and is not qualified by the underlying transaction and the validity of the primary contract between the person at whose instance the bank guarantee was given and the beneficiary. Unless fraud or special equity exists, is pleaded and prima facie established by strong evidence as a triable issue, the beneficiary cannot be restrained from encashing the bank guarantee even if dispute between the beneficiary and the person at whose instance the bank guarantee was given by the bank, had arisen in performance of the contract or execution of the works undertaken in furtherance thereof. The bank unconditionally and irrevocably promised to pay, on demand, the amount of liability undertaken in the guarantee without any demur or dispute in terms of the bank guarantee… 5. …The court exercising its power cannot interfere with enforcement of bank guarantee/letters of credit except only in cases where fraud or special equity is prima facie made out in the case as triable issue by strong evidence so as to prevent irretrievable injustice to the parties. The same principle was followed in State Bank of India v Mula Sahakari Sakhar Karkhana Ltd (2006) 6 SCC 293 where a two judge Bench of this Court held thus: 33. It is beyond any cavil that a bank guarantee must be construed on its own terms. It is considered to be a separate transaction. 34. If a construction, as was suggested by Mr Naphade, is to be accepted, it would also be open to a banker to put forward a case that absolute and unequivocal bank guarantee should be read as a conditional one having regard to circumstances attending thereto. It is, to our mind, impermissible in law. A bank guarantee constitutes an independent contract. In Hindustan Construction Co. Ltd. v. State of Bihar (1999) 8 SCC 436 , a two judge Bench of this Court formulated the condition upon which the invocation of the bank guarantee depends in the following terms: 9. What is important, therefore, is that the bank guarantee should be in unequivocal terms, unconditional and recite that the amount would be paid without demur or objection and irrespective of any dispute that might have cropped up or might have been pending between the beneficiary under the bank guarantee or the person on whose behalf the guarantee was furnished. The terms of the bank guarantee are, therefore, extremely material. Since the bank guarantee represents an independent contract between the bank and the beneficiary, both the parties would be bound by the terms thereof. The invocation, therefore, will have to be in accordance with the terms of the bank guarantee, or else, the invocation itself would be bad. (Emphasis supplied) 19. The settled legal position which has emerged from the precedents of this Court is that absent a case of fraud, irretrievable injustice and special equities, the Court should not interfere with the invocation or encashment of a bank guarantee so long as the invocation was in terms of the bank guarantee. 20. In the present case, the bank undertook to the appellant that it would pay the guaranteed amount on demand, subject to the overall amount stipulated in each of the three bank guarantees. It was not for the bank to determine as to whether the invocation of the bank guarantees was justified so long as the invocation was in terms of the bank guarantee. A demand once made would oblige the bank to pay under the terms of the bank guarantee. The State Bank of India correctly understood its legal obligations and paid over the amount to the appellant. In this view of the matter and having regard to the terms of the bank guarantees, we are of the view that the principle of law which has been formulated by the Tribunal cannot be accepted as reflecting the correct legal position. 21. That apart, we are unable to accept the finding of the Tribunal that the respondent was kept in the dark on the invocation. It is evident that following the invocation of the bank guarantees, the respondent itself addressed a communication on 20 September 2012 to the Member Secretary of the appellant. The communication contains a specific reference to the invocation of the bank guarantees. That apart, it is evident from the material on the record that the appellant had issued a notice to show cause to the respondent to which the respondent also submitted a response. The purpose and object of the bank guarantees was to enable the appellant to secure compliance with environmental standards prescribed in accordance with law. The appellant has invoked the bank guarantees issued by the respondent because of the failure of the respondent to discharge the obligations imposed upon it by the Task Force Committee on 26 August 2011 22. For the above reasons, we are of the view that the Tribunal has erred in interfering with the invocation of the bank guarantees and in directing the appellant to refund the amount of Rs 25 lakhs covered by the three guarantees. While invoking the bank guarantees, the appellant has clearly adverted to the fact that the status of compliance was reviewed in the Task Force Committee Meeting; and that the officials of the appellant had inspected the industry and had observed certain violations. The invocation of the bank guarantees was therefore in terms of the conditions stipulated in the bank guarantees. 23. The invocation of the bank guarantees was the subject matter of the present appeal. | 1[ds]The Tribunal held that the purpose of the bank guarantee was not commercial or industrial but was to secure compliance by the appellant with environmental norms that had been prescribed. Hence, in the view of the Tribunal, the appellant should have furnished a hearing to the respondent before the bank guarantees were invoked17. We are unable to subscribe to the legal position which has been formulated by the Tribunal. A bank guarantee constitutes an independent contract between the issuing bank and the beneficiary to whom the guarantee is issued. Such a contract is independent of the underlying contract between the beneficiary and the third party at whose behest the bank guarantee is issued19. The settled legal position which has emerged from the precedents of this Court is that absent a case of fraud, irretrievable injustice and special equities, the Court should not interfere with the invocation or encashment of a bank guarantee so long as the invocation was in terms of the bank guarantee.20. In the present case, the bank undertook to the appellant that it would pay the guaranteed amount on demand, subject to the overall amount stipulated in each of the three bank guarantees. It was not for the bank to determine as to whether the invocation of the bank guarantees was justified so long as the invocation was in terms of the bank guarantee. A demand once made would oblige the bank to pay under the terms of the bank guarantee. The State Bank of India correctly understood its legal obligations and paid over the amount to the appellant. In this view of the matter and having regard to the terms of the bank guarantees, we are of the view that the principle of law which has been formulated by the Tribunal cannot be accepted as reflecting the correct legal position.21. That apart, we are unable to accept the finding of the Tribunal that the respondent was kept in the dark on the invocation. It is evident that following the invocation of the bank guarantees, the respondent itself addressed a communication on 20 September 2012 to the Member Secretary of the appellant. The communication contains a specific reference to the invocation of the bank guarantees. That apart, it is evident from the material on the record that the appellant had issued a notice to show cause to the respondent to which the respondent also submitted a response. The purpose and object of the bank guarantees was to enable the appellant to secure compliance with environmental standards prescribed in accordance with law. The appellant has invoked the bank guarantees issued by the respondent because of the failure of the respondent to discharge the obligations imposed upon it by the Task Force Committee on 26 August 201122. For the above reasons, we are of the view that the Tribunal has erred in interfering with the invocation of the bank guarantees and in directing the appellant to refund the amount of Rs 25 lakhs covered by the three guarantees. While invoking the bank guarantees, the appellant has clearly adverted to the fact that the status of compliance was reviewed in the Task Force Committee Meeting; and that the officials of the appellant had inspected the industry and had observed certain violations. The invocation of the bank guarantees was therefore in terms of the conditions stipulated in the bank guarantees23. The invocation of the bank guarantees was the subject matter of the present appeal. | 1 | 3,394 | 612 | ### Instruction:
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bank and the beneficiary to whom the guarantee is issued. Such a contract is independent of the underlying contract between the beneficiary and the third party at whose behest the bank guarantee is issued. 18. The principle which we have adopted accords with a consistent line of precedent of this Court. In Ansal Engineering Projects Ltd. v Tehri Hydro Development Corporation Ltd, 2 a three judge Bench of this Court held thus: 4. It is settled law that bank guarantee is an independent and distinct contract between the bank and the beneficiary and is not qualified by the underlying transaction and the validity of the primary contract between the person at whose instance the bank guarantee was given and the beneficiary. Unless fraud or special equity exists, is pleaded and prima facie established by strong evidence as a triable issue, the beneficiary cannot be restrained from encashing the bank guarantee even if dispute between the beneficiary and the person at whose instance the bank guarantee was given by the bank, had arisen in performance of the contract or execution of the works undertaken in furtherance thereof. The bank unconditionally and irrevocably promised to pay, on demand, the amount of liability undertaken in the guarantee without any demur or dispute in terms of the bank guarantee… 5. …The court exercising its power cannot interfere with enforcement of bank guarantee/letters of credit except only in cases where fraud or special equity is prima facie made out in the case as triable issue by strong evidence so as to prevent irretrievable injustice to the parties. The same principle was followed in State Bank of India v Mula Sahakari Sakhar Karkhana Ltd (2006) 6 SCC 293 where a two judge Bench of this Court held thus: 33. It is beyond any cavil that a bank guarantee must be construed on its own terms. It is considered to be a separate transaction. 34. If a construction, as was suggested by Mr Naphade, is to be accepted, it would also be open to a banker to put forward a case that absolute and unequivocal bank guarantee should be read as a conditional one having regard to circumstances attending thereto. It is, to our mind, impermissible in law. A bank guarantee constitutes an independent contract. In Hindustan Construction Co. Ltd. v. State of Bihar (1999) 8 SCC 436 , a two judge Bench of this Court formulated the condition upon which the invocation of the bank guarantee depends in the following terms: 9. What is important, therefore, is that the bank guarantee should be in unequivocal terms, unconditional and recite that the amount would be paid without demur or objection and irrespective of any dispute that might have cropped up or might have been pending between the beneficiary under the bank guarantee or the person on whose behalf the guarantee was furnished. The terms of the bank guarantee are, therefore, extremely material. Since the bank guarantee represents an independent contract between the bank and the beneficiary, both the parties would be bound by the terms thereof. The invocation, therefore, will have to be in accordance with the terms of the bank guarantee, or else, the invocation itself would be bad. (Emphasis supplied) 19. The settled legal position which has emerged from the precedents of this Court is that absent a case of fraud, irretrievable injustice and special equities, the Court should not interfere with the invocation or encashment of a bank guarantee so long as the invocation was in terms of the bank guarantee. 20. In the present case, the bank undertook to the appellant that it would pay the guaranteed amount on demand, subject to the overall amount stipulated in each of the three bank guarantees. It was not for the bank to determine as to whether the invocation of the bank guarantees was justified so long as the invocation was in terms of the bank guarantee. A demand once made would oblige the bank to pay under the terms of the bank guarantee. The State Bank of India correctly understood its legal obligations and paid over the amount to the appellant. In this view of the matter and having regard to the terms of the bank guarantees, we are of the view that the principle of law which has been formulated by the Tribunal cannot be accepted as reflecting the correct legal position. 21. That apart, we are unable to accept the finding of the Tribunal that the respondent was kept in the dark on the invocation. It is evident that following the invocation of the bank guarantees, the respondent itself addressed a communication on 20 September 2012 to the Member Secretary of the appellant. The communication contains a specific reference to the invocation of the bank guarantees. That apart, it is evident from the material on the record that the appellant had issued a notice to show cause to the respondent to which the respondent also submitted a response. The purpose and object of the bank guarantees was to enable the appellant to secure compliance with environmental standards prescribed in accordance with law. The appellant has invoked the bank guarantees issued by the respondent because of the failure of the respondent to discharge the obligations imposed upon it by the Task Force Committee on 26 August 2011 22. For the above reasons, we are of the view that the Tribunal has erred in interfering with the invocation of the bank guarantees and in directing the appellant to refund the amount of Rs 25 lakhs covered by the three guarantees. While invoking the bank guarantees, the appellant has clearly adverted to the fact that the status of compliance was reviewed in the Task Force Committee Meeting; and that the officials of the appellant had inspected the industry and had observed certain violations. The invocation of the bank guarantees was therefore in terms of the conditions stipulated in the bank guarantees. 23. The invocation of the bank guarantees was the subject matter of the present appeal.
### Response:
1
### Explanation:
The Tribunal held that the purpose of the bank guarantee was not commercial or industrial but was to secure compliance by the appellant with environmental norms that had been prescribed. Hence, in the view of the Tribunal, the appellant should have furnished a hearing to the respondent before the bank guarantees were invoked17. We are unable to subscribe to the legal position which has been formulated by the Tribunal. A bank guarantee constitutes an independent contract between the issuing bank and the beneficiary to whom the guarantee is issued. Such a contract is independent of the underlying contract between the beneficiary and the third party at whose behest the bank guarantee is issued19. The settled legal position which has emerged from the precedents of this Court is that absent a case of fraud, irretrievable injustice and special equities, the Court should not interfere with the invocation or encashment of a bank guarantee so long as the invocation was in terms of the bank guarantee.20. In the present case, the bank undertook to the appellant that it would pay the guaranteed amount on demand, subject to the overall amount stipulated in each of the three bank guarantees. It was not for the bank to determine as to whether the invocation of the bank guarantees was justified so long as the invocation was in terms of the bank guarantee. A demand once made would oblige the bank to pay under the terms of the bank guarantee. The State Bank of India correctly understood its legal obligations and paid over the amount to the appellant. In this view of the matter and having regard to the terms of the bank guarantees, we are of the view that the principle of law which has been formulated by the Tribunal cannot be accepted as reflecting the correct legal position.21. That apart, we are unable to accept the finding of the Tribunal that the respondent was kept in the dark on the invocation. It is evident that following the invocation of the bank guarantees, the respondent itself addressed a communication on 20 September 2012 to the Member Secretary of the appellant. The communication contains a specific reference to the invocation of the bank guarantees. That apart, it is evident from the material on the record that the appellant had issued a notice to show cause to the respondent to which the respondent also submitted a response. The purpose and object of the bank guarantees was to enable the appellant to secure compliance with environmental standards prescribed in accordance with law. The appellant has invoked the bank guarantees issued by the respondent because of the failure of the respondent to discharge the obligations imposed upon it by the Task Force Committee on 26 August 201122. For the above reasons, we are of the view that the Tribunal has erred in interfering with the invocation of the bank guarantees and in directing the appellant to refund the amount of Rs 25 lakhs covered by the three guarantees. While invoking the bank guarantees, the appellant has clearly adverted to the fact that the status of compliance was reviewed in the Task Force Committee Meeting; and that the officials of the appellant had inspected the industry and had observed certain violations. The invocation of the bank guarantees was therefore in terms of the conditions stipulated in the bank guarantees23. The invocation of the bank guarantees was the subject matter of the present appeal.
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Sandeep Kumar Vs. Master Ritesh | of the Defendants. However, some of the Defendants were not parties to the said agreement. In view of the existence of the said arbitration agreement, an order was passed by the learned trial Judge in terms of the Arbitration Act 1940. The matter came up to this Court on an earlier occasion. Plaintiffs-Appellants herein made a representation before this Court that they would amend the plaint by deleting the names of Respondents who were parties to the arbitration agreement and continue with the suit as against those who were not parties thereto. The said statements were recorded in the order of this Court in the following terms : “Mr. K.N. Balgopal, learned counsel representing the respondents in these 9 SLPs, states that the plaintiff(s) in each of the 9 suits which have been ordered, shall confine his/their suit against the principal debtor in each case and shall drop him from the array of defendants all such defendants other than principal defendant. Prima facie, on such stance being adopted by the petitioners learned counsel, the grievance of the special leave petitioners, apparently, vanishes. Learned counsel for the parties need and are granted time to check up on this aspect of the matter.” 3. By an order dated 04.04.1997, the said special leave petition was disposed of. The matter in regard to the stay of the suit thereafter again came up for hearing. By reason of a judgment and order dated 13.08.1999, it was, inter alia, held : “...The legal proceedings in this case have been started after the agreement by persons claiming under parties to the agreements. The plaintiffs in all the nine cases are claiming under Rajender Parshad Gupta and the defendant is claiming through Satyadev Gupta, both of whom are signatories/executants of the arbitration agreement. Moreover, the plaintiffs in their plaints have admitted that they were bound by the agreement dated 6.8.88, so that they cannot now contend that they were not signatories of the agreement. The third contention is that the proceeding must be with respect of the matter agreed to be referred to arbitration. This condition has already been dealt within the preceding paragraphs and need not be reproduced. Further, the application for stay has been made by the defendant, who is party to the legal proceeding and was filed before filing the written statement or taking any step in the proceedings. I have already held that the applicant is ready and willing to do all things necessary for the proper conduct of arbitration. The conditions set out in the authorities cited above, have been fulfilled and the suits are liable to be stayed.” 4. In terms of the said findings the suit was again directed to be stayed. The appeals preferred thereagainst by Appellants herein were also dismissed. The High Court by reason of its impugned judgment passed in C.R. No. 3045 of 2000 upheld the said findings. 5. Mr. K.N. Balgopal, the learned counsel appearing on behalf of Appellants, would submit that the courts below committed a serious error in passing the impugned judgment insofar as it failed to take into consideration the effect of deleting the names of those defendants by amending the plaint. According to the learned counsel although there might exist an arbitration agreement between Appellants and some of the Defendants, but in view of the fact that the amendments had been carried out in the plaint the arbitration agreement could not have been enforced as against Respondents who were not parties thereto.6. Mr. Balbir Singh, the learned counsel appearing on behalf of Respondents, on the other hand, would submit that the matter being governed by the provisions of Section 8 of the Arbitration and Conciliation Act, 1996, the parties could raise the question of jurisdiction of the arbitral tribunal in terms of section 16 thereof.7. It appears that the counter affidavit has been filed by one Shri Ramesh Kumar Gupta. He had been representing a group in the suit. His name had been deleted from the array of the parties by amending the plaint. In his counter affidavit he does not state that he has any authority to represent other Respondents or any authority to file a counter affidavit on their behalf. Paragraph 7 of the plaint whereupon reliance has been placed reads as under:- “7. That the plaintiff as well as defendant No. 2 to 7 including defendant No. 5 are bound by the agreement dated 6.8.88 and that defendant No. 2 to 4 have repayed Rs.26,51,000/- and have to repay Rs. 2.95 lac including amount of the plaintiff for which the plaintiff is filing the suit against defendant No. 5 as well as defendant No. 2 to 4. Defendant No.1 and defendants No. 6 to 7 have been joined as proforma defendants.” 8. It may be true that Plaintiffs-Appellants had been representing a group, but admittedly all the parties to the suit were not parties to the arbitration agreement. If some of the Defendants were not parties to the arbitration agreement, the question of invoking the arbitration clause as against those Defendants would not arise. As noticed hereinbefore, in the earlier round of litigation, Appellants categorically stated that the suit would be confined only as against those who were not parties to the arbitration agreement.9. There were three parties to the said arbitration agreement. Party No. 1 was represented by (1) Satya Dev Gupta; (2) Ramesh Kumar Gupta; and (3) Jai Dev Gupta. Party No.2 was represented by (1) Rajender Parshad Gupta; (2) Sham Lal Gupta; and (3) Sushil Gupta. The third party to the said agreement was the company itself. If the names of those who were in the Party No. 1 and Party No.2 in the said agreement had been deleted from the array of Defendants-Appellants and the claims against them have been given up, we fail to see as to how the arbitration agreement can still be invoked under Section 34 of the Arbitration Act, 1940 or Section 8 of the Arbitration and Conciliation Act, 1996. | 1[ds]8. It may be true that Plaintiffs-Appellants had been representing a group, but admittedly all the parties to the suit were not parties to the arbitration agreement. If some of the Defendants were not parties to the arbitration agreement, the question of invoking the arbitration clause as against those Defendants would not arise. As noticed hereinbefore, in the earlier round of litigation, Appellants categorically stated that the suit would be confined only as against those who were not parties to the arbitration agreement.9. There were three parties to the said arbitration agreement. Party No. 1 was represented by (1) Satya Dev Gupta; (2) Ramesh Kumar Gupta; and (3) Jai Dev Gupta. Party No.2 was represented by (1) Rajender Parshad Gupta; (2) Sham Lal Gupta; and (3) Sushil Gupta. The third party to the said agreement was the company itself. If the names of those who were in the Party No. 1 and Party No.2 in the said agreement had been deleted from the array of Defendants-Appellants and the claims against them have been given up, we fail to see as to how the arbitration agreement can still be invoked under Section 34 of the Arbitration Act, 1940 or Section 8 of the Arbitration and Conciliation Act, 1996. | 1 | 1,216 | 245 | ### 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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of the Defendants. However, some of the Defendants were not parties to the said agreement. In view of the existence of the said arbitration agreement, an order was passed by the learned trial Judge in terms of the Arbitration Act 1940. The matter came up to this Court on an earlier occasion. Plaintiffs-Appellants herein made a representation before this Court that they would amend the plaint by deleting the names of Respondents who were parties to the arbitration agreement and continue with the suit as against those who were not parties thereto. The said statements were recorded in the order of this Court in the following terms : “Mr. K.N. Balgopal, learned counsel representing the respondents in these 9 SLPs, states that the plaintiff(s) in each of the 9 suits which have been ordered, shall confine his/their suit against the principal debtor in each case and shall drop him from the array of defendants all such defendants other than principal defendant. Prima facie, on such stance being adopted by the petitioners learned counsel, the grievance of the special leave petitioners, apparently, vanishes. Learned counsel for the parties need and are granted time to check up on this aspect of the matter.” 3. By an order dated 04.04.1997, the said special leave petition was disposed of. The matter in regard to the stay of the suit thereafter again came up for hearing. By reason of a judgment and order dated 13.08.1999, it was, inter alia, held : “...The legal proceedings in this case have been started after the agreement by persons claiming under parties to the agreements. The plaintiffs in all the nine cases are claiming under Rajender Parshad Gupta and the defendant is claiming through Satyadev Gupta, both of whom are signatories/executants of the arbitration agreement. Moreover, the plaintiffs in their plaints have admitted that they were bound by the agreement dated 6.8.88, so that they cannot now contend that they were not signatories of the agreement. The third contention is that the proceeding must be with respect of the matter agreed to be referred to arbitration. This condition has already been dealt within the preceding paragraphs and need not be reproduced. Further, the application for stay has been made by the defendant, who is party to the legal proceeding and was filed before filing the written statement or taking any step in the proceedings. I have already held that the applicant is ready and willing to do all things necessary for the proper conduct of arbitration. The conditions set out in the authorities cited above, have been fulfilled and the suits are liable to be stayed.” 4. In terms of the said findings the suit was again directed to be stayed. The appeals preferred thereagainst by Appellants herein were also dismissed. The High Court by reason of its impugned judgment passed in C.R. No. 3045 of 2000 upheld the said findings. 5. Mr. K.N. Balgopal, the learned counsel appearing on behalf of Appellants, would submit that the courts below committed a serious error in passing the impugned judgment insofar as it failed to take into consideration the effect of deleting the names of those defendants by amending the plaint. According to the learned counsel although there might exist an arbitration agreement between Appellants and some of the Defendants, but in view of the fact that the amendments had been carried out in the plaint the arbitration agreement could not have been enforced as against Respondents who were not parties thereto.6. Mr. Balbir Singh, the learned counsel appearing on behalf of Respondents, on the other hand, would submit that the matter being governed by the provisions of Section 8 of the Arbitration and Conciliation Act, 1996, the parties could raise the question of jurisdiction of the arbitral tribunal in terms of section 16 thereof.7. It appears that the counter affidavit has been filed by one Shri Ramesh Kumar Gupta. He had been representing a group in the suit. His name had been deleted from the array of the parties by amending the plaint. In his counter affidavit he does not state that he has any authority to represent other Respondents or any authority to file a counter affidavit on their behalf. Paragraph 7 of the plaint whereupon reliance has been placed reads as under:- “7. That the plaintiff as well as defendant No. 2 to 7 including defendant No. 5 are bound by the agreement dated 6.8.88 and that defendant No. 2 to 4 have repayed Rs.26,51,000/- and have to repay Rs. 2.95 lac including amount of the plaintiff for which the plaintiff is filing the suit against defendant No. 5 as well as defendant No. 2 to 4. Defendant No.1 and defendants No. 6 to 7 have been joined as proforma defendants.” 8. It may be true that Plaintiffs-Appellants had been representing a group, but admittedly all the parties to the suit were not parties to the arbitration agreement. If some of the Defendants were not parties to the arbitration agreement, the question of invoking the arbitration clause as against those Defendants would not arise. As noticed hereinbefore, in the earlier round of litigation, Appellants categorically stated that the suit would be confined only as against those who were not parties to the arbitration agreement.9. There were three parties to the said arbitration agreement. Party No. 1 was represented by (1) Satya Dev Gupta; (2) Ramesh Kumar Gupta; and (3) Jai Dev Gupta. Party No.2 was represented by (1) Rajender Parshad Gupta; (2) Sham Lal Gupta; and (3) Sushil Gupta. The third party to the said agreement was the company itself. If the names of those who were in the Party No. 1 and Party No.2 in the said agreement had been deleted from the array of Defendants-Appellants and the claims against them have been given up, we fail to see as to how the arbitration agreement can still be invoked under Section 34 of the Arbitration Act, 1940 or Section 8 of the Arbitration and Conciliation Act, 1996.
### Response:
1
### Explanation:
8. It may be true that Plaintiffs-Appellants had been representing a group, but admittedly all the parties to the suit were not parties to the arbitration agreement. If some of the Defendants were not parties to the arbitration agreement, the question of invoking the arbitration clause as against those Defendants would not arise. As noticed hereinbefore, in the earlier round of litigation, Appellants categorically stated that the suit would be confined only as against those who were not parties to the arbitration agreement.9. There were three parties to the said arbitration agreement. Party No. 1 was represented by (1) Satya Dev Gupta; (2) Ramesh Kumar Gupta; and (3) Jai Dev Gupta. Party No.2 was represented by (1) Rajender Parshad Gupta; (2) Sham Lal Gupta; and (3) Sushil Gupta. The third party to the said agreement was the company itself. If the names of those who were in the Party No. 1 and Party No.2 in the said agreement had been deleted from the array of Defendants-Appellants and the claims against them have been given up, we fail to see as to how the arbitration agreement can still be invoked under Section 34 of the Arbitration Act, 1940 or Section 8 of the Arbitration and Conciliation Act, 1996.
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Public Passenger Service Ltd Vs. M.A. Khader & Another | that the forfeiture was invalid. 5. Section 155 (1) (a) (ii) of the Indian Companies Act allows rectification of the share register if the name of any person after having been entered in the register is, without sufficient cause, omitted therefrom. There is no sufficient cause for the omission of the name of the shareholder from the register, where the omission is due to an invalid forfeiture of his shares, and on finding that the forfeiture is invalid, the Court has ample jurisdiction under S. 155 to order rectification of the register. The High Court said that the shareholder may approach the Court under S. 155 if he has sufficient cause. This mode of expression was rightly criticised by counsel for the appellant. The issue under S. 155 (1) (a) (ii) is not whether the shareholder has sufficient cause but whether his name has been omitted from the register without sufficient cause. As the forfeiture is invalid, the names of the respondents were omitted from the share register without sufficient cause, and the jurisdiction of the Court under S. 155 is attracted. 6. Counsel for the appellant contended that the point as to the invalidity of the notice, dated January 20, 1957 was not open to the respondents in the absence of any pleading on this point. In the affidavit in support of the application, the respondents pleaded that the steps prescribed before there can be a forfeiture, have not been complied with. No further particulars were given, but the contention as to the invalidity of the notice, dated January 20, 1957 was pointedly raised in the argument in the first Court. The contention was allowed to be raised without any objection. Had the objection been then raised, the Court might have allowed the respondents to file another affidavit. The appellant cannot now complain that the pleadings were vague. 7. We may now conveniently refer to certain events which happened after January 2, 1957 when the directors resolved to make the call and February 11, 1957 when the shares were forfeited. On January 18, 1957, M. A. Jabbar, M. A. Khadir and other shareholders filed Application No. 119 of 1957 in the Madras High Court praying for reliefs under Ss. 402 and 237 of the Indian Companies Act, 1956, and obtained an interim order directing stay of collection of monies pursuant to the notice, dated January 3, 1957. The stay order was communicated to directors on January 21, 1957 after the notice of the intended forfeiture, dated January 20, 1957 was issued. On January 30, 1957, the Court passed a modified interim order restraining the forfeiture of the shares, and directed M. A. Jabbar, to pay the call money into Court within one week. The call money was not paid into Court, and on February 8, 1957, the Court vacated the stay order. Application No. 119 of 1957 was eventually dismissed on April 10, 1957. Counsel for the appellant contended that (1) by reason of the aforesaid proceedings the respondents waived and abandoned their right to challenge the forfeiture; (2) the order, dated January 30, 1957 substituted a fresh notice of intended forfeiture under Art. 29 in lieu of the original notice, dated January 20, 1957 and in the absence of compliance with this order, the forfeiture is valid. Neither of these contentions was raised in the Courts below. We find nothing in the proceedings in application No. 119 of 1957 from which we can infer a waiver or abandonment by the respondents of their right to challenge the validity of the notice, dated January 20, 1957 and the subsequent forfeiture. We also fail to see how the order of the Court, dated January 30, 1957 can amount to a notice under Art. 29. The only notice under Art. 29 is the one, dated January 20, 1957, and as that notice is defective, the forfeiture is invalid. 8. Counsel for the appellant contended that the relief under S. 155 is discretionary, and the Court should have refused relief in the exercise of its discretion. Now, where by reason of its complexity or otherwise the matter can more conveniently be decided in a suit, the Court may refuse relief, under S. 155 and relegate the parties to a suit. But the point as to the invalidity of the notice, dated January 20, 1957 could well be decided summarily, and the Courts below rightly decided to give relief in the exercise of the discretionary jurisdiction under S. 155. Having found that the notice was defective and the forfeiture was invalid, the Court could not arbitrarily refuse relief to the respondents. 9. Counsel for the appellant points out that the respondents are the trade rivals of the appellant and are anxious to cripple its affairs, and the appellate Court recorded the finding that the respondents were acting mala fide and prejudicially to the interests of the appellant and their conduct in taking various proceedings against the appellant is reprehensible. Counsel then relied upon the well-known maxim of equity that "he who comes into equity must come with clean hands, and contended that the Courts below should have dismissed the applications as the respondents did not come with clean hands. This contention must be rejected for several reasons. The respondents are not seeking equitable relief against forfeiture. They are asserting their legal right to the shares on the ground that the forfeiture is invalid, and they continue to be the legal owners of the shares. Secondly, the maxim does not mean that every improper conduct of the applicant disentitles him to equitable relief. The maxim may be invoked where the conduct complained of is unfair and unjust in relation to the subject-matter of the litigation and the equity sued for. The unwarranted proceedings under Ss. 402 and 237 of the Indian Companies Act, 1956 and other vexatious proceedings started by the respondents have no relation to the invalidity of the forfeiture and the relief of rectification and are not valid grounds for refusing relief. | 0[ds]3. In all standard articles of a company, the regulations relating to calls provide for payment of interest on the unpaid call money at a certain rate from the date appointed for its payment up to the time of actual payment, see regulation 14 of Table A in the first Schedule to the Indian Companies Act, 1913, regulation 16 of Table A in the first Schedule to the Indian Companies Act, 1956 and Palmers Company Precedents, 17th Edn. Part I, p. 437 and the regulations relating to calls are followed by regulations relating to forfeiture like Arts. 29 and 30 of the appellant Company. In the light of Art. 29 read with similar regulations relating to calls, we would have no difficulty in holding that the notice, dated January 20, 1957 required payment of interest on the call money form the date appointed for the payment thereof, that is to say, January 19, 1957 up to the time of the actual payment. Unfortunately, all the regulations of the Company relating to payment of calls have not been printed, in the paper book, and in the present state of the record, we express no opinion on the question whether the notice is defective in respect of the demand for interest4. But we agree with the High Court that the notice is defective in respect of the demand for expenses. The amount of expenses incurred by the Company by reason of the non-payment was not disclosed. The respondents were not informed how much they should pay on account of the expenses. The object of the notice under Art. 29 is to give the shareholder an opportunity for payment of the call money, interest and expenses. The notice under Art. 30 must disclose to the shareholder presumably, conversant with the Articles sufficient information from which he may know with certainty the amount which he may know with certainty the amount which he should pay in order to avoid the forfeiture. In the absence of particulars of the expenses, the respondents were not in a position to know the precise amount which they were required to pay on account of the expenses. A proper notice under Art. 29 is a condition precedent to forfeiture under Article 30. Here, the notice under Art. 29 is defective, and the condition precedent is not complied with. The slight defect in the notice invalidates it and is fatal to the forfeiture. The Courts below, therefore, rightly declared that the forfeiture was invalid7. We may now conveniently refer to certain events which happened after January 2, 1957 when the directors resolved to make the call and February 11, 1957 when the shares were forfeited. On January 18, 1957, M. A. Jabbar, M. A. Khadir and other shareholders filed Application No. 119 of 1957 in the Madras High Court praying for reliefs under Ss. 402 and 237 of the Indian Companies Act, 1956, and obtained an interim order directing stay of collection of monies pursuant to the notice, dated January 3, 1957. The stay order was communicated to directors on January 21, 1957 after the notice of the intended forfeiture, dated January 20, 1957 was issued. On January 30, 1957, the Court passed a modified interim order restraining the forfeiture of the shares, and directed M. A. Jabbar, to pay the call money into Court within one week. The call money was not paid into Court, and on February 8, 1957, the Court vacated the stay order. Application No. 119 of 1957 was eventually dismissed on April 10, 1957. Counsel for the appellant contended that (1) by reason of the aforesaid proceedings the respondents waived and abandoned their right to challenge the forfeiture; (2) the order, dated January 30, 1957 substituted a fresh notice of intended forfeiture under Art. 29 in lieu of the original notice, dated January 20, 1957 and in the absence of compliance with this order, the forfeiture is valid. Neither of these contentions was raised in the Courts below. We find nothing in the proceedings in application No. 119 of 1957 from which we can infer a waiver or abandonment by the respondents of their right to challenge the validity of the notice, dated January 20, 1957 and the subsequent forfeiture. We also fail to see how the order of the Court, dated January 30, 1957 can amount to a notice under Art. 29. The only notice under Art. 29 is the one, dated January 20, 1957, and as that notice is defective, the forfeiture is invalid9. Counsel for the appellant points out that the respondents are the trade rivals of the appellant and are anxious to cripple its affairs, and the appellate Court recorded the finding that the respondents were acting mala fide and prejudicially to the interests of the appellant and their conduct in taking various proceedings against the appellant is reprehensible. Counsel then relied upon the well-known maxim of equity that "he who comes into equity must come with clean hands, and contended that the Courts below should have dismissed the applications as the respondents did not come with clean hands.This contention must be rejected for several reasons. The respondents are not seeking equitable relief against forfeiture. They are asserting their legal right to the shares on the ground that the forfeiture is invalid, and they continue to be the legal owners of the shares. Secondly, the maxim does not mean that every improper conduct of the applicant disentitles him to equitable relief. The maxim may be invoked where the conduct complained of is unfair and unjust in relation to the subject-matter of the litigation and the equity sued for. The unwarranted proceedings under Ss. 402 and 237 of the Indian Companies Act, 1956 and other vexatious proceedings started by the respondents have no relation to the invalidity of the forfeiture and the relief of rectification and are not valid grounds for refusing relief. | 0 | 2,275 | 1,100 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
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that the forfeiture was invalid. 5. Section 155 (1) (a) (ii) of the Indian Companies Act allows rectification of the share register if the name of any person after having been entered in the register is, without sufficient cause, omitted therefrom. There is no sufficient cause for the omission of the name of the shareholder from the register, where the omission is due to an invalid forfeiture of his shares, and on finding that the forfeiture is invalid, the Court has ample jurisdiction under S. 155 to order rectification of the register. The High Court said that the shareholder may approach the Court under S. 155 if he has sufficient cause. This mode of expression was rightly criticised by counsel for the appellant. The issue under S. 155 (1) (a) (ii) is not whether the shareholder has sufficient cause but whether his name has been omitted from the register without sufficient cause. As the forfeiture is invalid, the names of the respondents were omitted from the share register without sufficient cause, and the jurisdiction of the Court under S. 155 is attracted. 6. Counsel for the appellant contended that the point as to the invalidity of the notice, dated January 20, 1957 was not open to the respondents in the absence of any pleading on this point. In the affidavit in support of the application, the respondents pleaded that the steps prescribed before there can be a forfeiture, have not been complied with. No further particulars were given, but the contention as to the invalidity of the notice, dated January 20, 1957 was pointedly raised in the argument in the first Court. The contention was allowed to be raised without any objection. Had the objection been then raised, the Court might have allowed the respondents to file another affidavit. The appellant cannot now complain that the pleadings were vague. 7. We may now conveniently refer to certain events which happened after January 2, 1957 when the directors resolved to make the call and February 11, 1957 when the shares were forfeited. On January 18, 1957, M. A. Jabbar, M. A. Khadir and other shareholders filed Application No. 119 of 1957 in the Madras High Court praying for reliefs under Ss. 402 and 237 of the Indian Companies Act, 1956, and obtained an interim order directing stay of collection of monies pursuant to the notice, dated January 3, 1957. The stay order was communicated to directors on January 21, 1957 after the notice of the intended forfeiture, dated January 20, 1957 was issued. On January 30, 1957, the Court passed a modified interim order restraining the forfeiture of the shares, and directed M. A. Jabbar, to pay the call money into Court within one week. The call money was not paid into Court, and on February 8, 1957, the Court vacated the stay order. Application No. 119 of 1957 was eventually dismissed on April 10, 1957. Counsel for the appellant contended that (1) by reason of the aforesaid proceedings the respondents waived and abandoned their right to challenge the forfeiture; (2) the order, dated January 30, 1957 substituted a fresh notice of intended forfeiture under Art. 29 in lieu of the original notice, dated January 20, 1957 and in the absence of compliance with this order, the forfeiture is valid. Neither of these contentions was raised in the Courts below. We find nothing in the proceedings in application No. 119 of 1957 from which we can infer a waiver or abandonment by the respondents of their right to challenge the validity of the notice, dated January 20, 1957 and the subsequent forfeiture. We also fail to see how the order of the Court, dated January 30, 1957 can amount to a notice under Art. 29. The only notice under Art. 29 is the one, dated January 20, 1957, and as that notice is defective, the forfeiture is invalid. 8. Counsel for the appellant contended that the relief under S. 155 is discretionary, and the Court should have refused relief in the exercise of its discretion. Now, where by reason of its complexity or otherwise the matter can more conveniently be decided in a suit, the Court may refuse relief, under S. 155 and relegate the parties to a suit. But the point as to the invalidity of the notice, dated January 20, 1957 could well be decided summarily, and the Courts below rightly decided to give relief in the exercise of the discretionary jurisdiction under S. 155. Having found that the notice was defective and the forfeiture was invalid, the Court could not arbitrarily refuse relief to the respondents. 9. Counsel for the appellant points out that the respondents are the trade rivals of the appellant and are anxious to cripple its affairs, and the appellate Court recorded the finding that the respondents were acting mala fide and prejudicially to the interests of the appellant and their conduct in taking various proceedings against the appellant is reprehensible. Counsel then relied upon the well-known maxim of equity that "he who comes into equity must come with clean hands, and contended that the Courts below should have dismissed the applications as the respondents did not come with clean hands. This contention must be rejected for several reasons. The respondents are not seeking equitable relief against forfeiture. They are asserting their legal right to the shares on the ground that the forfeiture is invalid, and they continue to be the legal owners of the shares. Secondly, the maxim does not mean that every improper conduct of the applicant disentitles him to equitable relief. The maxim may be invoked where the conduct complained of is unfair and unjust in relation to the subject-matter of the litigation and the equity sued for. The unwarranted proceedings under Ss. 402 and 237 of the Indian Companies Act, 1956 and other vexatious proceedings started by the respondents have no relation to the invalidity of the forfeiture and the relief of rectification and are not valid grounds for refusing relief.
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### Explanation:
3. In all standard articles of a company, the regulations relating to calls provide for payment of interest on the unpaid call money at a certain rate from the date appointed for its payment up to the time of actual payment, see regulation 14 of Table A in the first Schedule to the Indian Companies Act, 1913, regulation 16 of Table A in the first Schedule to the Indian Companies Act, 1956 and Palmers Company Precedents, 17th Edn. Part I, p. 437 and the regulations relating to calls are followed by regulations relating to forfeiture like Arts. 29 and 30 of the appellant Company. In the light of Art. 29 read with similar regulations relating to calls, we would have no difficulty in holding that the notice, dated January 20, 1957 required payment of interest on the call money form the date appointed for the payment thereof, that is to say, January 19, 1957 up to the time of the actual payment. Unfortunately, all the regulations of the Company relating to payment of calls have not been printed, in the paper book, and in the present state of the record, we express no opinion on the question whether the notice is defective in respect of the demand for interest4. But we agree with the High Court that the notice is defective in respect of the demand for expenses. The amount of expenses incurred by the Company by reason of the non-payment was not disclosed. The respondents were not informed how much they should pay on account of the expenses. The object of the notice under Art. 29 is to give the shareholder an opportunity for payment of the call money, interest and expenses. The notice under Art. 30 must disclose to the shareholder presumably, conversant with the Articles sufficient information from which he may know with certainty the amount which he may know with certainty the amount which he should pay in order to avoid the forfeiture. In the absence of particulars of the expenses, the respondents were not in a position to know the precise amount which they were required to pay on account of the expenses. A proper notice under Art. 29 is a condition precedent to forfeiture under Article 30. Here, the notice under Art. 29 is defective, and the condition precedent is not complied with. The slight defect in the notice invalidates it and is fatal to the forfeiture. The Courts below, therefore, rightly declared that the forfeiture was invalid7. We may now conveniently refer to certain events which happened after January 2, 1957 when the directors resolved to make the call and February 11, 1957 when the shares were forfeited. On January 18, 1957, M. A. Jabbar, M. A. Khadir and other shareholders filed Application No. 119 of 1957 in the Madras High Court praying for reliefs under Ss. 402 and 237 of the Indian Companies Act, 1956, and obtained an interim order directing stay of collection of monies pursuant to the notice, dated January 3, 1957. The stay order was communicated to directors on January 21, 1957 after the notice of the intended forfeiture, dated January 20, 1957 was issued. On January 30, 1957, the Court passed a modified interim order restraining the forfeiture of the shares, and directed M. A. Jabbar, to pay the call money into Court within one week. The call money was not paid into Court, and on February 8, 1957, the Court vacated the stay order. Application No. 119 of 1957 was eventually dismissed on April 10, 1957. Counsel for the appellant contended that (1) by reason of the aforesaid proceedings the respondents waived and abandoned their right to challenge the forfeiture; (2) the order, dated January 30, 1957 substituted a fresh notice of intended forfeiture under Art. 29 in lieu of the original notice, dated January 20, 1957 and in the absence of compliance with this order, the forfeiture is valid. Neither of these contentions was raised in the Courts below. We find nothing in the proceedings in application No. 119 of 1957 from which we can infer a waiver or abandonment by the respondents of their right to challenge the validity of the notice, dated January 20, 1957 and the subsequent forfeiture. We also fail to see how the order of the Court, dated January 30, 1957 can amount to a notice under Art. 29. The only notice under Art. 29 is the one, dated January 20, 1957, and as that notice is defective, the forfeiture is invalid9. Counsel for the appellant points out that the respondents are the trade rivals of the appellant and are anxious to cripple its affairs, and the appellate Court recorded the finding that the respondents were acting mala fide and prejudicially to the interests of the appellant and their conduct in taking various proceedings against the appellant is reprehensible. Counsel then relied upon the well-known maxim of equity that "he who comes into equity must come with clean hands, and contended that the Courts below should have dismissed the applications as the respondents did not come with clean hands.This contention must be rejected for several reasons. The respondents are not seeking equitable relief against forfeiture. They are asserting their legal right to the shares on the ground that the forfeiture is invalid, and they continue to be the legal owners of the shares. Secondly, the maxim does not mean that every improper conduct of the applicant disentitles him to equitable relief. The maxim may be invoked where the conduct complained of is unfair and unjust in relation to the subject-matter of the litigation and the equity sued for. The unwarranted proceedings under Ss. 402 and 237 of the Indian Companies Act, 1956 and other vexatious proceedings started by the respondents have no relation to the invalidity of the forfeiture and the relief of rectification and are not valid grounds for refusing relief.
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Bharat Coking Coal Ltd Vs. L.K. Ahuja | and ward staff to the extent of 18 members, he held that three watch and ward staff would have been enough and the period for which the same had been maintained comes down to 18 months and with reference to the pleadings raised in this Court on earlier occasion took note of the fact that possession had not been given since April 1984. Therefore, he reduced the period to 14 months. He rejected the claim that for the whole period from April 1986 it had retained the services of plumber, electrician, carpenters, supervisory, etc. and watch and ward staff and he held that the flats were not in such a condition that the appellant could have taken possession and, therefore, the entire claim cannot be justified. Having taken into consideration the fact that the watch and ward staff could be three, he awarded a sum @ Rs.10,000/- per month for 14 months. 20. The learned Additional Solicitor General submitted that there is absolutely no basis for awarding this item as no material had been placed before the arbitrator. We cannot say that in assessing such a situation, the arbitrator has exceeded his jurisdiction or that there was no material at all before him in assessing the situation that there was some delay in handing over the flats and watch and ward had to be maintained, he has awarded for a reduced period of 14 months @ Rs.10,000/- per month. Therefore, we cannot hold this conclusion as suffering from an error apparent on the face of the award. 21. Next two items regarding rolling margin and refund of security deposit had been rejected by the arbitrator and, therefore, do not require any consideration. 22. On the question of material escalation, the arbitrator considered the claim made in a sum of Rs.4,12,487.46 under this head. The arbitrator took note of the situation that it was not the contention of the appellant that the material referred under this head had not been used for the completion of the project but having secured a sum of Rs. 17,70,085/- by way of advance, the escalation would get off-set by the advance paid and further running accounts payments had been made from month to month which must have taken into consideration the rise in prices. He held that there was no evidence on record as to the nature of the purchases made by the claimant during the extended period although some purchases had been made attracting escalation in the prices. Secured advance was only made to the extent of 60 to 75%. Therefore, he held that 25% of the escalation has to be compensated on that basis and allowed half of the claim of the contractor. When there was no dispute as to the fact that materials had been used for the purpose of the project and the value thereof, the claim made by the appellant having been duly examined by the arbitrator and after giving due allowance by the arbitrator and after giving due allowance to the advances that have been made the award made by the arbitrator cannot be stated to be as one suffering from any error apparent on the face of the award. Therefore, this conclusion also cannot be interfered with.23. Claim No.8 has been rejected by the arbitrator. Now we proceed to consider claim No.9 for loss arising out of turnover due to prolongation of work. The claim made under this head is in a sum of Rs. 10 lakhs. The arbitrator rightly held that on account of escalation in wage and prices of materials compensation was obtained and, therefore, there is not much justification in asking compensation for loss and profits on account of prolongation of works. However, he came to the conclusion that a sum of Rs. 6,00,000/- would be appropriate compensation in a matter of this nature being 15% of the total profit over the amount that has been agreed to be paid. While a sum of Rs. 12,00,000/- would be the appropriate entitlement, he held that a sum of Rs. 6,00,000/- would be appropriate. He also awarded interest on the amounts payable at 15% per annum.24. Here when claim for escalation of wages bills and price for materials compensation has been paid and compensation for delay in the payment of the amount payable under the contract or for other extra works is to be paid with interest thereon, it is rather difficult for us to accept the proposition that in addition 15% of the total profit should be computed under the heading Loss of Profit. It is not unusual for the contractors to claim loss of profit arising out of diminution in turn over on account of delay in the matter of completion of the work. What he should establish in such a situation is that had he received the amount due under the contract, he could have utilised the same for some other business in which he could have earned profit. Unless such a plea is raised and established, claim for loss of profits could not have been granted. In this case, no such material is available on record. In the absence of any evidence, the arbitrator could not have awarded the same. This aspect was very well settled in Sunleyn (B) & Co. Ltd. vs. Cunard White Star Ltd., [1940] 1 K.B. 740, by the Court of Appeal in England. Therefore, we have no hesitation in deleting a sum of Rs. 6,00,000/- awarded to the claimant.25. So far as interest that is payable is concerned, the arbitrator has appropriately considered the same and no real objection can be raised in this regard. As regards arbitration costs also there cannot be any serious dispute. Therefore, except for the sums coming under the heading No.5, that is, Refund of Sales Tax and claim for payment of losses arising out of turn over due to prolongation of work, other part of the award having been upheld by us, the award made by the arbitrator shall stand modified accordingly. | 1[ds]On this aspect while dealing with the claim for extra works under claim No.6, the arbitrator adverted to the decision of this Court in State of Bihar & Ors. vs. Hanuman Mal Jain, 1997 (11) SCC 40 , wherein this Court interpreted a similar clause as laying down the procedure as to how a claim could be lodged and not to oust the jurisdiction of the arbitrator in deciding the dispute on merits. It is not clear from the pleadings raised on behalf of the appellant before the arbitrator whether the claim covered by the final bill as extra items to the tune of Rs. 91,013.72 is included in the extra item of works which had been rejected by the arbitrator. The arbitrator adverted to this aspect of the matter while deciding claim No. 6 and held that out of the claim of Rs. 1,02,517/-, Rs. 11,503/- had been paid leaving a balance of claim of Rs. 91,013/- which has been clearly allowed by him while consider claim No.1 regarding non-payment of final bill and having claimed Rs. 91,013.72 which had been allowed by him the contractor could not once again claim the same amount under another head and the arbitrator rejected this claim on two grounds, namely, that there is no order in writing by the Engineer-in-Chief and secondly even if it had been executed, it had been paidthese circumstances, it cannot be said that the item claimed for extra works referred to in the final bill is the same as the claim under claim No.6 for extra works wherever such a situation has arisen the arbitrator has examined the same, say for example, in regard to petrol, oil and lubricant, he has separately, treated the same. If appropriate pleadings had been raised, the arbitrator would have certainly considered this aspect and in the absence of the same we think that the view taken by the arbitrator in this regard cannot be interfered. Only two items which had been allowed by the arbitrator which have been adverted to by us as a sum of Rs. 49,513.02 which was still to be paid and a sum of Rs. 91,013.72 as extra items of works which was disclosed in the measurement book. Therefore, we find no infirmity on this aspect of the claim.16. Claim Nos. 2 and 3 not having been disputed before us, we now proceed to consider claim No.4. The arbitrator considered various aspects made under this head for claim for payment of labour escalation. The arbitrator took the view that the appellant alone was not responsible for prolongation of the works and there were lapses on the part of the contractor as well and both were responsible for the delay. The arbitrator, after into consideration that there was definitely a escalation between April 1983 and April 1984 in regard to wage bill of the claimant, took the view that s against a claim of Rs. 2,66,343/- awarded a sum of Rs. 1,30,000/-. When on the basis of the pleadings and overall view of the situation arising as to the rise in the cost of wages, having awarded a lumpsum amount under this head, we do not think it is necessary to interfere with the award on this aspect of the matter.17. The claim for refund of sales tax in a sum of Rs. 35,050/- has been upheld by the arbitrator on the basis that in terms of a notification issued by the Government which lays down that if the works had been handed over prior to 1.4.1984, sales tax was not leviable but the works having been executed on 31.5.1984, it cannot be said that the terms of the notification had been complied with and, therefore, no claim could have been made by the claimant and, therefore, an award of Rs. 35,050/- based on the notification dated 19.2.1985 would not be correct and, thus, this amount of award in a sum of Rs.35,050/- stands allowed. There is a clear error apparent on the face of the award in having allowed this claim by the arbitrator.18. Claim No.6 consists of four items. So far as the first item regarding extra work is concerned, the claim has been rejected by the arbitrator which we have adverted to while considering claim no.1 under final bill. The second item under this claim relates to watch and ward expenses. The arbitrator, after examining various aspects of the matter, took the view that the expenditure over watch and ward staff could not be more than Rs. 10,000/- per month for 14 months and the bill on that account would come down to Rs. 1,40,000/-. However, taking all the factors in respect of this claim, the expenditure under this head would not come to more than Rs. 84,000/- for the whole period and taking a lenient view of the matter, the arbitrator awarded a sum of Rs. 1,25,000/- under this head.19. The arbitrator considered the fact that the appellant took possession of the quarters for two days on 30.4.1984 and 1.5.1984 to accommodate delegation for the All-India Labour Union Congress but it was not in dispute that the same was handed over after a couple of days. Thereafter the quarters were allotted to employees in stages and actual delivery of possession was made on 10.3.1986. While the arbitrator considered that the claim on account of watch and ward to the tune of Rs. 7,09,000/- is fantastically high and in the written submissions it had been claimed that the building had to be maintained at a cost of Rs. 5,500/- per month, he doubts as to whether the claimant and retained any watch and ward staff to the extent of 18 members, he held that three watch and ward staff would have been enough and the period for which the same had been maintained comes down to 18 months and with reference to the pleadings raised in this Court on earlier occasion took note of the fact that possession had not been given since April 1984. Therefore, he reduced the period to 14 months. He rejected the claim that for the whole period from April 1986 it had retained the services of plumber, electrician, carpenters, supervisory, etc. and watch and ward staff and he held that the flats were not in such a condition that the appellant could have taken possession and, therefore, the entire claim cannot be justified. Having taken into consideration the fact that the watch and ward staff could be three, he awarded a sum @ Rs.10,000/- per month for 14cannot say that in assessing such a situation, the arbitrator has exceeded his jurisdiction or that there was no material at all before him in assessing the situation that there was some delay in handing over the flats and watch and ward had to be maintained, he has awarded for a reduced period of 14 months @ Rs.10,000/- per month. Therefore, we cannot hold this conclusion as suffering from an error apparent on the face of the award.On the question of material escalation, the arbitrator considered the claim made in a sum of Rs.4,12,487.46 under this head. The arbitrator took note of the situation that it was not the contention of the appellant that the material referred under this head had not been used for the completion of the project but having secured a sum of Rs. 17,70,085/- by way of advance, the escalation would get off-set by the advance paid and further running accounts payments had been made from month to month which must have taken into consideration the rise in prices. He held that there was no evidence on record as to the nature of the purchases made by the claimant during the extended period although some purchases had been made attracting escalation in the prices. Secured advance was only made to the extent of 60 to 75%. Therefore, he held that 25% of the escalation has to be compensated on that basis and allowed half of the claim of the contractor. When there was no dispute as to the fact that materials had been used for the purpose of the project and the value thereof, the claim made by the appellant having been duly examined by the arbitrator and after giving due allowance by the arbitrator and after giving due allowance to the advances that have been made the award made by the arbitrator cannot be stated to be as one suffering from any error apparent on the face of the award. Therefore, this conclusion also cannot be interfered with.23. Claim No.8 has been rejected by the arbitrator. Now we proceed to consider claim No.9 for loss arising out of turnover due to prolongation of work. The claim made under this head is in a sum of Rs. 10 lakhs. The arbitrator rightly held that on account of escalation in wage and prices of materials compensation was obtained and, therefore, there is not much justification in asking compensation for loss and profits on account of prolongation of works. However, he came to the conclusion that a sum of Rs. 6,00,000/- would be appropriate compensation in a matter of this nature being 15% of the total profit over the amount that has been agreed to be paid. While a sum of Rs. 12,00,000/- would be the appropriate entitlement, he held that a sum of Rs. 6,00,000/- would be appropriate. He also awarded interest on the amounts payable at 15% per annum.24. Here when claim for escalation of wages bills and price for materials compensation has been paid and compensation for delay in the payment of the amount payable under the contract or for other extra works is to be paid with interest thereon, it is rather difficult for us to accept the proposition that in addition 15% of the total profit should be computed under the heading Loss of Profit. It is not unusual for the contractors to claim loss of profit arising out of diminution in turn over on account of delay in the matter of completion of the work. What he should establish in such a situation is that had he received the amount due under the contract, he could have utilised the same for some other business in which he could have earned profit. Unless such a plea is raised and established, claim for loss of profits could not have been granted. In this case, no such material is available on record. In the absence of any evidence, the arbitrator could not have awarded the same. This aspect was very well settled inSunleyn (B) & Co. Ltd. vs. Cunard White Star Ltd., [1940] 1 K.B.by the Court of Appeal in England. Therefore, we have no hesitation in deleting a sum of Rs. 6,00,000/- awarded to the claimant.25. So far as interest that is payable is concerned, the arbitrator has appropriately considered the same and no real objection can be raised in this regard. As regards arbitration costs also there cannot be any serious dispute. Therefore, except for the sums coming under the heading No.5, that is, Refund of Sales Tax and claim for payment of losses arising out of turn over due to prolongation of work, other part of the award having been upheld by us, the award made by the arbitrator shall stand modified accordingly. | 1 | 4,225 | 2,045 | ### 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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and ward staff to the extent of 18 members, he held that three watch and ward staff would have been enough and the period for which the same had been maintained comes down to 18 months and with reference to the pleadings raised in this Court on earlier occasion took note of the fact that possession had not been given since April 1984. Therefore, he reduced the period to 14 months. He rejected the claim that for the whole period from April 1986 it had retained the services of plumber, electrician, carpenters, supervisory, etc. and watch and ward staff and he held that the flats were not in such a condition that the appellant could have taken possession and, therefore, the entire claim cannot be justified. Having taken into consideration the fact that the watch and ward staff could be three, he awarded a sum @ Rs.10,000/- per month for 14 months. 20. The learned Additional Solicitor General submitted that there is absolutely no basis for awarding this item as no material had been placed before the arbitrator. We cannot say that in assessing such a situation, the arbitrator has exceeded his jurisdiction or that there was no material at all before him in assessing the situation that there was some delay in handing over the flats and watch and ward had to be maintained, he has awarded for a reduced period of 14 months @ Rs.10,000/- per month. Therefore, we cannot hold this conclusion as suffering from an error apparent on the face of the award. 21. Next two items regarding rolling margin and refund of security deposit had been rejected by the arbitrator and, therefore, do not require any consideration. 22. On the question of material escalation, the arbitrator considered the claim made in a sum of Rs.4,12,487.46 under this head. The arbitrator took note of the situation that it was not the contention of the appellant that the material referred under this head had not been used for the completion of the project but having secured a sum of Rs. 17,70,085/- by way of advance, the escalation would get off-set by the advance paid and further running accounts payments had been made from month to month which must have taken into consideration the rise in prices. He held that there was no evidence on record as to the nature of the purchases made by the claimant during the extended period although some purchases had been made attracting escalation in the prices. Secured advance was only made to the extent of 60 to 75%. Therefore, he held that 25% of the escalation has to be compensated on that basis and allowed half of the claim of the contractor. When there was no dispute as to the fact that materials had been used for the purpose of the project and the value thereof, the claim made by the appellant having been duly examined by the arbitrator and after giving due allowance by the arbitrator and after giving due allowance to the advances that have been made the award made by the arbitrator cannot be stated to be as one suffering from any error apparent on the face of the award. Therefore, this conclusion also cannot be interfered with.23. Claim No.8 has been rejected by the arbitrator. Now we proceed to consider claim No.9 for loss arising out of turnover due to prolongation of work. The claim made under this head is in a sum of Rs. 10 lakhs. The arbitrator rightly held that on account of escalation in wage and prices of materials compensation was obtained and, therefore, there is not much justification in asking compensation for loss and profits on account of prolongation of works. However, he came to the conclusion that a sum of Rs. 6,00,000/- would be appropriate compensation in a matter of this nature being 15% of the total profit over the amount that has been agreed to be paid. While a sum of Rs. 12,00,000/- would be the appropriate entitlement, he held that a sum of Rs. 6,00,000/- would be appropriate. He also awarded interest on the amounts payable at 15% per annum.24. Here when claim for escalation of wages bills and price for materials compensation has been paid and compensation for delay in the payment of the amount payable under the contract or for other extra works is to be paid with interest thereon, it is rather difficult for us to accept the proposition that in addition 15% of the total profit should be computed under the heading Loss of Profit. It is not unusual for the contractors to claim loss of profit arising out of diminution in turn over on account of delay in the matter of completion of the work. What he should establish in such a situation is that had he received the amount due under the contract, he could have utilised the same for some other business in which he could have earned profit. Unless such a plea is raised and established, claim for loss of profits could not have been granted. In this case, no such material is available on record. In the absence of any evidence, the arbitrator could not have awarded the same. This aspect was very well settled in Sunleyn (B) & Co. Ltd. vs. Cunard White Star Ltd., [1940] 1 K.B. 740, by the Court of Appeal in England. Therefore, we have no hesitation in deleting a sum of Rs. 6,00,000/- awarded to the claimant.25. So far as interest that is payable is concerned, the arbitrator has appropriately considered the same and no real objection can be raised in this regard. As regards arbitration costs also there cannot be any serious dispute. Therefore, except for the sums coming under the heading No.5, that is, Refund of Sales Tax and claim for payment of losses arising out of turn over due to prolongation of work, other part of the award having been upheld by us, the award made by the arbitrator shall stand modified accordingly.
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on 10.3.1986. While the arbitrator considered that the claim on account of watch and ward to the tune of Rs. 7,09,000/- is fantastically high and in the written submissions it had been claimed that the building had to be maintained at a cost of Rs. 5,500/- per month, he doubts as to whether the claimant and retained any watch and ward staff to the extent of 18 members, he held that three watch and ward staff would have been enough and the period for which the same had been maintained comes down to 18 months and with reference to the pleadings raised in this Court on earlier occasion took note of the fact that possession had not been given since April 1984. Therefore, he reduced the period to 14 months. He rejected the claim that for the whole period from April 1986 it had retained the services of plumber, electrician, carpenters, supervisory, etc. and watch and ward staff and he held that the flats were not in such a condition that the appellant could have taken possession and, therefore, the entire claim cannot be justified. Having taken into consideration the fact that the watch and ward staff could be three, he awarded a sum @ Rs.10,000/- per month for 14cannot say that in assessing such a situation, the arbitrator has exceeded his jurisdiction or that there was no material at all before him in assessing the situation that there was some delay in handing over the flats and watch and ward had to be maintained, he has awarded for a reduced period of 14 months @ Rs.10,000/- per month. Therefore, we cannot hold this conclusion as suffering from an error apparent on the face of the award.On the question of material escalation, the arbitrator considered the claim made in a sum of Rs.4,12,487.46 under this head. The arbitrator took note of the situation that it was not the contention of the appellant that the material referred under this head had not been used for the completion of the project but having secured a sum of Rs. 17,70,085/- by way of advance, the escalation would get off-set by the advance paid and further running accounts payments had been made from month to month which must have taken into consideration the rise in prices. He held that there was no evidence on record as to the nature of the purchases made by the claimant during the extended period although some purchases had been made attracting escalation in the prices. Secured advance was only made to the extent of 60 to 75%. Therefore, he held that 25% of the escalation has to be compensated on that basis and allowed half of the claim of the contractor. When there was no dispute as to the fact that materials had been used for the purpose of the project and the value thereof, the claim made by the appellant having been duly examined by the arbitrator and after giving due allowance by the arbitrator and after giving due allowance to the advances that have been made the award made by the arbitrator cannot be stated to be as one suffering from any error apparent on the face of the award. Therefore, this conclusion also cannot be interfered with.23. Claim No.8 has been rejected by the arbitrator. Now we proceed to consider claim No.9 for loss arising out of turnover due to prolongation of work. The claim made under this head is in a sum of Rs. 10 lakhs. The arbitrator rightly held that on account of escalation in wage and prices of materials compensation was obtained and, therefore, there is not much justification in asking compensation for loss and profits on account of prolongation of works. However, he came to the conclusion that a sum of Rs. 6,00,000/- would be appropriate compensation in a matter of this nature being 15% of the total profit over the amount that has been agreed to be paid. While a sum of Rs. 12,00,000/- would be the appropriate entitlement, he held that a sum of Rs. 6,00,000/- would be appropriate. He also awarded interest on the amounts payable at 15% per annum.24. Here when claim for escalation of wages bills and price for materials compensation has been paid and compensation for delay in the payment of the amount payable under the contract or for other extra works is to be paid with interest thereon, it is rather difficult for us to accept the proposition that in addition 15% of the total profit should be computed under the heading Loss of Profit. It is not unusual for the contractors to claim loss of profit arising out of diminution in turn over on account of delay in the matter of completion of the work. What he should establish in such a situation is that had he received the amount due under the contract, he could have utilised the same for some other business in which he could have earned profit. Unless such a plea is raised and established, claim for loss of profits could not have been granted. In this case, no such material is available on record. In the absence of any evidence, the arbitrator could not have awarded the same. This aspect was very well settled inSunleyn (B) & Co. Ltd. vs. Cunard White Star Ltd., [1940] 1 K.B.by the Court of Appeal in England. Therefore, we have no hesitation in deleting a sum of Rs. 6,00,000/- awarded to the claimant.25. So far as interest that is payable is concerned, the arbitrator has appropriately considered the same and no real objection can be raised in this regard. As regards arbitration costs also there cannot be any serious dispute. Therefore, except for the sums coming under the heading No.5, that is, Refund of Sales Tax and claim for payment of losses arising out of turn over due to prolongation of work, other part of the award having been upheld by us, the award made by the arbitrator shall stand modified accordingly.
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State Of Punjab Vs. M/S. Geeta Iron & Brass Works Ltd | KRISHNA IYER, J.1. This special leave to appeal is sought against a discretionary order passed by the Subordinate Judge declining to stay a suit under s. 34 of the Arbitration Act. This order was challenged in appeal and the High Court, after an exhaustive consideration, felt that the exercise of discretion was not so improper as to deserve interference.2. Shri Hardev Singh is-right to the limited extent that where parties have by contract agreed to refer their disputes to arbitration the courts should as far as possible proceed to give an opportunity for resolution of disputes by arbitration rather than by judicial adjudication. Even so, there is a residual discretion vested in the court to stay or not to stay having regard to the totality of circumstances. One weighty factor obvious is to find out whether the party who invokes the arbitration closely as expressed his readiness to rely on it at the earliest stage. We are not investigating the merits of the matter under Art. 136 but are satisfied that there is no gross error justifying grant of leave. We make it clear however that as a matter of law mere silence on the part of the defendant when a notice under s. 80 C.P.C. is sent to him may not, without more, disentitle him to move under s. 34 and seek stay. In the present case, other circumstances have also been pressed into service by the Court.3. While dismissing the special leave petition for the reasons mentioned above, we would like to emphasize that the deserved defeat of the State in the courts below demonstrates the gross indifference of the administration towards litigative diligence. In the present case a notice under s. 80 C.P.C. was sent. No response. A suit was filed and summons taken out to the Chief Secretary. Shockingly enough, the summons was refused. An ex parte proceeding was taken when the lethargic Government woke up. We like to emphasize that Governments must be made accountable by Parliamentary social audit for wasteful litigative expenditure inflicted on the community by inaction. A statutory notice of the proposed action under S. 80 C.P.C. is intended to alert the State to negotiate a just settlement or at least have the courtesy to tell the potential outsider why the cl aim is being resisted. Now S. 80 has become a ritual because the administration is often unresponsive and hardly lives up to the Parliaments expectation in continuing s. 80 in the Code despite the Central Law Commissions recommendations for its deletion. An opportunity for settling the dispute through arbitration was thrown away by sheer inaction. A litigative policy for the State involves settlement of Governmental disputes with citizens in a sense of conciliation rather than in a fighting mood. Indeed, it should be a directive on the part of the State to empower its law officer to take steps to compose disputes rather than continue them in court. We are constrained to make these observations because much of the litigation in which Governments are involved adds to the case load accumulation in courts for which there is public criticism. | 0[ds]We are not investigating the merits of the matter under Art. 136 but are satisfied that there is no gross error justifying grant of leave. We make it clear however that as a matter of law mere silence on the part of the defendant when a notice under s. 80 C.P.C. is sent to him may not, without more, disentitle him to move under s. 34 and seek stay. In the present case, other circumstances have also been pressed into service by thedismissing the special leave petition for the reasons mentioned above, we would like to emphasize that the deserved defeat of the State in the courts below demonstrates the gross indifference of the administration towards litigative diligence.We like to emphasize that Governments must be made accountable by Parliamentary social audit for wasteful litigative expenditure inflicted on the community by inaction. A statutory notice of the proposed action under S. 80 C.P.C. is intended to alert the State to negotiate a just settlement or at least have the courtesy to tell the potential outsider why the cl aim is being resisted. Now S. 80 has become a ritual because the administration is often unresponsive and hardly lives up to the Parliaments expectation in continuing s. 80 in the Code despite the Central Law Commissions recommendations for its deletion. An opportunity for settling the dispute through arbitration was thrown away by sheer inaction. A litigative policy for the State involves settlement of Governmental disputes with citizens in a sense of conciliation rather than in a fighting mood. Indeed, it should be a directive on the part of the State to empower its law officer to take steps to compose disputes rather than continue them in court. We are constrained to make these observations because much of the litigation in which Governments are involved adds to the case load accumulation in courts for which there is public criticism. | 0 | 555 | 337 | ### 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:
KRISHNA IYER, J.1. This special leave to appeal is sought against a discretionary order passed by the Subordinate Judge declining to stay a suit under s. 34 of the Arbitration Act. This order was challenged in appeal and the High Court, after an exhaustive consideration, felt that the exercise of discretion was not so improper as to deserve interference.2. Shri Hardev Singh is-right to the limited extent that where parties have by contract agreed to refer their disputes to arbitration the courts should as far as possible proceed to give an opportunity for resolution of disputes by arbitration rather than by judicial adjudication. Even so, there is a residual discretion vested in the court to stay or not to stay having regard to the totality of circumstances. One weighty factor obvious is to find out whether the party who invokes the arbitration closely as expressed his readiness to rely on it at the earliest stage. We are not investigating the merits of the matter under Art. 136 but are satisfied that there is no gross error justifying grant of leave. We make it clear however that as a matter of law mere silence on the part of the defendant when a notice under s. 80 C.P.C. is sent to him may not, without more, disentitle him to move under s. 34 and seek stay. In the present case, other circumstances have also been pressed into service by the Court.3. While dismissing the special leave petition for the reasons mentioned above, we would like to emphasize that the deserved defeat of the State in the courts below demonstrates the gross indifference of the administration towards litigative diligence. In the present case a notice under s. 80 C.P.C. was sent. No response. A suit was filed and summons taken out to the Chief Secretary. Shockingly enough, the summons was refused. An ex parte proceeding was taken when the lethargic Government woke up. We like to emphasize that Governments must be made accountable by Parliamentary social audit for wasteful litigative expenditure inflicted on the community by inaction. A statutory notice of the proposed action under S. 80 C.P.C. is intended to alert the State to negotiate a just settlement or at least have the courtesy to tell the potential outsider why the cl aim is being resisted. Now S. 80 has become a ritual because the administration is often unresponsive and hardly lives up to the Parliaments expectation in continuing s. 80 in the Code despite the Central Law Commissions recommendations for its deletion. An opportunity for settling the dispute through arbitration was thrown away by sheer inaction. A litigative policy for the State involves settlement of Governmental disputes with citizens in a sense of conciliation rather than in a fighting mood. Indeed, it should be a directive on the part of the State to empower its law officer to take steps to compose disputes rather than continue them in court. We are constrained to make these observations because much of the litigation in which Governments are involved adds to the case load accumulation in courts for which there is public criticism.
### Response:
0
### Explanation:
We are not investigating the merits of the matter under Art. 136 but are satisfied that there is no gross error justifying grant of leave. We make it clear however that as a matter of law mere silence on the part of the defendant when a notice under s. 80 C.P.C. is sent to him may not, without more, disentitle him to move under s. 34 and seek stay. In the present case, other circumstances have also been pressed into service by thedismissing the special leave petition for the reasons mentioned above, we would like to emphasize that the deserved defeat of the State in the courts below demonstrates the gross indifference of the administration towards litigative diligence.We like to emphasize that Governments must be made accountable by Parliamentary social audit for wasteful litigative expenditure inflicted on the community by inaction. A statutory notice of the proposed action under S. 80 C.P.C. is intended to alert the State to negotiate a just settlement or at least have the courtesy to tell the potential outsider why the cl aim is being resisted. Now S. 80 has become a ritual because the administration is often unresponsive and hardly lives up to the Parliaments expectation in continuing s. 80 in the Code despite the Central Law Commissions recommendations for its deletion. An opportunity for settling the dispute through arbitration was thrown away by sheer inaction. A litigative policy for the State involves settlement of Governmental disputes with citizens in a sense of conciliation rather than in a fighting mood. Indeed, it should be a directive on the part of the State to empower its law officer to take steps to compose disputes rather than continue them in court. We are constrained to make these observations because much of the litigation in which Governments are involved adds to the case load accumulation in courts for which there is public criticism.
|
Nickunj Eximp Enterprises Private Limited Vs. Assistant Commissioner of Income-Tax, Range | Mr. Mistry, learned Senior Counsel appearing for the petitioners pointed out that the reasons disclosed in support of both the impugned notices are identical and similar to the reasons which have been disclosed in support of another notice dated 7 December 2012 issued to the petitioner seeking to reopen the assessment for A.Y. 2005-06. The notice dated 7 December 2012 in respect of A.Y. 2005-06 was also a subject matter of challenge in this Court being W.P. No.2860 of 2012. This Court by an order dated 18 June 2014 passed in W.P. No. 2860 of 2012 refused to entertain the petition. However according to Mr. Mistry, learned Senior Counsel for the petitioners the decision rendered by this Court in W.P. No.2860 of 2012 on 18 June 2014 is in applicable to the present facts on account of the following :— (a) The present impugned notices have been issued within 4 years from the end of the relevant assessment year, unlike the notice in earlier Writ Petition No. 2860/2012 which was issued beyond the period of 4 years. Therefore, failure to disclose fully and truly all facts necessary for assessment was the subject matter of consideration in the earlier petition which would not arise in this case. (b) During the proceedings for assessment under Section 143(3) of the Act in both A.Y. 2006-07 and 2007-08 complete details were sought for and supplied in respect of the parties from whom goods were purchased unlike in proceeding under Section 143(3) of the Act in A.Y. 2005-06. Therefore, in Writ Petition No. 2860/2012 this Court had come to a conclusion that there was no occasion in Section 143(3) proceedings for the Assessing Officer to apply his mind in respect of purchases made from Rahul Industries as the same was never called for or submitted. Therefore, it is submitted that for the years under consideration i.e. A.Y. 2006-07 and 2007-08 there is admittedly a change of opinion on the part of the Assessing Officer in issuing the impugned notices beyond jurisdiction; and (d) The reasons as disclosed to the petitioners for both A.Y. 2006-07 and 2007-08 are bereft of particulars. Therefore, the reasons do not indicate the basis of reason to believe on the part of the Assessing Officer that income chargeable to tax has escaped assessment. For all the above reasons it is submitted that these petitions need to be allowed. 3. Mr. Suresh Kumar, learned Counsel for the revenue in support of the impugned notices in both the petitions submits as under:— (a) In these petitions the assessment proceedings sought to be reopened is less than four years as compared to the notice being beyond four years in A.Y.2005-06 and the challenge to the same in W.P. No. 2860/2012 was not entertained. It must follow that the test to acquire jurisdiction in cases of reopening for less than four years would be far less strict as compared to notices seeking to reopen assessment proceeding beyond four years. (b) The impugned notices came to be issued, as in subsequent scrutiny proceeding for A.Y. 2008-09 and survey proceedings the respondent revenue received information that purchases claimed by the petitioners were alleged to be bogus. These bills issued in favour of the petitioner now informed to be bogus was not a subject matter of consideration during the assessment proceedings under Section 143(3) of the Act. Thus there was no change of opinion. In view of the above, it is submitted that the petitions be dismissed. 4. We have considered the rival submissions. We are considering the facts in these two petitions independently of the decision rendered by us in W.P. 2860/2012 on 18 June 2014 challenging the reassessment notice for A.Y. 2005-06 However, it must be pointed out that in W.P. No.2860/2012 the assessment sought to be reopened was for a period of more than 4 years from the end of the relevant assessment year. Therefore a higher degree of satisfaction is required in cases where the assessment sought to be reopened is beyond four years from the end of the relevant assessment year than in these cases where the assessment sought to be opened is within a period of four years from the end of the relevant assessment year. In the present proceedings seeking to reopen the assessment for A.Y. 2007-07and 2007-08 after completion of assessment proceedings under Section 143(3) of the Act, the revenue received information during the course of survey proceedings under Section 153A of the Act and during the assessment proceeding for A.Y. 2008-09 that certain purchases during the subject assessment years 2006-07 and 2007-08 were under bogus bills. During the course of assessment proceedings under Section 143(3) of the Act for A.Y. 2006-07 and 2007-08 the Assessing officer asked the petitioners for complete details of their purchases and the address of the sellers and the details as sought for by the revenue were furnished by the petitioners. However, it is only subsequently that the revenue has learnt during the survey proceedings and the assessment proceedings for A.Y. 2008-09 that purchases from certain sellers as intimated in the chart annexed to the reasons furnished to the petitioners were allegedly bogus. In this view of the matter, during the original assessment proceedings the Assessing Officer had proceeded on the basis that the purchase details furnished by the petitioners including the bills of purchase are genuine. The information obtained subsequent to the assessment indicates that certain purchase details may not be genuine. Therefore, the occasion to consider the genuineness of the purchase bill was never a subject matter of scrutiny in the proceedings under Section 143(3) of the Act for A.Y. 2006-07 and 2007-08. We are of the view that subsequent information received by the revenue would call for investigation. So far as submission of lack of particulars in the grounds furnished to the petitioner is concerned, we find that the chart annexed to the reasons did indicate the names of the sellers, year of purchase and quantum of purchase alleged to be bogus. | 0[ds]We are considering the facts in these two petitions independently of the decision rendered by us in W.P. 2860/2012 on 18 June 2014 challenging the reassessment notice for A.Y.6 However, it must be pointed out that in W.P. No.2860/2012 the assessment sought to be reopened was for a period of more than 4 years from the end of the relevant assessment year. Therefore a higher degree of satisfaction is required in cases where the assessment sought to be reopened is beyond four years from the end of the relevant assessment year than in these cases where the assessment sought to be opened is within a period of four years from the end of the relevant assessment year. In the present proceedings seeking to reopen the assessment for A.Y.8 after completion of assessment proceedings under Section 143(3) of the Act, the revenue received information during the course of survey proceedings under Section 153A of the Act and during the assessment proceeding for A.Y.9 that certain purchases during the subject assessment years8 were under bogus bills. During the course of assessment proceedings under Section 143(3) of the Act for A.Y.8 the Assessing officer asked the petitioners for complete details of their purchases and the address of the sellers and the details as sought for by the revenue were furnished by the petitioners. However, it is only subsequently that the revenue has learnt during the survey proceedings and the assessment proceedings for A.Y.9 that purchases from certain sellers as intimated in the chart annexed to the reasons furnished to the petitioners were allegedly bogus. In this view of the matter, during the original assessment proceedings the Assessing Officer had proceeded on the basis that the purchase details furnished by the petitioners including the bills of purchase are genuine. The information obtained subsequent to the assessment indicates that certain purchase details may not be genuine. Therefore, the occasion to consider the genuineness of the purchase bill was never a subject matter of scrutiny in the proceedings under Section 143(3) of the Act for A.Y.. We are of the view that subsequent information received by the revenue would call for investigation. So far as submission of lack of particulars in the grounds furnished to the petitioner is concerned, we find that the chart annexed to the reasons did indicate the names of the sellers, year of purchase and quantum of purchase alleged to be bogus5. In the above circumstances, we do not interfere with the impugned notices dated 7 December 2012 for reassessment under8 of the Act. We however, make it clear that our observations are prima facie observations made in the context of deciding whether or not the exercise of our jurisdiction under6 of the Constitution of India. The Assessing officer will not be influenced in any manner by the observations made in this petition and pass orders in reassessment proceedings on merits including the submissions of the petitioner that the Assessing Officer does not have jurisdiction to issue the impugned notices. | 0 | 1,757 | 535 | ### 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:
Mr. Mistry, learned Senior Counsel appearing for the petitioners pointed out that the reasons disclosed in support of both the impugned notices are identical and similar to the reasons which have been disclosed in support of another notice dated 7 December 2012 issued to the petitioner seeking to reopen the assessment for A.Y. 2005-06. The notice dated 7 December 2012 in respect of A.Y. 2005-06 was also a subject matter of challenge in this Court being W.P. No.2860 of 2012. This Court by an order dated 18 June 2014 passed in W.P. No. 2860 of 2012 refused to entertain the petition. However according to Mr. Mistry, learned Senior Counsel for the petitioners the decision rendered by this Court in W.P. No.2860 of 2012 on 18 June 2014 is in applicable to the present facts on account of the following :— (a) The present impugned notices have been issued within 4 years from the end of the relevant assessment year, unlike the notice in earlier Writ Petition No. 2860/2012 which was issued beyond the period of 4 years. Therefore, failure to disclose fully and truly all facts necessary for assessment was the subject matter of consideration in the earlier petition which would not arise in this case. (b) During the proceedings for assessment under Section 143(3) of the Act in both A.Y. 2006-07 and 2007-08 complete details were sought for and supplied in respect of the parties from whom goods were purchased unlike in proceeding under Section 143(3) of the Act in A.Y. 2005-06. Therefore, in Writ Petition No. 2860/2012 this Court had come to a conclusion that there was no occasion in Section 143(3) proceedings for the Assessing Officer to apply his mind in respect of purchases made from Rahul Industries as the same was never called for or submitted. Therefore, it is submitted that for the years under consideration i.e. A.Y. 2006-07 and 2007-08 there is admittedly a change of opinion on the part of the Assessing Officer in issuing the impugned notices beyond jurisdiction; and (d) The reasons as disclosed to the petitioners for both A.Y. 2006-07 and 2007-08 are bereft of particulars. Therefore, the reasons do not indicate the basis of reason to believe on the part of the Assessing Officer that income chargeable to tax has escaped assessment. For all the above reasons it is submitted that these petitions need to be allowed. 3. Mr. Suresh Kumar, learned Counsel for the revenue in support of the impugned notices in both the petitions submits as under:— (a) In these petitions the assessment proceedings sought to be reopened is less than four years as compared to the notice being beyond four years in A.Y.2005-06 and the challenge to the same in W.P. No. 2860/2012 was not entertained. It must follow that the test to acquire jurisdiction in cases of reopening for less than four years would be far less strict as compared to notices seeking to reopen assessment proceeding beyond four years. (b) The impugned notices came to be issued, as in subsequent scrutiny proceeding for A.Y. 2008-09 and survey proceedings the respondent revenue received information that purchases claimed by the petitioners were alleged to be bogus. These bills issued in favour of the petitioner now informed to be bogus was not a subject matter of consideration during the assessment proceedings under Section 143(3) of the Act. Thus there was no change of opinion. In view of the above, it is submitted that the petitions be dismissed. 4. We have considered the rival submissions. We are considering the facts in these two petitions independently of the decision rendered by us in W.P. 2860/2012 on 18 June 2014 challenging the reassessment notice for A.Y. 2005-06 However, it must be pointed out that in W.P. No.2860/2012 the assessment sought to be reopened was for a period of more than 4 years from the end of the relevant assessment year. Therefore a higher degree of satisfaction is required in cases where the assessment sought to be reopened is beyond four years from the end of the relevant assessment year than in these cases where the assessment sought to be opened is within a period of four years from the end of the relevant assessment year. In the present proceedings seeking to reopen the assessment for A.Y. 2007-07and 2007-08 after completion of assessment proceedings under Section 143(3) of the Act, the revenue received information during the course of survey proceedings under Section 153A of the Act and during the assessment proceeding for A.Y. 2008-09 that certain purchases during the subject assessment years 2006-07 and 2007-08 were under bogus bills. During the course of assessment proceedings under Section 143(3) of the Act for A.Y. 2006-07 and 2007-08 the Assessing officer asked the petitioners for complete details of their purchases and the address of the sellers and the details as sought for by the revenue were furnished by the petitioners. However, it is only subsequently that the revenue has learnt during the survey proceedings and the assessment proceedings for A.Y. 2008-09 that purchases from certain sellers as intimated in the chart annexed to the reasons furnished to the petitioners were allegedly bogus. In this view of the matter, during the original assessment proceedings the Assessing Officer had proceeded on the basis that the purchase details furnished by the petitioners including the bills of purchase are genuine. The information obtained subsequent to the assessment indicates that certain purchase details may not be genuine. Therefore, the occasion to consider the genuineness of the purchase bill was never a subject matter of scrutiny in the proceedings under Section 143(3) of the Act for A.Y. 2006-07 and 2007-08. We are of the view that subsequent information received by the revenue would call for investigation. So far as submission of lack of particulars in the grounds furnished to the petitioner is concerned, we find that the chart annexed to the reasons did indicate the names of the sellers, year of purchase and quantum of purchase alleged to be bogus.
### Response:
0
### Explanation:
We are considering the facts in these two petitions independently of the decision rendered by us in W.P. 2860/2012 on 18 June 2014 challenging the reassessment notice for A.Y.6 However, it must be pointed out that in W.P. No.2860/2012 the assessment sought to be reopened was for a period of more than 4 years from the end of the relevant assessment year. Therefore a higher degree of satisfaction is required in cases where the assessment sought to be reopened is beyond four years from the end of the relevant assessment year than in these cases where the assessment sought to be opened is within a period of four years from the end of the relevant assessment year. In the present proceedings seeking to reopen the assessment for A.Y.8 after completion of assessment proceedings under Section 143(3) of the Act, the revenue received information during the course of survey proceedings under Section 153A of the Act and during the assessment proceeding for A.Y.9 that certain purchases during the subject assessment years8 were under bogus bills. During the course of assessment proceedings under Section 143(3) of the Act for A.Y.8 the Assessing officer asked the petitioners for complete details of their purchases and the address of the sellers and the details as sought for by the revenue were furnished by the petitioners. However, it is only subsequently that the revenue has learnt during the survey proceedings and the assessment proceedings for A.Y.9 that purchases from certain sellers as intimated in the chart annexed to the reasons furnished to the petitioners were allegedly bogus. In this view of the matter, during the original assessment proceedings the Assessing Officer had proceeded on the basis that the purchase details furnished by the petitioners including the bills of purchase are genuine. The information obtained subsequent to the assessment indicates that certain purchase details may not be genuine. Therefore, the occasion to consider the genuineness of the purchase bill was never a subject matter of scrutiny in the proceedings under Section 143(3) of the Act for A.Y.. We are of the view that subsequent information received by the revenue would call for investigation. So far as submission of lack of particulars in the grounds furnished to the petitioner is concerned, we find that the chart annexed to the reasons did indicate the names of the sellers, year of purchase and quantum of purchase alleged to be bogus5. In the above circumstances, we do not interfere with the impugned notices dated 7 December 2012 for reassessment under8 of the Act. We however, make it clear that our observations are prima facie observations made in the context of deciding whether or not the exercise of our jurisdiction under6 of the Constitution of India. The Assessing officer will not be influenced in any manner by the observations made in this petition and pass orders in reassessment proceedings on merits including the submissions of the petitioner that the Assessing Officer does not have jurisdiction to issue the impugned notices.
|
Gopal And Sons (Huf) Vs. Cit Kolkata-Xi | the Karta is a member of HUF which has taken the loan from the Company and, therefore, the case is squarely within the provisions of Section 2(22)(e) of the Income Tax Act.10. The arguments before us remain the same. Mr. S.B. Upadhyay, learned senior counsel appearing for the assessee, argued that the ITAT had correctly explained the legal position that HUF cannot be either beneficial owner or registered owner of the shares and, therefore, no addition could be made under Section 2(22)(e) of the Act. For buttressing this submission, the learned counsel relied upon the following observations in judgment of this Court in CIT, Andhra Pradesh v. C.P. Sarathy Mudaliar, 1972 SCR 1076:"....It is well settled that an HUF cannot be a shareholder of a company. The shareholder of a company is the individual who is registered as the shareholder ion the books of the company. The HUF, the assessee in this case, was not registered as a shareholder in books of the company nor could it have been so registered. Hence there is no gain-saying the fact that the HUF was not the shareholder of the company."11. Learned Additional Solicitor General, on the other hand, after reading the relevant portions of the orders of AO and CIT(A), submitted that on the facts of this case, the Revenue was justified in making the addition.12. Section 2(22)(e) of the Act creates a fiction, thereby bringing any amount paid otherwise than as a dividend into the net of dividend under certain circumstances. It gives an artificial definition of dividend. It does not take into account that dividend which is actually declared or received. The dividend taken note of by this provision is a deemed dividend and not a real dividend. Loan or payment made by the company to its shareholder is actually not a dividend. In fact, such a loan to a shareholder has to be returned by the shareholder to the company. It does not become income of the shareholder. Notwithstanding the same, for certain purposes, the Legislature has deemed such a loan or payment as dividend and made it taxable at the hands of the said shareholder. It is, therefore, not in dispute that such a provision which is a deemed provision and fictionally creates certain kinds of receipts as dividends, is to be given strict interpretation. It follows that unless all the conditions contained in the said provision are fulfilled, the receipt cannot be deemed as dividends. Further, in case of doubt or where two views are possible, benefit shall accrue in favour of the assessee.13. A reading of clause (e) of Section 2(22) of the Act makes it clear that three types of payments can be brought to tax as dividends in the hands of the share holders. These are as follows:(a) any payment of any sum (whether as representing a part of the assets of the company or otherwise) by way of advance or loan to a shareholder.(b) any payment on behalf of a shareholder, and(c) any payment for the individual benefit of a shareholder.[See: Alagusundaran v. CIT; 252 ITR 893 (SC)]14. Certain conditions need to be fulfilled in order to attract tax under this clause. It is not necessary to stipulate other conditions. For our purposes, following conditions need to be fulfilled:(a) Payment is to be made by way of advance or loan to any concern in which such shareholder is a member or a partner.(b) In the said concern, such shareholder has a substantial interest.(c) Such advance or loan should have been made after the 31st day of May, 1987.15. Explanation 3(a) defines "concern" to mean HUF or a firm or an association of persons or a body of individuals or a company. As per Explanation 3(b), a person shall be deemed to have a substantial interest in a HUF if he is, at any time during the previous year, beneficially entitled to not less than 20% of the income of such HUF.16. In the instant case, the payment in question is made to the assessee which is a HUF. Shares are held by Shri. Gopal Kumar Sanei, who is Karta of this HUF. The said Karta is, undoubtedly, the member of HUF. He also has substantial interest in the assessee/HUF, being its Karta. It was not disputed that he was entitled to not less than 20% of the income of HUF. In view of the aforesaid position, provisions of Section 2(22)(e) of the Act get attracted and it is not even necessary to determine as to whether HUF can, in law, be beneficial shareholder or registered shareholder in a Company.17. It is also found as a fact, from the audited annual return of the Company filed with ROC that the money towards share holding in the Company was given by the assessee/HUF. Though, the share certificates were issued in the name of the Karta, Shri Gopal Kumar Sanei, but in the annual returns, it is the HUF which was shown as registered and beneficial shareholder. In any case, it cannot be doubted that it is the beneficial shareholder. Even if we presume that it is not a registered shareholder, as per the provisions of Section 2(22)(e) of the Act, once the payment is received by the HUF and shareholder (Mr. Sanei, karta, in this case) is a member of the said HUF and he has substantial interest in the HUF, the payment made to the HUF shall constitute deemed dividend within the meaning of clause (e) of Section 2(22) of the Act. This is the effect of Explanation 3 to the said Section, as noticed above. Therefore, it is no gainsaying that since HUF itself is not the registered shareholder, the provisions of deemed dividend are not attracted. For this reason, judgment in C.P. Sarathy Mudaliar, relied upon by the learned counsel for the appellant, will have no application. That was a judgment rendered in the context of Section 2(6-A)(e) of the Income Tax Act, 1922 wherein there was no provision like Explanation 3. | 0[ds]12. Section 2(22)(e) of the Act creates a fiction, thereby bringing any amount paid otherwise than as a dividend into the net of dividend under certain circumstances. It gives an artificial definition of dividend. It does not take into account that dividend which is actually declared or received. The dividend taken note of by this provision is a deemed dividend and not a real dividend. Loan or payment made by the company to its shareholder is actually not a dividend. In fact, such a loan to a shareholder has to be returned by the shareholder to the company. It does not become income of the shareholder. Notwithstanding the same, for certain purposes, the Legislature has deemed such a loan or payment as dividend and made it taxable at the hands of the said shareholder. It is, therefore, not in dispute that such a provision which is a deemed provision and fictionally creates certain kinds of receipts as dividends, is to be given strict interpretation. It follows that unless all the conditions contained in the said provision are fulfilled, the receipt cannot be deemed as dividends. Further, in case of doubt or where two views are possible, benefit shall accrue in favour of the assessee.It is also found as a fact, from the audited annual return of the Company filed with ROC that the money towards share holding in the Company was given by the assessee/HUF. Though, the share certificates were issued in the name of the Karta, Shri Gopal Kumar Sanei, but in the annual returns, it is the HUF which was shown as registered and beneficial shareholder. In any case, it cannot be doubted that it is the beneficial shareholder. Even if we presume that it is not a registered shareholder, as per the provisions of Section 2(22)(e) of the Act, once the payment is received by the HUF and shareholder (Mr. Sanei, karta, in this case) is a member of the said HUF and he has substantial interest in the HUF, the payment made to the HUF shall constitute deemed dividend within the meaning of clause (e) of Section 2(22) of the Act. This is the effect of Explanation 3 to the said Section, as noticed above. Therefore, it is no gainsaying that since HUF itself is not the registered shareholder, the provisions of deemed dividend are not attracted. For this reason, judgment in C.P. Sarathy Mudaliar, relied upon by the learned counsel for the appellant, will have no application. That was a judgment rendered in the context of Section 2(6-A)(e) of the Income Tax Act, 1922 wherein there was no provision like Explanation 3. | 0 | 2,774 | 516 | ### 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 Karta is a member of HUF which has taken the loan from the Company and, therefore, the case is squarely within the provisions of Section 2(22)(e) of the Income Tax Act.10. The arguments before us remain the same. Mr. S.B. Upadhyay, learned senior counsel appearing for the assessee, argued that the ITAT had correctly explained the legal position that HUF cannot be either beneficial owner or registered owner of the shares and, therefore, no addition could be made under Section 2(22)(e) of the Act. For buttressing this submission, the learned counsel relied upon the following observations in judgment of this Court in CIT, Andhra Pradesh v. C.P. Sarathy Mudaliar, 1972 SCR 1076:"....It is well settled that an HUF cannot be a shareholder of a company. The shareholder of a company is the individual who is registered as the shareholder ion the books of the company. The HUF, the assessee in this case, was not registered as a shareholder in books of the company nor could it have been so registered. Hence there is no gain-saying the fact that the HUF was not the shareholder of the company."11. Learned Additional Solicitor General, on the other hand, after reading the relevant portions of the orders of AO and CIT(A), submitted that on the facts of this case, the Revenue was justified in making the addition.12. Section 2(22)(e) of the Act creates a fiction, thereby bringing any amount paid otherwise than as a dividend into the net of dividend under certain circumstances. It gives an artificial definition of dividend. It does not take into account that dividend which is actually declared or received. The dividend taken note of by this provision is a deemed dividend and not a real dividend. Loan or payment made by the company to its shareholder is actually not a dividend. In fact, such a loan to a shareholder has to be returned by the shareholder to the company. It does not become income of the shareholder. Notwithstanding the same, for certain purposes, the Legislature has deemed such a loan or payment as dividend and made it taxable at the hands of the said shareholder. It is, therefore, not in dispute that such a provision which is a deemed provision and fictionally creates certain kinds of receipts as dividends, is to be given strict interpretation. It follows that unless all the conditions contained in the said provision are fulfilled, the receipt cannot be deemed as dividends. Further, in case of doubt or where two views are possible, benefit shall accrue in favour of the assessee.13. A reading of clause (e) of Section 2(22) of the Act makes it clear that three types of payments can be brought to tax as dividends in the hands of the share holders. These are as follows:(a) any payment of any sum (whether as representing a part of the assets of the company or otherwise) by way of advance or loan to a shareholder.(b) any payment on behalf of a shareholder, and(c) any payment for the individual benefit of a shareholder.[See: Alagusundaran v. CIT; 252 ITR 893 (SC)]14. Certain conditions need to be fulfilled in order to attract tax under this clause. It is not necessary to stipulate other conditions. For our purposes, following conditions need to be fulfilled:(a) Payment is to be made by way of advance or loan to any concern in which such shareholder is a member or a partner.(b) In the said concern, such shareholder has a substantial interest.(c) Such advance or loan should have been made after the 31st day of May, 1987.15. Explanation 3(a) defines "concern" to mean HUF or a firm or an association of persons or a body of individuals or a company. As per Explanation 3(b), a person shall be deemed to have a substantial interest in a HUF if he is, at any time during the previous year, beneficially entitled to not less than 20% of the income of such HUF.16. In the instant case, the payment in question is made to the assessee which is a HUF. Shares are held by Shri. Gopal Kumar Sanei, who is Karta of this HUF. The said Karta is, undoubtedly, the member of HUF. He also has substantial interest in the assessee/HUF, being its Karta. It was not disputed that he was entitled to not less than 20% of the income of HUF. In view of the aforesaid position, provisions of Section 2(22)(e) of the Act get attracted and it is not even necessary to determine as to whether HUF can, in law, be beneficial shareholder or registered shareholder in a Company.17. It is also found as a fact, from the audited annual return of the Company filed with ROC that the money towards share holding in the Company was given by the assessee/HUF. Though, the share certificates were issued in the name of the Karta, Shri Gopal Kumar Sanei, but in the annual returns, it is the HUF which was shown as registered and beneficial shareholder. In any case, it cannot be doubted that it is the beneficial shareholder. Even if we presume that it is not a registered shareholder, as per the provisions of Section 2(22)(e) of the Act, once the payment is received by the HUF and shareholder (Mr. Sanei, karta, in this case) is a member of the said HUF and he has substantial interest in the HUF, the payment made to the HUF shall constitute deemed dividend within the meaning of clause (e) of Section 2(22) of the Act. This is the effect of Explanation 3 to the said Section, as noticed above. Therefore, it is no gainsaying that since HUF itself is not the registered shareholder, the provisions of deemed dividend are not attracted. For this reason, judgment in C.P. Sarathy Mudaliar, relied upon by the learned counsel for the appellant, will have no application. That was a judgment rendered in the context of Section 2(6-A)(e) of the Income Tax Act, 1922 wherein there was no provision like Explanation 3.
### Response:
0
### Explanation:
12. Section 2(22)(e) of the Act creates a fiction, thereby bringing any amount paid otherwise than as a dividend into the net of dividend under certain circumstances. It gives an artificial definition of dividend. It does not take into account that dividend which is actually declared or received. The dividend taken note of by this provision is a deemed dividend and not a real dividend. Loan or payment made by the company to its shareholder is actually not a dividend. In fact, such a loan to a shareholder has to be returned by the shareholder to the company. It does not become income of the shareholder. Notwithstanding the same, for certain purposes, the Legislature has deemed such a loan or payment as dividend and made it taxable at the hands of the said shareholder. It is, therefore, not in dispute that such a provision which is a deemed provision and fictionally creates certain kinds of receipts as dividends, is to be given strict interpretation. It follows that unless all the conditions contained in the said provision are fulfilled, the receipt cannot be deemed as dividends. Further, in case of doubt or where two views are possible, benefit shall accrue in favour of the assessee.It is also found as a fact, from the audited annual return of the Company filed with ROC that the money towards share holding in the Company was given by the assessee/HUF. Though, the share certificates were issued in the name of the Karta, Shri Gopal Kumar Sanei, but in the annual returns, it is the HUF which was shown as registered and beneficial shareholder. In any case, it cannot be doubted that it is the beneficial shareholder. Even if we presume that it is not a registered shareholder, as per the provisions of Section 2(22)(e) of the Act, once the payment is received by the HUF and shareholder (Mr. Sanei, karta, in this case) is a member of the said HUF and he has substantial interest in the HUF, the payment made to the HUF shall constitute deemed dividend within the meaning of clause (e) of Section 2(22) of the Act. This is the effect of Explanation 3 to the said Section, as noticed above. Therefore, it is no gainsaying that since HUF itself is not the registered shareholder, the provisions of deemed dividend are not attracted. For this reason, judgment in C.P. Sarathy Mudaliar, relied upon by the learned counsel for the appellant, will have no application. That was a judgment rendered in the context of Section 2(6-A)(e) of the Income Tax Act, 1922 wherein there was no provision like Explanation 3.
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Gopi Krishna Kanoria Vs. Draupadi Sahaya and Ors | the respondents had acquired the Mokurrari tenure. In the registered instrument there was a clause that in the event of a default in payment of four successive kists the proprietor would be competent to cancel the Mokurrari patta. The respondents did not pay four successive kists which had become due in June 1952, September 1952, December 1952 and March 1953. On June 22, 1953 the appellant served a notice terminating and cancelling the Mokurrari tenure in terms of the clause relating to cancellation. During the pendency of the suit which was filed by the appellant in September 1953 it was declared that the Mokurrari tenure became vested in the State of Bihar with effect from July 26, 1954 under the provisions of the Bihar Land Reforms Act 1950. The plaint was amended and certain parties were added.3. The controversy was mainly confined to the question of payment of compensation. According to the appellant he was entitled to the entire compensation which was to be received from the State. The respondents maintained that no notice had been given under S. 155 of the Bihar Tenancy Act 1885, hereinafter called the "Act", and, therefore, the appellant could not sue for ejectment. Before the trial court it was admitted that the appellant did not serve a notice as contemplated under S. 155 of the Act. It was, however, contended that that section was not applicable. The trial court found that there had been a breach of the covenant relating to payment of rent which had resulted in forfeiture but inasmuch as the appellant did not follow the procedure prescribed by S. 155 the respondents continued to be the tenure-holders till the tenure vested in the State. The appellant was, therefore, not entitled to the entire compensation money including that of the tenure. The High Court upheld the decision of the trial court on the point.4. Section 10 of the Act is in the following terms:"A holder of a permanent tenure shall not be ejected by his landlord except on the ground that he has broken a condition on breach of which he is, under the terms of a contract between him and his landlord, liable to be ejected:Provided that where the contract is made after the commencement of this Act, the condition is not inconsistent with the provisions of this Act." Section 178 (1) (c) provides that nothing in any contract between a landlord and a tenant made before or after the passing of the Act shall entitle a landlord to eject a tenant otherwise than in accordance with the provisions of the Act Section 155 (1) may also be reproduced."A suit for the ejectment of tenant, on the ground(a) ... .(b) that he has broken a condition on breach of which he is, under the terms of a contract between him and the landlord, liable to ejectment, shall not be entertained unless the landlord has served, in the prescribed manner, a notice on the tenant specifying the particular misuse or breach complained of, and, where the misuse or breach is capable of remedy, requiring the tenant to remedy the same, and, in any case, to pay reasonable compensation for the misuse or breach, and the tenant has failed to comply within a reasonable time with that request."5. It has been contended by Mr. B. Sen for the appellant that by virtue of the proviso to S. 10 the requirement of consistency of conditions with the provisions of the Act is limited to contracts made after the commencement of the Act. In the presence case the registered instrument was executed before the , commencement of the Act. On a true construction of S, 10 and by necessary implication this freedom from the applicability of or consistency with the provisions of the Act is absolute and unqualified and the effect of the proviso is that any condition imposed by any of the provisions of the Act is excluded whenever there is a case where the contract has been entered into before the commencement of the Act. It has been emphasised that section 10 is a specific provision relating to permanent tenures and it cannot be restricted or curtailed by the general provisions of S. 178 and S. 155 of the Act. In this manner the applicability of S. 155 has been sought to be excluded. Now S. 10 simply provides that the holder of a permanent tenure shall not be ejected except on the ground that he has broken a condition on breach of which he is liable to be ejected under the terms of the contract. Section 178 (1) (c) says categorically that even though the contract has been made before the passing of the Act the landlord cannot eject a tenant otherwise than in accordance with its provisions. Section 155 places a bar against a suit being entertained unless the requirements laid down therein have been satisfied. Therefore even though under Section 10 the appellant became entitled to eject the respondents on account of the breach of the condition relating to payment of rent the condition precedent for a suit being entertained by a court was the notice served in the prescribed manner specifying the breach which was capable of remedy and in which the tenant should have been required to remedy the same or in any case to pay reasonable compensation for the breach. If the tenant had failed to comply within a reasonable time with that request then alone the suit was maintainable. Even if under the proviso to S. 10 the contract which was entered into before the commencement of the Act could contain conditions which were inconsistent with the provisions of the Act that did not dispense with the requirements of section 155 of the Act which had to be satisfied before any suit could be entertained. As the notice which had been served by the appellant did not comply with the provisions of S. 155 the courts below rightly negatived his claim to the entire compensation money. | 0[ds]On a true construction of S, 10 and by necessary implication this freedom from the applicability of or consistency with the provisions of the Act is absolute and unqualified and the effect of the proviso is that any condition imposed by any of the provisions of the Act is excluded whenever there is a case where the contract has been entered into before the commencement of the Act. It has been emphasised that section 10 is a specific provision relating to permanent tenures and it cannot be restricted or curtailed by the general provisions of S. 178 and S. 155 of the Act. In this manner the applicability of S. 155 has been sought to be excluded.Now S. 10 simply provides that the holder of a permanent tenure shall not be ejected except on the ground that he has broken a condition on breach of which he is liable to be ejected under the terms of the contract. Section 178 (1) (c) says categorically that even though the contract has been made before the passing of the Act the landlord cannot eject a tenant otherwise than in accordance with its provisions. Section 155 places a bar against a suit being entertained unless the requirements laid down therein have been satisfied. Therefore even though under Section 10 the appellant became entitled to eject the respondents on account of the breach of the condition relating to payment of rent the condition precedent for a suit being entertained by a court was the notice served in the prescribed manner specifying the breach which was capable of remedy and in which the tenant should have been required to remedy the same or in any case to pay reasonable compensation for the breach. If the tenant had failed to comply within a reasonable time with that request then alone the suit was maintainable. Even if under the proviso to S. 10 the contract which was entered into before the commencement of the Act could contain conditions which were inconsistent with the provisions of the Act that did not dispense with the requirements of section 155 of the Act which had to be satisfied before any suit could be entertained. As the notice which had been served by the appellant did not comply with the provisions of S. 155 the courts below rightly negatived his claim to the entire compensation money. | 0 | 1,217 | 415 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
the respondents had acquired the Mokurrari tenure. In the registered instrument there was a clause that in the event of a default in payment of four successive kists the proprietor would be competent to cancel the Mokurrari patta. The respondents did not pay four successive kists which had become due in June 1952, September 1952, December 1952 and March 1953. On June 22, 1953 the appellant served a notice terminating and cancelling the Mokurrari tenure in terms of the clause relating to cancellation. During the pendency of the suit which was filed by the appellant in September 1953 it was declared that the Mokurrari tenure became vested in the State of Bihar with effect from July 26, 1954 under the provisions of the Bihar Land Reforms Act 1950. The plaint was amended and certain parties were added.3. The controversy was mainly confined to the question of payment of compensation. According to the appellant he was entitled to the entire compensation which was to be received from the State. The respondents maintained that no notice had been given under S. 155 of the Bihar Tenancy Act 1885, hereinafter called the "Act", and, therefore, the appellant could not sue for ejectment. Before the trial court it was admitted that the appellant did not serve a notice as contemplated under S. 155 of the Act. It was, however, contended that that section was not applicable. The trial court found that there had been a breach of the covenant relating to payment of rent which had resulted in forfeiture but inasmuch as the appellant did not follow the procedure prescribed by S. 155 the respondents continued to be the tenure-holders till the tenure vested in the State. The appellant was, therefore, not entitled to the entire compensation money including that of the tenure. The High Court upheld the decision of the trial court on the point.4. Section 10 of the Act is in the following terms:"A holder of a permanent tenure shall not be ejected by his landlord except on the ground that he has broken a condition on breach of which he is, under the terms of a contract between him and his landlord, liable to be ejected:Provided that where the contract is made after the commencement of this Act, the condition is not inconsistent with the provisions of this Act." Section 178 (1) (c) provides that nothing in any contract between a landlord and a tenant made before or after the passing of the Act shall entitle a landlord to eject a tenant otherwise than in accordance with the provisions of the Act Section 155 (1) may also be reproduced."A suit for the ejectment of tenant, on the ground(a) ... .(b) that he has broken a condition on breach of which he is, under the terms of a contract between him and the landlord, liable to ejectment, shall not be entertained unless the landlord has served, in the prescribed manner, a notice on the tenant specifying the particular misuse or breach complained of, and, where the misuse or breach is capable of remedy, requiring the tenant to remedy the same, and, in any case, to pay reasonable compensation for the misuse or breach, and the tenant has failed to comply within a reasonable time with that request."5. It has been contended by Mr. B. Sen for the appellant that by virtue of the proviso to S. 10 the requirement of consistency of conditions with the provisions of the Act is limited to contracts made after the commencement of the Act. In the presence case the registered instrument was executed before the , commencement of the Act. On a true construction of S, 10 and by necessary implication this freedom from the applicability of or consistency with the provisions of the Act is absolute and unqualified and the effect of the proviso is that any condition imposed by any of the provisions of the Act is excluded whenever there is a case where the contract has been entered into before the commencement of the Act. It has been emphasised that section 10 is a specific provision relating to permanent tenures and it cannot be restricted or curtailed by the general provisions of S. 178 and S. 155 of the Act. In this manner the applicability of S. 155 has been sought to be excluded. Now S. 10 simply provides that the holder of a permanent tenure shall not be ejected except on the ground that he has broken a condition on breach of which he is liable to be ejected under the terms of the contract. Section 178 (1) (c) says categorically that even though the contract has been made before the passing of the Act the landlord cannot eject a tenant otherwise than in accordance with its provisions. Section 155 places a bar against a suit being entertained unless the requirements laid down therein have been satisfied. Therefore even though under Section 10 the appellant became entitled to eject the respondents on account of the breach of the condition relating to payment of rent the condition precedent for a suit being entertained by a court was the notice served in the prescribed manner specifying the breach which was capable of remedy and in which the tenant should have been required to remedy the same or in any case to pay reasonable compensation for the breach. If the tenant had failed to comply within a reasonable time with that request then alone the suit was maintainable. Even if under the proviso to S. 10 the contract which was entered into before the commencement of the Act could contain conditions which were inconsistent with the provisions of the Act that did not dispense with the requirements of section 155 of the Act which had to be satisfied before any suit could be entertained. As the notice which had been served by the appellant did not comply with the provisions of S. 155 the courts below rightly negatived his claim to the entire compensation money.
### Response:
0
### Explanation:
On a true construction of S, 10 and by necessary implication this freedom from the applicability of or consistency with the provisions of the Act is absolute and unqualified and the effect of the proviso is that any condition imposed by any of the provisions of the Act is excluded whenever there is a case where the contract has been entered into before the commencement of the Act. It has been emphasised that section 10 is a specific provision relating to permanent tenures and it cannot be restricted or curtailed by the general provisions of S. 178 and S. 155 of the Act. In this manner the applicability of S. 155 has been sought to be excluded.Now S. 10 simply provides that the holder of a permanent tenure shall not be ejected except on the ground that he has broken a condition on breach of which he is liable to be ejected under the terms of the contract. Section 178 (1) (c) says categorically that even though the contract has been made before the passing of the Act the landlord cannot eject a tenant otherwise than in accordance with its provisions. Section 155 places a bar against a suit being entertained unless the requirements laid down therein have been satisfied. Therefore even though under Section 10 the appellant became entitled to eject the respondents on account of the breach of the condition relating to payment of rent the condition precedent for a suit being entertained by a court was the notice served in the prescribed manner specifying the breach which was capable of remedy and in which the tenant should have been required to remedy the same or in any case to pay reasonable compensation for the breach. If the tenant had failed to comply within a reasonable time with that request then alone the suit was maintainable. Even if under the proviso to S. 10 the contract which was entered into before the commencement of the Act could contain conditions which were inconsistent with the provisions of the Act that did not dispense with the requirements of section 155 of the Act which had to be satisfied before any suit could be entertained. As the notice which had been served by the appellant did not comply with the provisions of S. 155 the courts below rightly negatived his claim to the entire compensation money.
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Babu Singh and Others Vs. Union of India and Others | the appellants of their statutory right to put forth the objection against the proposed acquisition, yet the Government did not take possession of the land involved in the dispute for a period of six years and, therefore, the power to take possession after complying with Section 9 got exhausted and on this account the acquisition itself must be declared illegal and invalid. We have not been able to appreciate this submission. If the impugned notifications are valid and the declaration made under Section 6 has become final and an award under Section 12 is made, even if possession is not taken, we fail to appreciate how thereby the notification under Section 6 would become invalid. It may be that after invoking the power under Section 17 proceedings for acquisition dragged on and possession is not taken, it may reflect upon the exercise of power under Section 17. It may indicate that there was no urgency and there is colourable exercise of power. That is not the contention. The submission of Mr. Verma is that as possession is not taken declaration under Section 6 becomes invalid. We see no substance in this contention. In fact the submission that possession of acquired land is not taken by the Government does not stand scrutiny. In the return filed on behalf of the respondents before the High Court it is in terms stated that the petitioners (appellants) are not in possession of the property acquired. On the other hand Mr. Verma pointed out that appellants are shown to be in possession till 1969 when they were threatened with forcible dispossession. Reference in this connection is made to a letter Annexure D addressed by the Divisional Forest Officer to one Subedar Babu Singh presumably appellant 1. This letter appears to be in reply to a representation made by the appellants for allotment of alternative land and the Government informed appellant 1 and others that it was not possible to allot any alternative land and there is no alternative left in the department but to get the house occupied illegally by the appellant and others vacated immediately. Relying on this Mr. Verma urged that at any rate appellant and his relatives were in possession of the houses that formed part of the subject-matter of the acquisition and, therefore, they should not now be dispossessed as it would transpire that the houses are not needed for the carrying out the alleged public purpose.10. If one refers to the schedule to the notification under Section 6 it appears that large tracks of land were acquired for the public purpose set out in the notification. Houses are not referred to in the schedule. It appears that there were some Kachcha houses in some parcel of land. It is also pointed out that the occupants of these houses were themselves working as labourers when scheme to carry out the public purpose was being implemented. Mr. Markandey pointed that they were allowed to continue to stay in the kachcha houses as labourers. The rival submissions are based on a very nebulous state of evidence and it is difficult to base any firm finding on it. In the return on behalf of the respondents filed as far back as May 27, 1969, it was stated that the petitioners, i.e. the present appellants are not in possession of the property acquired. This averment was not countered on behalf of the appellants by any affidavit in rejoinder. Therefore, it is not possible to accept the submission that the appellants continued to be in possession of a portion of the land on which their houses are standing.11. It also transpires from the return filed on behalf of the respondents that the scheme is spread over a long period. Commencing from 1963 some amount is spent on carrying out the scheme each year and by 1969 Rs. 4, 59, 029.16 were spent on the scheme. This averment is not disputed. In the face of this averment it is difficult to believe that the appellants were allowed to continue in possession of the land which were put under acquisition, and at least on some portion of it some work for carrying out public purpose is done from year to year.12. Before we conclude, it must be pointed out that the writ petition was filed on April 22, 1969, i.e. nearly six years and one month after the publication of the impugned notifications and about five years after the award. No explanation is offered why writ petition was filed after such an inordinate delay and after the entire process of acquisition was over. The High Court dismissed the writ petition in limine presumably on account of delay. This Court in Aflatoon v. Lt.-Governor of Delhi ((1975) 1 SCR 802 : (1975) 4 SCC 285 : AIR 1974 SC 2077 ) and Indrapuri Griha Nirman Sahakari Samiti Ltd. v. State of Rajasthan ((1975) 2 SCR 68 : (1975) 4 SCC 296 : AIR 1974 SC 2085 ) held that if a person allowed the Government to complete the acquisition proceedings on the basis that the notification under Section 4 and declaration under Section 6 were valid and then attacked the notification on the grounds which were available to him at the time when the notification was published, it would be putting a premium on dilatory tactics. The length of the delay is an important circumstance because of the nature of the acts done within the interval on the basis of the notification and declaration and, therefore, a challenge to a notification under Section 4 and a declaration under Section 6 of the Act should be made within a reasonable time thereafter. If it is not so done the petition is liable to be dismissed. This appeal must fail for this additional reason because the challenge to two notifications was after a period of six years and after the whole process of acquisition was over and the State Government had spent a considerable amount in carrying out the public purpose. | 0[ds]In these circumstances we see no illegality in the issuance of the notification under Section 4 and under Section 6 on the same day and accordingly the first contention of Mr. Verma must behave not been able to appreciate this submission. If the impugned notifications are valid and the declaration made under Section 6 has become final and an award under Section 12 is made, even if possession is not taken, we fail to appreciate how thereby the notification under Section 6 would become invalid. It may be that after invoking the power under Section 17 proceedings for acquisition dragged on and possession is not taken, it may reflect upon the exercise of power under Section 17. It may indicate that there was no urgency and there is colourable exercise of power. That is not the contention. The submission of Mr. Verma is that as possession is not taken declaration under Section 6 becomes invalid. We see no substance in this contention. In fact the submission that possession of acquired land is not taken by the Government does not stand scrutiny. In the return filed on behalf of the respondents before the High Court it is in terms stated that the petitioners (appellants) are not in possession of the property acquired. On the other hand Mr. Verma pointed out that appellants are shown to be in possession till 1969 when they were threatened with forcible dispossession. Reference in this connection is made to a letter Annexure D addressed by the Divisional Forest Officer to one Subedar Babu Singh presumably appellant 1. This letter appears to be in reply to a representation made by the appellants for allotment of alternative land and the Government informed appellant 1 and others that it was not possible to allot any alternative land and there is no alternative left in the department but to get the house occupied illegally by the appellant and others vacated immediately. Relying on this Mr. Verma urged that at any rate appellant and his relatives were in possession of the houses that formed part of theof the acquisition and, therefore, they should not now be dispossessed as it would transpire that the houses are not needed for the carrying out the alleged public purpose.10. If one refers to the schedule to the notification under Section 6 it appears that large tracks of land were acquired for the public purpose set out in the notification. Houses are not referred to in the schedule. It appears that there were some Kachcha houses in some parcel of land. It is also pointed out that the occupants of these houses were themselves working as labourers when scheme to carry out the public purpose was being implemented. Mr. Markandey pointed that they were allowed to continue to stay in the kachcha houses as labourers. The rival submissions are based on a very nebulous state of evidence and it is difficult to base any firm finding on it. In the return on behalf of the respondents filed as far back as May 27, 1969, it was stated that the petitioners, i.e. the present appellants are not in possession of the property acquired. This averment was not countered on behalf of the appellants by any affidavit in rejoinder. Therefore, it is not possible to accept the submission that the appellants continued to be in possession of a portion of the land on which their houses are standing.11. It also transpires from the return filed on behalf of the respondents that the scheme is spread over a long period. Commencing from 1963 some amount is spent on carrying out the scheme each year and by 1969 Rs. 4, 59, 029.16 were spent on the scheme. This averment is not disputed. In the face of this averment it is difficult to believe that the appellants were allowed to continue in possession of the land which were put under acquisition, and at least on some portion of it some work for carrying out public purpose is done from year to year.12. Before we conclude, it must be pointed out that the writ petition was filed on April 22, 1969, i.e. nearly six years and one month after the publication of the impugned notifications and about five years after the award. No explanation is offered why writ petition was filed after such an inordinate delay and after the entire process of acquisition was over. The High Court dismissed the writ petition in limine presumably on account of delay. This Court in Aflatoon v.of Delhi ((1975) 1 SCR 802 : (1975) 4 SCC 285 : AIR 1974 SC 2077 ) and Indrapuri Griha Nirman Sahakari Samiti Ltd. v. State of Rajasthan ((1975) 2 SCR 68 : (1975) 4 SCC 296 : AIR 1974 SC 2085 ) held that if a person allowed the Government to complete the acquisition proceedings on the basis that the notification under Section 4 and declaration under Section 6 were valid and then attacked the notification on the grounds which were available to him at the time when the notification was published, it would be putting a premium on dilatory tactics. The length of the delay is an important circumstance because of the nature of the acts done within the interval on the basis of the notification and declaration and, therefore, a challenge to a notification under Section 4 and a declaration under Section 6 of the Act should be made within a reasonable time thereafter. If it is not so done the petition is liable to be dismissed. This appeal must fail for this additional reason because the challenge to two notifications was after a period of six years and after the whole process of acquisition was over and the State Government had spent a considerable amount in carrying out the public purpose. | 0 | 3,252 | 1,036 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
the appellants of their statutory right to put forth the objection against the proposed acquisition, yet the Government did not take possession of the land involved in the dispute for a period of six years and, therefore, the power to take possession after complying with Section 9 got exhausted and on this account the acquisition itself must be declared illegal and invalid. We have not been able to appreciate this submission. If the impugned notifications are valid and the declaration made under Section 6 has become final and an award under Section 12 is made, even if possession is not taken, we fail to appreciate how thereby the notification under Section 6 would become invalid. It may be that after invoking the power under Section 17 proceedings for acquisition dragged on and possession is not taken, it may reflect upon the exercise of power under Section 17. It may indicate that there was no urgency and there is colourable exercise of power. That is not the contention. The submission of Mr. Verma is that as possession is not taken declaration under Section 6 becomes invalid. We see no substance in this contention. In fact the submission that possession of acquired land is not taken by the Government does not stand scrutiny. In the return filed on behalf of the respondents before the High Court it is in terms stated that the petitioners (appellants) are not in possession of the property acquired. On the other hand Mr. Verma pointed out that appellants are shown to be in possession till 1969 when they were threatened with forcible dispossession. Reference in this connection is made to a letter Annexure D addressed by the Divisional Forest Officer to one Subedar Babu Singh presumably appellant 1. This letter appears to be in reply to a representation made by the appellants for allotment of alternative land and the Government informed appellant 1 and others that it was not possible to allot any alternative land and there is no alternative left in the department but to get the house occupied illegally by the appellant and others vacated immediately. Relying on this Mr. Verma urged that at any rate appellant and his relatives were in possession of the houses that formed part of the subject-matter of the acquisition and, therefore, they should not now be dispossessed as it would transpire that the houses are not needed for the carrying out the alleged public purpose.10. If one refers to the schedule to the notification under Section 6 it appears that large tracks of land were acquired for the public purpose set out in the notification. Houses are not referred to in the schedule. It appears that there were some Kachcha houses in some parcel of land. It is also pointed out that the occupants of these houses were themselves working as labourers when scheme to carry out the public purpose was being implemented. Mr. Markandey pointed that they were allowed to continue to stay in the kachcha houses as labourers. The rival submissions are based on a very nebulous state of evidence and it is difficult to base any firm finding on it. In the return on behalf of the respondents filed as far back as May 27, 1969, it was stated that the petitioners, i.e. the present appellants are not in possession of the property acquired. This averment was not countered on behalf of the appellants by any affidavit in rejoinder. Therefore, it is not possible to accept the submission that the appellants continued to be in possession of a portion of the land on which their houses are standing.11. It also transpires from the return filed on behalf of the respondents that the scheme is spread over a long period. Commencing from 1963 some amount is spent on carrying out the scheme each year and by 1969 Rs. 4, 59, 029.16 were spent on the scheme. This averment is not disputed. In the face of this averment it is difficult to believe that the appellants were allowed to continue in possession of the land which were put under acquisition, and at least on some portion of it some work for carrying out public purpose is done from year to year.12. Before we conclude, it must be pointed out that the writ petition was filed on April 22, 1969, i.e. nearly six years and one month after the publication of the impugned notifications and about five years after the award. No explanation is offered why writ petition was filed after such an inordinate delay and after the entire process of acquisition was over. The High Court dismissed the writ petition in limine presumably on account of delay. This Court in Aflatoon v. Lt.-Governor of Delhi ((1975) 1 SCR 802 : (1975) 4 SCC 285 : AIR 1974 SC 2077 ) and Indrapuri Griha Nirman Sahakari Samiti Ltd. v. State of Rajasthan ((1975) 2 SCR 68 : (1975) 4 SCC 296 : AIR 1974 SC 2085 ) held that if a person allowed the Government to complete the acquisition proceedings on the basis that the notification under Section 4 and declaration under Section 6 were valid and then attacked the notification on the grounds which were available to him at the time when the notification was published, it would be putting a premium on dilatory tactics. The length of the delay is an important circumstance because of the nature of the acts done within the interval on the basis of the notification and declaration and, therefore, a challenge to a notification under Section 4 and a declaration under Section 6 of the Act should be made within a reasonable time thereafter. If it is not so done the petition is liable to be dismissed. This appeal must fail for this additional reason because the challenge to two notifications was after a period of six years and after the whole process of acquisition was over and the State Government had spent a considerable amount in carrying out the public purpose.
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In these circumstances we see no illegality in the issuance of the notification under Section 4 and under Section 6 on the same day and accordingly the first contention of Mr. Verma must behave not been able to appreciate this submission. If the impugned notifications are valid and the declaration made under Section 6 has become final and an award under Section 12 is made, even if possession is not taken, we fail to appreciate how thereby the notification under Section 6 would become invalid. It may be that after invoking the power under Section 17 proceedings for acquisition dragged on and possession is not taken, it may reflect upon the exercise of power under Section 17. It may indicate that there was no urgency and there is colourable exercise of power. That is not the contention. The submission of Mr. Verma is that as possession is not taken declaration under Section 6 becomes invalid. We see no substance in this contention. In fact the submission that possession of acquired land is not taken by the Government does not stand scrutiny. In the return filed on behalf of the respondents before the High Court it is in terms stated that the petitioners (appellants) are not in possession of the property acquired. On the other hand Mr. Verma pointed out that appellants are shown to be in possession till 1969 when they were threatened with forcible dispossession. Reference in this connection is made to a letter Annexure D addressed by the Divisional Forest Officer to one Subedar Babu Singh presumably appellant 1. This letter appears to be in reply to a representation made by the appellants for allotment of alternative land and the Government informed appellant 1 and others that it was not possible to allot any alternative land and there is no alternative left in the department but to get the house occupied illegally by the appellant and others vacated immediately. Relying on this Mr. Verma urged that at any rate appellant and his relatives were in possession of the houses that formed part of theof the acquisition and, therefore, they should not now be dispossessed as it would transpire that the houses are not needed for the carrying out the alleged public purpose.10. If one refers to the schedule to the notification under Section 6 it appears that large tracks of land were acquired for the public purpose set out in the notification. Houses are not referred to in the schedule. It appears that there were some Kachcha houses in some parcel of land. It is also pointed out that the occupants of these houses were themselves working as labourers when scheme to carry out the public purpose was being implemented. Mr. Markandey pointed that they were allowed to continue to stay in the kachcha houses as labourers. The rival submissions are based on a very nebulous state of evidence and it is difficult to base any firm finding on it. In the return on behalf of the respondents filed as far back as May 27, 1969, it was stated that the petitioners, i.e. the present appellants are not in possession of the property acquired. This averment was not countered on behalf of the appellants by any affidavit in rejoinder. Therefore, it is not possible to accept the submission that the appellants continued to be in possession of a portion of the land on which their houses are standing.11. It also transpires from the return filed on behalf of the respondents that the scheme is spread over a long period. Commencing from 1963 some amount is spent on carrying out the scheme each year and by 1969 Rs. 4, 59, 029.16 were spent on the scheme. This averment is not disputed. In the face of this averment it is difficult to believe that the appellants were allowed to continue in possession of the land which were put under acquisition, and at least on some portion of it some work for carrying out public purpose is done from year to year.12. Before we conclude, it must be pointed out that the writ petition was filed on April 22, 1969, i.e. nearly six years and one month after the publication of the impugned notifications and about five years after the award. No explanation is offered why writ petition was filed after such an inordinate delay and after the entire process of acquisition was over. The High Court dismissed the writ petition in limine presumably on account of delay. This Court in Aflatoon v.of Delhi ((1975) 1 SCR 802 : (1975) 4 SCC 285 : AIR 1974 SC 2077 ) and Indrapuri Griha Nirman Sahakari Samiti Ltd. v. State of Rajasthan ((1975) 2 SCR 68 : (1975) 4 SCC 296 : AIR 1974 SC 2085 ) held that if a person allowed the Government to complete the acquisition proceedings on the basis that the notification under Section 4 and declaration under Section 6 were valid and then attacked the notification on the grounds which were available to him at the time when the notification was published, it would be putting a premium on dilatory tactics. The length of the delay is an important circumstance because of the nature of the acts done within the interval on the basis of the notification and declaration and, therefore, a challenge to a notification under Section 4 and a declaration under Section 6 of the Act should be made within a reasonable time thereafter. If it is not so done the petition is liable to be dismissed. This appeal must fail for this additional reason because the challenge to two notifications was after a period of six years and after the whole process of acquisition was over and the State Government had spent a considerable amount in carrying out the public purpose.
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State of Orissa and Another Vs. Shri Manilal Singhania and Another | whether the detention is in accordance with law. But a doubt does begin to gnaw at the mind of the court and, therefore, we are glad that the State Government and the District Magistrate have stated before us that they would not radiation the first respondent on the same material.3. The second ground raises the question whether there was any unexplained delay on the part of the State Government in considering the representation made by the first respondent against the order of detention. Now, the law is well settled by several decisions of this Court, of which we may refer only to one, namely, Sk. Rashid v. State of West Bengal ((1973) 3 SCC 476 : 1973 SCC (Cri) 376 ), that the representation made by the detenu against the order of detention should be considered by the State Government as soon as possible, that is, with reasonable dispatch and if that is not done, it would have the effect of vitiating the order of detention. It was pointed out by this Court in Sk. Rashids case that [SCC (Cri) pp 377-378, para 4] it is undoubtedly true that neither the Constitution nor the Act expressly provides for the consideration of a detenus representation by the State Government within any specified period of time. The constitutional requirement of expeditious consideration of the petitioners representation by the State Government has, however, been spelt out by this Court from clause (5) of Article 22 of the Constitution . . . . This right . . . to have the representation considered at the earliest flows from the constitutional guarantee of the right to personal liberty - a right which is highly cherished in our Republic and its protection against arbitrary and unlawful invasion.But, as pointed out by this Court in the same case, it is neither possible nor advisable to lay down any rigid period of time uniformly applicable in all cases within which the representation of a detenu must be considered by the State Government. The Court would have to consider judicially in each case on the available material whether the gap between the receipt of the representation and its consideration by the State Government is so unreasonable long and the explanation for the delay offered by the State Government so unsatisfactory as to render the detention order thereafter illegal. We must examine the facts of the present case in the light of this principle for the purpose of determining whether there was any undue delay in consideration of the representation of the first respondent by the State Government.4. The first respondent made a representation against the order of detention on October 21, 1974 and it was received by the District Magistrate on the same day. The District Magistrate despatched the representation of the first respondent together with his parawise comments to the State Government on October 24, 1974 and it was received by the Home Secretary on October 25, 1974. The Home Secretary endorsed the representation to the Deputy Secretary and the Deputy Secretary in his turn endorsed it to the concerned section in his department for examination. Now, it appears that the secretariat was closed for the Pooja holidays from October 20, 1974 to October 27, 1974 (both days inclusive) and October 30, 1974 was also a holiday on account of Kumar Purnima. The assistant dealing with the matter could not, therefore, place the record in regard to the representation before the Head Assistant until October 31, 1974. The Head Assistant examined the representation and submitted his remarks on November 2, 1974 and on November 4, 1974 the Deputy Secretary dealt with the representation. The representation then went to the Secretary and he made his remarks on it on November 5, 1974. The representation was then processed by the Additional Chief Secretary on November 6, 1974 and finally on November 7, 1974 the file was endorsed to the Chief Minister who was incharge of the Home Department. The Chief Minister was absent from headquarters between November 7, 1974 and November 12, 1974 and immediately on return to headquarters, she disposed of the representation and rejected it on November 12, 1974. These facts, which are given in the counter affidavit filed by the Deputy Secretary to the Government of Orissa in the Home Department, clearly show that there was no undue delay on the part of the State Government in considering the representation of the first respondent. The representation could not straightaway be placed before the Chief Minister for his consideration. It had to be sent to the concerned department for examination and notings and naturally it took time for the representation to move from and notings and naturally it took time for the representation to move from a lower officer to a higher officer before it reached the Chief Minister. What is important to note is that there was no delay at any stage in this movement of the representation from one officer to another. Every officer dealt with the representation promptly and after examining it and making his notings, submitted it to the higher officer. The representation undoubtedly went to the Chief Minister on November 7, 1974 but since the Chief Minister was out of Cuttack, it had to wait till the Chief Minister returned and it is important to note that as soon as she returned, she immediately, without any delay at all, disposed of the representation. We do not, therefore, see any gap between the receipt of the representation and its consideration by the State Government which elapsed between the receipt of the representation and its disposal by the State Government has been satisfactorily explained in the affidavit of the Deputy Secretary filed on behalf of the State Government. We do not, therefore, agree with the High Court that there was undue delay on the part of the State Government in considering the representation of the first respondent and in the circumstances the order of detention could not be held to be invalid on that ground. | 0[ds]What is important to note is that there was no delay at any stage in this movement of the representation from one officer to another. Every officer dealt with the representation promptly and after examining it and making his notings, submitted it to the higher officer. The representation undoubtedly went to the Chief Minister on November 7, 1974 but since the Chief Minister was out of Cuttack, it had to wait till the Chief Minister returned and it is important to note that as soon as she returned, she immediately, without any delay at all, disposed of the representation. We do not, therefore, see any gap between the receipt of the representation and its consideration by the State Government which elapsed between the receipt of the representation and its disposal by the State Government has been satisfactorily explained in the affidavit of the Deputy Secretary filed on behalf of the State Government. We do not, therefore, agree with the High Court that there was undue delay on the part of the State Government in considering the representation of the first respondent and in the circumstances the order of detention could not be held to be invalid on that ground. | 0 | 2,258 | 218 | ### Instruction:
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whether the detention is in accordance with law. But a doubt does begin to gnaw at the mind of the court and, therefore, we are glad that the State Government and the District Magistrate have stated before us that they would not radiation the first respondent on the same material.3. The second ground raises the question whether there was any unexplained delay on the part of the State Government in considering the representation made by the first respondent against the order of detention. Now, the law is well settled by several decisions of this Court, of which we may refer only to one, namely, Sk. Rashid v. State of West Bengal ((1973) 3 SCC 476 : 1973 SCC (Cri) 376 ), that the representation made by the detenu against the order of detention should be considered by the State Government as soon as possible, that is, with reasonable dispatch and if that is not done, it would have the effect of vitiating the order of detention. It was pointed out by this Court in Sk. Rashids case that [SCC (Cri) pp 377-378, para 4] it is undoubtedly true that neither the Constitution nor the Act expressly provides for the consideration of a detenus representation by the State Government within any specified period of time. The constitutional requirement of expeditious consideration of the petitioners representation by the State Government has, however, been spelt out by this Court from clause (5) of Article 22 of the Constitution . . . . This right . . . to have the representation considered at the earliest flows from the constitutional guarantee of the right to personal liberty - a right which is highly cherished in our Republic and its protection against arbitrary and unlawful invasion.But, as pointed out by this Court in the same case, it is neither possible nor advisable to lay down any rigid period of time uniformly applicable in all cases within which the representation of a detenu must be considered by the State Government. The Court would have to consider judicially in each case on the available material whether the gap between the receipt of the representation and its consideration by the State Government is so unreasonable long and the explanation for the delay offered by the State Government so unsatisfactory as to render the detention order thereafter illegal. We must examine the facts of the present case in the light of this principle for the purpose of determining whether there was any undue delay in consideration of the representation of the first respondent by the State Government.4. The first respondent made a representation against the order of detention on October 21, 1974 and it was received by the District Magistrate on the same day. The District Magistrate despatched the representation of the first respondent together with his parawise comments to the State Government on October 24, 1974 and it was received by the Home Secretary on October 25, 1974. The Home Secretary endorsed the representation to the Deputy Secretary and the Deputy Secretary in his turn endorsed it to the concerned section in his department for examination. Now, it appears that the secretariat was closed for the Pooja holidays from October 20, 1974 to October 27, 1974 (both days inclusive) and October 30, 1974 was also a holiday on account of Kumar Purnima. The assistant dealing with the matter could not, therefore, place the record in regard to the representation before the Head Assistant until October 31, 1974. The Head Assistant examined the representation and submitted his remarks on November 2, 1974 and on November 4, 1974 the Deputy Secretary dealt with the representation. The representation then went to the Secretary and he made his remarks on it on November 5, 1974. The representation was then processed by the Additional Chief Secretary on November 6, 1974 and finally on November 7, 1974 the file was endorsed to the Chief Minister who was incharge of the Home Department. The Chief Minister was absent from headquarters between November 7, 1974 and November 12, 1974 and immediately on return to headquarters, she disposed of the representation and rejected it on November 12, 1974. These facts, which are given in the counter affidavit filed by the Deputy Secretary to the Government of Orissa in the Home Department, clearly show that there was no undue delay on the part of the State Government in considering the representation of the first respondent. The representation could not straightaway be placed before the Chief Minister for his consideration. It had to be sent to the concerned department for examination and notings and naturally it took time for the representation to move from and notings and naturally it took time for the representation to move from a lower officer to a higher officer before it reached the Chief Minister. What is important to note is that there was no delay at any stage in this movement of the representation from one officer to another. Every officer dealt with the representation promptly and after examining it and making his notings, submitted it to the higher officer. The representation undoubtedly went to the Chief Minister on November 7, 1974 but since the Chief Minister was out of Cuttack, it had to wait till the Chief Minister returned and it is important to note that as soon as she returned, she immediately, without any delay at all, disposed of the representation. We do not, therefore, see any gap between the receipt of the representation and its consideration by the State Government which elapsed between the receipt of the representation and its disposal by the State Government has been satisfactorily explained in the affidavit of the Deputy Secretary filed on behalf of the State Government. We do not, therefore, agree with the High Court that there was undue delay on the part of the State Government in considering the representation of the first respondent and in the circumstances the order of detention could not be held to be invalid on that ground.
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0
### Explanation:
What is important to note is that there was no delay at any stage in this movement of the representation from one officer to another. Every officer dealt with the representation promptly and after examining it and making his notings, submitted it to the higher officer. The representation undoubtedly went to the Chief Minister on November 7, 1974 but since the Chief Minister was out of Cuttack, it had to wait till the Chief Minister returned and it is important to note that as soon as she returned, she immediately, without any delay at all, disposed of the representation. We do not, therefore, see any gap between the receipt of the representation and its consideration by the State Government which elapsed between the receipt of the representation and its disposal by the State Government has been satisfactorily explained in the affidavit of the Deputy Secretary filed on behalf of the State Government. We do not, therefore, agree with the High Court that there was undue delay on the part of the State Government in considering the representation of the first respondent and in the circumstances the order of detention could not be held to be invalid on that ground.
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Alembic Chemical Works Co., Ltd Vs. The Workmen | welfare legislation.11. The history of the amendments made in the relevant provisions of the Act also indicates that the Act has been gradually making more liberal provisions in the interest of workmen to whom it applies. In the original Act as it was passed (25 of 1934) S. 34 provided for weekly holiday but no provision was made for holidays with pay. When the said Act was amended by Act 3 of 1945, S. 49A which is equivalent to present S. 78 (1) without the proviso was inserted; and S. 49B provided, inter alia, that every worker who has completed a period of twelve months continuous service in a factory shall be allowed during the subsequent period of twelve months holidays for a period of ten days. That is how provision for holiday came to be made. By the amending Act 63 of 1948, S. 78 with the present proviso enacted; and S. 79 made a provision for annual leave with wages. While making provision for annual leave with wage the section then prescribed a minimum of ten days; subsequently, by amending Act 25 of 1954, S. 79 as it stand at present was enacted; and in S. 78 the word "annual" has been added to qualify leave in the proviso. We have thus briefly referred to some charges made in the Act from time to time in order to show that subsequent amendments have sought to make the provisions more liberal.12. There is one more point which may incidentally be mentioned whilst we are considering the amendments made in the Act from time to time. Section 49 A which broadly corresponds to S. 78 of the present Act saved other laws and terms of any award, agreement or contract of service just as S. 78(1) does. Now, if the said section is construed on the lines which the appellant wants us to construe S. 78(1) it would only be arrangements existing at the date when the said amending Act came into force on January 1, 1946, that would be protected and saved, and nothing that happened either by way of legislation or by way of awards or contracts subsequent to the said date would attract the provisions of the said S. 49A or S. 78 which subsequently took its place. This obviously is not intended by the Legislature which incidentally shows that S. 78(1) cannot be confined to existing arrangements or laws but takes within arrangements within its sweep future laws, agreements, contracts or awards. Therefore, the challenge to the validity of the award based on the assumption that S. 79 (1) provides for standardised award of annual leave with wages fails.13. Then it is urged that the provision made by the award for privilege leave introduces discrimination between the clerical staff covered by the present reference and operatives covered by the earlier awards made by the same Tribunal. We are told that operative had made a similar claim for privilege leave before the same Tribunal, and the said claim had been rejected. The argument is that the provision for privilege leave made by the present award would create discontent amongst the operatives to whom similar leave has been denied, and that would disturb industrial peace. We are not impressed by this argument. It is not seriously disputed that a distinction has generally been made between operatives who do manual work and clerical and other staff; in fact the appellants standing orders themselves make different relevant provisions for the two categories of its employees. It is also not disputed that in practice such distinction is made by comparable concerns, and awards based on the same distinction are generally made in respect of the two separate categories of employees. We are, therefore, unable to appreciate the argument that in granting privilege leave to the present staff the Tribunal had either overlooked its earlier award or has made a decision which suffers from the vice of discrimination. The practice prevailing in comparable concerns and the trend of awards both seem to show that a distinction is generally made between the two categories of employees, and since the said distinction is perfectly justifiable no question of discrimination can arise.14. It is then argued that making liberal provisions for privilege leave and sick leave are really opposed to the modern trend in industrial thought, and so such liberal awards should be discouraged and corrected. There is no doubt that when industrial adjudication seeks to do social justice it cannot ignore the needs of national economy; and so in considering matters of leave, either in the form of privilege leave or sick leave, the Tribunals should not ignore the consideration that unduly generous or liberal leave provisions would affect production and obviously production of essential commodities is in the interest of not only the employers and the employees but also of the general community; but it is difficult for us to accept the argument that we should make suitable modifications in the provisions made by the award in regard to privilege leave or sick leave. These are matters primarily for the Industrial Tribunal to consider and decide. The Tribunal is more familiar with the trend prevailing in comparable concerns, and unless it appears that the impugned provisions cannot be sustained on any reasonable ground or that they mark a violent departure from the prevailing practice or trend, we would be reluctant to interfere with the decision of the Tribunal. After all, in deciding what would be a reasonable provision for privilege leave or sick leave, the Tribunal has to take into account all relevant factors and come to its own decision. As we have already indicated, in making the present award the Tribunal has considered previous decisions which were relevant and prevailing agreements in comparable concerns. We have carefully considered the criticism made by the learned Attorney-General against the provisions contained in the award, but we are not satisfied that a case has been made out for interference in an appeal under Art. 136. | 0[ds]7. Even on the basis that S. 79(1) is capable of the construction sought to be placed on it by the appellant, the question would still remain whether the said construction should be preferred to the alternative construction which, as we have just indicated is reasonably possible. The answer to this question must be in the negative for two reasons; first, having regard to the obvious policy and object of the Act, if S. 79(1) is capable of two constructions that construction should be preferred which furthers the policy of the Act and is more beneficial to the employees in whose interest the Act has been passed. It is well settled that in construing the provisions of a welfare legislation courts should adopt what is sometimes described as a beneficent rule of construction; but apart from this general consideration about the policy and object of the Act, Ss. 78 and 84 occurring in the same Chapter as S. 79 clearly indicate that S. 79(1) is not intended to standardise leave provisions as contended by the appellant, and that is the second reason why the appellants argument cannot be accepted.Besides, the scope and extent of the exceptions recognised by S. 78(1) are decisively against the appellants construction of S. 79(1). The learned Attorney-General has strenuously contended that the saving provision of S. 78(1) applies only to existing law and existing awards, agreements or contract of service; in other words his argument is that the Legislature has deliberately decided to except pre-existing arrangements and in that sense it is a departure from the usual concept of standardisation. In our opinion the assumption that S. 78(1) is confined to existing arrangements is plainly inconsistent with a fair and reasonable construction of the said provisions. When S. 78(1) refers to any other law it could not have been intended that it is only to existing laws that the reference is made and that the idea underlying the provision was that no law can be passed in future which would grant more generous leave to the employees. Such a restriction on the legislative activities of the appropriate Legislatures cannot obviously have been intended. If the reference to law is not confined only to existing law there is no reason why reference to any award, agreement or contract of service should be similarly circumscribed or limited. We feel no difficulty in holding that what S. 78(1) protects are law, awards, agreements or contracts of service which were then existing or which would come into existence later; that is to say S. 78(1) does not affect pre-existing arrangements and does not also prohibit future arrangements which would be more generous than S. 79(1). A law may be passed making more generous provisions, or agreements or contracts may be entered into or awards made with the same result. If that be the true position S. 78 (1) clearly negatives the theory that S. 79 (1) provides for standardisation of annual leave with wages.10. The provisions of S. 84 would also lead to the same result. Section 84 provides that where the State Government is satisfied that the leave rules applicable to workers in a factory provide benefits which in its opinion are not less favourable than those for which Chapter VIII makes provision it may be written order exempt the factory from all or any of the provisions of Chapter VIII subject to such conditions as may be specified in the order. Now, the power to exempt factories has to be exercised having regard to the effect of the totality of the benefits which may be afforded to the workers by their respective factories. This power to exempt also necessarily postulates the existence of better amenities than those guaranteed by Chapter VIII, and that means that if a factory provides better leave amenities to its employees, the State Government may in the interest of the employees exempt the factory from the operation of this Chapter. The scope of S. 84, like the scope of S. 78, cannot be limited only to the more favourable benefits which may be existing at the date when the Act was passed. What is true about the existing benefits would be equally true about the benefits which may be granted by an employer to the employees in future. Let us illustrate what the consequence would be if the appellants argument is accepted. Take the case of an employer who has been exempted under S. 84 on the ground that the benefits of leave conferred by him on his employees are more favourable to them. In such a case, the employer may make his benefits still more favourable after exemption is accorded to him; but an employer who has already not provided more favourable benefits would be effectively precluded from making any such provisions in future. It is difficult to imagine that such a consequence could have been intended by the provisions of this welfare legislation.It is then argued that making liberal provisions for privilege leave and sick leave are really opposed to the modern trend in industrial thought, and so such liberal awards should be discouraged and corrected. There is no doubt that when industrial adjudication seeks to do social justice it cannot ignore the needs of national economy; and so in considering matters of leave, either in the form of privilege leave or sick leave, the Tribunals should not ignore the consideration that unduly generous or liberal leave provisions would affect production and obviously production of essential commodities is in the interest of not only the employers and the employees but also of the general community; but it is difficult for us to accept the argument that we should make suitable modifications in the provisions made by the award in regard to privilege leave or sick leave. These are matters primarily for the Industrial Tribunal to consider and decide. The Tribunal is more familiar with the trend prevailing in comparable concerns, and unless it appears that the impugned provisions cannot be sustained on any reasonable ground or that they mark a violent departure from the prevailing practice or trend, we would be reluctant to interfere with the decision of the Tribunal. After all, in deciding what would be a reasonable provision for privilege leave or sick leave, the Tribunal has to take into account all relevant factors and come to its own decision. As we have already indicated, in making the present award the Tribunal has considered previous decisions which were relevant and prevailing agreements in comparable concerns. We have carefully considered the criticism made by the learned Attorney-General against the provisions contained in the award, but we are not satisfied that a case has been made out for interference in an appeal under Art. 136. | 0 | 3,729 | 1,234 | ### Instruction:
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welfare legislation.11. The history of the amendments made in the relevant provisions of the Act also indicates that the Act has been gradually making more liberal provisions in the interest of workmen to whom it applies. In the original Act as it was passed (25 of 1934) S. 34 provided for weekly holiday but no provision was made for holidays with pay. When the said Act was amended by Act 3 of 1945, S. 49A which is equivalent to present S. 78 (1) without the proviso was inserted; and S. 49B provided, inter alia, that every worker who has completed a period of twelve months continuous service in a factory shall be allowed during the subsequent period of twelve months holidays for a period of ten days. That is how provision for holiday came to be made. By the amending Act 63 of 1948, S. 78 with the present proviso enacted; and S. 79 made a provision for annual leave with wages. While making provision for annual leave with wage the section then prescribed a minimum of ten days; subsequently, by amending Act 25 of 1954, S. 79 as it stand at present was enacted; and in S. 78 the word "annual" has been added to qualify leave in the proviso. We have thus briefly referred to some charges made in the Act from time to time in order to show that subsequent amendments have sought to make the provisions more liberal.12. There is one more point which may incidentally be mentioned whilst we are considering the amendments made in the Act from time to time. Section 49 A which broadly corresponds to S. 78 of the present Act saved other laws and terms of any award, agreement or contract of service just as S. 78(1) does. Now, if the said section is construed on the lines which the appellant wants us to construe S. 78(1) it would only be arrangements existing at the date when the said amending Act came into force on January 1, 1946, that would be protected and saved, and nothing that happened either by way of legislation or by way of awards or contracts subsequent to the said date would attract the provisions of the said S. 49A or S. 78 which subsequently took its place. This obviously is not intended by the Legislature which incidentally shows that S. 78(1) cannot be confined to existing arrangements or laws but takes within arrangements within its sweep future laws, agreements, contracts or awards. Therefore, the challenge to the validity of the award based on the assumption that S. 79 (1) provides for standardised award of annual leave with wages fails.13. Then it is urged that the provision made by the award for privilege leave introduces discrimination between the clerical staff covered by the present reference and operatives covered by the earlier awards made by the same Tribunal. We are told that operative had made a similar claim for privilege leave before the same Tribunal, and the said claim had been rejected. The argument is that the provision for privilege leave made by the present award would create discontent amongst the operatives to whom similar leave has been denied, and that would disturb industrial peace. We are not impressed by this argument. It is not seriously disputed that a distinction has generally been made between operatives who do manual work and clerical and other staff; in fact the appellants standing orders themselves make different relevant provisions for the two categories of its employees. It is also not disputed that in practice such distinction is made by comparable concerns, and awards based on the same distinction are generally made in respect of the two separate categories of employees. We are, therefore, unable to appreciate the argument that in granting privilege leave to the present staff the Tribunal had either overlooked its earlier award or has made a decision which suffers from the vice of discrimination. The practice prevailing in comparable concerns and the trend of awards both seem to show that a distinction is generally made between the two categories of employees, and since the said distinction is perfectly justifiable no question of discrimination can arise.14. It is then argued that making liberal provisions for privilege leave and sick leave are really opposed to the modern trend in industrial thought, and so such liberal awards should be discouraged and corrected. There is no doubt that when industrial adjudication seeks to do social justice it cannot ignore the needs of national economy; and so in considering matters of leave, either in the form of privilege leave or sick leave, the Tribunals should not ignore the consideration that unduly generous or liberal leave provisions would affect production and obviously production of essential commodities is in the interest of not only the employers and the employees but also of the general community; but it is difficult for us to accept the argument that we should make suitable modifications in the provisions made by the award in regard to privilege leave or sick leave. These are matters primarily for the Industrial Tribunal to consider and decide. The Tribunal is more familiar with the trend prevailing in comparable concerns, and unless it appears that the impugned provisions cannot be sustained on any reasonable ground or that they mark a violent departure from the prevailing practice or trend, we would be reluctant to interfere with the decision of the Tribunal. After all, in deciding what would be a reasonable provision for privilege leave or sick leave, the Tribunal has to take into account all relevant factors and come to its own decision. As we have already indicated, in making the present award the Tribunal has considered previous decisions which were relevant and prevailing agreements in comparable concerns. We have carefully considered the criticism made by the learned Attorney-General against the provisions contained in the award, but we are not satisfied that a case has been made out for interference in an appeal under Art. 136.
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is sometimes described as a beneficent rule of construction; but apart from this general consideration about the policy and object of the Act, Ss. 78 and 84 occurring in the same Chapter as S. 79 clearly indicate that S. 79(1) is not intended to standardise leave provisions as contended by the appellant, and that is the second reason why the appellants argument cannot be accepted.Besides, the scope and extent of the exceptions recognised by S. 78(1) are decisively against the appellants construction of S. 79(1). The learned Attorney-General has strenuously contended that the saving provision of S. 78(1) applies only to existing law and existing awards, agreements or contract of service; in other words his argument is that the Legislature has deliberately decided to except pre-existing arrangements and in that sense it is a departure from the usual concept of standardisation. In our opinion the assumption that S. 78(1) is confined to existing arrangements is plainly inconsistent with a fair and reasonable construction of the said provisions. When S. 78(1) refers to any other law it could not have been intended that it is only to existing laws that the reference is made and that the idea underlying the provision was that no law can be passed in future which would grant more generous leave to the employees. Such a restriction on the legislative activities of the appropriate Legislatures cannot obviously have been intended. If the reference to law is not confined only to existing law there is no reason why reference to any award, agreement or contract of service should be similarly circumscribed or limited. We feel no difficulty in holding that what S. 78(1) protects are law, awards, agreements or contracts of service which were then existing or which would come into existence later; that is to say S. 78(1) does not affect pre-existing arrangements and does not also prohibit future arrangements which would be more generous than S. 79(1). A law may be passed making more generous provisions, or agreements or contracts may be entered into or awards made with the same result. If that be the true position S. 78 (1) clearly negatives the theory that S. 79 (1) provides for standardisation of annual leave with wages.10. The provisions of S. 84 would also lead to the same result. Section 84 provides that where the State Government is satisfied that the leave rules applicable to workers in a factory provide benefits which in its opinion are not less favourable than those for which Chapter VIII makes provision it may be written order exempt the factory from all or any of the provisions of Chapter VIII subject to such conditions as may be specified in the order. Now, the power to exempt factories has to be exercised having regard to the effect of the totality of the benefits which may be afforded to the workers by their respective factories. This power to exempt also necessarily postulates the existence of better amenities than those guaranteed by Chapter VIII, and that means that if a factory provides better leave amenities to its employees, the State Government may in the interest of the employees exempt the factory from the operation of this Chapter. The scope of S. 84, like the scope of S. 78, cannot be limited only to the more favourable benefits which may be existing at the date when the Act was passed. What is true about the existing benefits would be equally true about the benefits which may be granted by an employer to the employees in future. Let us illustrate what the consequence would be if the appellants argument is accepted. Take the case of an employer who has been exempted under S. 84 on the ground that the benefits of leave conferred by him on his employees are more favourable to them. In such a case, the employer may make his benefits still more favourable after exemption is accorded to him; but an employer who has already not provided more favourable benefits would be effectively precluded from making any such provisions in future. It is difficult to imagine that such a consequence could have been intended by the provisions of this welfare legislation.It is then argued that making liberal provisions for privilege leave and sick leave are really opposed to the modern trend in industrial thought, and so such liberal awards should be discouraged and corrected. There is no doubt that when industrial adjudication seeks to do social justice it cannot ignore the needs of national economy; and so in considering matters of leave, either in the form of privilege leave or sick leave, the Tribunals should not ignore the consideration that unduly generous or liberal leave provisions would affect production and obviously production of essential commodities is in the interest of not only the employers and the employees but also of the general community; but it is difficult for us to accept the argument that we should make suitable modifications in the provisions made by the award in regard to privilege leave or sick leave. These are matters primarily for the Industrial Tribunal to consider and decide. The Tribunal is more familiar with the trend prevailing in comparable concerns, and unless it appears that the impugned provisions cannot be sustained on any reasonable ground or that they mark a violent departure from the prevailing practice or trend, we would be reluctant to interfere with the decision of the Tribunal. After all, in deciding what would be a reasonable provision for privilege leave or sick leave, the Tribunal has to take into account all relevant factors and come to its own decision. As we have already indicated, in making the present award the Tribunal has considered previous decisions which were relevant and prevailing agreements in comparable concerns. We have carefully considered the criticism made by the learned Attorney-General against the provisions contained in the award, but we are not satisfied that a case has been made out for interference in an appeal under Art. 136.
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Hindustan Lever Limited Vs. Hindustan Lever Mazdoor Sabha & Another | is with regard to the non-implementation of settlement dated 21-1-1971 and failure to negotiate on the charter of demands dated 31-12-1973. Undisputedly the present complaint is filed on 4-4-1984. It is urged that even though the cause of action to file the present complaint had arisen on 21-1-1971 and 31-12-1973, but it has been filed after the period of 12 years that too without application for condonation of delay."It is evident that there is a delay of more than 12 years and it is also conceded that there was no sufficient explanation for that delay and in Reference (IT) No. 203 of 1970 the main issue viz. whether the member of the field staff is a workman or not has been agitated and considered by the Tribunal. On a careful reading of the impugned order it can be seen that the Industrial Court was under a misconception that the judgment of the Supreme Court gives a fresh cause of action to the first respondent to make the present complaint. Paragraph 20 of the impugned order reads as follows:"Suffice to state that even though the Company did not implement the settlement dated 27-1-1971 as far as Bombay Branch field force was concerned on the ground that dispute was pending adjudication before the Industrial Tribunal, and even though Ref. (IT) No. 203 of 1970 was decided against the concerned employees, still the cause of action to claim the implementation of the said agreement or settlement had arisen for the first time after the decision given by the Honble Supreme Court of India in C.A. No. 1865/82 dated 5-1-1984. Therefore, the complaint filed on 4-4-1984 cannot be said to be barred by limitation at all.Had the Honble Supreme Court not declared the correspondence (Annexure-A) to be agreement in between the parties, the controversy about the field force being not workmen had already come to an end."The judgment of the Supreme Court does not give any cause of action to the first respondent. The Supreme Court only interpreted the three letters and affirmed the rights of the parties emerging from those letters. In other words, the Supreme Court has upheld the view of the first respondent as regards the interpretation of three letters are concerned. Therefore, the observations of the Industrial Court that the Supreme Court judgment gives the first respondent a fresh cause of action cannot be accepted. As we pointed out earlier, the Supreme Court judgment may give some impetus to file the complaint in question before the Industrial Court. It is common knowledge that a judgment of a Court will not give a cause of action to a litigant. Cause of action for a litigation arises out of a wrong committed by the opposite party. Moreover, a judgment of a Court cannot infuse life to a cause of action which was already dead. It is a cardinal principle of law of limitation that once the limitation starts to run nobody can stop it unless and until a competent Court stops its running. So also a cause of action once obliterated by operation of law of limitation cannot be re-built. In this context we cannot appreciate the finding of the Industrial Court that the non-implementation of a settlement is a continuing process. It is clear from the facts of this case, but for the Chitales Award and consequent rejection of the SLP by the Supreme Court, perhaps Industrial Court may be right in making such observations. But when a competent Court has given a finding, rightly or wrongly, and the parties have accepted it for a long time, one cannot conceive of a position that it is a continuing wrong. In the absence of a valid explanation for keeping the matter in cold storage for 13 years from 1971 to 1984 the present complaint is barred by limitation before the Industrial Court. As observed by the Industrial Court but for the Supreme Court decision the entire matter would have been considered as closed. Merely because Supreme Court has made the observation first respondent cannot save limitation.9. As is well known the object of statutes of limitation is founded on public policy. It is to compel the litigants to prosecute their case diligently. Such a policy is necessary to secure quiet and repose of the community. Another consideration is that one should not be complacent on his own rights. The old maxim "Interest reipublices ut sit finis litium" is quite relevant in these days also. A party who is insensible to his remedies or who does not assert his own claims with promptitude has no rights to seek the aid of the State.10. When we closely watched the conduct of the first respondent it can be seen that there was no room for any doubt that it has acquiesced on the award of Mr. Justice Chitale by keeping silence for a long time. The doctrine acquiescence is based on the conduct of the parties with knowledge of its legal rights. Acquiescence amounts to absolute or positive waiver of the rights of a person who acquiesced. Though it is quite different from delay or laches, but in the factual context of the case it is very relevant here. If a person having a right, stands by and see another deals with the rights inconsistent with that rights, watched it for considerable long time say, 12 years or more, he cannot afterwards complain. Under Indian Law of Limitation generally even rights over immovable property loses after 12 years where it was not properly exercised. Here the complainant knows that under section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 period of 3 years was prescribed for ventilating their grievance. No explanation worth consideration has been put forward by the first respondent. According to us, the Industrial Court committed serious miscarriage of justice in disposing of the issue of limitation. Under the circumstances we have no doubt that the complaint of the first respondent is barred by limitation. | 1[ds]We see considerable force in the argument of Mr. Singhvi as far as this aspect of the matter is concerned. Ambit and the scope of those three letters were in detail examined by the Supreme Court in the aforesaid judgment. By those letters the petitioner had unmistakably conceded the status of workmen and we have no hesitation to hold that it pertains to the conditions of service. That apart, after the judgment of the Supreme Court on these letters, there is little scope for such contentions being raised at the instance of the petitioner. The Supreme Court without any pale of doubt has spoken in detail the ambit and scope of those letters constituting an agreement between the parties. Though Mr. Manohar, Counsel for the petitioner, has strenuously argued at length about termination of the agreement citing various decisions of the Supreme Court and High Court, we are not very much impressed because it is not permissible for us to take any other stand different from what was taken by the Apex Court in view of the judgment (supra) which speaks about the conditions contained in those letters. Therefore, finding recorded on Issue No. 1 by the Tribunal warrants no interference by thiswe think that considerable importance is to be given to these long history of the case when we deal with the issue of limitation in thiswe see when Mr. Justice Chitales Award categorically declared that they are not workmen which was confirmed by the Supreme Court in Special Leave to Appeal (Civil) No, 27109/95, the first respondent was reconciled with that position and did not make any move to implement the settlement of 1971 or to enforce the letters of 1957. Only when the Supreme Court decided on the legal consequences of these letters, the first respondent become alert and filed the abovethis context we cannot appreciate the finding of the Industrial Court that theof a settlement is a continuing process. It is clear from the facts of this case, but for the Chitales Award and consequent rejection of the SLP by the Supreme Court, perhaps Industrial Court may be right in making such observations. But when a competent Court has given a finding, rightly or wrongly, and the parties have accepted it for a long time, one cannot conceive of a position that it is a continuing wrong. In the absence of a valid explanation for keeping the matter in cold storage for 13 years from 1971 to 1984 the present complaint is barred by limitation before the Industrial Court. As observed by the Industrial Court but for the Supreme Court decision the entire matter would have been considered as closed. Merely because Supreme Court has made the observation first respondent cannot save limitation.When we closely watched the conduct of the first respondent it can be seen that there was no room for any doubt that it has acquiesced on the award of Mr. Justice Chitale by keeping silence for a long time. The doctrine acquiescence is based on the conduct of the parties with knowledge of its legal rights. Acquiescence amounts to absolute or positive waiver of the rights of a person who acquiesced. Though it is quite different from delay or laches, but in the factual context of the case it is very relevant here. If a person having a right, stands by and see another deals with the rights inconsistent with that rights, watched it for considerable long time say, 12 years or more, he cannot afterwards complain. Under Indian Law of Limitation generally even rights over immovable property loses after 12 years where it was not properly exercised. Here the complainant knows that under section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 period of 3 years was prescribed for ventilating their grievance. No explanation worth consideration has been put forward by the first respondent. According to us, the Industrial Court committed serious miscarriage of justice in disposing of the issue of limitation. Under the circumstances we have no doubt that the complaint of the first respondent is barred by limitation. | 1 | 7,559 | 742 | ### 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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is with regard to the non-implementation of settlement dated 21-1-1971 and failure to negotiate on the charter of demands dated 31-12-1973. Undisputedly the present complaint is filed on 4-4-1984. It is urged that even though the cause of action to file the present complaint had arisen on 21-1-1971 and 31-12-1973, but it has been filed after the period of 12 years that too without application for condonation of delay."It is evident that there is a delay of more than 12 years and it is also conceded that there was no sufficient explanation for that delay and in Reference (IT) No. 203 of 1970 the main issue viz. whether the member of the field staff is a workman or not has been agitated and considered by the Tribunal. On a careful reading of the impugned order it can be seen that the Industrial Court was under a misconception that the judgment of the Supreme Court gives a fresh cause of action to the first respondent to make the present complaint. Paragraph 20 of the impugned order reads as follows:"Suffice to state that even though the Company did not implement the settlement dated 27-1-1971 as far as Bombay Branch field force was concerned on the ground that dispute was pending adjudication before the Industrial Tribunal, and even though Ref. (IT) No. 203 of 1970 was decided against the concerned employees, still the cause of action to claim the implementation of the said agreement or settlement had arisen for the first time after the decision given by the Honble Supreme Court of India in C.A. No. 1865/82 dated 5-1-1984. Therefore, the complaint filed on 4-4-1984 cannot be said to be barred by limitation at all.Had the Honble Supreme Court not declared the correspondence (Annexure-A) to be agreement in between the parties, the controversy about the field force being not workmen had already come to an end."The judgment of the Supreme Court does not give any cause of action to the first respondent. The Supreme Court only interpreted the three letters and affirmed the rights of the parties emerging from those letters. In other words, the Supreme Court has upheld the view of the first respondent as regards the interpretation of three letters are concerned. Therefore, the observations of the Industrial Court that the Supreme Court judgment gives the first respondent a fresh cause of action cannot be accepted. As we pointed out earlier, the Supreme Court judgment may give some impetus to file the complaint in question before the Industrial Court. It is common knowledge that a judgment of a Court will not give a cause of action to a litigant. Cause of action for a litigation arises out of a wrong committed by the opposite party. Moreover, a judgment of a Court cannot infuse life to a cause of action which was already dead. It is a cardinal principle of law of limitation that once the limitation starts to run nobody can stop it unless and until a competent Court stops its running. So also a cause of action once obliterated by operation of law of limitation cannot be re-built. In this context we cannot appreciate the finding of the Industrial Court that the non-implementation of a settlement is a continuing process. It is clear from the facts of this case, but for the Chitales Award and consequent rejection of the SLP by the Supreme Court, perhaps Industrial Court may be right in making such observations. But when a competent Court has given a finding, rightly or wrongly, and the parties have accepted it for a long time, one cannot conceive of a position that it is a continuing wrong. In the absence of a valid explanation for keeping the matter in cold storage for 13 years from 1971 to 1984 the present complaint is barred by limitation before the Industrial Court. As observed by the Industrial Court but for the Supreme Court decision the entire matter would have been considered as closed. Merely because Supreme Court has made the observation first respondent cannot save limitation.9. As is well known the object of statutes of limitation is founded on public policy. It is to compel the litigants to prosecute their case diligently. Such a policy is necessary to secure quiet and repose of the community. Another consideration is that one should not be complacent on his own rights. The old maxim "Interest reipublices ut sit finis litium" is quite relevant in these days also. A party who is insensible to his remedies or who does not assert his own claims with promptitude has no rights to seek the aid of the State.10. When we closely watched the conduct of the first respondent it can be seen that there was no room for any doubt that it has acquiesced on the award of Mr. Justice Chitale by keeping silence for a long time. The doctrine acquiescence is based on the conduct of the parties with knowledge of its legal rights. Acquiescence amounts to absolute or positive waiver of the rights of a person who acquiesced. Though it is quite different from delay or laches, but in the factual context of the case it is very relevant here. If a person having a right, stands by and see another deals with the rights inconsistent with that rights, watched it for considerable long time say, 12 years or more, he cannot afterwards complain. Under Indian Law of Limitation generally even rights over immovable property loses after 12 years where it was not properly exercised. Here the complainant knows that under section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 period of 3 years was prescribed for ventilating their grievance. No explanation worth consideration has been put forward by the first respondent. According to us, the Industrial Court committed serious miscarriage of justice in disposing of the issue of limitation. Under the circumstances we have no doubt that the complaint of the first respondent is barred by limitation.
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### Explanation:
We see considerable force in the argument of Mr. Singhvi as far as this aspect of the matter is concerned. Ambit and the scope of those three letters were in detail examined by the Supreme Court in the aforesaid judgment. By those letters the petitioner had unmistakably conceded the status of workmen and we have no hesitation to hold that it pertains to the conditions of service. That apart, after the judgment of the Supreme Court on these letters, there is little scope for such contentions being raised at the instance of the petitioner. The Supreme Court without any pale of doubt has spoken in detail the ambit and scope of those letters constituting an agreement between the parties. Though Mr. Manohar, Counsel for the petitioner, has strenuously argued at length about termination of the agreement citing various decisions of the Supreme Court and High Court, we are not very much impressed because it is not permissible for us to take any other stand different from what was taken by the Apex Court in view of the judgment (supra) which speaks about the conditions contained in those letters. Therefore, finding recorded on Issue No. 1 by the Tribunal warrants no interference by thiswe think that considerable importance is to be given to these long history of the case when we deal with the issue of limitation in thiswe see when Mr. Justice Chitales Award categorically declared that they are not workmen which was confirmed by the Supreme Court in Special Leave to Appeal (Civil) No, 27109/95, the first respondent was reconciled with that position and did not make any move to implement the settlement of 1971 or to enforce the letters of 1957. Only when the Supreme Court decided on the legal consequences of these letters, the first respondent become alert and filed the abovethis context we cannot appreciate the finding of the Industrial Court that theof a settlement is a continuing process. It is clear from the facts of this case, but for the Chitales Award and consequent rejection of the SLP by the Supreme Court, perhaps Industrial Court may be right in making such observations. But when a competent Court has given a finding, rightly or wrongly, and the parties have accepted it for a long time, one cannot conceive of a position that it is a continuing wrong. In the absence of a valid explanation for keeping the matter in cold storage for 13 years from 1971 to 1984 the present complaint is barred by limitation before the Industrial Court. As observed by the Industrial Court but for the Supreme Court decision the entire matter would have been considered as closed. Merely because Supreme Court has made the observation first respondent cannot save limitation.When we closely watched the conduct of the first respondent it can be seen that there was no room for any doubt that it has acquiesced on the award of Mr. Justice Chitale by keeping silence for a long time. The doctrine acquiescence is based on the conduct of the parties with knowledge of its legal rights. Acquiescence amounts to absolute or positive waiver of the rights of a person who acquiesced. Though it is quite different from delay or laches, but in the factual context of the case it is very relevant here. If a person having a right, stands by and see another deals with the rights inconsistent with that rights, watched it for considerable long time say, 12 years or more, he cannot afterwards complain. Under Indian Law of Limitation generally even rights over immovable property loses after 12 years where it was not properly exercised. Here the complainant knows that under section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 period of 3 years was prescribed for ventilating their grievance. No explanation worth consideration has been put forward by the first respondent. According to us, the Industrial Court committed serious miscarriage of justice in disposing of the issue of limitation. Under the circumstances we have no doubt that the complaint of the first respondent is barred by limitation.
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The State Of Bombay Vs. Fakir Umar Dhanse | holding under or through an occupant who shall without the occupants consent use any such land for any such purpose and thereby render the said occupant liable to the penalties aforesaid, shall be responsible to the said occupant in damages." It has been found that the respondent erected several structures without obtaining the prior permission of the Collector and he was liable to be evicted, and therefore the order passed by the Collector directing the eviction of the respondent was legal and intra vires. Under S. 65 an occupant of land held for the purpose of agriculture may erect farm buildings, construct wells or tanks or make other improvements for the better cultivation of the land or for its more convenient use for the purpose of agriculture but he cannot alter the user to non-agricultural purposes except with the permission of the Revenue authorities. This shows that any user unconnected with agriculture is unlawful and under S. 66 therefore any such altered user entitles the Revenue authorities to summarily evict the occupant from the land and certain other consequences follow. Therefore on a true construction of Ss. 65 and 66 an occupant is only entitled to the use and occupation of unalienated land subject to the limitation above mentioned and if he is once evicted under the provisions of S. 66 of the Code the right of user and occupation cannot be exercised by him. 5. Section 202 of the Code lays down the procedure for evicting any person unlawfully in possession of the land and provide as follows:S. 202. "Whenever it is provided by this, or by any other Act for the time being in force, that the Collector may or shall evict and person wrongfully in possession of land, such eviction shall be made in the following manner, viz.,: by serving a notice on the person or persons in possession requiring them within such time as may appear reasonable after receipt of the said notice to vacate the land, ......... ... ... .... .......... ......... ....... ..... " This section therefore shows that eviction requires vacation of the land and vacation does not mean that anything done upon the land which was unauthorised is to be allowed to remain and only the person responsible for doing the unlawful act is to be removed from the land. That the words "eviction" and "vacation" do not mean mere physical removal of the occupant is clear from the very nature of the right which the respondent in the present case had. His right was confined to the use and occupation of the land for the purpose for which he held it from Government, i.e., for agricultural purposes and when he is evicted and is asked to vacate the land, it must mean that his rights come to an end. For the purpose of vacation it is necessary that any unauthorised construction put up must also be removed otherwise there cannot be any vacation of the land nor can the land be put to effective use for the purpose for which agricultural lands are normally accepted to be used.It is not necessary to hold in this case as to whether on eviction the occupant also loses his right to the materials of the super-structure but it would be a misinterpretation of the words "eviction" and "vacation" of the land if it were held that although the occupant is evicted the structures erected by him cannot be removed and if the Government tries to restore the land to the original purpose for which it was granted then it will do so only on the pain of being mulcted in damages.It is, in our opinion, not necessary to have any specific power to have the land vacated of all unauthorised super-structures; the power to remove them is incidental and ancillary to the power to evict and to get the land vacated.It appears to us that the nature of the right of occupancy and the limitation placed upon it by the provisions of the Code contained in Ss. 40 and 41 by which the right to certain trees on unalienated land is reserved to the State; in Ss. 65 and 66 which have been quoted above and Ss. 68 and 69 which provide that an occupant is entitled to the use and occupation of the land for the period to which his tenure is limited shows that the true effect of eviction is the physical removal of the occupant from the land with all the consequences, i.e., demolition of all unauthorised super-structures. The High Court relied upon the difference in the language used in Ss. 61 and 66 of the Code and to the amendment made in the former section in 1919 by which the words "or to summary removal" were added in S. 61 and the relevant portion of the section now reads as under:-S. 61. "The person unauthorisedly occupying any such land may be summarily evicted by the Collector, and any crop raised in the land shall be liable to forfeiture, and any building, or other construction erected thereon shall also, if not removed by him after such written notice as the Collector may deem reasonable, be liable to forfeiture or to summary removal." From the addition of these words it was sought to be argued that these words were added to authorise the Collector to remove any building or other construction put up on that land by a person in unauthorised occupation and it was argued that those words were specifically added for the purpose. It is wholly unnecessary for us to go into the question as to why that particular power was given to the Collector. In this case we are concerned with the meaning of the word "eviction" as used in S. 66 and in our opinion the meaning of those words is that on eviction land has to be restored to the original position so as to be used for the purpose for which it was given to occupant. | 1[ds]4. There is no dispute in this appeal as to the order of evictionIt has been found that the respondent erected several structures without obtaining the prior permission of the Collector and he was liable to be evicted, and therefore the order passed by the Collector directing the eviction of the respondent was legal and intra vires. Under S. 65 an occupant of land held for the purpose of agriculture may erect farm buildings, construct wells or tanks or make other improvements for the better cultivation of the land or for its more convenient use for the purpose of agriculture but he cannot alter the user to non-agricultural purposes except with the permission of the Revenue authorities. This shows that any user unconnected with agriculture is unlawful and under S. 66 therefore any such altered user entitles the Revenue authorities to summarily evict the occupant from the land and certain other consequences follow. Therefore on a true construction of Ss. 65 and 66 an occupant is only entitled to the use and occupation of unalienated land subject to the limitation above mentioned and if he is once evicted under the provisions of S. 66 of the Code the right of user and occupation cannot be exercised by himThis section therefore shows that eviction requires vacation of the land and vacation does not mean that anything done upon the land which was unauthorised is to be allowed to remain and only the person responsible for doing the unlawful act is to be removed from the land. That the words "eviction" and "vacation" do not mean mere physical removal of the occupant is clear from the very nature of the right which the respondent in the present case had. His right was confined to the use and occupation of the land for the purpose for which he held it from Government, i.e., for agricultural purposes and when he is evicted and is asked to vacate the land, it must mean that his rights come to an end. For the purpose of vacation it is necessary that any unauthorised construction put up must also be removed otherwise there cannot be any vacation of the land nor can the land be put to effective use for the purpose for which agricultural lands are normally accepted to be used.It is not necessary to hold in this case as to whether on eviction the occupant also loses his right to the materials of the super-structure but it would be a misinterpretation of the words "eviction" and "vacation" of the land if it were held that although the occupant is evicted the structures erected by him cannot be removed and if the Government tries to restore the land to the original purpose for which it was granted then it will do so only on the pain of being mulcted in damages.It is, in our opinion, not necessary to have any specific power to have the land vacated of all unauthorised super-structures; the power to remove them is incidental and ancillary to the power to evict and to get the land vacated.It appears to us that the nature of the right of occupancy and the limitation placed upon it by the provisions of the Code contained in Ss. 40 and 41 by which the right to certain trees on unalienated land is reserved to the State; in Ss. 65 and 66 which have been quoted above and Ss. 68 and 69 which provide that an occupant is entitled to the use and occupation of the land for the period to which his tenure is limited shows that the true effect of eviction is the physical removal of the occupant from the land with all the consequences, i.e., demolition of all unauthorised super-structuresIt is wholly unnecessary for us to go into the question as to why that particular power was given to the Collector. In this case we are concerned with the meaning of the word "eviction" as used in S. 66 and in our opinion the meaning of those words is that on eviction land has to be restored to the original position so as to be used for the purpose for which it was given to occupant. | 1 | 2,430 | 742 | ### 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:
holding under or through an occupant who shall without the occupants consent use any such land for any such purpose and thereby render the said occupant liable to the penalties aforesaid, shall be responsible to the said occupant in damages." It has been found that the respondent erected several structures without obtaining the prior permission of the Collector and he was liable to be evicted, and therefore the order passed by the Collector directing the eviction of the respondent was legal and intra vires. Under S. 65 an occupant of land held for the purpose of agriculture may erect farm buildings, construct wells or tanks or make other improvements for the better cultivation of the land or for its more convenient use for the purpose of agriculture but he cannot alter the user to non-agricultural purposes except with the permission of the Revenue authorities. This shows that any user unconnected with agriculture is unlawful and under S. 66 therefore any such altered user entitles the Revenue authorities to summarily evict the occupant from the land and certain other consequences follow. Therefore on a true construction of Ss. 65 and 66 an occupant is only entitled to the use and occupation of unalienated land subject to the limitation above mentioned and if he is once evicted under the provisions of S. 66 of the Code the right of user and occupation cannot be exercised by him. 5. Section 202 of the Code lays down the procedure for evicting any person unlawfully in possession of the land and provide as follows:S. 202. "Whenever it is provided by this, or by any other Act for the time being in force, that the Collector may or shall evict and person wrongfully in possession of land, such eviction shall be made in the following manner, viz.,: by serving a notice on the person or persons in possession requiring them within such time as may appear reasonable after receipt of the said notice to vacate the land, ......... ... ... .... .......... ......... ....... ..... " This section therefore shows that eviction requires vacation of the land and vacation does not mean that anything done upon the land which was unauthorised is to be allowed to remain and only the person responsible for doing the unlawful act is to be removed from the land. That the words "eviction" and "vacation" do not mean mere physical removal of the occupant is clear from the very nature of the right which the respondent in the present case had. His right was confined to the use and occupation of the land for the purpose for which he held it from Government, i.e., for agricultural purposes and when he is evicted and is asked to vacate the land, it must mean that his rights come to an end. For the purpose of vacation it is necessary that any unauthorised construction put up must also be removed otherwise there cannot be any vacation of the land nor can the land be put to effective use for the purpose for which agricultural lands are normally accepted to be used.It is not necessary to hold in this case as to whether on eviction the occupant also loses his right to the materials of the super-structure but it would be a misinterpretation of the words "eviction" and "vacation" of the land if it were held that although the occupant is evicted the structures erected by him cannot be removed and if the Government tries to restore the land to the original purpose for which it was granted then it will do so only on the pain of being mulcted in damages.It is, in our opinion, not necessary to have any specific power to have the land vacated of all unauthorised super-structures; the power to remove them is incidental and ancillary to the power to evict and to get the land vacated.It appears to us that the nature of the right of occupancy and the limitation placed upon it by the provisions of the Code contained in Ss. 40 and 41 by which the right to certain trees on unalienated land is reserved to the State; in Ss. 65 and 66 which have been quoted above and Ss. 68 and 69 which provide that an occupant is entitled to the use and occupation of the land for the period to which his tenure is limited shows that the true effect of eviction is the physical removal of the occupant from the land with all the consequences, i.e., demolition of all unauthorised super-structures. The High Court relied upon the difference in the language used in Ss. 61 and 66 of the Code and to the amendment made in the former section in 1919 by which the words "or to summary removal" were added in S. 61 and the relevant portion of the section now reads as under:-S. 61. "The person unauthorisedly occupying any such land may be summarily evicted by the Collector, and any crop raised in the land shall be liable to forfeiture, and any building, or other construction erected thereon shall also, if not removed by him after such written notice as the Collector may deem reasonable, be liable to forfeiture or to summary removal." From the addition of these words it was sought to be argued that these words were added to authorise the Collector to remove any building or other construction put up on that land by a person in unauthorised occupation and it was argued that those words were specifically added for the purpose. It is wholly unnecessary for us to go into the question as to why that particular power was given to the Collector. In this case we are concerned with the meaning of the word "eviction" as used in S. 66 and in our opinion the meaning of those words is that on eviction land has to be restored to the original position so as to be used for the purpose for which it was given to occupant.
### Response:
1
### Explanation:
4. There is no dispute in this appeal as to the order of evictionIt has been found that the respondent erected several structures without obtaining the prior permission of the Collector and he was liable to be evicted, and therefore the order passed by the Collector directing the eviction of the respondent was legal and intra vires. Under S. 65 an occupant of land held for the purpose of agriculture may erect farm buildings, construct wells or tanks or make other improvements for the better cultivation of the land or for its more convenient use for the purpose of agriculture but he cannot alter the user to non-agricultural purposes except with the permission of the Revenue authorities. This shows that any user unconnected with agriculture is unlawful and under S. 66 therefore any such altered user entitles the Revenue authorities to summarily evict the occupant from the land and certain other consequences follow. Therefore on a true construction of Ss. 65 and 66 an occupant is only entitled to the use and occupation of unalienated land subject to the limitation above mentioned and if he is once evicted under the provisions of S. 66 of the Code the right of user and occupation cannot be exercised by himThis section therefore shows that eviction requires vacation of the land and vacation does not mean that anything done upon the land which was unauthorised is to be allowed to remain and only the person responsible for doing the unlawful act is to be removed from the land. That the words "eviction" and "vacation" do not mean mere physical removal of the occupant is clear from the very nature of the right which the respondent in the present case had. His right was confined to the use and occupation of the land for the purpose for which he held it from Government, i.e., for agricultural purposes and when he is evicted and is asked to vacate the land, it must mean that his rights come to an end. For the purpose of vacation it is necessary that any unauthorised construction put up must also be removed otherwise there cannot be any vacation of the land nor can the land be put to effective use for the purpose for which agricultural lands are normally accepted to be used.It is not necessary to hold in this case as to whether on eviction the occupant also loses his right to the materials of the super-structure but it would be a misinterpretation of the words "eviction" and "vacation" of the land if it were held that although the occupant is evicted the structures erected by him cannot be removed and if the Government tries to restore the land to the original purpose for which it was granted then it will do so only on the pain of being mulcted in damages.It is, in our opinion, not necessary to have any specific power to have the land vacated of all unauthorised super-structures; the power to remove them is incidental and ancillary to the power to evict and to get the land vacated.It appears to us that the nature of the right of occupancy and the limitation placed upon it by the provisions of the Code contained in Ss. 40 and 41 by which the right to certain trees on unalienated land is reserved to the State; in Ss. 65 and 66 which have been quoted above and Ss. 68 and 69 which provide that an occupant is entitled to the use and occupation of the land for the period to which his tenure is limited shows that the true effect of eviction is the physical removal of the occupant from the land with all the consequences, i.e., demolition of all unauthorised super-structuresIt is wholly unnecessary for us to go into the question as to why that particular power was given to the Collector. In this case we are concerned with the meaning of the word "eviction" as used in S. 66 and in our opinion the meaning of those words is that on eviction land has to be restored to the original position so as to be used for the purpose for which it was given to occupant.
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Kil Kotagiri Tea and Coffee Estates Company, Limited and Others Vs. State of Kerala | that condition 11 has referred to the chests as having been purchased by the buyer; and that would be clearly against Mr. Menons case. So, it would be reasonable not to base our decision principally on the words used by the conditions, such as "purchased" or "accepted", but to take into account the substance of these conditions.8. It may be stated at this stage that after the public auction takes place, claims have to be made by the buyer not later than the third day before the prompt day, or 24 hours before removal of goods, whichever event happens earlier. The prompt day is the 10th day on or before which payment has to be made by the buyer, and possession has to be taken by him before 5 P.M. on the fifth day after the prompt day (condition No. 22). The goods continue to be at the sellers risk to the extent of the sale price only until 5 P.M. on the fifth day after the prompt day or until removal by the buyer if removed earlier (condition No. 23).Condition 12 clearly shows that the buyer has a right to make claims either on the ground of difference or inferiority in quality disclosed or inspection, or as a result of a defect in packing or any other ground whatsoever. After the time specified by this condition has expired, the buyer cannot make a claim to reject the goods, nor can he ask for any allowance or damages in respect thereof.Condition 13 is also important. It reads thus -"Each chest comprised in a lot shall be treated as the subject of a separate contract of sale; but this condition shall not entitle the buyer to require the seller to give part delivery of less than the full number of chests sold; and in the event of the buyer claiming to reject the lot purchased by him, the Arbitrators or Umpire, if satisfied that the lot was not a good tender, shall be entitled to award rejection of the entire lot, and not only the particular chests found on examination to be defective".9. It would be noticed that the first part of condition 13 corresponds to section 64(1) of the Act. It, however, adds that though each chest shall be treated as the subject-matter of a separate contract of sale, the buyer cannot claim delivery of less than the full number of chests sold. If the buyer makes a claim for rejecting the contract, the Arbitrators or Umpire may, if satisfied that the lot was not a good tender, hold that the buyer is entitled to reject either the entire lot or in a proper case even particular specified chests constituting the lot. Like the word "accepted" in condition 12, the word "tender" in condition 13 cannot, however, materially affect the nature of the transaction. Condition 13 makes it clear that in case the buyer finds a substantial defect in the quality of the goods sold to him, he cannot reject the contract of his own; all he can do is to make a claim in that behalf before the Arbitrator; and this condition is consistent only with the view that the goods have already been purchased by the buyer and the claim which he is allowed to make is as a result of the breach of the contract of sale.Mr. Menon attempted to argue that condition 13 merely enables the buyer to move the Arbitrator. According to him, the buyer can reject the contract of his own, or file a claim for damages in a civil court without having recourse to arbitration. In our opinion, condition 13 is not merely an enabling condition; it is an obligatory condition and it gives the buyer only one remedy, and that is to move the Arbitrator for appropriate relief.Condition 13 is also relevant. It reads thus :-"If the buyer shall fail to pay for the tea or any part thereof on the due date for payment, the goods may be resold, either by auction or private sale, at the option of the seller. Any loss arising on such resale together with interest at 6 per cent. per annum from the due date and all charges incurred, shall be paid by the buyer to the seller, and the buyer shall not be entitled to any profit, which may accrue from such resale".10. This condition is consistent with the provisions of section 64(2) of the Act, and it cannot be said to support Mr. Menons contention that the title in the goods does not pass to the buyer until he has inspected them and indicated his acceptance.Condition 16 is a general condition as to arbitration and it provides that any disputes or differences which may arise between the parties shall be referred to arbitration as therein indicated. Reading conditions 13 and 16 together, there can be no doubt that all claims which the buyer is entitled to make must be made to the arbitrators and it is the decision of the arbitrators that will determine the dispute between the buyer and the seller.11. We have carefully considered all the rules under which sales in question have been held by public auction, and we are satisfied that title to the goods passed to the buyer under section 64(2) of the Act as soon as the sale was completed by the auctioneer announcing its completion by the fall of the hammer. The initial auction cannot, in our opinion, be treated as an executory contract which became a conditional contract on the fall of the hammer. The auction was an auction sale in respect of ascertained goods and it was concluded in every case on the fall of the hammer. On that view of the matter, we must hold that the High Court was in error in coming to the conclusion that the Sales Tax Authorities were justified in imposing sales tax against the appellants in regard to the transactions which have given rise to the present appeals. | 1[ds]3. It appears that in the two decisions of this Court to which we have just referred, this point has not been considered.would be noticed that the whole of the argument thus presented by Mr. Menon proceeds on the assumption that the contract of sale by sample in the present proceedings was a contract of goods which were in a sense unascertained and it could be concluded only when the buyer inspected the goods and accepted them.The position in regard to the relevant provisions of the Act bearing on the question as to when title in the goods sold passes, is not in doubt. If the contract of sale is for ascertained goods which are actually described in the list prepared before the sales are held and it appears that all material particulars about the goods are shown in the list, then the question as to when title passes would depend essentially upon the intention of the parties expressed in the terms of the contract. Section 19(1) of the Act provides that where there is a contract for the sale of specific or ascertained goods, the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred. Section 19(2) adds that for the purpose of ascertaining the intention of the parties, regard shall be had to the terms of the contract, the conduct of the parties and the circumstances of the case. Under section 19(3) it is provided that unless a different intention appears, the rules contained in sections 20 to 24 would be relevant to decide this question. One thing is clear in the present case, viz., that the goods in question were not unascertained goods, nor were they not in existence; goods were clearly in existence, they had been graded, weighed and packed in numbered chests and a list was prepared in respect of the contents of these chests separately. It is true that what the buyers are shown at the time of sale by public auction are samples and the rules authorise the buyer to inspect the goods; but that is not to say that the sale is a sale of unascertained or non-existingdo not think that such importance can be attached to the expression "to have been accepted by the buyer" on which Mr. Menon rests his argument. We have already seen that condition 11 has referred to the chests as having been purchased by the buyer; and that would be clearly against Mr. Menons case. So, it would be reasonable not to base our decision principally on the words used by the conditions, such as "purchased" or "accepted", but to take into account the substance of these conditions.8. It may be stated at this stage that after the public auction takes place, claims have to be made by the buyer not later than the third day before the prompt day, or 24 hours before removal of goods, whichever event happens earlier. The prompt day is the 10th day on or before which payment has to be made by the buyer, and possession has to be taken by him before 5 P.M. on the fifth day after the prompt day (condition No. 22). The goods continue to be at the sellers risk to the extent of the sale price only until 5 P.M. on the fifth day after the prompt day or until removal by the buyer if removed earlier (condition No. 23).Condition 12 clearly shows that the buyer has a right to make claims either on the ground of difference or inferiority in quality disclosed or inspection, or as a result of a defect in packing or any other ground whatsoever. After the time specified by this condition has expired, the buyer cannot make a claim to reject the goods, nor can he ask for any allowance or damages in respectour opinion, condition 13 is not merely an enabling condition; it is an obligatory condition and it gives the buyer only one remedy, and that is to move the Arbitrator for appropriate relief.This condition is consistent with the provisions of section 64(2) of the Act, and it cannot be said to support Mr. Menons contention that the title in the goods does not pass to the buyer until he has inspected them and indicated his acceptance.Condition 16 is a general condition as to arbitration and it provides that any disputes or differences which may arise between the parties shall be referred to arbitration as therein indicated. Reading conditions 13 and 16 together, there can be no doubt that all claims which the buyer is entitled to make must be made to the arbitrators and it is the decision of the arbitrators that will determine the dispute between the buyer and the seller.11. We have carefully considered all the rules under which sales in question have been held by public auction, and we are satisfied that title to the goods passed to the buyer under section 64(2) of the Act as soon as the sale was completed by the auctioneer announcing its completion by the fall of the hammer. The initial auction cannot, in our opinion, be treated as an executory contract which became a conditional contract on the fall of the hammer. The auction was an auction sale in respect of ascertained goods and it was concluded in every case on the fall of the hammer. On that view of the matter, we must hold that the High Court was in error in coming to the conclusion that the Sales Tax Authorities were justified in imposing sales tax against the appellants in regard to the transactions which have given rise to the present appeals. | 1 | 5,378 | 1,038 | ### 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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that condition 11 has referred to the chests as having been purchased by the buyer; and that would be clearly against Mr. Menons case. So, it would be reasonable not to base our decision principally on the words used by the conditions, such as "purchased" or "accepted", but to take into account the substance of these conditions.8. It may be stated at this stage that after the public auction takes place, claims have to be made by the buyer not later than the third day before the prompt day, or 24 hours before removal of goods, whichever event happens earlier. The prompt day is the 10th day on or before which payment has to be made by the buyer, and possession has to be taken by him before 5 P.M. on the fifth day after the prompt day (condition No. 22). The goods continue to be at the sellers risk to the extent of the sale price only until 5 P.M. on the fifth day after the prompt day or until removal by the buyer if removed earlier (condition No. 23).Condition 12 clearly shows that the buyer has a right to make claims either on the ground of difference or inferiority in quality disclosed or inspection, or as a result of a defect in packing or any other ground whatsoever. After the time specified by this condition has expired, the buyer cannot make a claim to reject the goods, nor can he ask for any allowance or damages in respect thereof.Condition 13 is also important. It reads thus -"Each chest comprised in a lot shall be treated as the subject of a separate contract of sale; but this condition shall not entitle the buyer to require the seller to give part delivery of less than the full number of chests sold; and in the event of the buyer claiming to reject the lot purchased by him, the Arbitrators or Umpire, if satisfied that the lot was not a good tender, shall be entitled to award rejection of the entire lot, and not only the particular chests found on examination to be defective".9. It would be noticed that the first part of condition 13 corresponds to section 64(1) of the Act. It, however, adds that though each chest shall be treated as the subject-matter of a separate contract of sale, the buyer cannot claim delivery of less than the full number of chests sold. If the buyer makes a claim for rejecting the contract, the Arbitrators or Umpire may, if satisfied that the lot was not a good tender, hold that the buyer is entitled to reject either the entire lot or in a proper case even particular specified chests constituting the lot. Like the word "accepted" in condition 12, the word "tender" in condition 13 cannot, however, materially affect the nature of the transaction. Condition 13 makes it clear that in case the buyer finds a substantial defect in the quality of the goods sold to him, he cannot reject the contract of his own; all he can do is to make a claim in that behalf before the Arbitrator; and this condition is consistent only with the view that the goods have already been purchased by the buyer and the claim which he is allowed to make is as a result of the breach of the contract of sale.Mr. Menon attempted to argue that condition 13 merely enables the buyer to move the Arbitrator. According to him, the buyer can reject the contract of his own, or file a claim for damages in a civil court without having recourse to arbitration. In our opinion, condition 13 is not merely an enabling condition; it is an obligatory condition and it gives the buyer only one remedy, and that is to move the Arbitrator for appropriate relief.Condition 13 is also relevant. It reads thus :-"If the buyer shall fail to pay for the tea or any part thereof on the due date for payment, the goods may be resold, either by auction or private sale, at the option of the seller. Any loss arising on such resale together with interest at 6 per cent. per annum from the due date and all charges incurred, shall be paid by the buyer to the seller, and the buyer shall not be entitled to any profit, which may accrue from such resale".10. This condition is consistent with the provisions of section 64(2) of the Act, and it cannot be said to support Mr. Menons contention that the title in the goods does not pass to the buyer until he has inspected them and indicated his acceptance.Condition 16 is a general condition as to arbitration and it provides that any disputes or differences which may arise between the parties shall be referred to arbitration as therein indicated. Reading conditions 13 and 16 together, there can be no doubt that all claims which the buyer is entitled to make must be made to the arbitrators and it is the decision of the arbitrators that will determine the dispute between the buyer and the seller.11. We have carefully considered all the rules under which sales in question have been held by public auction, and we are satisfied that title to the goods passed to the buyer under section 64(2) of the Act as soon as the sale was completed by the auctioneer announcing its completion by the fall of the hammer. The initial auction cannot, in our opinion, be treated as an executory contract which became a conditional contract on the fall of the hammer. The auction was an auction sale in respect of ascertained goods and it was concluded in every case on the fall of the hammer. On that view of the matter, we must hold that the High Court was in error in coming to the conclusion that the Sales Tax Authorities were justified in imposing sales tax against the appellants in regard to the transactions which have given rise to the present appeals.
### Response:
1
### Explanation:
3. It appears that in the two decisions of this Court to which we have just referred, this point has not been considered.would be noticed that the whole of the argument thus presented by Mr. Menon proceeds on the assumption that the contract of sale by sample in the present proceedings was a contract of goods which were in a sense unascertained and it could be concluded only when the buyer inspected the goods and accepted them.The position in regard to the relevant provisions of the Act bearing on the question as to when title in the goods sold passes, is not in doubt. If the contract of sale is for ascertained goods which are actually described in the list prepared before the sales are held and it appears that all material particulars about the goods are shown in the list, then the question as to when title passes would depend essentially upon the intention of the parties expressed in the terms of the contract. Section 19(1) of the Act provides that where there is a contract for the sale of specific or ascertained goods, the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred. Section 19(2) adds that for the purpose of ascertaining the intention of the parties, regard shall be had to the terms of the contract, the conduct of the parties and the circumstances of the case. Under section 19(3) it is provided that unless a different intention appears, the rules contained in sections 20 to 24 would be relevant to decide this question. One thing is clear in the present case, viz., that the goods in question were not unascertained goods, nor were they not in existence; goods were clearly in existence, they had been graded, weighed and packed in numbered chests and a list was prepared in respect of the contents of these chests separately. It is true that what the buyers are shown at the time of sale by public auction are samples and the rules authorise the buyer to inspect the goods; but that is not to say that the sale is a sale of unascertained or non-existingdo not think that such importance can be attached to the expression "to have been accepted by the buyer" on which Mr. Menon rests his argument. We have already seen that condition 11 has referred to the chests as having been purchased by the buyer; and that would be clearly against Mr. Menons case. So, it would be reasonable not to base our decision principally on the words used by the conditions, such as "purchased" or "accepted", but to take into account the substance of these conditions.8. It may be stated at this stage that after the public auction takes place, claims have to be made by the buyer not later than the third day before the prompt day, or 24 hours before removal of goods, whichever event happens earlier. The prompt day is the 10th day on or before which payment has to be made by the buyer, and possession has to be taken by him before 5 P.M. on the fifth day after the prompt day (condition No. 22). The goods continue to be at the sellers risk to the extent of the sale price only until 5 P.M. on the fifth day after the prompt day or until removal by the buyer if removed earlier (condition No. 23).Condition 12 clearly shows that the buyer has a right to make claims either on the ground of difference or inferiority in quality disclosed or inspection, or as a result of a defect in packing or any other ground whatsoever. After the time specified by this condition has expired, the buyer cannot make a claim to reject the goods, nor can he ask for any allowance or damages in respectour opinion, condition 13 is not merely an enabling condition; it is an obligatory condition and it gives the buyer only one remedy, and that is to move the Arbitrator for appropriate relief.This condition is consistent with the provisions of section 64(2) of the Act, and it cannot be said to support Mr. Menons contention that the title in the goods does not pass to the buyer until he has inspected them and indicated his acceptance.Condition 16 is a general condition as to arbitration and it provides that any disputes or differences which may arise between the parties shall be referred to arbitration as therein indicated. Reading conditions 13 and 16 together, there can be no doubt that all claims which the buyer is entitled to make must be made to the arbitrators and it is the decision of the arbitrators that will determine the dispute between the buyer and the seller.11. We have carefully considered all the rules under which sales in question have been held by public auction, and we are satisfied that title to the goods passed to the buyer under section 64(2) of the Act as soon as the sale was completed by the auctioneer announcing its completion by the fall of the hammer. The initial auction cannot, in our opinion, be treated as an executory contract which became a conditional contract on the fall of the hammer. The auction was an auction sale in respect of ascertained goods and it was concluded in every case on the fall of the hammer. On that view of the matter, we must hold that the High Court was in error in coming to the conclusion that the Sales Tax Authorities were justified in imposing sales tax against the appellants in regard to the transactions which have given rise to the present appeals.
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Sikka Star Satellites Vs. Star(I) Pvt.Ltd | This appeal is filed against the order dated 23.5.2008 passed by the Telecom Disputes and Settlement Appellate Tribunal [for short ?the Tribunal], rejecting Petition No. 325 (C) of 2006 filed by the appellant seeking a direction to the respondent to provide decoders to the appellant and resume signals. 2. The appellant, a proprietary concern of one Shakuntla Sikka, is a registered cable operator. Its business is run by her son and Attorney Holder Dharmendra Sikka alias Tony Sikka. The appellant was receiving signals for its customers from respondent though the decoders supplied by the respondent under an agreement dated 5.10.1999.3. The said Dharmendra Sikka is a promoter and director of Lucknow Entertainment Network Systems Pvt. Ltd. [for short ?LENS], a franchisee of Siti Cable Network Ltd. [for short ?Siti Cable]. The appellant had shifted the said decoders supplied by the respondent to the premises of LENS. The appellant also failed to pay the subscription fee and other fees to respondent in spite of demands. Therefore, the respondent disconnected the signals with effect from 17.4.2002. More than four years later, the appellant filed a petition before the Tribunal seeking restoration of signals. In the said complaint, the appellant alleged that it had no connection with LENS or Siti Cable; that it had shifted the decoders supplied by Respondent to LENS on the request of respondent; that it was regularly paying the dues to LENS; and that it was not therefore due in any amount to the respondent. 4. The respondent filed a reply stating that the signals to appellant were disconnected on 17.4.2002 due to non-payment of the dues (subscription fee and other dues); that the decoders supplied by it for the exclusive use of appellant had been illegally transferred by the appellant to LENS and shifted to the premises of LENS; that Dharmendra Sikka who was in charge of the business of both appellant and LENS, was indulging in piracy by illegally transmitting signals of respondent; that respondent had lodged an FIR dated 13.12.2006 and an anti-piracy raid was conducted on the same day on the premises of the appellant; that it had also initiated criminal proceedings against the appellant and Dharmendra Sikka for offences under section 138 of the Negotiable Instruments Act; and that the appellant had suppressed all these relevant facts in the petition dated 21.12.2006. Respondent contended that the appellant was not therefore entitled to receive signals from it. 5. The Tribunal by its impugned order dated 23.5.2008 dismissed the petition. It has recorded the following findings: (a) Though Smt. Shakuntla Sikka, a 75 years old handicapped widow, was stated to be the proprietor of the appellant, its business was actually managed by her son Dharmendra Sikka. (b) The said Dharmender Sikka floated a Company (LENS) and without the consent of the respondent, shifted and transferred the decoders given by respondent to the appellant, to the said LENS (a franchisee of Siti Cable), controlled by Dharmendra Sikka. (c) The appellant falsely alleged that it had transferred respondents decoders to LENS on the instructions of respondent. The same were passed on surreptitiously to LENS without the consent of the respondent. (d) The respondent disconnected the signals to appellant as large amounts due to it had not been paid. In fact in a letter dated 21.2.2002 written by Dharmendra Sikka as Director to LENS, he had admitted that Rs. 17.44 lakhs were due to respondent on account of the dues of appellant and LENS would pay it. (e) Four cheques for Rs. 4 lakhs each issued towards the dues were dishonoured and large amounts were due by appellant to respondent. The Tribunal held that the respondent was justified in disconnecting the supply of signals to appellant; and as the appellant had suppressed material facts and approached the Tribunal with unclean hands practicing deception, the appellant was not entitled to any relief. The said order is challenged in this appeal.6. Dharmendra Sikka appeared in person as attorney holder of the appellant. He submitted that the appellant had nothing to do with LENS and that LENS was controlled by Siti Cable and appellant could not be punished for any alleged breach or violation by LENS. He however was not able to deny that he was the founder Director of LENS. Nor was he able to deny the fact that decoders entrusted by the respondent to the appellant had been given to LENS and they were in possession of LENS. He could not point out anything in writing to show that respondent had consented to or requested the appellant to transfer the decoders to LENS. He was also not in a position to point out any material to show that appellant had cleared the dues to respondent. In the circumstances, we find no reason to interfere with the order of the Tribunal. | 0[ds]6. Dharmendra Sikka appeared in person as attorney holder of the appellant. He submitted that the appellant had nothing to do with LENS and that LENS was controlled by Siti Cable and appellant could not be punished for any alleged breach or violation by LENS. He however was not able to deny that he was the founder Director of LENS. Nor was he able to deny the fact that decoders entrusted by the respondent to the appellant had been given to LENS and they were in possession of LENS. He could not point out anything in writing to show that respondent had consented to or requested the appellant to transfer the decoders to LENS. He was also not in a position to point out any material to show that appellant had cleared the dues to respondent. In the circumstances, we find no reason to interfere with the order of the Tribunal. | 0 | 891 | 164 | ### 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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This appeal is filed against the order dated 23.5.2008 passed by the Telecom Disputes and Settlement Appellate Tribunal [for short ?the Tribunal], rejecting Petition No. 325 (C) of 2006 filed by the appellant seeking a direction to the respondent to provide decoders to the appellant and resume signals. 2. The appellant, a proprietary concern of one Shakuntla Sikka, is a registered cable operator. Its business is run by her son and Attorney Holder Dharmendra Sikka alias Tony Sikka. The appellant was receiving signals for its customers from respondent though the decoders supplied by the respondent under an agreement dated 5.10.1999.3. The said Dharmendra Sikka is a promoter and director of Lucknow Entertainment Network Systems Pvt. Ltd. [for short ?LENS], a franchisee of Siti Cable Network Ltd. [for short ?Siti Cable]. The appellant had shifted the said decoders supplied by the respondent to the premises of LENS. The appellant also failed to pay the subscription fee and other fees to respondent in spite of demands. Therefore, the respondent disconnected the signals with effect from 17.4.2002. More than four years later, the appellant filed a petition before the Tribunal seeking restoration of signals. In the said complaint, the appellant alleged that it had no connection with LENS or Siti Cable; that it had shifted the decoders supplied by Respondent to LENS on the request of respondent; that it was regularly paying the dues to LENS; and that it was not therefore due in any amount to the respondent. 4. The respondent filed a reply stating that the signals to appellant were disconnected on 17.4.2002 due to non-payment of the dues (subscription fee and other dues); that the decoders supplied by it for the exclusive use of appellant had been illegally transferred by the appellant to LENS and shifted to the premises of LENS; that Dharmendra Sikka who was in charge of the business of both appellant and LENS, was indulging in piracy by illegally transmitting signals of respondent; that respondent had lodged an FIR dated 13.12.2006 and an anti-piracy raid was conducted on the same day on the premises of the appellant; that it had also initiated criminal proceedings against the appellant and Dharmendra Sikka for offences under section 138 of the Negotiable Instruments Act; and that the appellant had suppressed all these relevant facts in the petition dated 21.12.2006. Respondent contended that the appellant was not therefore entitled to receive signals from it. 5. The Tribunal by its impugned order dated 23.5.2008 dismissed the petition. It has recorded the following findings: (a) Though Smt. Shakuntla Sikka, a 75 years old handicapped widow, was stated to be the proprietor of the appellant, its business was actually managed by her son Dharmendra Sikka. (b) The said Dharmender Sikka floated a Company (LENS) and without the consent of the respondent, shifted and transferred the decoders given by respondent to the appellant, to the said LENS (a franchisee of Siti Cable), controlled by Dharmendra Sikka. (c) The appellant falsely alleged that it had transferred respondents decoders to LENS on the instructions of respondent. The same were passed on surreptitiously to LENS without the consent of the respondent. (d) The respondent disconnected the signals to appellant as large amounts due to it had not been paid. In fact in a letter dated 21.2.2002 written by Dharmendra Sikka as Director to LENS, he had admitted that Rs. 17.44 lakhs were due to respondent on account of the dues of appellant and LENS would pay it. (e) Four cheques for Rs. 4 lakhs each issued towards the dues were dishonoured and large amounts were due by appellant to respondent. The Tribunal held that the respondent was justified in disconnecting the supply of signals to appellant; and as the appellant had suppressed material facts and approached the Tribunal with unclean hands practicing deception, the appellant was not entitled to any relief. The said order is challenged in this appeal.6. Dharmendra Sikka appeared in person as attorney holder of the appellant. He submitted that the appellant had nothing to do with LENS and that LENS was controlled by Siti Cable and appellant could not be punished for any alleged breach or violation by LENS. He however was not able to deny that he was the founder Director of LENS. Nor was he able to deny the fact that decoders entrusted by the respondent to the appellant had been given to LENS and they were in possession of LENS. He could not point out anything in writing to show that respondent had consented to or requested the appellant to transfer the decoders to LENS. He was also not in a position to point out any material to show that appellant had cleared the dues to respondent. In the circumstances, we find no reason to interfere with the order of the Tribunal.
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6. Dharmendra Sikka appeared in person as attorney holder of the appellant. He submitted that the appellant had nothing to do with LENS and that LENS was controlled by Siti Cable and appellant could not be punished for any alleged breach or violation by LENS. He however was not able to deny that he was the founder Director of LENS. Nor was he able to deny the fact that decoders entrusted by the respondent to the appellant had been given to LENS and they were in possession of LENS. He could not point out anything in writing to show that respondent had consented to or requested the appellant to transfer the decoders to LENS. He was also not in a position to point out any material to show that appellant had cleared the dues to respondent. In the circumstances, we find no reason to interfere with the order of the Tribunal.
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Hubli-Dharwad Urban Development Authority Vs. Shekhargowda Chennabasannagowda Phakirgowdar (Since Deceased) By Lr. & Another | also submitted that the landowners are in possession of the land even now. According to him, the High Court rightly refused to consider the xerox copy of the Mahazar produced by the Appellant to show that possession was taken. He further submitted that the scheme was not implemented in respect of the land in dispute. Pursuant to the liberty given by this Court, the First Respondent filed his written submissions in which he stated that there is a farm house along with a cattle shed on the land. A leave and licence agreement dated 16.12.2009 was filed along with written submissions to show that a mobile tower is erected on the land. The Respondent further stated in the said written submissions that the legal heirs of the original Respondent furnished their Statement of Objections dated 29.08.2001 to the Counsel. The said objections did not receive any consideration by the authorities. The Respondent is still in possession of the land which is not integral to the housing scheme. The Respondent submits that the judgment of the High Court be upheld.9. The High Court quashed the Notification dated 05.02.2002 and declaration dated 27.11.2003 for the reasons that the objections filed by the landowners were not considered before issuance of the final declaration, that the possession of the land was not taken by the authorities and that the scheme was not implemented in respect of the property in question. The First Respondent pleaded in the Writ Petition that he was not aware of the Notification issued under Section 17(3) and the declaration issued under Section 19(3) of the Act. It was further averred in the Writ Petition that he was deprived of an opportunity of filing objections as notice was not given to him personally. We find force in the submission of Mr. Patil that the question of consideration of the objections which were not filed does not arise. In view of the findings recorded by the High Court that a perusal of the record disclosed that objections were filed by the Respondent and were not considered, we summoned and examined the relevant record carefully. The minutes of the meeting of Hubli-Dharwad Urban Development Authority held on 06.02.2002 was filed as Annexure P-2 along with the written submissions of the Appellant. The recommendations of the Chairman of the Hubli-Dharwad Urban Development Authority for acquisition of lands of Byridevana Koppa Village were discussed in the said meeting. The First Respondents land was part of the total extent of 54 acres and 39 guntas of land which was sought to be acquired for the housing scheme. It was stated in the minutes that objections filed by the landowners/interested persons of the lands included in the Notification issued under Section 17(3) of the Act were considered by the Chairman of the Hubli-Dharwad Urban Development Authority. It is clear from the said minutes that out of 19 blocks of land which were acquired, landowners of only 10 blocks filed their objections which were considered. Survey No. 311/A/1 does not find place in the said 10 blocks. A draft award dated 31.01.2005 was also placed on record by the Appellant in which the names of the landholders/ landowners whose lands were acquired and who filed objections were given. The Respondents name does not find place in the said list of persons who had submitted their objections. The High Court has committed an error in holding that the First Respondent filed his objections which were not considered.10. Admittedly, the land was acquired for a housing scheme. It was submitted by the Appellant that plots have already been allotted. The land belonging to the First Respondent has been earmarked for civic amenities. In view of the interim order of status quo passed by the High Court on 13.09.2006, no development could take place on the land. The High Court ought not to have held that the Appellant was responsible for non-implementation of the scheme qua the land of the Respondent. It was submitted by the Appellant that the land is very much needed for development of civic amenities.11. A Panchnama was filed by the Appellant to show that possession of the land was taken on 02.09.2005 in the presence of five Panchas. A Notification under Section 16(2) of the Land Acquisition Act, 1894 was published in the Karnataka State Gazette on 21.12.2005. It is no more res integra that a Notification issued under Section 16 (2) of the Land Acquisition Act, 1894 shall be evidence of the fact that possession was taken, though not conclusive. The prevaricating stands taken by the First Respondent about the possession of the land does not help his cause. On 30.01.2004, the power of attorney holder of the First Respondent submitted a representation to the Chairman of the Hubli-Dharwad Urban Development Authority requesting for exemption of the land from acquisition. He stated in the said representation that he was running a ginning factory on the said land. He also stated that he employed 40 workmen for whose housing the land was needed. The said representation was rejected by the Commissioner, Hubli-Dharwad Urban Development Authority on 28.08.2004 by stating that the acquisition proceedings were at a final stage and so the request cannot be acceded to. In the written submissions filed by the Respondent, it is stated that a farm house along with a cattle shed and a mobile tower exist on the land. Some photographs and a lease agreement have been filed in support of the said averments. The submission made by the First Respondent regarding the non-consideration of his objections is contrary to the pleading in the Writ Petition. The First Respondent is also guilty of taking contradictory stands in the matter of possession. We see no reason to doubt the Panchnama evidencing taking over of possession. In addition, the Notification under Section 16(2) of the Land Acquisition Act, 1894 was published in the Gazette. Any attempt made by the First Respondent to show that he is still in possession is of no avail. | 1[ds]9. The High Court quashed the Notification dated 05.02.2002 and declaration dated 27.11.2003 for the reasons that the objections filed by the landowners were not considered before issuance of the final declaration, that the possession of the land was not taken by the authorities and that the scheme was not implemented in respect of the property in question. The First Respondent pleaded in the Writ Petition that he was not aware of the Notification issued under Section 17(3) and the declaration issued under Section 19(3) of the Act. It was further averred in the Writ Petition that he was deprived of an opportunity of filing objections as notice was not given to him personally. We find force in the submission of Mr. Patil that the question of consideration of the objections which were not filed does not arise. In view of the findings recorded by the High Court that a perusal of the record disclosed that objections were filed by the Respondent and were not considered, we summoned and examined the relevant record carefully. The minutes of the meeting ofUrban Development Authority held on 06.02.2002 was filed as Annexurealong with the written submissions of the Appellant. The recommendations of the Chairman of theUrban Development Authority for acquisition of lands of Byridevana Koppa Village were discussed in the said meeting. The First Respondents land was part of the total extent of 54 acres and 39 guntas of land which was sought to be acquired for the housing scheme. It was stated in the minutes that objections filed by the landowners/interested persons of the lands included in the Notification issued under Section 17(3) of the Act were considered by the Chairman of theUrban Development Authority. It is clear from the said minutes that out of 19 blocks of land which were acquired, landowners of only 10 blocks filed their objections which were considered. Survey No. 311/A/1 does not find place in the said 10 blocks. A draft award dated 31.01.2005 was also placed on record by the Appellant in which the names of the landholders/ landowners whose lands were acquired and who filed objections were given. The Respondents name does not find place in the said list of persons who had submitted their objections. The High Court has committed an error in holding that the First Respondent filed his objections which were not considered.10. Admittedly, the land was acquired for a housing scheme. It was submitted by the Appellant that plots have already been allotted. The land belonging to the First Respondent has been earmarked for civic amenities. In view of the interim order of status quo passed by the High Court on 13.09.2006, no development could take place on the land. The High Court ought not to have held that the Appellant was responsible forof the scheme qua the land of the Respondent. It was submitted by the Appellant that the land is very much needed for development of civic amenities.11. A Panchnama was filed by the Appellant to show that possession of the land was taken on 02.09.2005 in the presence of five Panchas. A Notification under Section 16(2) of the Land Acquisition Act, 1894 was published in the Karnataka State Gazette on 21.12.2005. It is no more res integra that a Notification issued under Section 16 (2) of the Land Acquisition Act, 1894 shall be evidence of the fact that possession was taken, though not conclusive. The prevaricating stands taken by the First Respondent about the possession of the land does not help his cause. On 30.01.2004, the power of attorney holder of the First Respondent submitted a representation to the Chairman of theUrban Development Authority requesting for exemption of the land from acquisition. He stated in the said representation that he was running a ginning factory on the said land. He also stated that he employed 40 workmen for whose housing the land was needed. The said representation was rejected by the Commissioner,Urban Development Authority on 28.08.2004 by stating that the acquisition proceedings were at a final stage and so the request cannot be acceded to. In the written submissions filed by the Respondent, it is stated that a farm house along with a cattle shed and a mobile tower exist on the land. Some photographs and a lease agreement have been filed in support of the said averments. The submission made by the First Respondent regarding theof his objections is contrary to the pleading in the Writ Petition. The First Respondent is also guilty of taking contradictory stands in the matter of possession. We see no reason to doubt the Panchnama evidencing taking over of possession. In addition, the Notification under Section 16(2) of the Land Acquisition Act, 1894 was published in the Gazette. Any attempt made by the First Respondent to show that he is still in possession is of no avail. | 1 | 2,383 | 879 | ### 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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also submitted that the landowners are in possession of the land even now. According to him, the High Court rightly refused to consider the xerox copy of the Mahazar produced by the Appellant to show that possession was taken. He further submitted that the scheme was not implemented in respect of the land in dispute. Pursuant to the liberty given by this Court, the First Respondent filed his written submissions in which he stated that there is a farm house along with a cattle shed on the land. A leave and licence agreement dated 16.12.2009 was filed along with written submissions to show that a mobile tower is erected on the land. The Respondent further stated in the said written submissions that the legal heirs of the original Respondent furnished their Statement of Objections dated 29.08.2001 to the Counsel. The said objections did not receive any consideration by the authorities. The Respondent is still in possession of the land which is not integral to the housing scheme. The Respondent submits that the judgment of the High Court be upheld.9. The High Court quashed the Notification dated 05.02.2002 and declaration dated 27.11.2003 for the reasons that the objections filed by the landowners were not considered before issuance of the final declaration, that the possession of the land was not taken by the authorities and that the scheme was not implemented in respect of the property in question. The First Respondent pleaded in the Writ Petition that he was not aware of the Notification issued under Section 17(3) and the declaration issued under Section 19(3) of the Act. It was further averred in the Writ Petition that he was deprived of an opportunity of filing objections as notice was not given to him personally. We find force in the submission of Mr. Patil that the question of consideration of the objections which were not filed does not arise. In view of the findings recorded by the High Court that a perusal of the record disclosed that objections were filed by the Respondent and were not considered, we summoned and examined the relevant record carefully. The minutes of the meeting of Hubli-Dharwad Urban Development Authority held on 06.02.2002 was filed as Annexure P-2 along with the written submissions of the Appellant. The recommendations of the Chairman of the Hubli-Dharwad Urban Development Authority for acquisition of lands of Byridevana Koppa Village were discussed in the said meeting. The First Respondents land was part of the total extent of 54 acres and 39 guntas of land which was sought to be acquired for the housing scheme. It was stated in the minutes that objections filed by the landowners/interested persons of the lands included in the Notification issued under Section 17(3) of the Act were considered by the Chairman of the Hubli-Dharwad Urban Development Authority. It is clear from the said minutes that out of 19 blocks of land which were acquired, landowners of only 10 blocks filed their objections which were considered. Survey No. 311/A/1 does not find place in the said 10 blocks. A draft award dated 31.01.2005 was also placed on record by the Appellant in which the names of the landholders/ landowners whose lands were acquired and who filed objections were given. The Respondents name does not find place in the said list of persons who had submitted their objections. The High Court has committed an error in holding that the First Respondent filed his objections which were not considered.10. Admittedly, the land was acquired for a housing scheme. It was submitted by the Appellant that plots have already been allotted. The land belonging to the First Respondent has been earmarked for civic amenities. In view of the interim order of status quo passed by the High Court on 13.09.2006, no development could take place on the land. The High Court ought not to have held that the Appellant was responsible for non-implementation of the scheme qua the land of the Respondent. It was submitted by the Appellant that the land is very much needed for development of civic amenities.11. A Panchnama was filed by the Appellant to show that possession of the land was taken on 02.09.2005 in the presence of five Panchas. A Notification under Section 16(2) of the Land Acquisition Act, 1894 was published in the Karnataka State Gazette on 21.12.2005. It is no more res integra that a Notification issued under Section 16 (2) of the Land Acquisition Act, 1894 shall be evidence of the fact that possession was taken, though not conclusive. The prevaricating stands taken by the First Respondent about the possession of the land does not help his cause. On 30.01.2004, the power of attorney holder of the First Respondent submitted a representation to the Chairman of the Hubli-Dharwad Urban Development Authority requesting for exemption of the land from acquisition. He stated in the said representation that he was running a ginning factory on the said land. He also stated that he employed 40 workmen for whose housing the land was needed. The said representation was rejected by the Commissioner, Hubli-Dharwad Urban Development Authority on 28.08.2004 by stating that the acquisition proceedings were at a final stage and so the request cannot be acceded to. In the written submissions filed by the Respondent, it is stated that a farm house along with a cattle shed and a mobile tower exist on the land. Some photographs and a lease agreement have been filed in support of the said averments. The submission made by the First Respondent regarding the non-consideration of his objections is contrary to the pleading in the Writ Petition. The First Respondent is also guilty of taking contradictory stands in the matter of possession. We see no reason to doubt the Panchnama evidencing taking over of possession. In addition, the Notification under Section 16(2) of the Land Acquisition Act, 1894 was published in the Gazette. Any attempt made by the First Respondent to show that he is still in possession is of no avail.
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9. The High Court quashed the Notification dated 05.02.2002 and declaration dated 27.11.2003 for the reasons that the objections filed by the landowners were not considered before issuance of the final declaration, that the possession of the land was not taken by the authorities and that the scheme was not implemented in respect of the property in question. The First Respondent pleaded in the Writ Petition that he was not aware of the Notification issued under Section 17(3) and the declaration issued under Section 19(3) of the Act. It was further averred in the Writ Petition that he was deprived of an opportunity of filing objections as notice was not given to him personally. We find force in the submission of Mr. Patil that the question of consideration of the objections which were not filed does not arise. In view of the findings recorded by the High Court that a perusal of the record disclosed that objections were filed by the Respondent and were not considered, we summoned and examined the relevant record carefully. The minutes of the meeting ofUrban Development Authority held on 06.02.2002 was filed as Annexurealong with the written submissions of the Appellant. The recommendations of the Chairman of theUrban Development Authority for acquisition of lands of Byridevana Koppa Village were discussed in the said meeting. The First Respondents land was part of the total extent of 54 acres and 39 guntas of land which was sought to be acquired for the housing scheme. It was stated in the minutes that objections filed by the landowners/interested persons of the lands included in the Notification issued under Section 17(3) of the Act were considered by the Chairman of theUrban Development Authority. It is clear from the said minutes that out of 19 blocks of land which were acquired, landowners of only 10 blocks filed their objections which were considered. Survey No. 311/A/1 does not find place in the said 10 blocks. A draft award dated 31.01.2005 was also placed on record by the Appellant in which the names of the landholders/ landowners whose lands were acquired and who filed objections were given. The Respondents name does not find place in the said list of persons who had submitted their objections. The High Court has committed an error in holding that the First Respondent filed his objections which were not considered.10. Admittedly, the land was acquired for a housing scheme. It was submitted by the Appellant that plots have already been allotted. The land belonging to the First Respondent has been earmarked for civic amenities. In view of the interim order of status quo passed by the High Court on 13.09.2006, no development could take place on the land. The High Court ought not to have held that the Appellant was responsible forof the scheme qua the land of the Respondent. It was submitted by the Appellant that the land is very much needed for development of civic amenities.11. A Panchnama was filed by the Appellant to show that possession of the land was taken on 02.09.2005 in the presence of five Panchas. A Notification under Section 16(2) of the Land Acquisition Act, 1894 was published in the Karnataka State Gazette on 21.12.2005. It is no more res integra that a Notification issued under Section 16 (2) of the Land Acquisition Act, 1894 shall be evidence of the fact that possession was taken, though not conclusive. The prevaricating stands taken by the First Respondent about the possession of the land does not help his cause. On 30.01.2004, the power of attorney holder of the First Respondent submitted a representation to the Chairman of theUrban Development Authority requesting for exemption of the land from acquisition. He stated in the said representation that he was running a ginning factory on the said land. He also stated that he employed 40 workmen for whose housing the land was needed. The said representation was rejected by the Commissioner,Urban Development Authority on 28.08.2004 by stating that the acquisition proceedings were at a final stage and so the request cannot be acceded to. In the written submissions filed by the Respondent, it is stated that a farm house along with a cattle shed and a mobile tower exist on the land. Some photographs and a lease agreement have been filed in support of the said averments. The submission made by the First Respondent regarding theof his objections is contrary to the pleading in the Writ Petition. The First Respondent is also guilty of taking contradictory stands in the matter of possession. We see no reason to doubt the Panchnama evidencing taking over of possession. In addition, the Notification under Section 16(2) of the Land Acquisition Act, 1894 was published in the Gazette. Any attempt made by the First Respondent to show that he is still in possession is of no avail.
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Balkishan Thapar Vs. Municipal Corporation of Delhi | of the Act and sentenced to rigorous imprisonment of six months and a fine of Rs. 1,000. This order was passed by the High Court in a revision filed by the Municipal Corporation of Delhi against the order of the Trial Court which convicted the appellant under Section 7/15 of the Prevention of Food Adulteration Act read with Section 2(ix)(k) of the Act and sentenced him to imprisonment till the rising of the Court and a fine of Rs. 500, a re-vision against this order to the Session Judge was unsuccessful and hence a further revision was taken by the Delhi Administration before the High Court. 2. The facts of the case are detailed in the Judgment of the High Court and the Magistrate and need not repeat the same all over again. The food Inspectors namely, one Mr. James and Mr. Sinha took samples of a pre-paration called Para Excellent and Para Asli from the shop of the appellant who according to the Food Inspectors sold these preparations as saccharin, a fact which is not admitted by the appellant. The Trial Court after considering the evidence and the report of the Chemical Examiner found that the case of misbranding under Section 2(ix)(a) and (g) was not made out by the Prosecution, but it was certainly mis branding as contemplated by Section 2(ix)(k) of the Act. He, accordingly convicted the appellant as indicated above. Mr. Frank Anthony, learned Counsel for the appellant has submitted that the High Court was wrong in law in interfering with the order of the Magistrate firstly, because the findings of fact by the Magistrate was binding on the High Court in revision and secondly, because the High Court took a legally erroneous view of the law on the interpretation of Section 2(ix)(a) and (g) of the Prevention of Food Adulteration Act. 3. We have heard learned counsel for the parties and have perused for judgment of the High Court and we are of the opinion that the contention raised by the learned counsel for the appellant is well founded and must pre-vail We have perused the original label which described the preparation sold to the food inspectors. There is nothing to show that the appellant in any 2-a way tried to give an impression to the purchaser that either saccharin or some preparation of the type of saccharin was being sold so as to amount to mis-branding as contemplated by Section 2(ix)(a) and (g) of the Act. All that the appellant purported to convey under the label was that the preparation sold was as sweet as saccharin but not as bitter as saccharin. This was intended merely to lay emphasis on the sweetness of the preparation when it was com-pared to the sweetness of saccharin. When the label clearly described the fact that the preparation was not as bitter as saccharin if clearly intended to convey that it was neither something like saccharin nor saccharin itself, in any form or of any type. Mr. Sorabjee appearing for the respondent submitted that the use of the word saccharin itself amounts to misbranding and gives the impres-sion that the preparation sold was saccharin or something akin to saccharin. We are unable to agree with this contention. In the facts and circumstances of the present case and the contents of the label and the description of the prepa-rations we are satisfied that there was no misbranding, nor was there any attempt on the part of the appellant to sell his preparation as saccharin or some sort of saccharin. Section 2(ix)(a) runs as follows: Misbranded—an article of food shall be deemed to be misbranded— (a) if it is an imitation of, or is a substitute for, or resembles in a manner likely to deceive, another article of food under the name of which it is sold, and is not plainly and conspicuously labeled so as to indicate its true character. 4. According to the Additional Solicitor General of India, the sale, by the appellants of the preparation clearly falls within (iii) clause of Sub-section (a), that is to say—the preparation resembles saccharin so as to deceive a per-son who wanted to purchase the article of food known as saccharin. After having examined the label; its description and the contents of the tin and packets, sold to the food inspectors, we are unable to find any evidence of any intention on the part of the appellant to sell a preparation which resembles saccharin in any respect. The words, as sweet as saccharin were merely meant to convey one of the qualities of the preparation itself and not the quality of saccharin at all. That, by itself, would not attract the provision of Section 2(ix)(a) of the Act. It was, then submitted that in one of the labels under the directions it was mentioned that the preparation was para saccharin which also shows that the appellant intended to pass on the preparation as some sort of saccharin. In the first place, the use of the word para saccharin appears to be a mistake in the facts of the present case because this word is completely agent from the Hindi portion of the directions contained in the same label. Secondly, the word para saccharin would not indicate that the preparation sold was saccharin in any form or of any kind. It was just a way of describing it because saccharin being 500 times sweeter than sugar, the manufacturer wanted to convey that the preparation was also much sweeter than sugar and could be used for preparing soda water bottles. It is obvious that if any person who purchased the preparation was not conversant with the English language, he would not be misled at all. 5. Having regard to these circumstances we are of the opinion that the case of the appellant does not fall within the clauses (a) and (g) of Section 2(ix) of the Act and the High Court erred in law in convicting the appellant for misbranding under these provisions. | 1[ds]After having examined the label; its description and the contents of the tin and packets, sold to the food inspectors, we are unable to find any evidence of any intention on the part of the appellant to sell a preparation which resembles saccharin in any respect. The words, as sweet as saccharin were merely meant to convey one of the qualities of the preparation itself and not the quality of saccharin at all. That, by itself, would not attract the provision of Section 2(ix)(a) of the Act. It was, then submitted that in one of the labels under the directions it was mentioned that the preparation was para saccharin which also shows that the appellant intended to pass on the preparation as some sort of saccharin. In the first place, the use of the word para saccharin appears to be a mistake in the facts of the present case because this word is completely agent from the Hindi portion of the directions contained in the same label. Secondly, the word para saccharin would not indicate that the preparation sold was saccharin in any form or of any kind. It was just a way of describing it because saccharin being 500 times sweeter than sugar, the manufacturer wanted to convey that the preparation was also much sweeter than sugar and could be used for preparing soda water bottles. It is obvious that if any person who purchased the preparation was not conversant with the English language, he would not be misled at all5. Having regard to these circumstances we are of the opinion that the case of the appellant does not fall within the clauses (a) and (g) of Section 2(ix) of the Act and the High Court erred in law in convicting the appellant for misbranding under these provisions. | 1 | 1,171 | 336 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
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of the Act and sentenced to rigorous imprisonment of six months and a fine of Rs. 1,000. This order was passed by the High Court in a revision filed by the Municipal Corporation of Delhi against the order of the Trial Court which convicted the appellant under Section 7/15 of the Prevention of Food Adulteration Act read with Section 2(ix)(k) of the Act and sentenced him to imprisonment till the rising of the Court and a fine of Rs. 500, a re-vision against this order to the Session Judge was unsuccessful and hence a further revision was taken by the Delhi Administration before the High Court. 2. The facts of the case are detailed in the Judgment of the High Court and the Magistrate and need not repeat the same all over again. The food Inspectors namely, one Mr. James and Mr. Sinha took samples of a pre-paration called Para Excellent and Para Asli from the shop of the appellant who according to the Food Inspectors sold these preparations as saccharin, a fact which is not admitted by the appellant. The Trial Court after considering the evidence and the report of the Chemical Examiner found that the case of misbranding under Section 2(ix)(a) and (g) was not made out by the Prosecution, but it was certainly mis branding as contemplated by Section 2(ix)(k) of the Act. He, accordingly convicted the appellant as indicated above. Mr. Frank Anthony, learned Counsel for the appellant has submitted that the High Court was wrong in law in interfering with the order of the Magistrate firstly, because the findings of fact by the Magistrate was binding on the High Court in revision and secondly, because the High Court took a legally erroneous view of the law on the interpretation of Section 2(ix)(a) and (g) of the Prevention of Food Adulteration Act. 3. We have heard learned counsel for the parties and have perused for judgment of the High Court and we are of the opinion that the contention raised by the learned counsel for the appellant is well founded and must pre-vail We have perused the original label which described the preparation sold to the food inspectors. There is nothing to show that the appellant in any 2-a way tried to give an impression to the purchaser that either saccharin or some preparation of the type of saccharin was being sold so as to amount to mis-branding as contemplated by Section 2(ix)(a) and (g) of the Act. All that the appellant purported to convey under the label was that the preparation sold was as sweet as saccharin but not as bitter as saccharin. This was intended merely to lay emphasis on the sweetness of the preparation when it was com-pared to the sweetness of saccharin. When the label clearly described the fact that the preparation was not as bitter as saccharin if clearly intended to convey that it was neither something like saccharin nor saccharin itself, in any form or of any type. Mr. Sorabjee appearing for the respondent submitted that the use of the word saccharin itself amounts to misbranding and gives the impres-sion that the preparation sold was saccharin or something akin to saccharin. We are unable to agree with this contention. In the facts and circumstances of the present case and the contents of the label and the description of the prepa-rations we are satisfied that there was no misbranding, nor was there any attempt on the part of the appellant to sell his preparation as saccharin or some sort of saccharin. Section 2(ix)(a) runs as follows: Misbranded—an article of food shall be deemed to be misbranded— (a) if it is an imitation of, or is a substitute for, or resembles in a manner likely to deceive, another article of food under the name of which it is sold, and is not plainly and conspicuously labeled so as to indicate its true character. 4. According to the Additional Solicitor General of India, the sale, by the appellants of the preparation clearly falls within (iii) clause of Sub-section (a), that is to say—the preparation resembles saccharin so as to deceive a per-son who wanted to purchase the article of food known as saccharin. After having examined the label; its description and the contents of the tin and packets, sold to the food inspectors, we are unable to find any evidence of any intention on the part of the appellant to sell a preparation which resembles saccharin in any respect. The words, as sweet as saccharin were merely meant to convey one of the qualities of the preparation itself and not the quality of saccharin at all. That, by itself, would not attract the provision of Section 2(ix)(a) of the Act. It was, then submitted that in one of the labels under the directions it was mentioned that the preparation was para saccharin which also shows that the appellant intended to pass on the preparation as some sort of saccharin. In the first place, the use of the word para saccharin appears to be a mistake in the facts of the present case because this word is completely agent from the Hindi portion of the directions contained in the same label. Secondly, the word para saccharin would not indicate that the preparation sold was saccharin in any form or of any kind. It was just a way of describing it because saccharin being 500 times sweeter than sugar, the manufacturer wanted to convey that the preparation was also much sweeter than sugar and could be used for preparing soda water bottles. It is obvious that if any person who purchased the preparation was not conversant with the English language, he would not be misled at all. 5. Having regard to these circumstances we are of the opinion that the case of the appellant does not fall within the clauses (a) and (g) of Section 2(ix) of the Act and the High Court erred in law in convicting the appellant for misbranding under these provisions.
### Response:
1
### Explanation:
After having examined the label; its description and the contents of the tin and packets, sold to the food inspectors, we are unable to find any evidence of any intention on the part of the appellant to sell a preparation which resembles saccharin in any respect. The words, as sweet as saccharin were merely meant to convey one of the qualities of the preparation itself and not the quality of saccharin at all. That, by itself, would not attract the provision of Section 2(ix)(a) of the Act. It was, then submitted that in one of the labels under the directions it was mentioned that the preparation was para saccharin which also shows that the appellant intended to pass on the preparation as some sort of saccharin. In the first place, the use of the word para saccharin appears to be a mistake in the facts of the present case because this word is completely agent from the Hindi portion of the directions contained in the same label. Secondly, the word para saccharin would not indicate that the preparation sold was saccharin in any form or of any kind. It was just a way of describing it because saccharin being 500 times sweeter than sugar, the manufacturer wanted to convey that the preparation was also much sweeter than sugar and could be used for preparing soda water bottles. It is obvious that if any person who purchased the preparation was not conversant with the English language, he would not be misled at all5. Having regard to these circumstances we are of the opinion that the case of the appellant does not fall within the clauses (a) and (g) of Section 2(ix) of the Act and the High Court erred in law in convicting the appellant for misbranding under these provisions.
|
Babu Maruti Dukare Vs. State of Maharashtra | be allowed to retain and enjoy the fruits of crime. Even if one or the other beneficiaries was acquitted for want of necessary intention or knowledge about the commission of forgery, still such a beneficiary could not be allowed to retain the property which was only as a result of the massive fraud, forgery, manipulation and possibly a corruption. In the present matters, it is clear that a massive fraud was committed against the state as well as the original landholders and the poor cultivators who could be allotted some agricultural land out of the surplus land. By committing frauds and by making use of forged and fabricated documents and records the petitioners and their other culprits avoided declaration of about 3750 acres of perennially irrigated land as surplus. The original owners who were holding the lands less than the ceiling limit prescribed by the law would have been entitled to restoration of the some of the lands which would be rendered surplus. Similarly, if whole of the surplus land would not be restored to its original owners, some of it could certainly be allotted to the landless or poor people for cultivation. In the present matter, even though fraud was committed and forged and fabricated records were prepared sometime in 1961-62 or thereafter, it appears that from 1964 itself, complaints about the same were made by the original landholders. It appears that the A. C. B. commenced the investigation but by using their influence with the powers that be, the perpetrators of the crime could delay the investigation for a period of almost 10 years. It appears that on one hand, the A. C. B. was investigating the cases and charge-sheets were filed and on the other hand, the Special divisional Officer holding the appellate powers under the Ceiling Act dismissed the appeals on the basis of record, which was forged and fabricated and on the basis of which culprits were convicted. In view of this, period of limitation prescribed under Section 45 (2) can not come in a way of the State Government and can not deter it from invoking its suo motu revisional power, which was absolutely essential to do justice to the poor original landholders and other landless people and to undo the results of the frauds, forgeries and fabrications. Infact, the State Government would be failing in its duties and responsibilities, if it would not exercise its suo motu revisional jurisdiction. Otherwise also as pointed out earlier appeals against the convictions were decided in 1985 and thereafter, the accused persons had preferred special Leave Petitions which came to be dismissed. If period of limitation is counted from the conclusion of the criminal prosecution, the action taken by the Government appears to be clearly within the limitation of 3 years. The impugned orders passed from 1986 to 1989 to re-open and make enquiries afresh were clearly passed by invoking suo motu revisional power under Section 45 (2), though the said section is not specifically mentioned in the impugned orders, which makes no difference.( 18 ) TAKING into consideration the facts and circumstances and the legal position discussed above, we find no substance and merit in the Writ Petition Nos. 797, 798, 799 and 800 of 1991 and they are liable to be dismissed. ( 19 ) AS far as Writ Petition No. 3238 of 1989 is concerned, the petitioners who are the original land holders only seek certain directions for appropriate enquiry and implementation of the orders passed by the government for fresh enquiry. It appears that initially a Sub-Divisional Officer, Pandharpur was designated as a Enquiry Officer for the purpose of Section 14 of the Ceiling Act. According to the petitioners, the Sub-Divisional officer, Pandharpur was over burdened with his other duties and, therefore, it was not possible for him to complete the enquiry within a reasonable time. Further it was pointed out that the records which were seized by the a. C. B. was not being made available to the enquiry Officer. Therefore, the petitioners sought a direction that an officer of the rank of collector who should be specially designated and appointed as an Enquiry Officer and he should complete the enquiry within six months. They further sought a direction for making complete record available to the Enquiry officer. As per the affidavit filed by Shri. Shankar Narayan, the Assistant Collector, pandharpur, by an order dated 27-9-1991, the government had modified original orders dated 7-8-1989 and 31-10-1989 and in supersession of those orders, the Government has designated the Assistant Commissioner of Land Records, pune as Enquiry Officer. It is also pointed out that now the Assistant Commissioner is designated as a Deputy Commissioner of Pune division. In view of this, we are satisfied that the Deputy Commissioner, Pune Division is sufficiently senior and competent officer to hold such an enquiry. Taking into consideration the huge fraud, forgeries and the large number of people involved in the matter, the Enquiry officer certainly needs some time. In our opinion, the said Enquiry Officer should not be entrusted with any other official duty so that he may fully concentrate on these enquiries and we may expect that he will complete the same within six months from the date of this order. As far as records are concerned, it is pointed out that records of Special Case Nos. 2,5,6 and 7 of 1975 were directed to remain in custody of Special Judge, Solapur as per the order dated 4th June, 1990 in Criminal Application No. 814 of 1990, passed by this Court. Those records may be made available to the Enquiry Officer. The learned Assistant Government Pleader has also brought to our notice that records of some of the matters as required are available with the court and some records could not be traced out but as soon as they were found, they will be produced before the Enquiry Officer. In view of this, Writ Petition No. 3238 of 1989 may be disposed off with certain directions. | 0[ds]It is true that the first proviso to Section 45 (2)provides that the suo motu revisional powers shall not be invoked unless appeal against a declaration under Section 21 has not been filed within a period provided for it and that a period of 3 years from the date of such declaration has not lapsed. It means that if appeal is preferred, revisional powers will not be invoked. Further if the period of 3 years has lapsed after the declaration under Section 21, the State shall not exercise revisional jurisdiction. It means that there is a limitation of 3 years. In view of this proviso, Mr. Thorat contended that in the present matters, appeals were preferred by the State and they were rejected in 1977 and secondly a long period of 10 to 12 years had lapsed even after the appeals were dismissed and before the Government issued directions in 1986 to 1989 forthe cases and therefore, the directions given by the Government are liable to be set17 ) THE very question under the ceiling Act was before the Supreme Court in state of Maharashtra Vs. Rattanlal, 1995 (1)Bombay C. R. 177. After reproducing and discussing the provisions of Section 45 of the ceiling Act, Their Lordships observed as follows:". . . . . . . The exercise of such a power has been restricted only to the matters relating to an inquiry or proceedings under Ss. 17 to 21 (both inclusive ). It also prescribed 3 years limitation for the exercise of the revisional power. Before exercising the revisional power the affected party shall also be given reasonable opportunity of being heard. It would be open to the State Government or its delegate to correct any illegality or impropriety committed by the officer or authority. The obvious intendment in conferring suo motu power is to prevent suppression of the inclusion of all agricultural lands held or includable in the holding of the declarant and he/she cannot fall back upon the orders or proceedings as a defence to plead his/her own fraud or suppression of material facts in his/her declaration or the designated officer or authority cannot seek shelter under the orders or a part thereof when the offending order was steeped with illegality or impropriety. Take a hypothetical illustration that the landholder and the officer colluded and in furtherance thereof several lands were not declared in the declaration. The authorised officer declared him to be within the ceiling limit. The suppression of material facts, namely, existence of the undeclared agricultural land had come to the knowledge of the higher authorities after a long lapse of time,. Should it be that limitation of three years would be a bar to exercise suo motu power of a order passed under S. 17 to 21 a bar to reopen the case. Obviously the answers are no. The limitation would start running only from the date of discovery of the fraud of suppression of material or relevant facts or omission thereof and the order under S. 17 is not a bar o exercise revisional power. Take another illustration that in an inquiry or proceedings a land which is declared surplus but was excluded from distribution on fancy grounds so as to enable the landholder to retain the surplus land Benami etc. such cases are liable to reopen under S. 45, though the ceiling order became final. The only inbuilt limitation provided in S. 45 is that while an appeal is pending before the Appellate Tribunal under S. 21, the revisional power under S. 45 either suo motu or on an application made by an aggrieved person could not be entertained or continued simultaneously. While the appeal is pending if it comes to the knowledge of the authorities that the declarant suppressed material facts or fraud or collusion, those facts should be placed before the Appellate Tribunal and have it adjudicated properly by it or on remand to the primary authority. If after the inquiry or proceedings became final, the higher authorities discovered illegality or impropriety committed in the inquiry or proceedings, action would always be available for initiation by the competent authority and orders could be passed after reasonable opportunity of being heard given to the affectedor person. "In view of the above observations, it is well settled position of law that the judgment or decree obtained by playing fraud on the court orauthority is a nullity and it can be so declared by the competent authority, nobody can be allowed to retain and enjoy the fruits of crime. Even if one or the other beneficiaries was acquitted for want of necessary intention or knowledge about the commission of forgery, still such a beneficiary could not be allowed to retain the property which was only as a result of the massive fraud, forgery, manipulation and possibly a corruption. In the present matters, it is clear that a massive fraud was committed against the state as well as the original landholders and the poor cultivators who could be allotted some agricultural land out of the surplus land. By committing frauds and by making use of forged and fabricated documents and records the petitioners and their other culprits avoided declaration of about 3750 acres of perennially irrigated land as surplus. The original owners who were holding the lands less than the ceiling limit prescribed by the law would have been entitled to restoration of the some of the lands which would be rendered surplus. Similarly, if whole of the surplus land would not be restored to its original owners, some of it could certainly be allotted to the landless or poor people for cultivation. In the present matter, even though fraud was committed and forged and fabricated records were prepared sometime inor thereafter, it appears that from 1964 itself, complaints about the same were made by the original landholders. It appears that the A. C. B. commenced the investigation but by using their influence with the powers that be, the perpetrators of the crime could delay the investigation for a period of almost 10 years. It appears that on one hand, the A. C. B. was investigating the cases andwere filed and on the other hand, the Special divisional Officer holding the appellate powers under the Ceiling Act dismissed the appeals on the basis of record, which was forged and fabricated and on the basis of which culprits were convicted. In view of this, period of limitation prescribed under Section 45 (2) can not come in a way of the State Government and can not deter it from invoking its suo motu revisional power, which was absolutely essential to do justice to the poor original landholders and other landless people and to undo the results of the frauds, forgeries and fabrications. Infact, the State Government would be failing in its duties and responsibilities, if it would not exercise its suo motu revisional jurisdiction. Otherwise also as pointed out earlier appeals against the convictions were decided in 1985 and thereafter, the accused persons had preferred special Leave Petitions which came to be dismissed. If period of limitation is counted from the conclusion of the criminal prosecution, the action taken by the Government appears to be clearly within the limitation of 3 years. The impugned orders passed from 1986 to 1989 toand make enquiries afresh were clearly passed by invoking suo motu revisional power under Section 45 (2), though the said section is not specifically mentioned in the impugned orders, which makes no difference.( 18 ) TAKING into consideration the facts and circumstances and the legal position discussed above, we find no substance and merit in the Writ Petition Nos. 797, 798, 799 and 800 of 1991 and they are liable to beview of this, we are satisfied that the Deputy Commissioner, Pune Division is sufficiently senior and competent officer to hold such an enquiry. Taking into consideration the huge fraud, forgeries and the large number of people involved in the matter, the Enquiry officer certainly needs some time. In our opinion, the said Enquiry Officer should not be entrusted with any other official duty so that he may fully concentrate on these enquiries and we may expect that he will complete the same within six months from the date of this order. | 0 | 7,635 | 1,485 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
be allowed to retain and enjoy the fruits of crime. Even if one or the other beneficiaries was acquitted for want of necessary intention or knowledge about the commission of forgery, still such a beneficiary could not be allowed to retain the property which was only as a result of the massive fraud, forgery, manipulation and possibly a corruption. In the present matters, it is clear that a massive fraud was committed against the state as well as the original landholders and the poor cultivators who could be allotted some agricultural land out of the surplus land. By committing frauds and by making use of forged and fabricated documents and records the petitioners and their other culprits avoided declaration of about 3750 acres of perennially irrigated land as surplus. The original owners who were holding the lands less than the ceiling limit prescribed by the law would have been entitled to restoration of the some of the lands which would be rendered surplus. Similarly, if whole of the surplus land would not be restored to its original owners, some of it could certainly be allotted to the landless or poor people for cultivation. In the present matter, even though fraud was committed and forged and fabricated records were prepared sometime in 1961-62 or thereafter, it appears that from 1964 itself, complaints about the same were made by the original landholders. It appears that the A. C. B. commenced the investigation but by using their influence with the powers that be, the perpetrators of the crime could delay the investigation for a period of almost 10 years. It appears that on one hand, the A. C. B. was investigating the cases and charge-sheets were filed and on the other hand, the Special divisional Officer holding the appellate powers under the Ceiling Act dismissed the appeals on the basis of record, which was forged and fabricated and on the basis of which culprits were convicted. In view of this, period of limitation prescribed under Section 45 (2) can not come in a way of the State Government and can not deter it from invoking its suo motu revisional power, which was absolutely essential to do justice to the poor original landholders and other landless people and to undo the results of the frauds, forgeries and fabrications. Infact, the State Government would be failing in its duties and responsibilities, if it would not exercise its suo motu revisional jurisdiction. Otherwise also as pointed out earlier appeals against the convictions were decided in 1985 and thereafter, the accused persons had preferred special Leave Petitions which came to be dismissed. If period of limitation is counted from the conclusion of the criminal prosecution, the action taken by the Government appears to be clearly within the limitation of 3 years. The impugned orders passed from 1986 to 1989 to re-open and make enquiries afresh were clearly passed by invoking suo motu revisional power under Section 45 (2), though the said section is not specifically mentioned in the impugned orders, which makes no difference.( 18 ) TAKING into consideration the facts and circumstances and the legal position discussed above, we find no substance and merit in the Writ Petition Nos. 797, 798, 799 and 800 of 1991 and they are liable to be dismissed. ( 19 ) AS far as Writ Petition No. 3238 of 1989 is concerned, the petitioners who are the original land holders only seek certain directions for appropriate enquiry and implementation of the orders passed by the government for fresh enquiry. It appears that initially a Sub-Divisional Officer, Pandharpur was designated as a Enquiry Officer for the purpose of Section 14 of the Ceiling Act. According to the petitioners, the Sub-Divisional officer, Pandharpur was over burdened with his other duties and, therefore, it was not possible for him to complete the enquiry within a reasonable time. Further it was pointed out that the records which were seized by the a. C. B. was not being made available to the enquiry Officer. Therefore, the petitioners sought a direction that an officer of the rank of collector who should be specially designated and appointed as an Enquiry Officer and he should complete the enquiry within six months. They further sought a direction for making complete record available to the Enquiry officer. As per the affidavit filed by Shri. Shankar Narayan, the Assistant Collector, pandharpur, by an order dated 27-9-1991, the government had modified original orders dated 7-8-1989 and 31-10-1989 and in supersession of those orders, the Government has designated the Assistant Commissioner of Land Records, pune as Enquiry Officer. It is also pointed out that now the Assistant Commissioner is designated as a Deputy Commissioner of Pune division. In view of this, we are satisfied that the Deputy Commissioner, Pune Division is sufficiently senior and competent officer to hold such an enquiry. Taking into consideration the huge fraud, forgeries and the large number of people involved in the matter, the Enquiry officer certainly needs some time. In our opinion, the said Enquiry Officer should not be entrusted with any other official duty so that he may fully concentrate on these enquiries and we may expect that he will complete the same within six months from the date of this order. As far as records are concerned, it is pointed out that records of Special Case Nos. 2,5,6 and 7 of 1975 were directed to remain in custody of Special Judge, Solapur as per the order dated 4th June, 1990 in Criminal Application No. 814 of 1990, passed by this Court. Those records may be made available to the Enquiry Officer. The learned Assistant Government Pleader has also brought to our notice that records of some of the matters as required are available with the court and some records could not be traced out but as soon as they were found, they will be produced before the Enquiry Officer. In view of this, Writ Petition No. 3238 of 1989 may be disposed off with certain directions.
### Response:
0
### Explanation:
Take a hypothetical illustration that the landholder and the officer colluded and in furtherance thereof several lands were not declared in the declaration. The authorised officer declared him to be within the ceiling limit. The suppression of material facts, namely, existence of the undeclared agricultural land had come to the knowledge of the higher authorities after a long lapse of time,. Should it be that limitation of three years would be a bar to exercise suo motu power of a order passed under S. 17 to 21 a bar to reopen the case. Obviously the answers are no. The limitation would start running only from the date of discovery of the fraud of suppression of material or relevant facts or omission thereof and the order under S. 17 is not a bar o exercise revisional power. Take another illustration that in an inquiry or proceedings a land which is declared surplus but was excluded from distribution on fancy grounds so as to enable the landholder to retain the surplus land Benami etc. such cases are liable to reopen under S. 45, though the ceiling order became final. The only inbuilt limitation provided in S. 45 is that while an appeal is pending before the Appellate Tribunal under S. 21, the revisional power under S. 45 either suo motu or on an application made by an aggrieved person could not be entertained or continued simultaneously. While the appeal is pending if it comes to the knowledge of the authorities that the declarant suppressed material facts or fraud or collusion, those facts should be placed before the Appellate Tribunal and have it adjudicated properly by it or on remand to the primary authority. If after the inquiry or proceedings became final, the higher authorities discovered illegality or impropriety committed in the inquiry or proceedings, action would always be available for initiation by the competent authority and orders could be passed after reasonable opportunity of being heard given to the affectedor person. "In view of the above observations, it is well settled position of law that the judgment or decree obtained by playing fraud on the court orauthority is a nullity and it can be so declared by the competent authority, nobody can be allowed to retain and enjoy the fruits of crime. Even if one or the other beneficiaries was acquitted for want of necessary intention or knowledge about the commission of forgery, still such a beneficiary could not be allowed to retain the property which was only as a result of the massive fraud, forgery, manipulation and possibly a corruption. In the present matters, it is clear that a massive fraud was committed against the state as well as the original landholders and the poor cultivators who could be allotted some agricultural land out of the surplus land. By committing frauds and by making use of forged and fabricated documents and records the petitioners and their other culprits avoided declaration of about 3750 acres of perennially irrigated land as surplus. The original owners who were holding the lands less than the ceiling limit prescribed by the law would have been entitled to restoration of the some of the lands which would be rendered surplus. Similarly, if whole of the surplus land would not be restored to its original owners, some of it could certainly be allotted to the landless or poor people for cultivation. In the present matter, even though fraud was committed and forged and fabricated records were prepared sometime inor thereafter, it appears that from 1964 itself, complaints about the same were made by the original landholders. It appears that the A. C. B. commenced the investigation but by using their influence with the powers that be, the perpetrators of the crime could delay the investigation for a period of almost 10 years. It appears that on one hand, the A. C. B. was investigating the cases andwere filed and on the other hand, the Special divisional Officer holding the appellate powers under the Ceiling Act dismissed the appeals on the basis of record, which was forged and fabricated and on the basis of which culprits were convicted. In view of this, period of limitation prescribed under Section 45 (2) can not come in a way of the State Government and can not deter it from invoking its suo motu revisional power, which was absolutely essential to do justice to the poor original landholders and other landless people and to undo the results of the frauds, forgeries and fabrications. Infact, the State Government would be failing in its duties and responsibilities, if it would not exercise its suo motu revisional jurisdiction. Otherwise also as pointed out earlier appeals against the convictions were decided in 1985 and thereafter, the accused persons had preferred special Leave Petitions which came to be dismissed. If period of limitation is counted from the conclusion of the criminal prosecution, the action taken by the Government appears to be clearly within the limitation of 3 years. The impugned orders passed from 1986 to 1989 toand make enquiries afresh were clearly passed by invoking suo motu revisional power under Section 45 (2), though the said section is not specifically mentioned in the impugned orders, which makes no difference.( 18 ) TAKING into consideration the facts and circumstances and the legal position discussed above, we find no substance and merit in the Writ Petition Nos. 797, 798, 799 and 800 of 1991 and they are liable to beview of this, we are satisfied that the Deputy Commissioner, Pune Division is sufficiently senior and competent officer to hold such an enquiry. Taking into consideration the huge fraud, forgeries and the large number of people involved in the matter, the Enquiry officer certainly needs some time. In our opinion, the said Enquiry Officer should not be entrusted with any other official duty so that he may fully concentrate on these enquiries and we may expect that he will complete the same within six months from the date of this order.
|
Balakrishnan Vs. Union of India & Others | 30.05.2012, a notice was issued to the appellant under Section 148 of the Act whereby the Income Tax Department decided to re-open the assessment on the ground that income which was assessable to income tax escaped assessment during the year 2009-10. The stand which was taken by the Revenue in this notice was that the amount of compensation/consideration received by the appellant against the aforesaid land was not the result of compulsory acquisition and on the contrary it was the voluntary sale made by the appellant to the Techno Park and, therefore, the provisions of Section 10(37) of Act were not applicable. The appellant objected to the re-opening of the said assessment by filing his reply dated 30.11.2012. However, respondent no. 2 namely, the Joint Commissioner, Income Tax Range-I, Kawadiar, Thiruvananthapuram, took the view that the case did not come under compulsory acquisition and directed the Assessing Officer to compute the income accordingly. This direction dated 11.03.2013 of respondent no. 2 was challenged by the appellant by filing a Civil Writ Petition in the High Court of Kerala. The learned Single Judge, however, dismissed the said writ petition vide judgment dated 11.07.2013 relying upon the earlier judgment of the same High Court in case of Info Park Kerala v. Assistant Commissioner of Income Tax (2008) 4 KLT 782. The writ appeal preferred by the appellant met the same fate as it was dismissed affirming the view of the learned Single Judge.8. It is in the aforesaid factual backdrop, this Court is to determine as to whether it can be treated that the land of the appellant was compulsorily acquired. From the facts mentioned above, it becomes apparent that the acquisition process was initiated by invoking the provisions of LA Act by the State Government. For this purpose, not only Notification under Section 4 was issued, it was followed by declaration under Section 6 and even Award under Section 9 of the LA Act. With the award the acquisition under the LA Act was completed. Only thing that remains thereafter was to pay the compensation as fixed under the award and take possession of the land in question from the appellant. No doubt, in case, the compensation as fixed by the Land Acquisition Collector was not acceptable to the appellant, the LA Act provides for making a reference under Section 18 of the Act to the District Judge for determining the compensation and to decide as to whether the compensation fixed by the Land Acquisition Collector was proper or not. However, the matter thereafter is only for quantum of compensation which has nothing to do with the acquisition. It is clear from the above that insofar as acquisition is concerned, the appellant had succumbed to the action taken by the Government in this behalf. His only objection was to the market value of the land that was fixed as above. To reiterate his grievance, the appellant could have either taken the aforesaid adjudicatory route of seeking reference under Section 18 of the LA Act leaving it to the Court to determine the market value. Instead, the appellant negotiated with Techno Park and arrived at amicable settlement by agreeing to receive the compensation in the sum of Rs. 38,42,489/-. For this purpose, after entering into the agreement, the appellant agreed to execute the sale deed as well which was a necessary consequence and a step which the appellant had to take.9. In our view, insofar as acquisition of the land is concerned, the same was compulsorily acquired as the entire procedure prescribed under the LA Act was followed. The settlement took place only qua the amount of the compensation which was to be received by the appellant for the land which had been acquired. It goes without saying that had steps not been taken by the Government under Sections 4 & 6 followed by award under Section 9 of the LA Act, the appellant would not have agreed to divest the land belonging to him to Techno Park. He was compelled to do so because of the compulsory acquisition and to avoid litigation entered into negotiations and settled the final compensation. Merely because the compensation amount is agreed upon would not change the character of acquisition from that of compulsory acquisition to the voluntary sale. It may be mentioned that this is now the procedure which is laid down even under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 as per which the Collector can pass rehabilitation and resettlement award with the consent of the parties/land owners. Nonetheless, the character of acquisition remains compulsory.10. This Court has doubts about the correctness of the judgment in the case of Info Park Kerala v. Assistant Commissioner of Income Tax (2008) 4 KLT 782. The Court in the said case took the view that since the title in the property was passed by the land owners on the strength of sale deeds executed by them, it was not a compulsory acquisition. We are not in agreement with the aforesaid view. It is clear that but for Notification under Section 4 and Award under Section 9 of the LA Act, the appellant would not have entered into any negotiations for the compensation of the consideration which he was to receive for the said land. As far as the acquisition of the land in question is concerned, there was no consent. The appellant was put in such a condition that he knew that his land had been acquired and he cannot reiterate the same. The appellant, therefore, only wanted to salvage the situation by receiving as much compensation as possible commensurate with the market value thereof and in the process avoid the litigation so that the appellant is able to receive the compensation well in time. If for this purpose the appellant entered into the negotiations, such negotiations would be confined to the quantum of compensation only and cannot change or alter the nature of acquisition which would remain compulsory. | 1[ds]From the facts mentioned above, it becomes apparent that the acquisition process was initiated by invoking the provisions of LA Act by the State Government. For this purpose, not only Notification under Section 4 was issued, it was followed by declaration under Section 6 and even Award under Section 9 of the LA Act. With the award the acquisition under the LA Act was completed. Only thing that remains thereafter was to pay the compensation as fixed under the award and take possession of the land in question from the appellant. No doubt, in case, the compensation as fixed by the Land Acquisition Collector was not acceptable to the appellant, the LA Act provides for making a reference under Section 18 of the Act to the District Judge for determining the compensation and to decide as to whether the compensation fixed by the Land Acquisition Collector was proper or not. However, the matter thereafter is only for quantum of compensation which has nothing to do with the acquisition. It is clear from the above that insofar as acquisition is concerned, the appellant had succumbed to the action taken by the Government in this behalf. His only objection was to the market value of the land that was fixed as above. To reiterate his grievance, the appellant could have either taken the aforesaid adjudicatory route of seeking reference under Section 18 of the LA Act leaving it to the Court to determine the market value. Instead, the appellant negotiated with Techno Park and arrived at amicable settlement by agreeing to receive the compensation in the sum of Rs.For this purpose, after entering into the agreement, the appellant agreed to execute the sale deed as well which was a necessary consequence and a step which the appellant had to take.9. In our view, insofar as acquisition of the land is concerned, the same was compulsorily acquired as the entire procedure prescribed under the LA Act was followed. The settlement took place only qua the amount of the compensation which was to be received by the appellant for the land which had been acquired. It goes without saying that had steps not been taken by the Government under Sections 4 & 6 followed by award under Section 9 of the LA Act, the appellant would not have agreed to divest the land belonging to him to Techno Park. He was compelled to do so because of the compulsory acquisition and to avoid litigation entered into negotiations and settled the final compensation. Merely because the compensation amount is agreed upon would not change the character of acquisition from that of compulsory acquisition to the voluntary sale. It may be mentioned that this is now the procedure which is laid down even under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 as per which the Collector can pass rehabilitation and resettlement award with the consent of the parties/land owners. Nonetheless, the character of acquisition remains compulsory.10. This Court has doubts about the correctness of the judgment in the case of Info Park Kerala v. Assistant Commissioner of Income Tax (2008) 4 KLT 782. The Court in the said case took the view that since the title in the property was passed by the land owners on the strength of sale deeds executed by them, it was not a compulsory acquisition. We are not in agreement with the aforesaid view. It is clear that but for Notification under Section 4 and Award under Section 9 of the LA Act, the appellant would not have entered into any negotiations for the compensation of the consideration which he was to receive for the said land. As far as the acquisition of the land in question is concerned, there was no consent. The appellant was put in such a condition that he knew that his land had been acquired and he cannot reiterate the same. The appellant, therefore, only wanted to salvage the situation by receiving as much compensation as possible commensurate with the market value thereof and in the process avoid the litigation so that the appellant is able to receive the compensation well in time. If for this purpose the appellant entered into the negotiations, such negotiations would be confined to the quantum of compensation only and cannot change or alter the nature of acquisition which would remain compulsory. | 1 | 1,936 | 786 | ### 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:
30.05.2012, a notice was issued to the appellant under Section 148 of the Act whereby the Income Tax Department decided to re-open the assessment on the ground that income which was assessable to income tax escaped assessment during the year 2009-10. The stand which was taken by the Revenue in this notice was that the amount of compensation/consideration received by the appellant against the aforesaid land was not the result of compulsory acquisition and on the contrary it was the voluntary sale made by the appellant to the Techno Park and, therefore, the provisions of Section 10(37) of Act were not applicable. The appellant objected to the re-opening of the said assessment by filing his reply dated 30.11.2012. However, respondent no. 2 namely, the Joint Commissioner, Income Tax Range-I, Kawadiar, Thiruvananthapuram, took the view that the case did not come under compulsory acquisition and directed the Assessing Officer to compute the income accordingly. This direction dated 11.03.2013 of respondent no. 2 was challenged by the appellant by filing a Civil Writ Petition in the High Court of Kerala. The learned Single Judge, however, dismissed the said writ petition vide judgment dated 11.07.2013 relying upon the earlier judgment of the same High Court in case of Info Park Kerala v. Assistant Commissioner of Income Tax (2008) 4 KLT 782. The writ appeal preferred by the appellant met the same fate as it was dismissed affirming the view of the learned Single Judge.8. It is in the aforesaid factual backdrop, this Court is to determine as to whether it can be treated that the land of the appellant was compulsorily acquired. From the facts mentioned above, it becomes apparent that the acquisition process was initiated by invoking the provisions of LA Act by the State Government. For this purpose, not only Notification under Section 4 was issued, it was followed by declaration under Section 6 and even Award under Section 9 of the LA Act. With the award the acquisition under the LA Act was completed. Only thing that remains thereafter was to pay the compensation as fixed under the award and take possession of the land in question from the appellant. No doubt, in case, the compensation as fixed by the Land Acquisition Collector was not acceptable to the appellant, the LA Act provides for making a reference under Section 18 of the Act to the District Judge for determining the compensation and to decide as to whether the compensation fixed by the Land Acquisition Collector was proper or not. However, the matter thereafter is only for quantum of compensation which has nothing to do with the acquisition. It is clear from the above that insofar as acquisition is concerned, the appellant had succumbed to the action taken by the Government in this behalf. His only objection was to the market value of the land that was fixed as above. To reiterate his grievance, the appellant could have either taken the aforesaid adjudicatory route of seeking reference under Section 18 of the LA Act leaving it to the Court to determine the market value. Instead, the appellant negotiated with Techno Park and arrived at amicable settlement by agreeing to receive the compensation in the sum of Rs. 38,42,489/-. For this purpose, after entering into the agreement, the appellant agreed to execute the sale deed as well which was a necessary consequence and a step which the appellant had to take.9. In our view, insofar as acquisition of the land is concerned, the same was compulsorily acquired as the entire procedure prescribed under the LA Act was followed. The settlement took place only qua the amount of the compensation which was to be received by the appellant for the land which had been acquired. It goes without saying that had steps not been taken by the Government under Sections 4 & 6 followed by award under Section 9 of the LA Act, the appellant would not have agreed to divest the land belonging to him to Techno Park. He was compelled to do so because of the compulsory acquisition and to avoid litigation entered into negotiations and settled the final compensation. Merely because the compensation amount is agreed upon would not change the character of acquisition from that of compulsory acquisition to the voluntary sale. It may be mentioned that this is now the procedure which is laid down even under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 as per which the Collector can pass rehabilitation and resettlement award with the consent of the parties/land owners. Nonetheless, the character of acquisition remains compulsory.10. This Court has doubts about the correctness of the judgment in the case of Info Park Kerala v. Assistant Commissioner of Income Tax (2008) 4 KLT 782. The Court in the said case took the view that since the title in the property was passed by the land owners on the strength of sale deeds executed by them, it was not a compulsory acquisition. We are not in agreement with the aforesaid view. It is clear that but for Notification under Section 4 and Award under Section 9 of the LA Act, the appellant would not have entered into any negotiations for the compensation of the consideration which he was to receive for the said land. As far as the acquisition of the land in question is concerned, there was no consent. The appellant was put in such a condition that he knew that his land had been acquired and he cannot reiterate the same. The appellant, therefore, only wanted to salvage the situation by receiving as much compensation as possible commensurate with the market value thereof and in the process avoid the litigation so that the appellant is able to receive the compensation well in time. If for this purpose the appellant entered into the negotiations, such negotiations would be confined to the quantum of compensation only and cannot change or alter the nature of acquisition which would remain compulsory.
### Response:
1
### Explanation:
From the facts mentioned above, it becomes apparent that the acquisition process was initiated by invoking the provisions of LA Act by the State Government. For this purpose, not only Notification under Section 4 was issued, it was followed by declaration under Section 6 and even Award under Section 9 of the LA Act. With the award the acquisition under the LA Act was completed. Only thing that remains thereafter was to pay the compensation as fixed under the award and take possession of the land in question from the appellant. No doubt, in case, the compensation as fixed by the Land Acquisition Collector was not acceptable to the appellant, the LA Act provides for making a reference under Section 18 of the Act to the District Judge for determining the compensation and to decide as to whether the compensation fixed by the Land Acquisition Collector was proper or not. However, the matter thereafter is only for quantum of compensation which has nothing to do with the acquisition. It is clear from the above that insofar as acquisition is concerned, the appellant had succumbed to the action taken by the Government in this behalf. His only objection was to the market value of the land that was fixed as above. To reiterate his grievance, the appellant could have either taken the aforesaid adjudicatory route of seeking reference under Section 18 of the LA Act leaving it to the Court to determine the market value. Instead, the appellant negotiated with Techno Park and arrived at amicable settlement by agreeing to receive the compensation in the sum of Rs.For this purpose, after entering into the agreement, the appellant agreed to execute the sale deed as well which was a necessary consequence and a step which the appellant had to take.9. In our view, insofar as acquisition of the land is concerned, the same was compulsorily acquired as the entire procedure prescribed under the LA Act was followed. The settlement took place only qua the amount of the compensation which was to be received by the appellant for the land which had been acquired. It goes without saying that had steps not been taken by the Government under Sections 4 & 6 followed by award under Section 9 of the LA Act, the appellant would not have agreed to divest the land belonging to him to Techno Park. He was compelled to do so because of the compulsory acquisition and to avoid litigation entered into negotiations and settled the final compensation. Merely because the compensation amount is agreed upon would not change the character of acquisition from that of compulsory acquisition to the voluntary sale. It may be mentioned that this is now the procedure which is laid down even under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 as per which the Collector can pass rehabilitation and resettlement award with the consent of the parties/land owners. Nonetheless, the character of acquisition remains compulsory.10. This Court has doubts about the correctness of the judgment in the case of Info Park Kerala v. Assistant Commissioner of Income Tax (2008) 4 KLT 782. The Court in the said case took the view that since the title in the property was passed by the land owners on the strength of sale deeds executed by them, it was not a compulsory acquisition. We are not in agreement with the aforesaid view. It is clear that but for Notification under Section 4 and Award under Section 9 of the LA Act, the appellant would not have entered into any negotiations for the compensation of the consideration which he was to receive for the said land. As far as the acquisition of the land in question is concerned, there was no consent. The appellant was put in such a condition that he knew that his land had been acquired and he cannot reiterate the same. The appellant, therefore, only wanted to salvage the situation by receiving as much compensation as possible commensurate with the market value thereof and in the process avoid the litigation so that the appellant is able to receive the compensation well in time. If for this purpose the appellant entered into the negotiations, such negotiations would be confined to the quantum of compensation only and cannot change or alter the nature of acquisition which would remain compulsory.
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P.S.N.S. Ambalavana Chettiar And Co. Ltd And Anr Vs. Express Newspapers Ltd., Bombay | in the goods has passed to the buyer subject to the lien of the unpaid seller. Where the property in the goods has not passed to the buyer the seller has no right of resale under S 54 (2). The question is whether the property in the 300 tons of newsprint in sheets had passed to the appellants before the resale. 8. On November 13, 1951, the respondent agreed to sell to the appellants the stock of 415 tons of newsprint in sheets then lying in the respondents godown in Madras. There was an unconditional contract for the sale of specific goods in a deliverable state and the property in the goods then passed to the appellants. But on November 26, 1951, the contract was varied in a material particular. The parties agreed that the appellants would buy only .300 tons of the stock of 415 tons of newsprint then lying in the respondents godown. The result was that in place of the original contract for sale of specific goods a contract for sale of unascertained goods was substituted. 9. Rajagopala Ayyangar, J. held that the effect of the variation of the contract on November 26, 1951 was that the appellant and the respondent became joint owners of the stock of 415 tons. In our opinions this was not the correct legal position. The parties did not intend that the appellants would buy an undivided share in 415 tons of newsprint On November 26, 1951, the bargain between the parties was that appellants would buy and the respondent would sell 300 tons out of the larger stock of 415 tons. 10. The appellate Court held that the property in the entire 415 tons passed to the appellants who were subsequently relieved from, their liability to take 115 tons and that the respondent could resale any 300 tons out of the larger stock of 415 tons. We are unable to accept this line of reasoning. It is true that originally the property in the en tire 415 tons had passed to the appellants. But the result of the variation of the contract was to annul the passing of property in the goods. The effect of the bargain on November 26, 1951 was that the respondent would sell and deliver to the appellants any 300 tons out of the larger stock of 415 tons. As from November 26, 1951, the property in the entire stock of 415 tons belonged to the respondent. The parties did not intend that as from November 26, 1951 the property in any individual portion of the stock of 415 tons would remain vested in the appellants. 11. Section 18 of the Sale of Goods Act provides that where there is a contract for the sale of unascertained goods no property in the goods is transferred to the buyer unless and until the goods are ascertained. It is a condition precedent to the passing of property under a contract of sale that the goods are ascertained. The condition is not fulfilled where there is a contract for sale of a portion of a specified larger stock. Till the portion is identified and appropriated to the contract, no property passes to the buyer. In Gillett v. Hill, (1834) 2 Cr and M 530 (535): 149 ER 871 (873) Bayley, B said :"Where there is a bargain for a certain quantity ex a greater quantity, and there is a power of selection in the vendor to deliver which he thinks fit, then the right to them does not pass to the vendee until the vendor has made his selection, and trover is not maintainable before that is done. If I agree to deliver a certain quantity of oil as ten out of eighteen tons, no one can say which part of the whole quantity I have agreed to deliver until a selection is made. There is no individuality until it has been divided." 12. No portion of 415 tons of the newsprint lying in the respondents godown was appropriated to the contract by the respondent with the appellants consent before the resale. On the date of the resale, property in the goods had not passed to the buyer. Consequently, the respondent had no right to resell the goods under S. 54 (2). The claim to recover the deficiency on resale is not sustainable. 13. The respondent is entitled to claim as damages the differences, between the contract price and the market price on the date of tint breach. Where no time is fixed under the contract of sale for acceptance of the goods, the measure of damages is prima facie the difference between the contract price and the market price on the date of the refusal by the buyer to accept the goods, see Illustration (c) to S. 73 of the Indian Contract Act.In the present case, no time was fixed in the contract for acceptance of the goods. On March 29, 1952, the appellant refused to accept the goods. The respondent is entitled to the difference between the contract price and the market price on March 29, 1952. Counsel for both parties requested us that instead of remanding the matter we should assess the damages on this basis and finally dispose of the matter. We have gone through the materials on the record and with the assistance of counsel, we assess the market price of the Russian newsprint in sheets on March 29, 1952 at 8 annas per lb. Counsel on both sides agreed to this assessment. The claim of the respondent for Rs. 6,798-5-1 on account of interest and Rs. 1,119-6-0 for insurance charges is admitted before us by Mr. Gupte, on this basis the final position is as follows :Price of 122824 Lbs. at 9 1/2 anna par lb. less Rs 63.032 15.9Rs.9.596-14-8 Difference 547051 Lbs. at 1 1/2 anna per lb.Rs.51,286-0-6 InterestRs. 6,795-5-1 Insurance chargesRs. 1,119-6-0 Total amount due to the respondentRs. 68.797-9-10 Deduct amount due to the appellantsRs. 57,816-18-2 Balance due to the respondentRs 10,980-12-8 | 1[ds]5. The two Courts concurrently found that (1) appellant No. 2 was a party to the contract of purchase of 415 tons of newsprint in sheets, (2) on November 26, 1951 the parties orally agreed that instead of 415 tons the appellants would buy 300 tons of the newsprint and (3) there was no cancellation of the contract as alleged by the appellants. These findings are not challenged. The two Courts concurrently found that the resale held on April 21, 1952 was genuine and was effected at a proper price on due notice and after proper advertisement. Mr. Gupte attempted to challenge these findings, but we see no reason to interfere with themWe are inclined to accept this argument6. It is to be noticed that the contract did not envisage any loan of money by the respondent to the appellants on the security of the newsprint in sheets. The payment of Rs. 3,18,706-9-10 was made by the respondent towards part discharge of its liability for the price of the newsprint in reels10. The appellate Court held that the property in the entire 415 tons passed to the appellants who were subsequently relieved from, their liability to take 115 tons and that the respondent could resale any 300 tons out of the larger stock of 415 tons. We are unable to accept this line of reasoning. It is true that originally the property in the en tire 415 tons had passed to the appellants. But the result of the variation of the contract was to annul the passing of property in the goods. The effect of the bargain on November 26, 1951 was that the respondent would sell and deliver to the appellants any 300 tons out of the larger stock of 415 tons. As from November 26, 1951, the property in the entire stock of 415 tons belonged to the respondent. The parties did not intend that as from November 26, 1951 the property in any individual portion of the stock of 415 tons would remain vested in the appellants12. No portion of 415 tons of the newsprint lying in the respondents godown was appropriated to the contract by the respondent with the appellants consent before the resale. On the date of the resale, property in the goods had not passed to the buyer. Consequently, the respondent had no right to resell the goods under S. 54 (2). The claim to recover the deficiency on resale is not sustainable13. The respondent is entitled to claim as damages the differences, between the contract price and the market price on the date of tint breach. Where no time is fixed under the contract of sale for acceptance of the goods, the measure of damages is prima facie the difference between the contract price and the market price on the date of the refusal by the buyer to accept the goods, see Illustration (c) to S. 73 of the Indian Contract Act.In the present case, no time was fixed in the contract for acceptance of the goods. On March 29, 1952, the appellant refused to accept the goods. The respondent is entitled to the difference between the contract price and the market price on March 29, 1952. Counsel for both parties requested us that instead of remanding the matter we should assess the damages on this basis and finally dispose of the matter. We have gone through the materials on the record and with the assistance of counsel, we assess the market price of the Russian newsprint in sheets on March 29, 1952 at 8 annas per lb. Counsel on both sides agreed to this assessment. The claim of the respondent for Rs. 6,798-5-1 on account of interest and Rs. 1,119-6-0 for insurance charges is admitted before us by Mr. Gupte, on this basis the final position is as follows :Price of 122824 Lbs. at 9 1/2 anna par lb. less Rs 63.032 15.9Rs.9.596-14-8Difference 547051 Lbs. at 1 1/2 anna per lb.Rs.51,286-0-6Insurance chargesRs. 1,119-6-0Total amount due to the respondentRs. 68.797-9-10Deduct amount due to the appellantsRs. 57,816-18-2 | 1 | 2,508 | 744 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
in the goods has passed to the buyer subject to the lien of the unpaid seller. Where the property in the goods has not passed to the buyer the seller has no right of resale under S 54 (2). The question is whether the property in the 300 tons of newsprint in sheets had passed to the appellants before the resale. 8. On November 13, 1951, the respondent agreed to sell to the appellants the stock of 415 tons of newsprint in sheets then lying in the respondents godown in Madras. There was an unconditional contract for the sale of specific goods in a deliverable state and the property in the goods then passed to the appellants. But on November 26, 1951, the contract was varied in a material particular. The parties agreed that the appellants would buy only .300 tons of the stock of 415 tons of newsprint then lying in the respondents godown. The result was that in place of the original contract for sale of specific goods a contract for sale of unascertained goods was substituted. 9. Rajagopala Ayyangar, J. held that the effect of the variation of the contract on November 26, 1951 was that the appellant and the respondent became joint owners of the stock of 415 tons. In our opinions this was not the correct legal position. The parties did not intend that the appellants would buy an undivided share in 415 tons of newsprint On November 26, 1951, the bargain between the parties was that appellants would buy and the respondent would sell 300 tons out of the larger stock of 415 tons. 10. The appellate Court held that the property in the entire 415 tons passed to the appellants who were subsequently relieved from, their liability to take 115 tons and that the respondent could resale any 300 tons out of the larger stock of 415 tons. We are unable to accept this line of reasoning. It is true that originally the property in the en tire 415 tons had passed to the appellants. But the result of the variation of the contract was to annul the passing of property in the goods. The effect of the bargain on November 26, 1951 was that the respondent would sell and deliver to the appellants any 300 tons out of the larger stock of 415 tons. As from November 26, 1951, the property in the entire stock of 415 tons belonged to the respondent. The parties did not intend that as from November 26, 1951 the property in any individual portion of the stock of 415 tons would remain vested in the appellants. 11. Section 18 of the Sale of Goods Act provides that where there is a contract for the sale of unascertained goods no property in the goods is transferred to the buyer unless and until the goods are ascertained. It is a condition precedent to the passing of property under a contract of sale that the goods are ascertained. The condition is not fulfilled where there is a contract for sale of a portion of a specified larger stock. Till the portion is identified and appropriated to the contract, no property passes to the buyer. In Gillett v. Hill, (1834) 2 Cr and M 530 (535): 149 ER 871 (873) Bayley, B said :"Where there is a bargain for a certain quantity ex a greater quantity, and there is a power of selection in the vendor to deliver which he thinks fit, then the right to them does not pass to the vendee until the vendor has made his selection, and trover is not maintainable before that is done. If I agree to deliver a certain quantity of oil as ten out of eighteen tons, no one can say which part of the whole quantity I have agreed to deliver until a selection is made. There is no individuality until it has been divided." 12. No portion of 415 tons of the newsprint lying in the respondents godown was appropriated to the contract by the respondent with the appellants consent before the resale. On the date of the resale, property in the goods had not passed to the buyer. Consequently, the respondent had no right to resell the goods under S. 54 (2). The claim to recover the deficiency on resale is not sustainable. 13. The respondent is entitled to claim as damages the differences, between the contract price and the market price on the date of tint breach. Where no time is fixed under the contract of sale for acceptance of the goods, the measure of damages is prima facie the difference between the contract price and the market price on the date of the refusal by the buyer to accept the goods, see Illustration (c) to S. 73 of the Indian Contract Act.In the present case, no time was fixed in the contract for acceptance of the goods. On March 29, 1952, the appellant refused to accept the goods. The respondent is entitled to the difference between the contract price and the market price on March 29, 1952. Counsel for both parties requested us that instead of remanding the matter we should assess the damages on this basis and finally dispose of the matter. We have gone through the materials on the record and with the assistance of counsel, we assess the market price of the Russian newsprint in sheets on March 29, 1952 at 8 annas per lb. Counsel on both sides agreed to this assessment. The claim of the respondent for Rs. 6,798-5-1 on account of interest and Rs. 1,119-6-0 for insurance charges is admitted before us by Mr. Gupte, on this basis the final position is as follows :Price of 122824 Lbs. at 9 1/2 anna par lb. less Rs 63.032 15.9Rs.9.596-14-8 Difference 547051 Lbs. at 1 1/2 anna per lb.Rs.51,286-0-6 InterestRs. 6,795-5-1 Insurance chargesRs. 1,119-6-0 Total amount due to the respondentRs. 68.797-9-10 Deduct amount due to the appellantsRs. 57,816-18-2 Balance due to the respondentRs 10,980-12-8
### Response:
1
### Explanation:
5. The two Courts concurrently found that (1) appellant No. 2 was a party to the contract of purchase of 415 tons of newsprint in sheets, (2) on November 26, 1951 the parties orally agreed that instead of 415 tons the appellants would buy 300 tons of the newsprint and (3) there was no cancellation of the contract as alleged by the appellants. These findings are not challenged. The two Courts concurrently found that the resale held on April 21, 1952 was genuine and was effected at a proper price on due notice and after proper advertisement. Mr. Gupte attempted to challenge these findings, but we see no reason to interfere with themWe are inclined to accept this argument6. It is to be noticed that the contract did not envisage any loan of money by the respondent to the appellants on the security of the newsprint in sheets. The payment of Rs. 3,18,706-9-10 was made by the respondent towards part discharge of its liability for the price of the newsprint in reels10. The appellate Court held that the property in the entire 415 tons passed to the appellants who were subsequently relieved from, their liability to take 115 tons and that the respondent could resale any 300 tons out of the larger stock of 415 tons. We are unable to accept this line of reasoning. It is true that originally the property in the en tire 415 tons had passed to the appellants. But the result of the variation of the contract was to annul the passing of property in the goods. The effect of the bargain on November 26, 1951 was that the respondent would sell and deliver to the appellants any 300 tons out of the larger stock of 415 tons. As from November 26, 1951, the property in the entire stock of 415 tons belonged to the respondent. The parties did not intend that as from November 26, 1951 the property in any individual portion of the stock of 415 tons would remain vested in the appellants12. No portion of 415 tons of the newsprint lying in the respondents godown was appropriated to the contract by the respondent with the appellants consent before the resale. On the date of the resale, property in the goods had not passed to the buyer. Consequently, the respondent had no right to resell the goods under S. 54 (2). The claim to recover the deficiency on resale is not sustainable13. The respondent is entitled to claim as damages the differences, between the contract price and the market price on the date of tint breach. Where no time is fixed under the contract of sale for acceptance of the goods, the measure of damages is prima facie the difference between the contract price and the market price on the date of the refusal by the buyer to accept the goods, see Illustration (c) to S. 73 of the Indian Contract Act.In the present case, no time was fixed in the contract for acceptance of the goods. On March 29, 1952, the appellant refused to accept the goods. The respondent is entitled to the difference between the contract price and the market price on March 29, 1952. Counsel for both parties requested us that instead of remanding the matter we should assess the damages on this basis and finally dispose of the matter. We have gone through the materials on the record and with the assistance of counsel, we assess the market price of the Russian newsprint in sheets on March 29, 1952 at 8 annas per lb. Counsel on both sides agreed to this assessment. The claim of the respondent for Rs. 6,798-5-1 on account of interest and Rs. 1,119-6-0 for insurance charges is admitted before us by Mr. Gupte, on this basis the final position is as follows :Price of 122824 Lbs. at 9 1/2 anna par lb. less Rs 63.032 15.9Rs.9.596-14-8Difference 547051 Lbs. at 1 1/2 anna per lb.Rs.51,286-0-6Insurance chargesRs. 1,119-6-0Total amount due to the respondentRs. 68.797-9-10Deduct amount due to the appellantsRs. 57,816-18-2
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General Electric Technical Servicescompany Inc Vs. Punj Sons (P) Ltd. And Another | the other terms and conditions of the original guarantee will remain unchanged. The liability of the Bank shall automatically reduce from Rs 2, 12, 25, 000 to Rs 1, 06, 12, 500 on June 30, 1988, which will continue even after June 30, 1988 and will be conditional upon a claim being filed with the Bank in writing on or before June 30, 1989. In the first guarantee, the Bank has undertaken to pay to GETSCO the amount guaranteed without any demur merely on demand stating that the amount is due by way of loss or damage caused to or would be caused to or suffer by GETSCO by reason of any breach committed by the respondent on any of the terms or conditions contained in the agreement or by reason of respondents failure to perform the agreement. It is also provided that any such demand by GETSCO made on the Bank shall be conclusive as regards the amount due and payable by the Bank under the guarantee. The GETSCO has only sought to enforce the bank guarantee for the balance amount of Rs 1, 06, 12, 500 on a complaint the respondent 1, has failed to perform the contract as per the terms and conditions. The Bank has undertaken to pay this sum of money and it is a commitment of the Bank. The Bank must honour its commitment when demand is made. Indeed, the Bank was prepared to pay and has in fact issued the cashiers order as per demand from GETSCO, but the court has directed the Bank not to pay under the guarantee 9. The question is whether the court was justified in restraining the Bank from paying to GETSCO under the bank guarantee at the instance of respondent 1. The law as to the contractual obligations under the bank guarantee has been well settled in a catena of cases. Almost all such cases have been considered in a recent judgment of this Court in U.P. Cooperative Federation Ltd. v. Singh Consultants and Engineers (P) Ltd. ( 1988 (1) SCC 174 ) wherein Sabyasachi Mukharji, J., as he then was, observed (SCC p. 189, para 28) that "(I)n order to restrain the operation either of irrevocable letter of credit or of confirmed letter of credit or of bank guarantee, there should be serious dispute and there should be good prima facie case of fraud and special equities in the form of preventing irretrievable injustice between the parties. Otherwise, the very purpose of bank guarantees would be negatived and the fabric of trading operations will get jeopardised". It was further observed that the Bank must honour the bank guarantee free from interference by the courts. Otherwise, trust in commerce internal and international would be irreparably damaged. It is only in exceptional cases that it to say in case of fraud or in case of irretrievable injustice, the court should interfere. In the concurring opinion one of us (K. Jagannatha Shetty, J.) has observed that whether it is a traditional bond or performance guarantee, the obligation of the Bank appears to be the same. If the documentary credits are irrevocable and independent, the Bank must pay when demand is made. Since the Bank pledges its own credit involving its reputation, it has no defence except in the case of fraud. The Banks obligations of course should not to extended to protect the unscrupulous party, that is, the party who is responsible for fraud. But the banker must be sure of his ground before declining to pay. The nature of the fraud that the courts talk about is fraud of an "egregious nature as to vitiate the entire underlying transaction". It is fraud of the beneficiary, not the fraud of somebody else 10. The High Court has observed that failure on the part of GETSCO to make a reference to mobilisation advance in the letter seeking encashment of the bank guarantee would tantamount to suppression of material facts, in the sense that the mobilisation advance was, under the contract to be recovered from the running bills. It was further observed that disclosure of such facts would have put the bank to further inquiry as to what was the amount covered by those bills and what was the corresponding amount of the mobilisation advance and to what extent the amount covered by the bank guarantee remained payable. In any event, the High Court said, that GETSCO could not demand full amount of the bank guarantee on April 17, 1989. It seems to us that the High Court has misconstrued the terms of the bank guarantee and the nature of the inter-se rights of the parties under the contract. The mobilisation advance is required to be recovered by GETSCO from the running bills submitted by the respondent. If the full mobilisation advance has not been recovered, it would be to the advantage of the respondent. Secondly, the Bank is not concerned with the outstanding amount payable by GETSCO under the running bills. The right to recover the amount under the running bills has no relevance to the liability of the Bank under the guarantee. The liability of the Bank remained intact irrespective of the recovery of mobilisation advance of the non-payment under the running bills. The failure on the part of GETSCO to specify the remaining mobilisation advance in the letter for encashment of bank guarantee is of little consequence to the liability of the Bank under the guarantee. The demand by GETSCO is under the bank guarantee and as per the terms thereof. The Bank has to pay and the Bank was willing to pay as per the undertaking. The Bank cannot be interdicted by the court at the instance of respondent 1 in the absence of fraud or special equities in the form of preventing irretrievable injustice between the parties. The High Court in the absence of prima facie case on such matters has committed an error in restraining the Bank from honouring its commitment under the bank guarantee | 1[ds]It seems to us that the High Court has misconstrued the terms of the bank guarantee and the nature of the inter-se rights of the parties under the contract. The mobilisation advance is required to be recovered by GETSCO from the running bills submitted by the respondent. If the full mobilisation advance has not been recovered, it would be to the advantage of the respondent. Secondly, the Bank is not concerned with the outstanding amount payable by GETSCO under the running bills. The right to recover the amount under the running bills has no relevance to the liability of the Bank under the guarantee. The liability of the Bank remained intact irrespective of the recovery of mobilisation advance of the non-payment under the running bills. The failure on the part of GETSCO to specify the remaining mobilisation advance in the letter for encashment of bank guarantee is of little consequence to the liability of the Bank under the guarantee. The demand by GETSCO is under the bank guarantee and as per the terms thereof. The Bank has to pay and the Bank was willing to pay as per the undertaking. The Bank cannot be interdicted by the court at the instance of respondent 1 in the absence of fraud or special equities in the form of preventing irretrievable injustice between the parties. The High Court in the absence of prima facie case on such matters has committed an error in restraining the Bank from honouring its commitment under the bankseems to us that the High Court has misconstrued the terms of the bank guarantee and the nature of the inter-se rights of the parties under the contract. The mobilisation advance is required to be recovered by GETSCO from the running bills submitted by the respondent. If the full mobilisation advance has not been recovered, it would be to the advantage of the respondent. Secondly, the Bank is not concerned with the outstanding amount payable by GETSCO under the running bills. The right to recover the amount under the running bills has no relevance to the liability of the Bank under the guarantee. The liability of the Bank remained intact irrespective of the recovery of mobilisation advance of the non-payment under the running bills. The failure on the part of GETSCO to specify the remaining mobilisation advance in the letter for encashment of bank guarantee is of little consequence to the liability of the Bank under the guarantee. The demand by GETSCO is under the bank guarantee and as per the terms thereof. The Bank has to pay and the Bank was willing to pay as per the undertaking. The Bank cannot be interdicted by the court at the instance of respondent 1 in the absence of fraud or special equities in the form of preventing irretrievable injustice between the parties. The High Court in the absence of prima facie case on such matters has committed an error in restraining the Bank from honouring its commitment under the bank | 1 | 3,399 | 528 | ### 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 other terms and conditions of the original guarantee will remain unchanged. The liability of the Bank shall automatically reduce from Rs 2, 12, 25, 000 to Rs 1, 06, 12, 500 on June 30, 1988, which will continue even after June 30, 1988 and will be conditional upon a claim being filed with the Bank in writing on or before June 30, 1989. In the first guarantee, the Bank has undertaken to pay to GETSCO the amount guaranteed without any demur merely on demand stating that the amount is due by way of loss or damage caused to or would be caused to or suffer by GETSCO by reason of any breach committed by the respondent on any of the terms or conditions contained in the agreement or by reason of respondents failure to perform the agreement. It is also provided that any such demand by GETSCO made on the Bank shall be conclusive as regards the amount due and payable by the Bank under the guarantee. The GETSCO has only sought to enforce the bank guarantee for the balance amount of Rs 1, 06, 12, 500 on a complaint the respondent 1, has failed to perform the contract as per the terms and conditions. The Bank has undertaken to pay this sum of money and it is a commitment of the Bank. The Bank must honour its commitment when demand is made. Indeed, the Bank was prepared to pay and has in fact issued the cashiers order as per demand from GETSCO, but the court has directed the Bank not to pay under the guarantee 9. The question is whether the court was justified in restraining the Bank from paying to GETSCO under the bank guarantee at the instance of respondent 1. The law as to the contractual obligations under the bank guarantee has been well settled in a catena of cases. Almost all such cases have been considered in a recent judgment of this Court in U.P. Cooperative Federation Ltd. v. Singh Consultants and Engineers (P) Ltd. ( 1988 (1) SCC 174 ) wherein Sabyasachi Mukharji, J., as he then was, observed (SCC p. 189, para 28) that "(I)n order to restrain the operation either of irrevocable letter of credit or of confirmed letter of credit or of bank guarantee, there should be serious dispute and there should be good prima facie case of fraud and special equities in the form of preventing irretrievable injustice between the parties. Otherwise, the very purpose of bank guarantees would be negatived and the fabric of trading operations will get jeopardised". It was further observed that the Bank must honour the bank guarantee free from interference by the courts. Otherwise, trust in commerce internal and international would be irreparably damaged. It is only in exceptional cases that it to say in case of fraud or in case of irretrievable injustice, the court should interfere. In the concurring opinion one of us (K. Jagannatha Shetty, J.) has observed that whether it is a traditional bond or performance guarantee, the obligation of the Bank appears to be the same. If the documentary credits are irrevocable and independent, the Bank must pay when demand is made. Since the Bank pledges its own credit involving its reputation, it has no defence except in the case of fraud. The Banks obligations of course should not to extended to protect the unscrupulous party, that is, the party who is responsible for fraud. But the banker must be sure of his ground before declining to pay. The nature of the fraud that the courts talk about is fraud of an "egregious nature as to vitiate the entire underlying transaction". It is fraud of the beneficiary, not the fraud of somebody else 10. The High Court has observed that failure on the part of GETSCO to make a reference to mobilisation advance in the letter seeking encashment of the bank guarantee would tantamount to suppression of material facts, in the sense that the mobilisation advance was, under the contract to be recovered from the running bills. It was further observed that disclosure of such facts would have put the bank to further inquiry as to what was the amount covered by those bills and what was the corresponding amount of the mobilisation advance and to what extent the amount covered by the bank guarantee remained payable. In any event, the High Court said, that GETSCO could not demand full amount of the bank guarantee on April 17, 1989. It seems to us that the High Court has misconstrued the terms of the bank guarantee and the nature of the inter-se rights of the parties under the contract. The mobilisation advance is required to be recovered by GETSCO from the running bills submitted by the respondent. If the full mobilisation advance has not been recovered, it would be to the advantage of the respondent. Secondly, the Bank is not concerned with the outstanding amount payable by GETSCO under the running bills. The right to recover the amount under the running bills has no relevance to the liability of the Bank under the guarantee. The liability of the Bank remained intact irrespective of the recovery of mobilisation advance of the non-payment under the running bills. The failure on the part of GETSCO to specify the remaining mobilisation advance in the letter for encashment of bank guarantee is of little consequence to the liability of the Bank under the guarantee. The demand by GETSCO is under the bank guarantee and as per the terms thereof. The Bank has to pay and the Bank was willing to pay as per the undertaking. The Bank cannot be interdicted by the court at the instance of respondent 1 in the absence of fraud or special equities in the form of preventing irretrievable injustice between the parties. The High Court in the absence of prima facie case on such matters has committed an error in restraining the Bank from honouring its commitment under the bank guarantee
### Response:
1
### Explanation:
It seems to us that the High Court has misconstrued the terms of the bank guarantee and the nature of the inter-se rights of the parties under the contract. The mobilisation advance is required to be recovered by GETSCO from the running bills submitted by the respondent. If the full mobilisation advance has not been recovered, it would be to the advantage of the respondent. Secondly, the Bank is not concerned with the outstanding amount payable by GETSCO under the running bills. The right to recover the amount under the running bills has no relevance to the liability of the Bank under the guarantee. The liability of the Bank remained intact irrespective of the recovery of mobilisation advance of the non-payment under the running bills. The failure on the part of GETSCO to specify the remaining mobilisation advance in the letter for encashment of bank guarantee is of little consequence to the liability of the Bank under the guarantee. The demand by GETSCO is under the bank guarantee and as per the terms thereof. The Bank has to pay and the Bank was willing to pay as per the undertaking. The Bank cannot be interdicted by the court at the instance of respondent 1 in the absence of fraud or special equities in the form of preventing irretrievable injustice between the parties. The High Court in the absence of prima facie case on such matters has committed an error in restraining the Bank from honouring its commitment under the bankseems to us that the High Court has misconstrued the terms of the bank guarantee and the nature of the inter-se rights of the parties under the contract. The mobilisation advance is required to be recovered by GETSCO from the running bills submitted by the respondent. If the full mobilisation advance has not been recovered, it would be to the advantage of the respondent. Secondly, the Bank is not concerned with the outstanding amount payable by GETSCO under the running bills. The right to recover the amount under the running bills has no relevance to the liability of the Bank under the guarantee. The liability of the Bank remained intact irrespective of the recovery of mobilisation advance of the non-payment under the running bills. The failure on the part of GETSCO to specify the remaining mobilisation advance in the letter for encashment of bank guarantee is of little consequence to the liability of the Bank under the guarantee. The demand by GETSCO is under the bank guarantee and as per the terms thereof. The Bank has to pay and the Bank was willing to pay as per the undertaking. The Bank cannot be interdicted by the court at the instance of respondent 1 in the absence of fraud or special equities in the form of preventing irretrievable injustice between the parties. The High Court in the absence of prima facie case on such matters has committed an error in restraining the Bank from honouring its commitment under the bank
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Gurdial Singh and Others Vs. Biru and Others | MATHEW, J.1. This is an appeal by special leave against the decree of the High Court of Punjab and Haryana confirming the decrees passed by the courts below decreeing a suit filed by the respondents against the appellants. The suit was for recovery of possession of a piece of land measuring 29 kanals from the appellants. The allegations in the plaint were that the land originally belonged to one Atta Mohammed and others, plaint that the respondents were occupancy tenants of the land; that by virtue of the provisions of the Punjab Occupancy Tenants (Vesting of Preparatory Rights) Act the respondents became the owners of the land and that since the appellants had taken forcible possession of the land in 1958 they were entitled to evict the appellants.2. The appellants contended that they were the tenants of the land and that the civil court had no jurisdiction to try the suit.3. The trial Court accepted the contention of the appellants and directed the return of the plaint to the respondents for presentation to the Revenue Court. Against this judgment, the respondents appealed to the learned Subordinate Judge, Ludhiana who remanded the case to the trial Court for decision of the case on merits. The appellants filed a second appeal and the same was disposed of by learned Single Judge of the High Court. By this judgment he directed the trial Court to find whether the appellants were trespassers or tenants and in case they were found to be trespassers, the trial Court will have jurisdiction to pass a decree against them, but in case they were found to be tenants, the suit will have to be dismissed. Thereafter the appellants applied before the trial Court for amendment of the written statement on the basis that they had become the occupancy tenants of the land by adverse possession against the original proprietors and had become owners of it under the Punjab Occupancy Tenants (Vesting of Preparatory Rights) Act and that the suit was barred by limitation. The trial Court allowed the amendment and framed issues on the basis of the contentions in the amended written statement. The trial Court found that the respondents were the occupancy tenants of the land and that the appellants had not become the owners of the land by adverse possession and that the suit was not barred by limitation. The court, therefore, decreed the suit.4. An appeal was filed by the appellants before the lower appellate Court. That was dismissed. The appellants filed a second appeal against the decree before the High Court. The High Court also dismissed the appeal.5. The appellants contended before us that they were tenants of the land and that they had become occupancy tenants by virtue of adverse possession against the original proprietors and that they were the owners of the land. On the other hand, the respondents submitted that they were in possession of the land, that they had acquired the occupancy right and that it was only in Rabi, 1958 that they were forcibly dispossessed by the appellants. The question whether the appellants were in possession of the land as tenants on the date of the suit was considered by the trial Court as well as by the first appellate Court and they held that there was no evidence that in 1958 the appellants were tenants of the land. Apart from it in the amended written statement the appellants case was that they became owners of the land firstly by reason of their adverse possession of the land for the requisite period and secondly by reason of the fact that they were occupancy tenants within the meaning of the Punjab Occupancy Tenants (Vesting of Proprietory Rights) Act. After the amendment of the written statement the appellants had no case that they were tenants of the land and that the civil court had, therefore, no jurisdiction to try the suit. In fact their expressly stated in the trial Court that the plea with regard to lack of jurisdiction had been abandoned. Now the courts below including the High Court have found that the respondents were in actual possession of the land till Rabi, 1958, that they were the occupancy tenants; that the appellants forcibly took possession of the land in Rabi 1958 and that since the suit was filed in May, 1958, the suit was not barred by limitation.6. Counsel for the appellants argued that khasra girdawaris showed that from 1931 to Rabi 1956 and then from Rabi 1957 onwards the appellants were in possession, that it was only in Kharif 1957 that the entry had been changed in favour of the respondents and that the change in the entry was recorded by the patwari without observing the relevant instructions on this point. The High Court had overruled this plea. It held that no reason had been shown for holding that the entry was incorrect. The appellants made no effort for correction of the entry in khasra girdawari Kharif 1957 at any time. In these circumstances, we see no reason to differ from concurrent finding of the courts on this point. Counsel for the appellants submitted that since the appellants were tenants within the meaning of the Punjab Security of Land Tenures Act, 1953 and that as none of the grounds of eviction mentioned in Section 9 of that Act had been pleaded or made out, the appellants were not liable to be evicted. We see no merits in this contention. This plea was not raised before any of the courts below and is not even mentioned in the statement of case or grounds of appeal before this Court. | 0[ds]The question whether the appellants were in possession of the land as tenants on the date of the suit was considered by the trial Court as well as by the first appellate Court and they held that there was no evidence that in 1958 the appellants were tenants of the land. Apart from it in the amended written statement the appellants case was that they became owners of the land firstly by reason of their adverse possession of the land for the requisite period and secondly by reason of the fact that they were occupancy tenants within the meaning of the Punjab Occupancy Tenants (Vesting of Proprietory Rights) Act. After the amendment of the written statement the appellants had no case that they were tenants of the land and that the civil court had, therefore, no jurisdiction to try the suit. In fact their expressly stated in the trial Court that the plea with regard to lack of jurisdiction had been abandoned. Now the courts below including the High Court have found that the respondents were in actual possession of the land till Rabi, 1958, that they were the occupancy tenants; that the appellants forcibly took possession of the land in Rabi 1958 and that since the suit was filed in May, 1958, the suit was not barred by limitation.6.Counsel for the appellants argued that khasra girdawaris showed that from 1931 to Rabi 1956 and then from Rabi 1957 onwards the appellants were in possession, that it was only in Kharif 1957 that the entry had been changed in favour of the respondents and that the change in the entry was recorded by the patwari without observing the relevant instructions on this point.The High Court had overruled this plea. It held that no reason had been shown for holding that the entry was incorrect. The appellants made no effort for correction of the entry in khasra girdawari Kharif 1957 at anythese circumstances, we see no reason to differ from concurrent finding of the courts on this point. Counsel for the appellants submitted that since the appellants were tenants within the meaning of the Punjab Security of Land Tenures Act, 1953 and that as none of the grounds of eviction mentioned in Section 9 of that Act had been pleaded or made out, the appellants were not liable to be evicted. We see no merits in this contention. This plea was not raised before any of the courts below and is not even mentioned in the statement of case or grounds of appeal before this Court. | 0 | 1,001 | 452 | ### 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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MATHEW, J.1. This is an appeal by special leave against the decree of the High Court of Punjab and Haryana confirming the decrees passed by the courts below decreeing a suit filed by the respondents against the appellants. The suit was for recovery of possession of a piece of land measuring 29 kanals from the appellants. The allegations in the plaint were that the land originally belonged to one Atta Mohammed and others, plaint that the respondents were occupancy tenants of the land; that by virtue of the provisions of the Punjab Occupancy Tenants (Vesting of Preparatory Rights) Act the respondents became the owners of the land and that since the appellants had taken forcible possession of the land in 1958 they were entitled to evict the appellants.2. The appellants contended that they were the tenants of the land and that the civil court had no jurisdiction to try the suit.3. The trial Court accepted the contention of the appellants and directed the return of the plaint to the respondents for presentation to the Revenue Court. Against this judgment, the respondents appealed to the learned Subordinate Judge, Ludhiana who remanded the case to the trial Court for decision of the case on merits. The appellants filed a second appeal and the same was disposed of by learned Single Judge of the High Court. By this judgment he directed the trial Court to find whether the appellants were trespassers or tenants and in case they were found to be trespassers, the trial Court will have jurisdiction to pass a decree against them, but in case they were found to be tenants, the suit will have to be dismissed. Thereafter the appellants applied before the trial Court for amendment of the written statement on the basis that they had become the occupancy tenants of the land by adverse possession against the original proprietors and had become owners of it under the Punjab Occupancy Tenants (Vesting of Preparatory Rights) Act and that the suit was barred by limitation. The trial Court allowed the amendment and framed issues on the basis of the contentions in the amended written statement. The trial Court found that the respondents were the occupancy tenants of the land and that the appellants had not become the owners of the land by adverse possession and that the suit was not barred by limitation. The court, therefore, decreed the suit.4. An appeal was filed by the appellants before the lower appellate Court. That was dismissed. The appellants filed a second appeal against the decree before the High Court. The High Court also dismissed the appeal.5. The appellants contended before us that they were tenants of the land and that they had become occupancy tenants by virtue of adverse possession against the original proprietors and that they were the owners of the land. On the other hand, the respondents submitted that they were in possession of the land, that they had acquired the occupancy right and that it was only in Rabi, 1958 that they were forcibly dispossessed by the appellants. The question whether the appellants were in possession of the land as tenants on the date of the suit was considered by the trial Court as well as by the first appellate Court and they held that there was no evidence that in 1958 the appellants were tenants of the land. Apart from it in the amended written statement the appellants case was that they became owners of the land firstly by reason of their adverse possession of the land for the requisite period and secondly by reason of the fact that they were occupancy tenants within the meaning of the Punjab Occupancy Tenants (Vesting of Proprietory Rights) Act. After the amendment of the written statement the appellants had no case that they were tenants of the land and that the civil court had, therefore, no jurisdiction to try the suit. In fact their expressly stated in the trial Court that the plea with regard to lack of jurisdiction had been abandoned. Now the courts below including the High Court have found that the respondents were in actual possession of the land till Rabi, 1958, that they were the occupancy tenants; that the appellants forcibly took possession of the land in Rabi 1958 and that since the suit was filed in May, 1958, the suit was not barred by limitation.6. Counsel for the appellants argued that khasra girdawaris showed that from 1931 to Rabi 1956 and then from Rabi 1957 onwards the appellants were in possession, that it was only in Kharif 1957 that the entry had been changed in favour of the respondents and that the change in the entry was recorded by the patwari without observing the relevant instructions on this point. The High Court had overruled this plea. It held that no reason had been shown for holding that the entry was incorrect. The appellants made no effort for correction of the entry in khasra girdawari Kharif 1957 at any time. In these circumstances, we see no reason to differ from concurrent finding of the courts on this point. Counsel for the appellants submitted that since the appellants were tenants within the meaning of the Punjab Security of Land Tenures Act, 1953 and that as none of the grounds of eviction mentioned in Section 9 of that Act had been pleaded or made out, the appellants were not liable to be evicted. We see no merits in this contention. This plea was not raised before any of the courts below and is not even mentioned in the statement of case or grounds of appeal before this Court.
### Response:
0
### Explanation:
The question whether the appellants were in possession of the land as tenants on the date of the suit was considered by the trial Court as well as by the first appellate Court and they held that there was no evidence that in 1958 the appellants were tenants of the land. Apart from it in the amended written statement the appellants case was that they became owners of the land firstly by reason of their adverse possession of the land for the requisite period and secondly by reason of the fact that they were occupancy tenants within the meaning of the Punjab Occupancy Tenants (Vesting of Proprietory Rights) Act. After the amendment of the written statement the appellants had no case that they were tenants of the land and that the civil court had, therefore, no jurisdiction to try the suit. In fact their expressly stated in the trial Court that the plea with regard to lack of jurisdiction had been abandoned. Now the courts below including the High Court have found that the respondents were in actual possession of the land till Rabi, 1958, that they were the occupancy tenants; that the appellants forcibly took possession of the land in Rabi 1958 and that since the suit was filed in May, 1958, the suit was not barred by limitation.6.Counsel for the appellants argued that khasra girdawaris showed that from 1931 to Rabi 1956 and then from Rabi 1957 onwards the appellants were in possession, that it was only in Kharif 1957 that the entry had been changed in favour of the respondents and that the change in the entry was recorded by the patwari without observing the relevant instructions on this point.The High Court had overruled this plea. It held that no reason had been shown for holding that the entry was incorrect. The appellants made no effort for correction of the entry in khasra girdawari Kharif 1957 at anythese circumstances, we see no reason to differ from concurrent finding of the courts on this point. Counsel for the appellants submitted that since the appellants were tenants within the meaning of the Punjab Security of Land Tenures Act, 1953 and that as none of the grounds of eviction mentioned in Section 9 of that Act had been pleaded or made out, the appellants were not liable to be evicted. We see no merits in this contention. This plea was not raised before any of the courts below and is not even mentioned in the statement of case or grounds of appeal before this Court.
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Commissioner Of Income Tax, Coimbatore Vs. M/S. Lakshmi Machine Works | particularly, when those legislative changes indicate that the legislature intended to exclude items like commission and interest from deduction on the ground that they did not possess any element of "turnover" even though commission and interest emanated from exports. We have to read the words "total turnover" in Section 80HHC as part of the formula which sought to segregate the "export profits" from the "business profits". Therefore, we have to read the formula in entirety. In that formula the entire business profits is not given deduction. It is the business profit which is proportionately reduced by the above fraction/ratio of export turnover w total turnover which constitute 80HHC concession (deduction). Income in the nature of "business profits" was, therefore, apportioned.19. The above formula fixed a ratio in which "business profits" under Section 28 of the Act had to be apportioned. Therefore, one has to give weightage not only to the words "total turnover" but also to the words "export turnover", "total export turnover" and "business profits". That is the reason why we have quoted hereinabove extensively the illustration from the Direct Taxes (Income tax) Ready Reckoner of the relevant word.20. In the circumstances, we cannot interpret the words "total turnover" in the above formula with reference to the definition of the word "turnover" in other laws like Central Sales Tax or as defined in accounting principles. Goods for export do not incur excise duty liability. As stated above, even commission and interest formed a part of the profit and loss account, however, they were not eligible for deduction under Section 80HHC. They were not eligible even without the clarification introduced by the legislature by various amendments because they did not involve any element of turnover. Further, in all other provisions of the income tax, profits and gains were required to be computed with reference to the books of accounts of the assessee. However, as can be seen from the Income Tax Rules and from the above Form No.10CCAC in the case of deduction under Section 80HHC a report of the auditor certifying deduction based on export turnover was sufficient. This is because the very basis for computing Section 80HHC deduction was "business profits" as computed under Section 28, a portion of which had to be apportioned in terms of the above ratio of export turnover to total turnover. Section 80HHC(3) was a beneficial section. It was intended to provide incentives to promote exports. The incentive was to exempt profits relatable to exports. In the case of combined business of an assessee having export business and domestic business the legislature intended to have a formula to ascertain export profits by apportioning the total business profits on the basis of turnovers. Apportionment of profits on the basis of turnover was accepted as a method of arriving at export profits. This method earlier existed under Excess Profits Tax Act, it existed in the Business Profits Tax Act.21. Therefore, just as commission received by an assessee is relatable to exports and yet it cannot form part of "turnover", excise duty and sales tax also cannot form part of the "turnover". Similarly, "interest" emanates from exports and yet "interest" does not involve an element of turnover. The object of the legislature in enacting Section 80HHC of the Act was to confer a benefit on profits accruing with reference to export turnover. Therefore, "turnover" was the requirement. Commission, rent, interest etc. did not involve any turnover. Therefore, 90% of such commission, interest etc. was excluded from the profits derived from the export. Therefore, even without the clarification such items did not form part of the formula in Section 80HHC(3) for the simple reason that it did not emanate from the "export turnover", much less any turnover.22. Even if the assessee was an exclusive dealer in exports, the said commission was not includible as it did not spring from the "turnover". Just as interest, commission etc. did not emanate from the "turnover", so also excise duty and sales tax did not emanate from such turnover. Since excise duty and sales tax did not involve any such turnover, such taxes had to be excluded. Commission, interest, rent etc. do yield profits, but they do not partake of the character of turnover and, therefore, they were not includible in the "total turnover". The above discussion shows that income from rent, commission etc. cannot be considered as part of business profits and, therefore, they cannot be held as part of the turnover also. In fact, in Civil Appeal No.4409 of 2005, the above proposition has been accepted by the A.O. [See: page no.24 of the paper book], if so, then excise duty and sales tax also cannot form part of the "total turnover" under Section 80HHC(3), otherwise the formula becomes unworkable. In our view, sales tax and excise duty also do not have any element of "turnover" which is the position even in the case of rent, commission, interest etc. It is important to bear in mind that excise duty and sales tax are indirect taxes. They are recovered by the assessee on behalf of the Government. Therefore, if they are made relatable to exports, the formula under Section 80HHC would become unworkable. The view which we have taken is in the light of amendments made to Section 80HHC from time to time.23. Before concluding we may state that profits are of three types, namely, book-profits, statutory profits and actual profits. The amendments to Section 80HHC(3) indicate exclusion of book profits. For example, commission, interest, etc. do form part of the profit and loss account but for the purposes of calculation of profits derived from local sales and exports, they stand excluded. The difficulty arises because the formula is based on the Hybrid System of Profits, namely, actual and statutory profits. Therefore, this judgment should be read in the context of the above parameters. Our reasoning in this judgment is confined to the workability of the formula in Section 80HHC(3) of the Act as it stood at the material time. | 0[ds]15. The principal reason for enacting the above formula was to disallow a part of 80HHC concession when the entire deduction claimed could not be regarded as relatable to exports. Therefore, while interpreting the words "total turnover" in the above formula in Section 80HHC one has to give a schematic interpretation to that expression. There is one more reason for giving schematic interpretation. The various amendments to Section 80HHC show that receipts by way of brokerage, commission, interest, rent etc. do not form part of business profits as they have no nexus with the activity of exports. If interest or rent was not regarded by the legislature as business profits, the question of treating the same as part of the total turnover in the above formula did not arise. In fact, Section 80 HHC had to be amended several times since the formula on several occasions gave a distorted figure of export profits when receipts like interest, rent, commission etc. which did not have the element of turnover got included in the profit and loss account and consequently became entitled to deduction. This was clarified by the above amendment to Section 80HHC commencing from 1.4.92. The said amendment made it clear that though commission and interest emanated from exports, they did not involve any element of turnover and merely for the reason that commission, interest, rent etc. were included in the profit and loss account, they did not become eligible to deduction. We have to give purposeful interpretation to the above section. The said section is entirely based on the formula. The amendments from time to time indicate that they became necessary in order to make the formula workable. Hence, we have to give schematic interpretation to Section 80HHC of the Act.We do not find any merit in the above contentions advanced on behalf of the Department. It is important to note that tax under the Act is upon income, profits and gains. It is not a tax on gross receipts. Under Section 2(24) of the Act the word "income" includes profits and gains. The charge is not on gross receipts but on profits and gains. The charge is not on gross receipts but on profits and gains properlyGross receipts or sale proceeds, however, include profits. According to "The Law and Practice of Income Tax" by Kanga and Palkhivala, the word "profits" in Section 28 should be understood in normal and proper sense. However, subject to special requirements of the income tax, profits have got to be assessed provided they are real profits. Such profits have to be got to be ascertained on ordinary principles of commercial trading and accounting. However, the income tax has laid down certain rules to be applied in deciding how the tax should be assessed and even if the result is to tax as profits what cannot be construed as profits, still the requirements of the income tax must be complied with. Where a deduction is necessary in order to ascertain the profits and gains, such deductions should be allowed. Profits should be computed after deducting the expenses incurred for business though such expenses may not be admissible expressly under the Act, unless such expenses are expressly disallowed by the Act [SEE: page 455 of "The Law and Practice of Income Tax" by Kanga and Palkhivala]. Therefore, schematic interpretation for making the formula in Section 80HHC workable cannot be ruled out. Similarly, purposeful interpretation of Section 80HHC which has undergone so many changes cannot be ruled out, particularly, when those legislative changes indicate that the legislature intended to exclude items like commission and interest from deduction on the ground that they did not possess any element of "turnover" even though commission and interest emanated from exports. We have to read the words "total turnover" in Section 80HHC as part of the formula which sought to segregate the "export profits" from the "business profits". Therefore, we have to read the formula in entirety. In that formula the entire business profits is not given deduction. It is the business profit which is proportionately reduced by the above fraction/ratio of export turnover w total turnover which constitute 80HHC concession (deduction). Income in the nature of "business profits" was, therefore, apportioned.19. The above formula fixed a ratio in which "business profits" under Section 28 of the Act had to be apportioned. Therefore, one has to give weightage not only to the words "total turnover" but also to the words "export turnover", "total export turnover" and "business profits". That is the reason why we have quoted hereinabove extensively the illustration from the Direct Taxes (Income tax) Ready Reckoner of the relevant word.20. In the circumstances, we cannot interpret the words "total turnover" in the above formula with reference to the definition of the word "turnover" in other laws like Central Sales Tax or as defined in accounting principles. Goods for export do not incur excise duty liability. As stated above, even commission and interest formed a part of the profit and loss account, however, they were not eligible for deduction under Section 80HHC. They were not eligible even without the clarification introduced by the legislature by various amendments because they did not involve any element of turnover. Further, in all other provisions of the income tax, profits and gains were required to be computed with reference to the books of accounts of the assessee. However, as can be seen from the Income Tax Rules and from the above Form No.10CCAC in the case of deduction under Section 80HHC a report of the auditor certifying deduction based on export turnover was sufficient. This is because the very basis for computing Section 80HHC deduction was "business profits" as computed under Section 28, a portion of which had to be apportioned in terms of the above ratio of export turnover to total turnover. Section 80HHC(3) was a beneficial section. It was intended to provide incentives to promote exports. The incentive was to exempt profits relatable to exports. In the case of combined business of an assessee having export business and domestic business the legislature intended to have a formula to ascertain export profits by apportioning the total business profits on the basis of turnovers. Apportionment of profits on the basis of turnover was accepted as a method of arriving at export profits. This method earlier existed under Excess Profits Tax Act, it existed in the Business Profits Tax Act.21. Therefore, just as commission received by an assessee is relatable to exports and yet it cannot form part of "turnover", excise duty and sales tax also cannot form part of the "turnover". Similarly, "interest" emanates from exports and yet "interest" does not involve an element of turnover. The object of the legislature in enacting Section 80HHC of the Act was to confer a benefit on profits accruing with reference to export turnover. Therefore, "turnover" was the requirement. Commission, rent, interest etc. did not involve any turnover. Therefore, 90% of such commission, interest etc. was excluded from the profits derived from the export. Therefore, even without the clarification such items did not form part of the formula in Section 80HHC(3) for the simple reason that it did not emanate from the "export turnover", much less any turnover.22. Even if the assessee was an exclusive dealer in exports, the said commission was not includible as it did not spring from the "turnover". Just as interest, commission etc. did not emanate from the "turnover", so also excise duty and sales tax did not emanate from such turnover. Since excise duty and sales tax did not involve any such turnover, such taxes had to be excluded. Commission, interest, rent etc. do yield profits, but they do not partake of the character of turnover and, therefore, they were not includible in the "total turnover". The above discussion shows that income from rent, commission etc. cannot be considered as part of business profits and, therefore, they cannot be held as part of the turnover also. In fact, in Civil Appeal No.4409 of 2005, the above proposition has been accepted by the A.O. [See: page no.24 of the paper book], if so, then excise duty and sales tax also cannot form part of the "total turnover" under Section 80HHC(3), otherwise the formula becomes unworkable. In our view, sales tax and excise duty also do not have any element of "turnover" which is the position even in the case of rent, commission, interest etc. It is important to bear in mind that excise duty and sales tax are indirect taxes. They are recovered by the assessee on behalf of the Government. Therefore, if they are made relatable to exports, the formula under Section 80HHC would become unworkable. The view which we have taken is in the light of amendments made to Section 80HHC from time to time.23. Before concluding we may state that profits are of three types, namely,statutory profits and actual profits. The amendments to Section 80HHC(3) indicate exclusion of book profits. For example, commission, interest, etc. do form part of the profit and loss account but for the purposes of calculation of profits derived from local sales and exports, they stand excluded. The difficulty arises because the formula is based on the Hybrid System of Profits, namely, actual and statutory profits. Therefore, this judgment should be read in the context of the above parameters. Our reasoning in this judgment is confined to the workability of the formula in Section 80HHC(3) of the Act as it stood at the material time. | 0 | 8,493 | 1,844 | ### 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:
particularly, when those legislative changes indicate that the legislature intended to exclude items like commission and interest from deduction on the ground that they did not possess any element of "turnover" even though commission and interest emanated from exports. We have to read the words "total turnover" in Section 80HHC as part of the formula which sought to segregate the "export profits" from the "business profits". Therefore, we have to read the formula in entirety. In that formula the entire business profits is not given deduction. It is the business profit which is proportionately reduced by the above fraction/ratio of export turnover w total turnover which constitute 80HHC concession (deduction). Income in the nature of "business profits" was, therefore, apportioned.19. The above formula fixed a ratio in which "business profits" under Section 28 of the Act had to be apportioned. Therefore, one has to give weightage not only to the words "total turnover" but also to the words "export turnover", "total export turnover" and "business profits". That is the reason why we have quoted hereinabove extensively the illustration from the Direct Taxes (Income tax) Ready Reckoner of the relevant word.20. In the circumstances, we cannot interpret the words "total turnover" in the above formula with reference to the definition of the word "turnover" in other laws like Central Sales Tax or as defined in accounting principles. Goods for export do not incur excise duty liability. As stated above, even commission and interest formed a part of the profit and loss account, however, they were not eligible for deduction under Section 80HHC. They were not eligible even without the clarification introduced by the legislature by various amendments because they did not involve any element of turnover. Further, in all other provisions of the income tax, profits and gains were required to be computed with reference to the books of accounts of the assessee. However, as can be seen from the Income Tax Rules and from the above Form No.10CCAC in the case of deduction under Section 80HHC a report of the auditor certifying deduction based on export turnover was sufficient. This is because the very basis for computing Section 80HHC deduction was "business profits" as computed under Section 28, a portion of which had to be apportioned in terms of the above ratio of export turnover to total turnover. Section 80HHC(3) was a beneficial section. It was intended to provide incentives to promote exports. The incentive was to exempt profits relatable to exports. In the case of combined business of an assessee having export business and domestic business the legislature intended to have a formula to ascertain export profits by apportioning the total business profits on the basis of turnovers. Apportionment of profits on the basis of turnover was accepted as a method of arriving at export profits. This method earlier existed under Excess Profits Tax Act, it existed in the Business Profits Tax Act.21. Therefore, just as commission received by an assessee is relatable to exports and yet it cannot form part of "turnover", excise duty and sales tax also cannot form part of the "turnover". Similarly, "interest" emanates from exports and yet "interest" does not involve an element of turnover. The object of the legislature in enacting Section 80HHC of the Act was to confer a benefit on profits accruing with reference to export turnover. Therefore, "turnover" was the requirement. Commission, rent, interest etc. did not involve any turnover. Therefore, 90% of such commission, interest etc. was excluded from the profits derived from the export. Therefore, even without the clarification such items did not form part of the formula in Section 80HHC(3) for the simple reason that it did not emanate from the "export turnover", much less any turnover.22. Even if the assessee was an exclusive dealer in exports, the said commission was not includible as it did not spring from the "turnover". Just as interest, commission etc. did not emanate from the "turnover", so also excise duty and sales tax did not emanate from such turnover. Since excise duty and sales tax did not involve any such turnover, such taxes had to be excluded. Commission, interest, rent etc. do yield profits, but they do not partake of the character of turnover and, therefore, they were not includible in the "total turnover". The above discussion shows that income from rent, commission etc. cannot be considered as part of business profits and, therefore, they cannot be held as part of the turnover also. In fact, in Civil Appeal No.4409 of 2005, the above proposition has been accepted by the A.O. [See: page no.24 of the paper book], if so, then excise duty and sales tax also cannot form part of the "total turnover" under Section 80HHC(3), otherwise the formula becomes unworkable. In our view, sales tax and excise duty also do not have any element of "turnover" which is the position even in the case of rent, commission, interest etc. It is important to bear in mind that excise duty and sales tax are indirect taxes. They are recovered by the assessee on behalf of the Government. Therefore, if they are made relatable to exports, the formula under Section 80HHC would become unworkable. The view which we have taken is in the light of amendments made to Section 80HHC from time to time.23. Before concluding we may state that profits are of three types, namely, book-profits, statutory profits and actual profits. The amendments to Section 80HHC(3) indicate exclusion of book profits. For example, commission, interest, etc. do form part of the profit and loss account but for the purposes of calculation of profits derived from local sales and exports, they stand excluded. The difficulty arises because the formula is based on the Hybrid System of Profits, namely, actual and statutory profits. Therefore, this judgment should be read in the context of the above parameters. Our reasoning in this judgment is confined to the workability of the formula in Section 80HHC(3) of the Act as it stood at the material time.
### Response:
0
### Explanation:
ruled out, particularly, when those legislative changes indicate that the legislature intended to exclude items like commission and interest from deduction on the ground that they did not possess any element of "turnover" even though commission and interest emanated from exports. We have to read the words "total turnover" in Section 80HHC as part of the formula which sought to segregate the "export profits" from the "business profits". Therefore, we have to read the formula in entirety. In that formula the entire business profits is not given deduction. It is the business profit which is proportionately reduced by the above fraction/ratio of export turnover w total turnover which constitute 80HHC concession (deduction). Income in the nature of "business profits" was, therefore, apportioned.19. The above formula fixed a ratio in which "business profits" under Section 28 of the Act had to be apportioned. Therefore, one has to give weightage not only to the words "total turnover" but also to the words "export turnover", "total export turnover" and "business profits". That is the reason why we have quoted hereinabove extensively the illustration from the Direct Taxes (Income tax) Ready Reckoner of the relevant word.20. In the circumstances, we cannot interpret the words "total turnover" in the above formula with reference to the definition of the word "turnover" in other laws like Central Sales Tax or as defined in accounting principles. Goods for export do not incur excise duty liability. As stated above, even commission and interest formed a part of the profit and loss account, however, they were not eligible for deduction under Section 80HHC. They were not eligible even without the clarification introduced by the legislature by various amendments because they did not involve any element of turnover. Further, in all other provisions of the income tax, profits and gains were required to be computed with reference to the books of accounts of the assessee. However, as can be seen from the Income Tax Rules and from the above Form No.10CCAC in the case of deduction under Section 80HHC a report of the auditor certifying deduction based on export turnover was sufficient. This is because the very basis for computing Section 80HHC deduction was "business profits" as computed under Section 28, a portion of which had to be apportioned in terms of the above ratio of export turnover to total turnover. Section 80HHC(3) was a beneficial section. It was intended to provide incentives to promote exports. The incentive was to exempt profits relatable to exports. In the case of combined business of an assessee having export business and domestic business the legislature intended to have a formula to ascertain export profits by apportioning the total business profits on the basis of turnovers. Apportionment of profits on the basis of turnover was accepted as a method of arriving at export profits. This method earlier existed under Excess Profits Tax Act, it existed in the Business Profits Tax Act.21. Therefore, just as commission received by an assessee is relatable to exports and yet it cannot form part of "turnover", excise duty and sales tax also cannot form part of the "turnover". Similarly, "interest" emanates from exports and yet "interest" does not involve an element of turnover. The object of the legislature in enacting Section 80HHC of the Act was to confer a benefit on profits accruing with reference to export turnover. Therefore, "turnover" was the requirement. Commission, rent, interest etc. did not involve any turnover. Therefore, 90% of such commission, interest etc. was excluded from the profits derived from the export. Therefore, even without the clarification such items did not form part of the formula in Section 80HHC(3) for the simple reason that it did not emanate from the "export turnover", much less any turnover.22. Even if the assessee was an exclusive dealer in exports, the said commission was not includible as it did not spring from the "turnover". Just as interest, commission etc. did not emanate from the "turnover", so also excise duty and sales tax did not emanate from such turnover. Since excise duty and sales tax did not involve any such turnover, such taxes had to be excluded. Commission, interest, rent etc. do yield profits, but they do not partake of the character of turnover and, therefore, they were not includible in the "total turnover". The above discussion shows that income from rent, commission etc. cannot be considered as part of business profits and, therefore, they cannot be held as part of the turnover also. In fact, in Civil Appeal No.4409 of 2005, the above proposition has been accepted by the A.O. [See: page no.24 of the paper book], if so, then excise duty and sales tax also cannot form part of the "total turnover" under Section 80HHC(3), otherwise the formula becomes unworkable. In our view, sales tax and excise duty also do not have any element of "turnover" which is the position even in the case of rent, commission, interest etc. It is important to bear in mind that excise duty and sales tax are indirect taxes. They are recovered by the assessee on behalf of the Government. Therefore, if they are made relatable to exports, the formula under Section 80HHC would become unworkable. The view which we have taken is in the light of amendments made to Section 80HHC from time to time.23. Before concluding we may state that profits are of three types, namely,statutory profits and actual profits. The amendments to Section 80HHC(3) indicate exclusion of book profits. For example, commission, interest, etc. do form part of the profit and loss account but for the purposes of calculation of profits derived from local sales and exports, they stand excluded. The difficulty arises because the formula is based on the Hybrid System of Profits, namely, actual and statutory profits. Therefore, this judgment should be read in the context of the above parameters. Our reasoning in this judgment is confined to the workability of the formula in Section 80HHC(3) of the Act as it stood at the material time.
|
Manuara Khatun Vs. Rajesh Kr. Singh | several decisions of this Court rendered by three Judge Bench and two Judge Bench in past, viz., National Insurance Co. Ltd. v. Baljit Kaur & Ors., 2004(1) R.C.R.(Civil) 722 : (2004) 2 SCC 1 , National Insurance Co. Ltd. v. Challa Upendra Rao & Ors., (2004) 8 SCC 517 , National Insurance Co. Ltd. v. Kaushalaya Devi & Ors., 2008(4) R.C.R.(Civil) 902 : (2008) 8 SCC 246 , National Insurance Co. Ltd. v. Roshan Lal, [Order dated 19.1.2007 in SLP© No. 5699 of 2006], and National Insurance Co. Ltd. v. Parvathneni & Anr., 2009(4) R.C.R.(Civil) 269 : (2009) 8 SCC 785. 16. This question also fell for consideration recently in Manager, National Insurance Company Limited v. Saju P. Paul & Anr., (supra) wherein this Court took note of entire previous case law on the subject mentioned above and examined the question in the context of Section 147 of the Act. While allowing the appeal filed by the Insurance Company by reversing the judgment of the High Court, it was held on facts that since the victim was travelling in offending vehicle as "gratuitous passenger" and hence, the Insurance Company cannot be held liable to suffer the liability arising out of accident on the strength of the insurance policy. However, this Court keeping in view the benevolent object of the Act and other relevant factors arising in the case, issued the directions against the Insurance Company to pay the awarded sum to the claimants and then to recover the said sum from the insured in the same proceedings by applying the principle of "pay and recover".17. Justice R.M. Lodha (as His Lordship then was and later became CJI) speaking for the Bench held in paras 20 and 26 as under:"20. The next question that arises for consideration is whether in the peculiar facts of this case a direction could be issued to the Insurance Company to first satisfy the awarded amount in favour of the claimant and recover the same from the owner of the vehicle (Respondent 2 herein).26. The pendency of consideration of the above questions by a larger Bench does not mean that the course that was followed in Baljit Kaur, (2004) 2 SCC 1 and Challa Upendra Rao, (2004) 8 SCC 517 should not be followed, more so in a peculiar fact situation of this case. In the present case, the accident occurred in 1993. At that time, the claimant was 28 years old. He is now about 48 years. The claimant was a driver on heavy vehicle and due to the accident he has been rendered permanently disabled. He has not been able to get compensation so far due to the stay order passed by this Court. He cannot be compelled to struggle further for recovery of the amount. The Insurance Company has already deposited the entire awarded amount pursuant to the order of this Court passed on 1-8-2011 (National Insurance Co. Ltd. v. Saju P. Paul, SLP© No. 20127 of 2011 and the said amount has been invested in a fixed deposit account. Having regard to these peculiar facts of the case in hand, we are satisfied that the claimant (Respondent 1) may be allowed to withdraw the amount deposited by the Insurance Company before this Court along with accrued interest. The Insurance Company (the appellant) thereafter may recover the amount so paid from the owner (Respondent 2 herein). The recovery of the amount by the Insurance Company from the owner shall be made by following the procedure as laid down by this Court in Challa Upendra Rao(supra)."18. The facts of the case at hand are somewhat identical to the facts of the case mentioned supra because here also we find that the deceased were found travelling as "gratuitous passengers" in the offending vehicle and it was for this reason, the insurance companies were exonerated. In Saju P. Pauls case (supra) also having held that the victim was "gratuitous passenger", this Court issued directions against the Insurer of the offending vehicle to first satisfy the awarded sum and then to recover the same from the Insured in the same proceedings.19. Learned counsel for respondent No. 3 (United India Insurance Company Ltd.), however, contended that the facts of the case at hand are not identical to the one involved in the case of Saju P. Paul (supra) and hence the law laid down therein cannot be applied to the facts of the case at hand. Learned counsel pointed out that firstly, the awarded compensation in this case is quite substantial and secondly, it is not yet paid to the claimants. Learned counsel also submitted that since the question involved herein is referred to a larger Bench and hence this Court should not give such directions, as prayed by the appellants, against the Insurance Company.20. We find no merit in any of the submissions. Firstly, as mentioned above, we find marked similarity in the facts of this case and the one involved in Saju P. Pauls Case (supra). Secondly, merely because the compensation has not yet been paid to the claimants though the case is quite old (16 years) like the one in Saju P. Pauls Case (supra), it cannot be a ground to deny the claimants the relief claimed in these appeals. Thirdly, this Court has already considered and rejected the argument regarding not granting of the relief of the nature claimed herein due to pendency of the reference to a larger Bench as would be clear from Para 26 of the judgment in Saju P. Pauls case (supra). That apart, learned counsel for the appellants stated at the bar that the reference made to the larger Bench has since been disposed of by keeping the issue undecided. It is for this reason also, the argument does not survive any more.21. It is for all these reasons, we find no good ground to take a different view than the one consistently being taken by this Court in all previous decisions, which are referred supra, in this regard. | 1[ds]13. Having heard the learned counsel for the parties and on perusal of the record of the case, we find force in the submission of the learned counsel for the appellantsThe aforesaid question, in our opinion, remains no more res integra.The facts of the case at hand are somewhat identical to the facts of the case mentioned supra because here also we find that the deceased were found travelling as "gratuitous passengers" in the offending vehicle and it was for this reason, the insurance companies were exonerated. In Saju P. Pauls case (supra) also having held that the victim was "gratuitous passenger", this Court issued directions against the Insurer of the offending vehicle to first satisfy the awarded sum and then to recover the same from the Insured in the same proceedings.We find no merit in any of the submissions. Firstly, as mentioned above, we find marked similarity in the facts of this case and the one involved in Saju P. Pauls Case (supra). Secondly, merely because the compensation has not yet been paid to the claimants though the case is quite old (16 years) like the one in Saju P. Pauls Case (supra), it cannot be a ground to deny the claimants the relief claimed in these appeals. Thirdly, this Court has already considered and rejected the argument regarding not granting of the relief of the nature claimed herein due to pendency of the reference to a larger Bench as would be clear from Para 26 of the judgment in Saju P. Pauls case (supra). That apart, learned counsel for the appellants stated at the bar that the reference made to the larger Bench has since been disposed of by keeping the issue undecided. It is for this reason also, the argument does not survive any more.21. It is for all these reasons, we find no good ground to take a different view than the one consistently being taken by this Court in all previous decisions, which are referred supra, in this regard. | 1 | 2,488 | 377 | ### 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:
several decisions of this Court rendered by three Judge Bench and two Judge Bench in past, viz., National Insurance Co. Ltd. v. Baljit Kaur & Ors., 2004(1) R.C.R.(Civil) 722 : (2004) 2 SCC 1 , National Insurance Co. Ltd. v. Challa Upendra Rao & Ors., (2004) 8 SCC 517 , National Insurance Co. Ltd. v. Kaushalaya Devi & Ors., 2008(4) R.C.R.(Civil) 902 : (2008) 8 SCC 246 , National Insurance Co. Ltd. v. Roshan Lal, [Order dated 19.1.2007 in SLP© No. 5699 of 2006], and National Insurance Co. Ltd. v. Parvathneni & Anr., 2009(4) R.C.R.(Civil) 269 : (2009) 8 SCC 785. 16. This question also fell for consideration recently in Manager, National Insurance Company Limited v. Saju P. Paul & Anr., (supra) wherein this Court took note of entire previous case law on the subject mentioned above and examined the question in the context of Section 147 of the Act. While allowing the appeal filed by the Insurance Company by reversing the judgment of the High Court, it was held on facts that since the victim was travelling in offending vehicle as "gratuitous passenger" and hence, the Insurance Company cannot be held liable to suffer the liability arising out of accident on the strength of the insurance policy. However, this Court keeping in view the benevolent object of the Act and other relevant factors arising in the case, issued the directions against the Insurance Company to pay the awarded sum to the claimants and then to recover the said sum from the insured in the same proceedings by applying the principle of "pay and recover".17. Justice R.M. Lodha (as His Lordship then was and later became CJI) speaking for the Bench held in paras 20 and 26 as under:"20. The next question that arises for consideration is whether in the peculiar facts of this case a direction could be issued to the Insurance Company to first satisfy the awarded amount in favour of the claimant and recover the same from the owner of the vehicle (Respondent 2 herein).26. The pendency of consideration of the above questions by a larger Bench does not mean that the course that was followed in Baljit Kaur, (2004) 2 SCC 1 and Challa Upendra Rao, (2004) 8 SCC 517 should not be followed, more so in a peculiar fact situation of this case. In the present case, the accident occurred in 1993. At that time, the claimant was 28 years old. He is now about 48 years. The claimant was a driver on heavy vehicle and due to the accident he has been rendered permanently disabled. He has not been able to get compensation so far due to the stay order passed by this Court. He cannot be compelled to struggle further for recovery of the amount. The Insurance Company has already deposited the entire awarded amount pursuant to the order of this Court passed on 1-8-2011 (National Insurance Co. Ltd. v. Saju P. Paul, SLP© No. 20127 of 2011 and the said amount has been invested in a fixed deposit account. Having regard to these peculiar facts of the case in hand, we are satisfied that the claimant (Respondent 1) may be allowed to withdraw the amount deposited by the Insurance Company before this Court along with accrued interest. The Insurance Company (the appellant) thereafter may recover the amount so paid from the owner (Respondent 2 herein). The recovery of the amount by the Insurance Company from the owner shall be made by following the procedure as laid down by this Court in Challa Upendra Rao(supra)."18. The facts of the case at hand are somewhat identical to the facts of the case mentioned supra because here also we find that the deceased were found travelling as "gratuitous passengers" in the offending vehicle and it was for this reason, the insurance companies were exonerated. In Saju P. Pauls case (supra) also having held that the victim was "gratuitous passenger", this Court issued directions against the Insurer of the offending vehicle to first satisfy the awarded sum and then to recover the same from the Insured in the same proceedings.19. Learned counsel for respondent No. 3 (United India Insurance Company Ltd.), however, contended that the facts of the case at hand are not identical to the one involved in the case of Saju P. Paul (supra) and hence the law laid down therein cannot be applied to the facts of the case at hand. Learned counsel pointed out that firstly, the awarded compensation in this case is quite substantial and secondly, it is not yet paid to the claimants. Learned counsel also submitted that since the question involved herein is referred to a larger Bench and hence this Court should not give such directions, as prayed by the appellants, against the Insurance Company.20. We find no merit in any of the submissions. Firstly, as mentioned above, we find marked similarity in the facts of this case and the one involved in Saju P. Pauls Case (supra). Secondly, merely because the compensation has not yet been paid to the claimants though the case is quite old (16 years) like the one in Saju P. Pauls Case (supra), it cannot be a ground to deny the claimants the relief claimed in these appeals. Thirdly, this Court has already considered and rejected the argument regarding not granting of the relief of the nature claimed herein due to pendency of the reference to a larger Bench as would be clear from Para 26 of the judgment in Saju P. Pauls case (supra). That apart, learned counsel for the appellants stated at the bar that the reference made to the larger Bench has since been disposed of by keeping the issue undecided. It is for this reason also, the argument does not survive any more.21. It is for all these reasons, we find no good ground to take a different view than the one consistently being taken by this Court in all previous decisions, which are referred supra, in this regard.
### Response:
1
### Explanation:
13. Having heard the learned counsel for the parties and on perusal of the record of the case, we find force in the submission of the learned counsel for the appellantsThe aforesaid question, in our opinion, remains no more res integra.The facts of the case at hand are somewhat identical to the facts of the case mentioned supra because here also we find that the deceased were found travelling as "gratuitous passengers" in the offending vehicle and it was for this reason, the insurance companies were exonerated. In Saju P. Pauls case (supra) also having held that the victim was "gratuitous passenger", this Court issued directions against the Insurer of the offending vehicle to first satisfy the awarded sum and then to recover the same from the Insured in the same proceedings.We find no merit in any of the submissions. Firstly, as mentioned above, we find marked similarity in the facts of this case and the one involved in Saju P. Pauls Case (supra). Secondly, merely because the compensation has not yet been paid to the claimants though the case is quite old (16 years) like the one in Saju P. Pauls Case (supra), it cannot be a ground to deny the claimants the relief claimed in these appeals. Thirdly, this Court has already considered and rejected the argument regarding not granting of the relief of the nature claimed herein due to pendency of the reference to a larger Bench as would be clear from Para 26 of the judgment in Saju P. Pauls case (supra). That apart, learned counsel for the appellants stated at the bar that the reference made to the larger Bench has since been disposed of by keeping the issue undecided. It is for this reason also, the argument does not survive any more.21. It is for all these reasons, we find no good ground to take a different view than the one consistently being taken by this Court in all previous decisions, which are referred supra, in this regard.
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EMPLOYEES’ STATE INSURANCE CORPORATION Vs. KAKINADA MUNICIPALITY & ORS | of any contribution or benefit or other dues payable or recoverable under the Act or any other matter required to be or which may be decided by the ESI Court under the Act and such question or dispute subject to the provisions of sub-section (2-A) shall be decided by the ESI Court in accordance with the provisions of the Act. When considered in the light of clauses (a) to (d) in Section 75 (1) of the Act, the expression any other matter occurring in Section 75(1) (g) only means any other dispute between an employer and corporation or a person and Corporation pertaining to the contribution or benefit or other dues payable under the Act or any other matter required to be decided by the ESI Court under the provisions of the Act. Grant or refusal of exemption by the appropriate government cannot be said to be a dispute between the employer and the Corporation. For grant or refusal of exemption, a specific provision is prescribed under the Act, it cannot be brought within the ambit of any other matter required to be decided by the Employees Insurance Court under this Act. 14. As per the scheme of the Act, the appropriate government alone could grant or refuse exemption. When the statute prescribed the procedure for grant or refusal of exemption from the operation of the Act, it is to be done in that manner and not in any other manner. In State of Jharkhand v. Ambay Cements, (2005) 1 SCC 368, it was held that 26………….It is the cardinal rule of interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way. 14. We have no reason to take a different view. The power of exemption is indeed only with the appropriate Government. If a factory or establishment is covered under the Act then subject to the power of the Government to take it out of the purview of the Act by an act of exemption, which, in turn, can be done only after consulting the E.S.I. Corporation and by following the other requirements as provided therein, the said power cannot be availed of by the Insurance Court while deciding an application under Section 75 of the Act. 15. We have already noticed the reliefs which have been sought in this case. We have also found that section 1(4) applies. The proviso to section 1(4) does not apply. The result is none of the reliefs which have been sought for by the first respondent could have been given. The reliefs were rightly refused by the Insurance Court. The Insurance court did not frame the issue and find that the first respondent was providing superior benefits. The High Court, in the impugned judgment, has made the following findings: 39. On a careful analysis of the facts of the present case and also the findings recorded by the court below the following essential aspects are not in serious controversy. (1) The appellant-petitioner-Municipality is a local body governed by the provisions of the A.P. Municipalities Act; (2) In the light of the relief prayed for it is clear that no application or representation had been made by the Municipality praying for exemption; (3) The details relating to the better facilities provided to the employees also had not been deposed elaborately; (4) The Municipality made certain payments relating to contribution for certain periods. 16. However, the High Court has proceeded to rely upon judgment of this Court in Municipal Commitee, Abohar v. Regional Commissioner, E.S.I. Corpn. and Another (1996) 7 SCC 488 . The High Court has premised its stand partly on the judgment of this Court in Municipal Commitee, Abohar (supra). 17. It is rightly pointed out by Shri Santosh Krishnan, learned counsel for the appellant, that it is an order. In the said case, no doubt, the appellant was a municipality running Waterworks; the employees were sought to be covered under the Act and after notice was issued, an order under section 45-A of the Act was passed against which an appeal was carried to the Insurance Court which confirmed that the employees were covered under the Act. Thereafter, we notice the following: 3. The question is whether the employees of the Municipal Corporation are also covered under the Act? The employees of the Corporation are governed by the statutory rules made under the Act and in some cases in other States the benefits of the Government scales of pay etc. have been extended. However, the fact remains that they are provided with the health scheme and are also eligible to medical facilities and reimbursement of the amounts spent by the employees concerned. Under these circumstances, the coverage of employees under the Act is per se illegal. We may notice that the said order does not reveal any discussion of the legal issues. There is no consideration of the statutory provisions in question. We see merit in the argument of the learned counsel for the appellant that the High Court should not have treated this as a precedent which it should follow, particularly, having regard to the factual matrix in this case and the statutory provisions in place. 18. The upshot of the above discussion is that the impugned judgment of the High Court is unsustainable and is liable to be set aside. 19. There is another aspect of the matter. Having noticed that the first respondent is obliged by the provisions of the Act to made contributions in regard to the employees of the factory and the attempt made before the Insurance Court to seek and get an exemption was without foundation in law, the fact remains that the power is lodged under Section 90 of the Act to grant exemption. In other words, the fact that the impugned judgment is being set aside would not stand in the way of the appellant seeking the benefit of exemption under Section 90 of the Act. | 1[ds]10. In the facts of this case, there is no dispute that the first respondent was running a factory within the meaning of the Act, insofar as it is undertaking manufacturing activities within the meaning of the expression manufacturing process as defined in Section 14AA. The proviso to Section 1(4), undoubtedly, operates as an exception to the main provision. In other words, from the generality of factories that stand covered under the Act, the legislature has carved out an inroad by providing that the Act would not apply to the factory which belonged to the Government. It also makes it clear that the provisions of the Act will not apply to a factory under the control of the Government. This is however subject to the further condition in the proviso that the employees of such a factory, which is either owned or controlled by the Government, should be otherwise in receipt of benefits substantially similar or superior to the benefits provided under the Act. It is upon satisfaction of these conditions that even a factory which is owned or controlled by the Government would stand exempted from the purview of the Act.11. As far as the facts of this case is concerned, the first respondent does not have the case that the factory in question is a factory which is owned by the Government. As far as the question relating to control of the Government is concerned, learned senior counsel for the first respondent has, in fact, upon being queried as to whether he has a case that it is under the control of the Government, he does not address us on the issue on the lines that the Government controls the factory. He very fairly does submit that the factory is under the control of the first respondent. The first respondent is a local body. It might be true that it is a creature of statute, being created under the relevant Act. It also has a constitutional position after the amendment of the Constitution. But the words used in the Act are that the factory must be under the control of the Government. Any further doubt, in this regard, which we may entertain, is banished by the provisions of Section 90.The position, therefore, is that in respect of a factory, which is belonging to a local authority, unless power of exemption is exercised by the Government, it would be covered by provisions of section 1(4) of the Act. In other words, it would be a factory like any other factory. It would have to be compliant with the provisions of the Act. This is for the reason that a factory or an establishment belonging to or under the control of the Government alone are within the purview of the proviso, which in turn is subject to the imperative condition or rather the indispensable requirement that the employees are in receipt of the substantially similar or superior benefits than provided under the Act.13. Having reached the said conclusions, the time is ripe for us to notice the law as laid down by this Court in Zuari Cement Limited (supra). In the said case also, which emanated from the same High Court, the appellant therein sought an exemption from the Act but by approaching the Court under Section 75. The argument ran that the Court had jurisdiction by virtue of Section 75(1)(g). The discussion is to be found in paragraphs 12, 13 and 14:12. As discussed earlier, in terms of Section 87 of the Act, only the appropriate government has the power to grant exemption to a factory or establishment or class of factories or establishments from the operation of the Act. In fact, the appellant-factory itself has obtained exemption from the appropriate Government-State Government under Section 87 of the Act for the period from 1986 to 1993. Likewise, the rejection of exemption was also under Section 87 of the Act. While so seeking the relief of declaration from the ESI Court that the appellant is entitled to exemption from the operation of the Act is misconceived. Contrary to the scheme of the statute, the High Court, in our view, cannot confer jurisdiction upon the ESI Court to determine the issue of exemption. The ESI Corporation, of course, did not raise any objection and subjected itself to the jurisdiction of the ESI Court. The objection as to want of jurisdiction can be raised at any stage when the Court lacks jurisdiction, the fact that the parties earlier acquiesced in the proceedings is of no consequence.13. The Employees Insurance Court is a tribunal specially constituted for the purpose of deciding any controversy that may arise on the matters enumerated in Section 75 of the Act. A reading of Section 75 of the Act would show that the ESI Court has full jurisdiction to decide all the matters arising between the employer and the Corporation under the Act. Section 75 of the Act sets out the matters to be decided by the ESI Court. As per Section 75(1)(g) of the Act, the ESI Court is empowered to decide any matter which is in dispute between the employer and the Corporation in respect of any contribution or benefit or other dues payable or recoverable under the Act or any other matter required to be or which may be decided by the ESI Court under the Act and such question or dispute subject to the provisions of sub-section (2-A) shall be decided by the ESI Court in accordance with the provisions of the Act. When considered in the light of clauses (a) to (d) in Section 75 (1) of the Act, the expression any other matter occurring in Section 75(1) (g) only means any other dispute between an employer and corporation or a person and Corporation pertaining to the contribution or benefit or other dues payable under the Act or any other matter required to be decided by the ESI Court under the provisions of the Act. Grant or refusal of exemption by the appropriate government cannot be said to be a dispute between the employer and the Corporation. For grant or refusal of exemption, a specific provision is prescribed under the Act, it cannot be brought within the ambit of any other matter required to be decided by the Employees Insurance Court under this Act.14. As per the scheme of the Act, the appropriate government alone could grant or refuse exemption. When the statute prescribed the procedure for grant or refusal of exemption from the operation of the Act, it is to be done in that manner and not in any other manner. In State of Jharkhand v. Ambay Cements, (2005) 1 SCC 368, it was held that26………….It is the cardinal rule of interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way.14. We have no reason to take a different view. The power of exemption is indeed only with the appropriate Government. If a factory or establishment is covered under the Act then subject to the power of the Government to take it out of the purview of the Act by an act of exemption, which, in turn, can be done only after consulting the E.S.I. Corporation and by following the other requirements as provided therein, the said power cannot be availed of by the Insurance Court while deciding an application under Section 75 of the Act.15. We have already noticed the reliefs which have been sought in this case. We have also found that section 1(4) applies. The proviso to section 1(4) does not apply. The result is none of the reliefs which have been sought for by the first respondent could have been given. The reliefs were rightly refused by the Insurance Court. The Insurance court did not frame the issue and find that the first respondent was providing superior benefits.16. However, the High Court has proceeded to rely upon judgment of this Court in Municipal Commitee, Abohar v. Regional Commissioner, E.S.I. Corpn. and Another (1996) 7 SCC 488 . The High Court has premised its stand partly on the judgment of this Court in Municipal Commitee, Abohar (supra).17. It is rightly pointed out by Shri Santosh Krishnan, learned counsel for the appellant, that it is an order.In the said case, no doubt, the appellant was a municipality running Waterworks; the employees were sought to be covered under the Act and after notice was issued, an order under section 45-A of the Act was passed against which an appeal was carried to the Insurance Court which confirmed that the employees were covered under the Act. Thereafter, we notice the following:3. The question is whether the employees of the Municipal Corporation are also covered under the Act? The employees of the Corporation are governed by the statutory rules made under the Act and in some cases in other States the benefits of the Government scales of pay etc. have been extended. However, the fact remains that they are provided with the health scheme and are also eligible to medical facilities and reimbursement of the amounts spent by the employees concerned. Under these circumstances, the coverage of employees under the Act is per se illegal.We may notice that the said order does not reveal any discussion of the legal issues. There is no consideration of the statutory provisions in question.We see merit in the argument of the learned counsel for the appellant that the High Court should not have treated this as a precedent which it should follow, particularly, having regard to the factual matrix in this case and the statutory provisions in place.18. The upshot of the above discussion is that the impugned judgment of the High Court is unsustainable and is liable to be set aside.19. There is another aspect of the matter. Having noticed that the first respondent is obliged by the provisions of the Act to made contributions in regard to the employees of the factory and the attempt made before the Insurance Court to seek and get an exemption was without foundation in law, the fact remains that the power is lodged under Section 90 of the Act to grant exemption. In other words, the fact that the impugned judgment is being set aside would not stand in the way of the appellant seeking the benefit of exemption under Section 90 of the Act. | 1 | 4,472 | 1,919 | ### 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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of any contribution or benefit or other dues payable or recoverable under the Act or any other matter required to be or which may be decided by the ESI Court under the Act and such question or dispute subject to the provisions of sub-section (2-A) shall be decided by the ESI Court in accordance with the provisions of the Act. When considered in the light of clauses (a) to (d) in Section 75 (1) of the Act, the expression any other matter occurring in Section 75(1) (g) only means any other dispute between an employer and corporation or a person and Corporation pertaining to the contribution or benefit or other dues payable under the Act or any other matter required to be decided by the ESI Court under the provisions of the Act. Grant or refusal of exemption by the appropriate government cannot be said to be a dispute between the employer and the Corporation. For grant or refusal of exemption, a specific provision is prescribed under the Act, it cannot be brought within the ambit of any other matter required to be decided by the Employees Insurance Court under this Act. 14. As per the scheme of the Act, the appropriate government alone could grant or refuse exemption. When the statute prescribed the procedure for grant or refusal of exemption from the operation of the Act, it is to be done in that manner and not in any other manner. In State of Jharkhand v. Ambay Cements, (2005) 1 SCC 368, it was held that 26………….It is the cardinal rule of interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way. 14. We have no reason to take a different view. The power of exemption is indeed only with the appropriate Government. If a factory or establishment is covered under the Act then subject to the power of the Government to take it out of the purview of the Act by an act of exemption, which, in turn, can be done only after consulting the E.S.I. Corporation and by following the other requirements as provided therein, the said power cannot be availed of by the Insurance Court while deciding an application under Section 75 of the Act. 15. We have already noticed the reliefs which have been sought in this case. We have also found that section 1(4) applies. The proviso to section 1(4) does not apply. The result is none of the reliefs which have been sought for by the first respondent could have been given. The reliefs were rightly refused by the Insurance Court. The Insurance court did not frame the issue and find that the first respondent was providing superior benefits. The High Court, in the impugned judgment, has made the following findings: 39. On a careful analysis of the facts of the present case and also the findings recorded by the court below the following essential aspects are not in serious controversy. (1) The appellant-petitioner-Municipality is a local body governed by the provisions of the A.P. Municipalities Act; (2) In the light of the relief prayed for it is clear that no application or representation had been made by the Municipality praying for exemption; (3) The details relating to the better facilities provided to the employees also had not been deposed elaborately; (4) The Municipality made certain payments relating to contribution for certain periods. 16. However, the High Court has proceeded to rely upon judgment of this Court in Municipal Commitee, Abohar v. Regional Commissioner, E.S.I. Corpn. and Another (1996) 7 SCC 488 . The High Court has premised its stand partly on the judgment of this Court in Municipal Commitee, Abohar (supra). 17. It is rightly pointed out by Shri Santosh Krishnan, learned counsel for the appellant, that it is an order. In the said case, no doubt, the appellant was a municipality running Waterworks; the employees were sought to be covered under the Act and after notice was issued, an order under section 45-A of the Act was passed against which an appeal was carried to the Insurance Court which confirmed that the employees were covered under the Act. Thereafter, we notice the following: 3. The question is whether the employees of the Municipal Corporation are also covered under the Act? The employees of the Corporation are governed by the statutory rules made under the Act and in some cases in other States the benefits of the Government scales of pay etc. have been extended. However, the fact remains that they are provided with the health scheme and are also eligible to medical facilities and reimbursement of the amounts spent by the employees concerned. Under these circumstances, the coverage of employees under the Act is per se illegal. We may notice that the said order does not reveal any discussion of the legal issues. There is no consideration of the statutory provisions in question. We see merit in the argument of the learned counsel for the appellant that the High Court should not have treated this as a precedent which it should follow, particularly, having regard to the factual matrix in this case and the statutory provisions in place. 18. The upshot of the above discussion is that the impugned judgment of the High Court is unsustainable and is liable to be set aside. 19. There is another aspect of the matter. Having noticed that the first respondent is obliged by the provisions of the Act to made contributions in regard to the employees of the factory and the attempt made before the Insurance Court to seek and get an exemption was without foundation in law, the fact remains that the power is lodged under Section 90 of the Act to grant exemption. In other words, the fact that the impugned judgment is being set aside would not stand in the way of the appellant seeking the benefit of exemption under Section 90 of the Act.
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stage when the Court lacks jurisdiction, the fact that the parties earlier acquiesced in the proceedings is of no consequence.13. The Employees Insurance Court is a tribunal specially constituted for the purpose of deciding any controversy that may arise on the matters enumerated in Section 75 of the Act. A reading of Section 75 of the Act would show that the ESI Court has full jurisdiction to decide all the matters arising between the employer and the Corporation under the Act. Section 75 of the Act sets out the matters to be decided by the ESI Court. As per Section 75(1)(g) of the Act, the ESI Court is empowered to decide any matter which is in dispute between the employer and the Corporation in respect of any contribution or benefit or other dues payable or recoverable under the Act or any other matter required to be or which may be decided by the ESI Court under the Act and such question or dispute subject to the provisions of sub-section (2-A) shall be decided by the ESI Court in accordance with the provisions of the Act. When considered in the light of clauses (a) to (d) in Section 75 (1) of the Act, the expression any other matter occurring in Section 75(1) (g) only means any other dispute between an employer and corporation or a person and Corporation pertaining to the contribution or benefit or other dues payable under the Act or any other matter required to be decided by the ESI Court under the provisions of the Act. Grant or refusal of exemption by the appropriate government cannot be said to be a dispute between the employer and the Corporation. For grant or refusal of exemption, a specific provision is prescribed under the Act, it cannot be brought within the ambit of any other matter required to be decided by the Employees Insurance Court under this Act.14. As per the scheme of the Act, the appropriate government alone could grant or refuse exemption. When the statute prescribed the procedure for grant or refusal of exemption from the operation of the Act, it is to be done in that manner and not in any other manner. In State of Jharkhand v. Ambay Cements, (2005) 1 SCC 368, it was held that26………….It is the cardinal rule of interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way.14. We have no reason to take a different view. The power of exemption is indeed only with the appropriate Government. If a factory or establishment is covered under the Act then subject to the power of the Government to take it out of the purview of the Act by an act of exemption, which, in turn, can be done only after consulting the E.S.I. Corporation and by following the other requirements as provided therein, the said power cannot be availed of by the Insurance Court while deciding an application under Section 75 of the Act.15. We have already noticed the reliefs which have been sought in this case. We have also found that section 1(4) applies. The proviso to section 1(4) does not apply. The result is none of the reliefs which have been sought for by the first respondent could have been given. The reliefs were rightly refused by the Insurance Court. The Insurance court did not frame the issue and find that the first respondent was providing superior benefits.16. However, the High Court has proceeded to rely upon judgment of this Court in Municipal Commitee, Abohar v. Regional Commissioner, E.S.I. Corpn. and Another (1996) 7 SCC 488 . The High Court has premised its stand partly on the judgment of this Court in Municipal Commitee, Abohar (supra).17. It is rightly pointed out by Shri Santosh Krishnan, learned counsel for the appellant, that it is an order.In the said case, no doubt, the appellant was a municipality running Waterworks; the employees were sought to be covered under the Act and after notice was issued, an order under section 45-A of the Act was passed against which an appeal was carried to the Insurance Court which confirmed that the employees were covered under the Act. Thereafter, we notice the following:3. The question is whether the employees of the Municipal Corporation are also covered under the Act? The employees of the Corporation are governed by the statutory rules made under the Act and in some cases in other States the benefits of the Government scales of pay etc. have been extended. However, the fact remains that they are provided with the health scheme and are also eligible to medical facilities and reimbursement of the amounts spent by the employees concerned. Under these circumstances, the coverage of employees under the Act is per se illegal.We may notice that the said order does not reveal any discussion of the legal issues. There is no consideration of the statutory provisions in question.We see merit in the argument of the learned counsel for the appellant that the High Court should not have treated this as a precedent which it should follow, particularly, having regard to the factual matrix in this case and the statutory provisions in place.18. The upshot of the above discussion is that the impugned judgment of the High Court is unsustainable and is liable to be set aside.19. There is another aspect of the matter. Having noticed that the first respondent is obliged by the provisions of the Act to made contributions in regard to the employees of the factory and the attempt made before the Insurance Court to seek and get an exemption was without foundation in law, the fact remains that the power is lodged under Section 90 of the Act to grant exemption. In other words, the fact that the impugned judgment is being set aside would not stand in the way of the appellant seeking the benefit of exemption under Section 90 of the Act.
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Kushal Fertilisers Ltd Vs. The Commissioner of Customs and Central Excise, Meerut | High Court any question of law arising out of such order and, subject to the other provisions contained in this section, the Appellate Tribunal shall, within one hundred and twenty days of the receipt of such application, draw up a statement of the case and refer it to the High Court:Provided that the Appellate Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the period herein before specified, allow it to be presented within a further period not exceeding thirty days.(2) On receipt of notice that an application has been made under sub-section (1), the person against whom such application has been made, may, notwithstanding that he may not have filed such an application, file, within forty-five days of the receipt of the notice, a memorandum of cross-objections verified in the prescribed manner against any part of the order in relation to which an application for reference has been made and such memorandum shall be disposed of by the Appellate Tribunal as if it were an application presented within the time specified in sub-section (1).(3) If, on an application made under sub-section (1), the Appellate Tribunal refuses to state the case on the ground that no question of law arises, the Commissioner of Central Excise, or, as the case may be, the other party may, within six months from the date on which he is served with notice of such refusal, apply to the High Court and the High Court may, if it is not satisfied with the correctness of the decision of the Appellate Tribunal, require the Appellate Tribunal to state the case and to refer it, and on receipt of any such requisition, the Appellate Tribunal, shall state the case and refer it accordingly.(4) Where in the exercise of its powers under sub- section (3), the Appellate Tribunal refuses to state a case which it has been required by an applicant to state, the applicant may, within thirty days from the date on which he receives notice of such refusal, withdraw his application and, if he does so, the fee, if any, paid by him, shall be refunded" 16. The order of the Tribunal having been passed on 3rd March, 2005 an appeal was maintainable to the High Court in terms of the substituted provision and not a reference. Whereas a reference could be made on a question of law, Section 35G of the Act, as it stands, provides for an appeal on a substantial question of law. Such a question of law is required to be formulated by the High Court itself. Even otherwise the question of law purported to have been referred to by the learned Commissioner of Central Excise would have been maintainable provided a substantial question of law arose for consideration of the High Court and not otherwise. 17. Whether non furnishing of information was willful and would amount to suppression of material fact in terms whereof the extended period of limitation as provided for in Section 11-A of the Customs Act, 1944 could be invoked or not, in our opinion, was not a substantial question of law. The finding of fact arrived at by the Tribunal should have been treated to be final. It would be binding on the High Court while exercising its appellate jurisdiction. A `substantial question of law would mean - of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with - technical, of no substance or consequence, or academic merely. (See Boodireddy Chandraiah v. Arigela Laxmi, [ (2007) 8 SCC 155 ]). 18. The High Court has not said that the finding of fact arrived at by the High Court was perverse and/or was based on applying wrong legal principles etc. The High Court proceeded on the basis that the failure on the part of the appellant to submit required declaration or application for licence for establishment, would amount to concealment of facts from the department. We will assume to be so. But, as we have noticed earlier, requisite information was not only furnished on 22nd January, 1991, indisputably the officers of the Central Excise Department made inspection of the factory and the books maintained by the appellant, including the production register, which must have disclosed the nature of the products from the factory in question. If the requisite information had been given to the authorities on 22nd January, 1991, the question which should have been posed and answered was as to whether despite such knowledge, the Commissioner of Central Excise could have proceeded on the basis that there had been a suppression on the part of the appellant.19. Section 11-A of the Central Excise Act, 1944 provides for penalty. It, therefore, requires strict consideration. Period of limitation provided for in the Act bars the jurisdiction of the Commissioner to initiate a proceeding for imposition of penalty on the expiry thereof. The proviso appended to Section 11-A(1) of the Act makes an exception to the said Rule, the ingredients whereof are thus required to be established for invoking the extended period of limitation. If on the materials produced by the parties, the Tribunal had arrived at a finding of fact that there had been no suppression on the part of the appellant after 22nd January, 1991, the question of invoking the extended period of jurisdiction did not arise. The show cause notice dated 28th March, 1994 thus having been issued after the expiry of the period prescribed under Section 11A of the Act, was clearly barred by limitation.20. In any view of the matter, whether a party is guilty of suppression of fact or not is essentially a question of fact. It does not per se give rise to substantial question of law per se. [See Commissioner of Central Excise, Chandigarh v. Punjab Laminates (P) Ltd, [(2006) 7 SCC 431] and M/s. Larsen and Toubro Ltd. v. The Commissioner of Central Excise, Pune-II, [2007 (6) SCALE 524 ]. | 1[ds]18. The High Court has not said that the finding of fact arrived at by the High Court was perverse and/or was based on applying wrong legal principles etc. The High Court proceeded on the basis that the failure on the part of the appellant to submit required declaration or application for licence for establishment, would amount to concealment of facts from the department. We will assume to be so. But, as we have noticed earlier, requisite information was not only furnished on 22nd January, 1991, indisputably the officers of the Central Excise Department made inspection of the factory and the books maintained by the appellant, including the production register, which must have disclosed the nature of the products from the factory in question. If the requisite information had been given to the authorities on 22nd January, 1991, the question which should have been posed and answered was as to whether despite such knowledge, the Commissioner of Central Excise could have proceeded on the basis that there had been a suppression on the part of the appellant.19. Section 11-A of the Central Excise Act, 1944 provides for penalty. It, therefore, requires strict consideration. Period of limitation provided for in the Act bars the jurisdiction of the Commissioner to initiate a proceeding for imposition of penalty on the expiry thereof. The proviso appended to Section 11-A(1) of the Act makes an exception to the said Rule, the ingredients whereof are thus required to be established for invoking the extended period of limitation. If on the materials produced by the parties, the Tribunal had arrived at a finding of fact that there had been no suppression on the part of the appellant after 22nd January, 1991, the question of invoking the extended period of jurisdiction did not arise. The show cause notice dated 28th March, 1994 thus having been issued after the expiry of the period prescribed under Section 11A of the Act, was clearly barred by limitation.20. In any view of the matter, whether a party is guilty of suppression of fact or not is essentially a question of fact. It does not per se give rise to substantial question of law per | 1 | 2,896 | 402 | ### 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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High Court any question of law arising out of such order and, subject to the other provisions contained in this section, the Appellate Tribunal shall, within one hundred and twenty days of the receipt of such application, draw up a statement of the case and refer it to the High Court:Provided that the Appellate Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the period herein before specified, allow it to be presented within a further period not exceeding thirty days.(2) On receipt of notice that an application has been made under sub-section (1), the person against whom such application has been made, may, notwithstanding that he may not have filed such an application, file, within forty-five days of the receipt of the notice, a memorandum of cross-objections verified in the prescribed manner against any part of the order in relation to which an application for reference has been made and such memorandum shall be disposed of by the Appellate Tribunal as if it were an application presented within the time specified in sub-section (1).(3) If, on an application made under sub-section (1), the Appellate Tribunal refuses to state the case on the ground that no question of law arises, the Commissioner of Central Excise, or, as the case may be, the other party may, within six months from the date on which he is served with notice of such refusal, apply to the High Court and the High Court may, if it is not satisfied with the correctness of the decision of the Appellate Tribunal, require the Appellate Tribunal to state the case and to refer it, and on receipt of any such requisition, the Appellate Tribunal, shall state the case and refer it accordingly.(4) Where in the exercise of its powers under sub- section (3), the Appellate Tribunal refuses to state a case which it has been required by an applicant to state, the applicant may, within thirty days from the date on which he receives notice of such refusal, withdraw his application and, if he does so, the fee, if any, paid by him, shall be refunded" 16. The order of the Tribunal having been passed on 3rd March, 2005 an appeal was maintainable to the High Court in terms of the substituted provision and not a reference. Whereas a reference could be made on a question of law, Section 35G of the Act, as it stands, provides for an appeal on a substantial question of law. Such a question of law is required to be formulated by the High Court itself. Even otherwise the question of law purported to have been referred to by the learned Commissioner of Central Excise would have been maintainable provided a substantial question of law arose for consideration of the High Court and not otherwise. 17. Whether non furnishing of information was willful and would amount to suppression of material fact in terms whereof the extended period of limitation as provided for in Section 11-A of the Customs Act, 1944 could be invoked or not, in our opinion, was not a substantial question of law. The finding of fact arrived at by the Tribunal should have been treated to be final. It would be binding on the High Court while exercising its appellate jurisdiction. A `substantial question of law would mean - of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with - technical, of no substance or consequence, or academic merely. (See Boodireddy Chandraiah v. Arigela Laxmi, [ (2007) 8 SCC 155 ]). 18. The High Court has not said that the finding of fact arrived at by the High Court was perverse and/or was based on applying wrong legal principles etc. The High Court proceeded on the basis that the failure on the part of the appellant to submit required declaration or application for licence for establishment, would amount to concealment of facts from the department. We will assume to be so. But, as we have noticed earlier, requisite information was not only furnished on 22nd January, 1991, indisputably the officers of the Central Excise Department made inspection of the factory and the books maintained by the appellant, including the production register, which must have disclosed the nature of the products from the factory in question. If the requisite information had been given to the authorities on 22nd January, 1991, the question which should have been posed and answered was as to whether despite such knowledge, the Commissioner of Central Excise could have proceeded on the basis that there had been a suppression on the part of the appellant.19. Section 11-A of the Central Excise Act, 1944 provides for penalty. It, therefore, requires strict consideration. Period of limitation provided for in the Act bars the jurisdiction of the Commissioner to initiate a proceeding for imposition of penalty on the expiry thereof. The proviso appended to Section 11-A(1) of the Act makes an exception to the said Rule, the ingredients whereof are thus required to be established for invoking the extended period of limitation. If on the materials produced by the parties, the Tribunal had arrived at a finding of fact that there had been no suppression on the part of the appellant after 22nd January, 1991, the question of invoking the extended period of jurisdiction did not arise. The show cause notice dated 28th March, 1994 thus having been issued after the expiry of the period prescribed under Section 11A of the Act, was clearly barred by limitation.20. In any view of the matter, whether a party is guilty of suppression of fact or not is essentially a question of fact. It does not per se give rise to substantial question of law per se. [See Commissioner of Central Excise, Chandigarh v. Punjab Laminates (P) Ltd, [(2006) 7 SCC 431] and M/s. Larsen and Toubro Ltd. v. The Commissioner of Central Excise, Pune-II, [2007 (6) SCALE 524 ].
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1
### Explanation:
18. The High Court has not said that the finding of fact arrived at by the High Court was perverse and/or was based on applying wrong legal principles etc. The High Court proceeded on the basis that the failure on the part of the appellant to submit required declaration or application for licence for establishment, would amount to concealment of facts from the department. We will assume to be so. But, as we have noticed earlier, requisite information was not only furnished on 22nd January, 1991, indisputably the officers of the Central Excise Department made inspection of the factory and the books maintained by the appellant, including the production register, which must have disclosed the nature of the products from the factory in question. If the requisite information had been given to the authorities on 22nd January, 1991, the question which should have been posed and answered was as to whether despite such knowledge, the Commissioner of Central Excise could have proceeded on the basis that there had been a suppression on the part of the appellant.19. Section 11-A of the Central Excise Act, 1944 provides for penalty. It, therefore, requires strict consideration. Period of limitation provided for in the Act bars the jurisdiction of the Commissioner to initiate a proceeding for imposition of penalty on the expiry thereof. The proviso appended to Section 11-A(1) of the Act makes an exception to the said Rule, the ingredients whereof are thus required to be established for invoking the extended period of limitation. If on the materials produced by the parties, the Tribunal had arrived at a finding of fact that there had been no suppression on the part of the appellant after 22nd January, 1991, the question of invoking the extended period of jurisdiction did not arise. The show cause notice dated 28th March, 1994 thus having been issued after the expiry of the period prescribed under Section 11A of the Act, was clearly barred by limitation.20. In any view of the matter, whether a party is guilty of suppression of fact or not is essentially a question of fact. It does not per se give rise to substantial question of law per
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Hindustan Steel Ltd Vs. M/S. Dalip Construction Company | he thinks fit, an amount not exceeding ten times the amount of the proper duty or of the deficient portion thereof, Sec. 42 provides:"(1) When the duty and penalty (if any), leviable in respect of any instrument have been paid under Section 35, Section 40 or * * the person admitting such instrument in evidence or the Collector, as the case may be, shall certify by endorsement "thereon that the proper duty or, as the case may be, the proper duty and penalty (stating the amount of each) have been levied in respect thereof, * * *(2) Every instrument so endorsed shall thereupon be admissible in evidence and may be registered and acted upon and authenticated as if it had been duly stamped, and shall be delivered on his application in this behalf to the person from whose possession it came into the hands of the officer impounding it, or as such person may direct:Provided that-* * * * * * *"The award, which is an "instrument within the meaning of the Stamp Act was required to be stamped. Being unstamped, the award could not be received in evidence by the Court, nor could it be acted upon. But the Court was competent to impound it and to send it to the Collector with a certificate in writing stating the amount of duty and penalty levied thereon. On the instrument so received the Collector may adjudge whether it is duly stamped and he may require penalty to be paid thereon, if in his view it has not been duly stamped. If the duty and penalty are paid, the Collector will certify by endorsement on the instrument that the proper duty and penalty have been paid.4. An instrument which is not duly stamped cannot be received in evidence by any person who has authority to receive evidence, and it cannot be acted upon by that person or by any public officer. Section 35 provides that the admissibility of an instrument once admitted in evidence shall not, except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. Relying upon the difference in the phraseology between Sections 35 and 36 it was urged that an instrument which is not duly stamped may be admitted in evidence on payment of duty and penalty, but it cannot be acted upon because Section 35 operates as a bar to the admission in evidence of the instrument not duly stamped as well as to its being acted upon, and the Legislature has by Section 36 in the conditions set out therein removed the bar only against admission in evidence of the instrument. The agreement ignores the true import of Section 36.By that Section an instrument once admitted in evidence shall not be called in question at any stage of the same suit or proceeding on the ground that it has not been duly stamped. Section 36 does not prohibit a challenge against an instrument that it shall not be acted upon because it is not only duly stamped, but on that account there is no bar against an instrument not duly stamped being acted upon after payment of the stamp duty and penalty according to the procedure prescribed by the Act. The doubt, if any, is removed by the terms of Section 42 (2) which enact, in terms unmistakable, that every instrument endorsed by the Collector under Section 42 (1) shall be admissible in evidence and may be acted upon as if it had been duly stamped.5. The Stamp Act is a fiscal measure enacted to secure revenue for the State on certain classes of instruments: it is not enacted to arm a litigant with a weapon of technicality to meet the case of his opponent the stringent provisions of the Act are conceived in the interest of the revenue. Once that object is secured according to law, the party staking his claim on the instrument will not be defeated on the ground of the initial defect in the instrument.Viewed in that light the scheme is clear. Section 35 of the Stamp Act operates as a bar to an unstamped instrument being admitted in evidence or being acted upon; Section 40 provides the procedure for instruments being impounded, sub-section (1) of Section 42 provides for certifying that an instrument is duly stamped, and sub-section (2) of Section 42 enacts the consequences resulting from such certification.6. Our attention was invited to the statement of law by M. C. Desai, J., in Mst. Bittan Bibi v. Kuntu Lal= ILR (1952) 2 All 984 = (AIR 1952 All 996 ) that:"A court is prohibited from admitting an instrument in evidence and a Court and a public officer both are prohibited from acting upon it. Thus a Court is prohibited from both admitting it in evidence and acting upon it. It follows that the acting upon is not included in the admission an that a document can be admitted in evidence but not be acted upon. Of course it cannot be acted upon without its being admitted but it can be admitted and yet be not acted upon. If every document, upon admission, became automatically liable to be acted upon, the provision in Section 35 that an instrument chargeable with duty but not duly stamped, shall not be acted upon by the Court, would be rendered redundant by the provision that it shall not be admitted in evidence for any purpose. To act upon on instrument is to give effect to it or to enforce it."In our Judgment, the learned Judge attributed to Section 36 a meaning which the Legislature did not intend. Attention of the learned Judge was apparently not invited to Section 42 (2) of the Act which expressly renders an instrument, when certified by endorsement that proper duty and penalty have been levied in respect thereof, capable of being acted upon as if it had been duly stamped | 0[ds]The award, which is an "instrument within the meaning of the Stamp Act was required to be stamped. Being unstamped, the award could not be received in evidence by the Court, nor could it be acted upon. But the Court was competent to impound it and to send it to the Collector with a certificate in writing stating the amount of duty and penalty levied thereon. On the instrument so received the Collector may adjudge whether it is duly stamped and he may require penalty to be paid thereon, if in his view it has not been duly stamped. If the duty and penalty are paid, the Collector will certify by endorsement on the instrument that the proper duty and penalty have been paid.An instrument which is not duly stamped cannot be received in evidence by any person who has authority to receive evidence, and it cannot be acted upon by that person or by any public officer. Section 35 provides that the admissibility of an instrument once admitted in evidence shall not, except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. Relying upon the difference in the phraseology between Sections 35 and 36 it was urged that an instrument which is not duly stamped may be admitted in evidence on payment of duty and penalty, but it cannot be acted upon because Section 35 operates as a bar to the admission in evidence of the instrument not duly stamped as well as to its being acted upon, and the Legislature has by Section 36 in the conditions set out therein removed the bar only against admission in evidence of the instrument. The agreement ignores the true import of Section 36.By that Section an instrument once admitted in evidence shall not be called in question at any stage of the same suit or proceeding on the ground that it has not been duly stamped. Section 36 does not prohibit a challenge against an instrument that it shall not be acted upon because it is not only duly stamped, but on that account there is no bar against an instrument not duly stamped being acted upon after payment of the stamp duty and penalty according to the procedure prescribed by the Act. The doubt, if any, is removed by the terms of Section 42 (2) which enact, in terms unmistakable, that every instrument endorsed by the Collector under Section 42 (1) shall be admissible in evidence and may be acted upon as if it had been dulyn our Judgment, the learned Judge attributed to Section 36 a meaning which the Legislature did not intend. Attention of the learned Judge was apparently not invited to Section 42 (2) of the Act which expressly renders an instrument, when certified by endorsement that proper duty and penalty have been levied in respect thereof, capable of being acted upon as if it had been duly stamped | 0 | 2,111 | 544 | ### 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:
he thinks fit, an amount not exceeding ten times the amount of the proper duty or of the deficient portion thereof, Sec. 42 provides:"(1) When the duty and penalty (if any), leviable in respect of any instrument have been paid under Section 35, Section 40 or * * the person admitting such instrument in evidence or the Collector, as the case may be, shall certify by endorsement "thereon that the proper duty or, as the case may be, the proper duty and penalty (stating the amount of each) have been levied in respect thereof, * * *(2) Every instrument so endorsed shall thereupon be admissible in evidence and may be registered and acted upon and authenticated as if it had been duly stamped, and shall be delivered on his application in this behalf to the person from whose possession it came into the hands of the officer impounding it, or as such person may direct:Provided that-* * * * * * *"The award, which is an "instrument within the meaning of the Stamp Act was required to be stamped. Being unstamped, the award could not be received in evidence by the Court, nor could it be acted upon. But the Court was competent to impound it and to send it to the Collector with a certificate in writing stating the amount of duty and penalty levied thereon. On the instrument so received the Collector may adjudge whether it is duly stamped and he may require penalty to be paid thereon, if in his view it has not been duly stamped. If the duty and penalty are paid, the Collector will certify by endorsement on the instrument that the proper duty and penalty have been paid.4. An instrument which is not duly stamped cannot be received in evidence by any person who has authority to receive evidence, and it cannot be acted upon by that person or by any public officer. Section 35 provides that the admissibility of an instrument once admitted in evidence shall not, except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. Relying upon the difference in the phraseology between Sections 35 and 36 it was urged that an instrument which is not duly stamped may be admitted in evidence on payment of duty and penalty, but it cannot be acted upon because Section 35 operates as a bar to the admission in evidence of the instrument not duly stamped as well as to its being acted upon, and the Legislature has by Section 36 in the conditions set out therein removed the bar only against admission in evidence of the instrument. The agreement ignores the true import of Section 36.By that Section an instrument once admitted in evidence shall not be called in question at any stage of the same suit or proceeding on the ground that it has not been duly stamped. Section 36 does not prohibit a challenge against an instrument that it shall not be acted upon because it is not only duly stamped, but on that account there is no bar against an instrument not duly stamped being acted upon after payment of the stamp duty and penalty according to the procedure prescribed by the Act. The doubt, if any, is removed by the terms of Section 42 (2) which enact, in terms unmistakable, that every instrument endorsed by the Collector under Section 42 (1) shall be admissible in evidence and may be acted upon as if it had been duly stamped.5. The Stamp Act is a fiscal measure enacted to secure revenue for the State on certain classes of instruments: it is not enacted to arm a litigant with a weapon of technicality to meet the case of his opponent the stringent provisions of the Act are conceived in the interest of the revenue. Once that object is secured according to law, the party staking his claim on the instrument will not be defeated on the ground of the initial defect in the instrument.Viewed in that light the scheme is clear. Section 35 of the Stamp Act operates as a bar to an unstamped instrument being admitted in evidence or being acted upon; Section 40 provides the procedure for instruments being impounded, sub-section (1) of Section 42 provides for certifying that an instrument is duly stamped, and sub-section (2) of Section 42 enacts the consequences resulting from such certification.6. Our attention was invited to the statement of law by M. C. Desai, J., in Mst. Bittan Bibi v. Kuntu Lal= ILR (1952) 2 All 984 = (AIR 1952 All 996 ) that:"A court is prohibited from admitting an instrument in evidence and a Court and a public officer both are prohibited from acting upon it. Thus a Court is prohibited from both admitting it in evidence and acting upon it. It follows that the acting upon is not included in the admission an that a document can be admitted in evidence but not be acted upon. Of course it cannot be acted upon without its being admitted but it can be admitted and yet be not acted upon. If every document, upon admission, became automatically liable to be acted upon, the provision in Section 35 that an instrument chargeable with duty but not duly stamped, shall not be acted upon by the Court, would be rendered redundant by the provision that it shall not be admitted in evidence for any purpose. To act upon on instrument is to give effect to it or to enforce it."In our Judgment, the learned Judge attributed to Section 36 a meaning which the Legislature did not intend. Attention of the learned Judge was apparently not invited to Section 42 (2) of the Act which expressly renders an instrument, when certified by endorsement that proper duty and penalty have been levied in respect thereof, capable of being acted upon as if it had been duly stamped
### Response:
0
### Explanation:
The award, which is an "instrument within the meaning of the Stamp Act was required to be stamped. Being unstamped, the award could not be received in evidence by the Court, nor could it be acted upon. But the Court was competent to impound it and to send it to the Collector with a certificate in writing stating the amount of duty and penalty levied thereon. On the instrument so received the Collector may adjudge whether it is duly stamped and he may require penalty to be paid thereon, if in his view it has not been duly stamped. If the duty and penalty are paid, the Collector will certify by endorsement on the instrument that the proper duty and penalty have been paid.An instrument which is not duly stamped cannot be received in evidence by any person who has authority to receive evidence, and it cannot be acted upon by that person or by any public officer. Section 35 provides that the admissibility of an instrument once admitted in evidence shall not, except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. Relying upon the difference in the phraseology between Sections 35 and 36 it was urged that an instrument which is not duly stamped may be admitted in evidence on payment of duty and penalty, but it cannot be acted upon because Section 35 operates as a bar to the admission in evidence of the instrument not duly stamped as well as to its being acted upon, and the Legislature has by Section 36 in the conditions set out therein removed the bar only against admission in evidence of the instrument. The agreement ignores the true import of Section 36.By that Section an instrument once admitted in evidence shall not be called in question at any stage of the same suit or proceeding on the ground that it has not been duly stamped. Section 36 does not prohibit a challenge against an instrument that it shall not be acted upon because it is not only duly stamped, but on that account there is no bar against an instrument not duly stamped being acted upon after payment of the stamp duty and penalty according to the procedure prescribed by the Act. The doubt, if any, is removed by the terms of Section 42 (2) which enact, in terms unmistakable, that every instrument endorsed by the Collector under Section 42 (1) shall be admissible in evidence and may be acted upon as if it had been dulyn our Judgment, the learned Judge attributed to Section 36 a meaning which the Legislature did not intend. Attention of the learned Judge was apparently not invited to Section 42 (2) of the Act which expressly renders an instrument, when certified by endorsement that proper duty and penalty have been levied in respect thereof, capable of being acted upon as if it had been duly stamped
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Dr. Akshaibar Lal And Others Vs. The Vice-Chancellor, Banaras Hinduuniversity, And Others.( | the special remedy excluded the right of the University to invoke its general powers, not to start with, but after the special procedure had been deliberately adopted and had commenced. If the cases of these appellants had not been sent to the Solicitor-General and the Reviewing Committee at all, other considerations might have arisen. The question is whether after the special procedure was once invoked, it could be dropped in the middle and other powers exercised. 28. The University relies on three arguments in this connection. It is first contended that the powers of the University were cumulative, and that the University could resort to any of the remedies open to it. Reliance is placed in support of this argument on Shankar Sahai v. Din Dial, ILR 12 All 409 (FB) (observations of Mahmood, J., at p. 418), Om Prakash Gupta v. State of U. P., 1957 SCR 423 : ((S) AIR 1957 SC 458 ), State of Madhya Pradesh v. Veereshwar Rao, 1957 SCR 868 : ( (S) AIR 1957 SC 592 ), Brockwell v. Bullock, (1889) 22 QBD 567, Seward v. "Vera Cruz", (1884) 10 AC 59 and Barker v. Edger, 1898 AC 748. It is not necessary to refer to these cases in detail. It has been laid down recently by this Court that, where the law allows alternative remedies, one or the other or both can be invoked unless one remedy is expressly or by necessary implication excluded by the other. (See State of Kerala v. C. M. Francis and Co., Civil Appeal No. 279 of 1959 D/- 12-12-1960 : (AIR 1961 SC 617 ). The question thus is whether there is anything expressly stated by law or clearly implied which would exclude powers under the agreements and the Ordinances, when action has been taken under the Statutes. The University Act expressly makes the Ordinances subject to the Statutes, and in case of any clash between them, the Ordinances must be made to stand down. Further, Statute No. 30 was enacted by Parliament to meet a special situation, and contained a code for dealing with certain special kinds of cases. To that extent, the implication is not only one way, but is also clear. The University could not, having started enquiries under Statute No. 30 abandon the enquiries in midcourse and pass on to something else. This is illustrated by the contradictory Resolutions passed on the same day. In the case of the four appellants belonging to Group I, action under Statute No. 30 was deferred till after the decision of the High Court. But one is tempted to ask what possible further action was contemplated when their services were terminated the same day. It may be pointed out here that dropping of action under Statute No. 30 deprived the appellants of the right to show cause against what had been alleged against them or found by the Reviewing Committee. 29. The appellants characterised the whole action as lacking in bona fides. The action can only be questioned if it is ultra vires, and proof of alien or irrelevant motive is only an example of the ultra vires character of the action, as observed by Warrington, L. J., in the following passage : "My view then is that only case in which the Court can interfere with an act of a public body which is, on the fact of it, regular and within its powers, is when it is proved to be in fact ultra vires, and that the references in the judgments in the several cases cited in argument to bad faith, corruption, alien and irrelevant motives, collateral and indirect objects, and so forth, are merely intended when properly understood as examples of matters which if proved to exist might establish the ultra vires character of the action in question" (Short v. Poole Corporation, 1926-1 Ch 66 at pp. 90-91). We are not concerned so much with the motives, nor even the justice of the action as with its legality, and, in our opinion, having invoked Statute No. 30 in the special circumstances and having gone on with that procedure, it was not possible to undo everything and rely upon other powers, which were not only subordinate but were clearly not available in those special circumstances which led to action under Statute No. 30. 30. The next argument is that Statute No. 30 itself left liberty of action, inasmuch as Cl. 5 gave power to the Executive Council to act as it thought fit. To begin with, it is wrong to think that the words conferring discretion are to be read in the abstract. Those words have to be read within the four corners of Statute No. 30. The words are permissive, no doubt, as to the choice of action, but are imperative in so far as they require some act completing the intent and purpose of the enquiry itself. The words "shall take such action thereon as it may think fit" give liberty of action on the recommendations of the Reviewing Committee, but lay a duty to form an opinion. The words do not give a discretion to take action outside the Statute. 31. Lastly, it is argued that the Executive Council as the appointing authority had the power also to dismiss, and reference is made to Ss. 4(7) and 4(13) of the Act and S. 16 of the General Clauses Act. None can deny that the University did possess such a power. The question is whether it exercised it correctly under the Statutes and Ordinances. We are quite clear that the Executive Council did not. We may say here that we have not accepted the contention that the action of the Executive Council was based upon malice or any indirect or oblique motive. The error was in thinking that there were cumulative or alternative powers, even after the adoption of the special procedure under Statute No. 30. We are, therefore, of opinion that the impugned Resolutions were ultra vires and should be quashed. | 1[ds]We are not concerned with the Regulations, and no reference need be made to them except to say that they ranked below the Ordinances and had to be consistent with the Act, the Statutes and the Ordinances15. From the above analysis, it is clear that the Act created the Executive Council as an authority and the executive body of the University; but its powers were conferred and its duties were created by the Statutes. The source of powers and duties in respect of the Executive Council was thus the Statutes under the authority of the ActThe High Court was persuaded to read the clause as interpreted by the University and, in our opinion, rightly21. The dispute this time arises from the careless use of the word "or". The Ordinance mentions four reasons for termination of services, which are numbered (i) to (iv). In each of those cases, there is the condition precedent that explanation must be called for and considered. So far, the meaning is clear, even though the drafting is far from commendable. Then follow an and "or" and number (v). The word "or" does not seek to create an option between calling for and considering an explanation and a four months notice, etc. The number (v) and then between "mentioned above" and "or" do not permit this reading. The difficulty, however, does not end thereThe case of the University is that all these orders of termination of service were passed under the power granted by cl. (v) of this Ordinance, modified by the terms of the agreements as they existed23. The result of this analysis shows that the power of the University to terminate the services of the incumbents was derived from (a) agreements, (b) Ordinances, and (c) Statute No. 30. The agreements merely represented the general right of a master to terminate the services of incumbents, where they were subject to agreements, after reasonable notice, without giving any reason. The Ordinances, in addition to preserving that right, gave power to terminate service for proved misconduct, inefficiency or physical unfitness. These powers, unless used according to the stated conditions, were unexercisable, and in the case of a service which was protected against arbitrary action, being permanent, could only be invoked in an appropriate instance. In those cases which would fall within the categories of proved misconduct, inefficiency and physical unfitness, the University was required to take action in accordance with the Ordinance and the RulesIt is not necessary to refer to these cases in detail. It has been laid down recently by this Court that, where the law allows alternative remedies, one or the other or both can be invoked unless one remedy is expressly or by necessary implication excluded by the otherThe University Act expressly makes the Ordinances subject to the Statutes, and in case of any clash between them, the Ordinances must be made to stand down. Further, Statute No. 30 was enacted by Parliament to meet a special situation, and contained a code for dealing with certain special kinds of cases. To that extent, the implication is not only one way, but is also clear. The University could not, having started enquiries under Statute No. 30 abandon the enquiries in midcourse and pass on to something else. This is illustrated by the contradictory Resolutions passed on the same day. In the case of the four appellants belonging to Group I, action under Statute No. 30 was deferred till after the decision of the High Court. But one is tempted to ask what possible further action was contemplated when their services were terminated the same day. It may be pointed out here that dropping of action under Statute No. 30 deprived the appellants of the right to show cause against what had been alleged against them or found by the Reviewing CommitteeWe are not concerned so much with the motives, nor even the justice of the action as with its legality, and, in our opinion, having invoked Statute No. 30 in the special circumstances and having gone on with that procedure, it was not possible to undo everything and rely upon other powers, which were not only subordinate but were clearly not available in those special circumstances which led to action under Statute No. 30To begin with, it is wrong to think that the words conferring discretion are to be read in the abstract. Those words have to be read within the four corners of Statute No. 30. The words are permissive, no doubt, as to the choice of action, but are imperative in so far as they require some act completing the intent and purpose of the enquiry itself. The words "shall take such action thereon as it may think fit" give liberty of action on the recommendations of the Reviewing Committee, but lay a duty to form an opinion. The words do not give a discretion to take action outside the StatuteNone can deny that the University did possess such a power. The question is whether it exercised it correctly under the Statutes and Ordinances. We are quite clear that the Executive Council did not. We may say here that we have not accepted the contention that the action of the Executive Council was based upon malice or any indirect or oblique motiveThe error was in thinking that there were cumulative or alternative powers, even after the adoption of the special procedure under Statute No. 30. We are, therefore, of opinion that the impugned Resolutions were ultra vires and should be quashed. | 1 | 6,590 | 1,045 | ### 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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the special remedy excluded the right of the University to invoke its general powers, not to start with, but after the special procedure had been deliberately adopted and had commenced. If the cases of these appellants had not been sent to the Solicitor-General and the Reviewing Committee at all, other considerations might have arisen. The question is whether after the special procedure was once invoked, it could be dropped in the middle and other powers exercised. 28. The University relies on three arguments in this connection. It is first contended that the powers of the University were cumulative, and that the University could resort to any of the remedies open to it. Reliance is placed in support of this argument on Shankar Sahai v. Din Dial, ILR 12 All 409 (FB) (observations of Mahmood, J., at p. 418), Om Prakash Gupta v. State of U. P., 1957 SCR 423 : ((S) AIR 1957 SC 458 ), State of Madhya Pradesh v. Veereshwar Rao, 1957 SCR 868 : ( (S) AIR 1957 SC 592 ), Brockwell v. Bullock, (1889) 22 QBD 567, Seward v. "Vera Cruz", (1884) 10 AC 59 and Barker v. Edger, 1898 AC 748. It is not necessary to refer to these cases in detail. It has been laid down recently by this Court that, where the law allows alternative remedies, one or the other or both can be invoked unless one remedy is expressly or by necessary implication excluded by the other. (See State of Kerala v. C. M. Francis and Co., Civil Appeal No. 279 of 1959 D/- 12-12-1960 : (AIR 1961 SC 617 ). The question thus is whether there is anything expressly stated by law or clearly implied which would exclude powers under the agreements and the Ordinances, when action has been taken under the Statutes. The University Act expressly makes the Ordinances subject to the Statutes, and in case of any clash between them, the Ordinances must be made to stand down. Further, Statute No. 30 was enacted by Parliament to meet a special situation, and contained a code for dealing with certain special kinds of cases. To that extent, the implication is not only one way, but is also clear. The University could not, having started enquiries under Statute No. 30 abandon the enquiries in midcourse and pass on to something else. This is illustrated by the contradictory Resolutions passed on the same day. In the case of the four appellants belonging to Group I, action under Statute No. 30 was deferred till after the decision of the High Court. But one is tempted to ask what possible further action was contemplated when their services were terminated the same day. It may be pointed out here that dropping of action under Statute No. 30 deprived the appellants of the right to show cause against what had been alleged against them or found by the Reviewing Committee. 29. The appellants characterised the whole action as lacking in bona fides. The action can only be questioned if it is ultra vires, and proof of alien or irrelevant motive is only an example of the ultra vires character of the action, as observed by Warrington, L. J., in the following passage : "My view then is that only case in which the Court can interfere with an act of a public body which is, on the fact of it, regular and within its powers, is when it is proved to be in fact ultra vires, and that the references in the judgments in the several cases cited in argument to bad faith, corruption, alien and irrelevant motives, collateral and indirect objects, and so forth, are merely intended when properly understood as examples of matters which if proved to exist might establish the ultra vires character of the action in question" (Short v. Poole Corporation, 1926-1 Ch 66 at pp. 90-91). We are not concerned so much with the motives, nor even the justice of the action as with its legality, and, in our opinion, having invoked Statute No. 30 in the special circumstances and having gone on with that procedure, it was not possible to undo everything and rely upon other powers, which were not only subordinate but were clearly not available in those special circumstances which led to action under Statute No. 30. 30. The next argument is that Statute No. 30 itself left liberty of action, inasmuch as Cl. 5 gave power to the Executive Council to act as it thought fit. To begin with, it is wrong to think that the words conferring discretion are to be read in the abstract. Those words have to be read within the four corners of Statute No. 30. The words are permissive, no doubt, as to the choice of action, but are imperative in so far as they require some act completing the intent and purpose of the enquiry itself. The words "shall take such action thereon as it may think fit" give liberty of action on the recommendations of the Reviewing Committee, but lay a duty to form an opinion. The words do not give a discretion to take action outside the Statute. 31. Lastly, it is argued that the Executive Council as the appointing authority had the power also to dismiss, and reference is made to Ss. 4(7) and 4(13) of the Act and S. 16 of the General Clauses Act. None can deny that the University did possess such a power. The question is whether it exercised it correctly under the Statutes and Ordinances. We are quite clear that the Executive Council did not. We may say here that we have not accepted the contention that the action of the Executive Council was based upon malice or any indirect or oblique motive. The error was in thinking that there were cumulative or alternative powers, even after the adoption of the special procedure under Statute No. 30. We are, therefore, of opinion that the impugned Resolutions were ultra vires and should be quashed.
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We are not concerned with the Regulations, and no reference need be made to them except to say that they ranked below the Ordinances and had to be consistent with the Act, the Statutes and the Ordinances15. From the above analysis, it is clear that the Act created the Executive Council as an authority and the executive body of the University; but its powers were conferred and its duties were created by the Statutes. The source of powers and duties in respect of the Executive Council was thus the Statutes under the authority of the ActThe High Court was persuaded to read the clause as interpreted by the University and, in our opinion, rightly21. The dispute this time arises from the careless use of the word "or". The Ordinance mentions four reasons for termination of services, which are numbered (i) to (iv). In each of those cases, there is the condition precedent that explanation must be called for and considered. So far, the meaning is clear, even though the drafting is far from commendable. Then follow an and "or" and number (v). The word "or" does not seek to create an option between calling for and considering an explanation and a four months notice, etc. The number (v) and then between "mentioned above" and "or" do not permit this reading. The difficulty, however, does not end thereThe case of the University is that all these orders of termination of service were passed under the power granted by cl. (v) of this Ordinance, modified by the terms of the agreements as they existed23. The result of this analysis shows that the power of the University to terminate the services of the incumbents was derived from (a) agreements, (b) Ordinances, and (c) Statute No. 30. The agreements merely represented the general right of a master to terminate the services of incumbents, where they were subject to agreements, after reasonable notice, without giving any reason. The Ordinances, in addition to preserving that right, gave power to terminate service for proved misconduct, inefficiency or physical unfitness. These powers, unless used according to the stated conditions, were unexercisable, and in the case of a service which was protected against arbitrary action, being permanent, could only be invoked in an appropriate instance. In those cases which would fall within the categories of proved misconduct, inefficiency and physical unfitness, the University was required to take action in accordance with the Ordinance and the RulesIt is not necessary to refer to these cases in detail. It has been laid down recently by this Court that, where the law allows alternative remedies, one or the other or both can be invoked unless one remedy is expressly or by necessary implication excluded by the otherThe University Act expressly makes the Ordinances subject to the Statutes, and in case of any clash between them, the Ordinances must be made to stand down. Further, Statute No. 30 was enacted by Parliament to meet a special situation, and contained a code for dealing with certain special kinds of cases. To that extent, the implication is not only one way, but is also clear. The University could not, having started enquiries under Statute No. 30 abandon the enquiries in midcourse and pass on to something else. This is illustrated by the contradictory Resolutions passed on the same day. In the case of the four appellants belonging to Group I, action under Statute No. 30 was deferred till after the decision of the High Court. But one is tempted to ask what possible further action was contemplated when their services were terminated the same day. It may be pointed out here that dropping of action under Statute No. 30 deprived the appellants of the right to show cause against what had been alleged against them or found by the Reviewing CommitteeWe are not concerned so much with the motives, nor even the justice of the action as with its legality, and, in our opinion, having invoked Statute No. 30 in the special circumstances and having gone on with that procedure, it was not possible to undo everything and rely upon other powers, which were not only subordinate but were clearly not available in those special circumstances which led to action under Statute No. 30To begin with, it is wrong to think that the words conferring discretion are to be read in the abstract. Those words have to be read within the four corners of Statute No. 30. The words are permissive, no doubt, as to the choice of action, but are imperative in so far as they require some act completing the intent and purpose of the enquiry itself. The words "shall take such action thereon as it may think fit" give liberty of action on the recommendations of the Reviewing Committee, but lay a duty to form an opinion. The words do not give a discretion to take action outside the StatuteNone can deny that the University did possess such a power. The question is whether it exercised it correctly under the Statutes and Ordinances. We are quite clear that the Executive Council did not. We may say here that we have not accepted the contention that the action of the Executive Council was based upon malice or any indirect or oblique motiveThe error was in thinking that there were cumulative or alternative powers, even after the adoption of the special procedure under Statute No. 30. We are, therefore, of opinion that the impugned Resolutions were ultra vires and should be quashed.
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Commissioner of Central Excise Vs. Maruti Suzuki India Ltd | Gurgaon" 21. A bare reading of the entitlement certificate also does not give any indication of deferment of tax or capital subsidy. On the contrary, it only refers to a "tax concession" for the period from 1st August, 2001 to 31st July, 2015 and the quantum of tax concession is mentioned as Rs. 564.35 crores. The entitlement certificate issued to the Assessee is clearly in line with the decision of the HPC and also does not support the case of the Assessee. 22. However, to buttress his case, learned Counsel for the Assessee referred to a representation made by the Assessee to the Commissioner, Commercial Sales Tax Department in the State Government on 15th September, 2001 and the response received by it on or about 22nd October, 2001. The response received by the Assessee clarified that the amount allowed to be retained by the Assessee on the basis of the entitlement certificate would be retainable as capital subsidy and not as an exemption from sales tax. This response was sent by the Joint Director (legal) from the office of the Prohibition, Excise & Taxation Commissioner of the State Government. 23. We are not able to appreciate the authority of the Joint Director to issue such a response which is clearly not supported by the decision of the HPC taken on 14th June, 2001 nor is it in consonance with the entitlement certificate issued to the Assessee nor is it in consonance with Rule 28-C(5)(b). As mentioned above there is nothing in the decision of the HPC or the entitlement certificate to indicate that 50% of the sales tax retained by the Assessee on the sale of its vehicles was liable to be adjusted against any capital subsidy entitlement of the Assessee. 24. Learned Additional Solicitor General contended that Section 13B of the Act which relates to the power to exempt certain class of industries from payment of tax is also relevant. We are not inclined to consider this submission since the very basis on which the Tribunal has proceeded namely the application of Rule 28-C(5)(a) is not only incorrect but the Tribunal has overlooked the decision of the HPC and the entitlement certificate apart from overlooking Rule 28-C(5)(b). 25. Finally, our attention was drawn to a circular dated 30th June, 2000 issued by the Central Board of Excise and Customs. This circular was issued in view of the coming into force of Section 4 of the Excise Act (as amended) from 1st July, 2000. 26. The circular brought to the notice of all concerned that in view of the amended Section 4 of the Excise Act, any amount actually paid or actually payable by way of excise, sales tax and other taxes shall be excluded from the transaction value. It was made clear that if tax is paid at a concessional rate, that amount may be deducted from the transaction value. But, where the tax is not paid at the time of the transaction, but is paid subsequently, as for example, sales tax payable under a deferment scheme, then too the benefit of exclusion would be allowed since the amount would be actually payable. The relevant paragraphs of the circular, namely, paragraphs 10 and 11 read as follows: "10. As regards exclusion of taxes while working out assessable value, the definition of transaction value itself mentions that whatever amount is actually paid or actually payable to the Government or the relevant statutory authority by way of excise, sale tax and other taxes, such amount shall be excluded from the transaction value. In other words, if any excise duty or other tax is paid at a concessional rate for a particular transaction, the amount of excise duty or tax actually paid at the concessional rate shall only be allowed to be deducted from price. The Assessee cannot claim that the excise duty or tax payable at the "normal rate" should be allowed to be deducted. The words "actually paid" have, therefore, been used to the definition of transaction value to reflect the legislative intention as explained above. 11. The words "actually payable" in the context of the amount of duty of excise, sales tax and other taxes would normally come into play only in those situations where the amount of excise, sales tax or other taxes is not paid at the time of transaction but paid subsequently, for example, sales tax payable under a deferment scheme." 27. Insofar as the present case is concerned, there is no doubt that 50% of the sales tax collected was retained by the Assessee and was not actually paid to the exchequer nor was it actually payable since the HPC permitted the Assessee to retain that amount. 28. Therefore, whichever way the issue is looked at, the fact remains that the Assessee retained with it 50% of the sales tax collected from its customers and it was neither actually paid to the exchequer nor was it actually payable to the exchequer. That being the position, the transaction value was required to be calculated by including the amount of about Rs. 22.44 crores retained by the Assessee. 29. In our opinion, the Tribunal misdirected itself in law on several counts and erroneously decided the appeal in favour of the Assessee and, therefore, the order of the Tribunal is set aside. 30. It was eventually submitted by learned Counsel for the Assessee that on the facts and in the circumstances of the case penalty ought not to be imposed upon the Assessee particularly since the Assessee bona fide believed on the basis of the correspondence entered into with the Revenue that the 50% sales tax retained by it was adjustable against capital subsidy and also that there was at least the decision of the Tribunal in its favour in regard to the entitlement of the Assessee. We agree with learned Counsel only to the extent that since the Assessee had succeeded before the Tribunal, it would not be appropriate to saddle it with any penalty. Conclusion 31. | 1[ds]In our opinion, the question must be answered in the negative and in favour of the Revenue.A bare reading of Rule 28-C(5)(a) shows that it is clearly inapplicable in the case of the Assessee. That sub-rule ex facie excludes a prestigious unit from its ken ["(except a prestigious unit)"] There is no dispute that the Assessee is a prestigious unit and therefore Rule 28-C(5)(a) is not at all applicable and the Tribunal was completely in error in relying upon this sub-rule. What is applicable to the present case is Rule 28-C(5)(b) which mentions that the grant of a tax concession to a prestigious unit will be decided by the HPC.The HPC in its decision taken on 14th June, 2001 permitted the Assessee to retain 50% of the sales tax collected from the customers for a period of 14 years subject to a ceiling of Rs. 564.35 crores. There is no mention in the decision of the HPC about adjustment of this amount against any scheme or any capital subsidy. On the contrary, the decision of the HPC is relatable to Rule 28-C(5)(b) which refers to "grant of tax concession to prestigious units" and for the implementation of this decision, an entitlement certificate would be issued to the Assessee. The Revenue is right in its contention that the decision of the HPC clearly does not support the case of the Assessee.Pursuant to the decision of the HPC, the Assessee was issued an entitlement certificate in Form ST 72B of the Rules.A bare reading of the entitlement certificate also does not give any indication of deferment of tax or capital subsidy. On the contrary, it only refers to a "tax concession" for the period from 1st August, 2001 to 31st July, 2015 and the quantum of tax concession is mentioned as Rs. 564.35 crores. The entitlement certificate issued to the Assessee is clearly in line with the decision of the HPC and also does not support the case of the Assessee.We are not able to appreciate the authority of the Joint Director to issue such a response which is clearly not supported by the decision of the HPC taken on 14th June, 2001 nor is it in consonance with the entitlement certificate issued to the Assessee nor is it in consonance with Rule 28-C(5)(b). As mentioned above there is nothing in the decision of the HPC or the entitlement certificate to indicate that 50% of the sales tax retained by the Assessee on the sale of its vehicles was liable to be adjusted against any capital subsidy entitlement of theare not inclined to consider this submission since the very basis on which the Tribunal has proceeded namely the application of Rule 28-C(5)(a) is not only incorrect but the Tribunal has overlooked the decision of the HPC and the entitlement certificate apart from overlooking Rule 28-C(5)(b).The circular brought to the notice of all concerned that in view of the amended Section 4 of the Excise Act, any amount actually paid or actually payable by way of excise, sales tax and other taxes shall be excluded from the transaction value. It was made clear that if tax is paid at a concessional rate, that amount may be deducted from the transaction value. But, where the tax is not paid at the time of the transaction, but is paid subsequently, as for example, sales tax payable under a deferment scheme, then too the benefit of exclusion would be allowed since the amount would be actually payable.Insofar as the present case is concerned, there is no doubt that 50% of the sales tax collected was retained by the Assessee and was not actually paid to the exchequer nor was it actually payable since the HPC permitted the Assessee to retain that amount.Therefore, whichever way the issue is looked at, the fact remains that the Assessee retained with it 50% of the sales tax collected from its customers and it was neither actually paid to the exchequer nor was it actually payable to the exchequer. That being the position, the transaction value was required to be calculated by including the amount of about Rs. 22.44 crores retained by the Assessee.In our opinion, the Tribunal misdirected itself in law on several counts and erroneously decided the appeal in favour of the Assessee and, therefore, the order of the Tribunal is setagree with learned Counsel only to the extent that since the Assessee had succeeded before the Tribunal, it would not be appropriate to saddle it with any penalty. | 1 | 3,880 | 851 | ### 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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Gurgaon" 21. A bare reading of the entitlement certificate also does not give any indication of deferment of tax or capital subsidy. On the contrary, it only refers to a "tax concession" for the period from 1st August, 2001 to 31st July, 2015 and the quantum of tax concession is mentioned as Rs. 564.35 crores. The entitlement certificate issued to the Assessee is clearly in line with the decision of the HPC and also does not support the case of the Assessee. 22. However, to buttress his case, learned Counsel for the Assessee referred to a representation made by the Assessee to the Commissioner, Commercial Sales Tax Department in the State Government on 15th September, 2001 and the response received by it on or about 22nd October, 2001. The response received by the Assessee clarified that the amount allowed to be retained by the Assessee on the basis of the entitlement certificate would be retainable as capital subsidy and not as an exemption from sales tax. This response was sent by the Joint Director (legal) from the office of the Prohibition, Excise & Taxation Commissioner of the State Government. 23. We are not able to appreciate the authority of the Joint Director to issue such a response which is clearly not supported by the decision of the HPC taken on 14th June, 2001 nor is it in consonance with the entitlement certificate issued to the Assessee nor is it in consonance with Rule 28-C(5)(b). As mentioned above there is nothing in the decision of the HPC or the entitlement certificate to indicate that 50% of the sales tax retained by the Assessee on the sale of its vehicles was liable to be adjusted against any capital subsidy entitlement of the Assessee. 24. Learned Additional Solicitor General contended that Section 13B of the Act which relates to the power to exempt certain class of industries from payment of tax is also relevant. We are not inclined to consider this submission since the very basis on which the Tribunal has proceeded namely the application of Rule 28-C(5)(a) is not only incorrect but the Tribunal has overlooked the decision of the HPC and the entitlement certificate apart from overlooking Rule 28-C(5)(b). 25. Finally, our attention was drawn to a circular dated 30th June, 2000 issued by the Central Board of Excise and Customs. This circular was issued in view of the coming into force of Section 4 of the Excise Act (as amended) from 1st July, 2000. 26. The circular brought to the notice of all concerned that in view of the amended Section 4 of the Excise Act, any amount actually paid or actually payable by way of excise, sales tax and other taxes shall be excluded from the transaction value. It was made clear that if tax is paid at a concessional rate, that amount may be deducted from the transaction value. But, where the tax is not paid at the time of the transaction, but is paid subsequently, as for example, sales tax payable under a deferment scheme, then too the benefit of exclusion would be allowed since the amount would be actually payable. The relevant paragraphs of the circular, namely, paragraphs 10 and 11 read as follows: "10. As regards exclusion of taxes while working out assessable value, the definition of transaction value itself mentions that whatever amount is actually paid or actually payable to the Government or the relevant statutory authority by way of excise, sale tax and other taxes, such amount shall be excluded from the transaction value. In other words, if any excise duty or other tax is paid at a concessional rate for a particular transaction, the amount of excise duty or tax actually paid at the concessional rate shall only be allowed to be deducted from price. The Assessee cannot claim that the excise duty or tax payable at the "normal rate" should be allowed to be deducted. The words "actually paid" have, therefore, been used to the definition of transaction value to reflect the legislative intention as explained above. 11. The words "actually payable" in the context of the amount of duty of excise, sales tax and other taxes would normally come into play only in those situations where the amount of excise, sales tax or other taxes is not paid at the time of transaction but paid subsequently, for example, sales tax payable under a deferment scheme." 27. Insofar as the present case is concerned, there is no doubt that 50% of the sales tax collected was retained by the Assessee and was not actually paid to the exchequer nor was it actually payable since the HPC permitted the Assessee to retain that amount. 28. Therefore, whichever way the issue is looked at, the fact remains that the Assessee retained with it 50% of the sales tax collected from its customers and it was neither actually paid to the exchequer nor was it actually payable to the exchequer. That being the position, the transaction value was required to be calculated by including the amount of about Rs. 22.44 crores retained by the Assessee. 29. In our opinion, the Tribunal misdirected itself in law on several counts and erroneously decided the appeal in favour of the Assessee and, therefore, the order of the Tribunal is set aside. 30. It was eventually submitted by learned Counsel for the Assessee that on the facts and in the circumstances of the case penalty ought not to be imposed upon the Assessee particularly since the Assessee bona fide believed on the basis of the correspondence entered into with the Revenue that the 50% sales tax retained by it was adjustable against capital subsidy and also that there was at least the decision of the Tribunal in its favour in regard to the entitlement of the Assessee. We agree with learned Counsel only to the extent that since the Assessee had succeeded before the Tribunal, it would not be appropriate to saddle it with any penalty. Conclusion 31.
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In our opinion, the question must be answered in the negative and in favour of the Revenue.A bare reading of Rule 28-C(5)(a) shows that it is clearly inapplicable in the case of the Assessee. That sub-rule ex facie excludes a prestigious unit from its ken ["(except a prestigious unit)"] There is no dispute that the Assessee is a prestigious unit and therefore Rule 28-C(5)(a) is not at all applicable and the Tribunal was completely in error in relying upon this sub-rule. What is applicable to the present case is Rule 28-C(5)(b) which mentions that the grant of a tax concession to a prestigious unit will be decided by the HPC.The HPC in its decision taken on 14th June, 2001 permitted the Assessee to retain 50% of the sales tax collected from the customers for a period of 14 years subject to a ceiling of Rs. 564.35 crores. There is no mention in the decision of the HPC about adjustment of this amount against any scheme or any capital subsidy. On the contrary, the decision of the HPC is relatable to Rule 28-C(5)(b) which refers to "grant of tax concession to prestigious units" and for the implementation of this decision, an entitlement certificate would be issued to the Assessee. The Revenue is right in its contention that the decision of the HPC clearly does not support the case of the Assessee.Pursuant to the decision of the HPC, the Assessee was issued an entitlement certificate in Form ST 72B of the Rules.A bare reading of the entitlement certificate also does not give any indication of deferment of tax or capital subsidy. On the contrary, it only refers to a "tax concession" for the period from 1st August, 2001 to 31st July, 2015 and the quantum of tax concession is mentioned as Rs. 564.35 crores. The entitlement certificate issued to the Assessee is clearly in line with the decision of the HPC and also does not support the case of the Assessee.We are not able to appreciate the authority of the Joint Director to issue such a response which is clearly not supported by the decision of the HPC taken on 14th June, 2001 nor is it in consonance with the entitlement certificate issued to the Assessee nor is it in consonance with Rule 28-C(5)(b). As mentioned above there is nothing in the decision of the HPC or the entitlement certificate to indicate that 50% of the sales tax retained by the Assessee on the sale of its vehicles was liable to be adjusted against any capital subsidy entitlement of theare not inclined to consider this submission since the very basis on which the Tribunal has proceeded namely the application of Rule 28-C(5)(a) is not only incorrect but the Tribunal has overlooked the decision of the HPC and the entitlement certificate apart from overlooking Rule 28-C(5)(b).The circular brought to the notice of all concerned that in view of the amended Section 4 of the Excise Act, any amount actually paid or actually payable by way of excise, sales tax and other taxes shall be excluded from the transaction value. It was made clear that if tax is paid at a concessional rate, that amount may be deducted from the transaction value. But, where the tax is not paid at the time of the transaction, but is paid subsequently, as for example, sales tax payable under a deferment scheme, then too the benefit of exclusion would be allowed since the amount would be actually payable.Insofar as the present case is concerned, there is no doubt that 50% of the sales tax collected was retained by the Assessee and was not actually paid to the exchequer nor was it actually payable since the HPC permitted the Assessee to retain that amount.Therefore, whichever way the issue is looked at, the fact remains that the Assessee retained with it 50% of the sales tax collected from its customers and it was neither actually paid to the exchequer nor was it actually payable to the exchequer. That being the position, the transaction value was required to be calculated by including the amount of about Rs. 22.44 crores retained by the Assessee.In our opinion, the Tribunal misdirected itself in law on several counts and erroneously decided the appeal in favour of the Assessee and, therefore, the order of the Tribunal is setagree with learned Counsel only to the extent that since the Assessee had succeeded before the Tribunal, it would not be appropriate to saddle it with any penalty.
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The Central Bank of India Ltd Vs. The Hartford Fire Insurance Co. Ltd | the appointment. The real decision was that the agreement appointing the managing director was not ultra vires the power of the directors under the aforesaid articles, and, as in the letter of appointment, dismissal at will had not been provided for, the dismissal in the case was wrongful. The question there decided has no relevance to the present case. The contract there considered did not provide for the termination of the employment except on the one condition mentioned, that is, ceasing to be director; here the contract provides for a termination at will. The other case is Shindler v. Northern Raincoat Co., (1960) 1 WLR 1038 which referred at p. 1043 to Stirling v. Maitland, (1864) 5 B and S. 840 for the proposition that if a party enters into an arrangement which can only take effect by the continuances of a certain existing state of circumstances, there is an implied agreement in his part that he shall do nothing on his own motion to put an end to that state of circumstances under which alone the arrangement can be operative. The principle is of course very well known. But there is no scope for it to operate on the facts of the case in hand. It cannot operate where a proper reading of the contract is, as it is in the present case, that the contract will exist only till such time as either party has not chosen to bring it to an end. It was said that the principle applied because the respondent in its letter of August 7, 1947 imposed a condition of the shifting of the goods by the defendant company which condition if carried out would under the terms of the policy have brought it to an end. This term provided that the goods could not be shifted from the place where they wire statedin the policy to be insured without the previous consent of the insurer. Assuming that the principle is applicable to the present case as to which grave doubts may legitimately be entertained, it is in any case wrong to say that the condition if carried out would have brought the policy to an end for along with the condition about the shifting of the goods from the godown where they were stated in the policy to be insured, the respondent has offered to make an endorsement agreeing to the shifting which would have prevented the policy from lapsing. The insurer was doing no violence to the principle read from (1864) 5 B and S 840.15. The next argument was that cl.10 was bad as it gave more option to the insurer than to the assured. We express no opinion as to whether the clause would be bad if it did so, for we are clear in our mind that it did not. The argument that it did was based on the use of the wordrequest in the case of a termination by the assured and option in the case of a termination by the insurer. It was said that the word request implied that the request had to be accepted by the insurer before there was a termination whereas the word option indicated that the termination would be by an act of the insurer alone. We are unable to agree that such is the meaning of the word request. In our view, the clause means that the intimation by the assured to terminate the policy would bring it to an end without more, for the clause does not say that the termination shall take effect only when the assureds request has been accepted by the insurer.16. Lastly it was said that the termination of the contract by the letter of August 7, 1947 was a conditional termination and as the condition was impossible of performance in the circumstances prevailing, there was in fact no termination. That condition, it was said, was the removal of the goods from Bakarwana Bazar, Amritsar to a safer locality. We have nothing to show that condition, if it was such, was impossible of performance. How-ever that may be, there is no question of any condition. The letter clearly terminated the policy. It gave an option to the assured to keep the policy on its feet if it did something. Further we do not think that it can be said that if a party has a right at will to terminate a contract the imposition by him of a condition, however hard on failure to fulfil which the termination was to take effect, would make the termination illegal, for the party affected was not entitled even to the benefit of a difficult condition. The agreement was that the power to, terminate could be exercised without more and that is what we think was done in this case.17. It remains now to deal with the point about interest on judgment. This interest is claimed by the appellant on that part of the decree which awarded damages for the goods looted. The trial court had allowed this interest but the High Court set aside the order allowing interest. The High Court first observed that interest on judgment had not been claimed in the plaint but in this the High Court was clearly in error. The High Court however also pointed out that soon after the judgment of the trial court the respondent deposited the amount of the decree in court. After the date of the deposit of course, the appellant would not be entitled to any interest. There is also nothing to show that the deposit was made long after the decree of the trial court. It was however said that the deposit was of no use to the appellant because it could not withdraw the money without furnishing security. There is no material on record to show that that was so. In view of these circumstances we do not think this to be a fit case for interfering with the High Courts order as to interest on judgment. | 0[ds]Now it is commonplace that it is the courts duty to give effect to the bargain of the parties according to their intention and when that bargain is in writing the intention is to be looked for in the words used unless they are such that one may suspect that they do not convey the intention correctly. If those words are clear, there is very little that the court has to do. The court must give effect to the plain meaning of the words however it may dislike the result. We have earlier set out cl. 10 and we find no difficulty or doubt as to the meaning of the language there used. Indeed the language is the plainest. The clause says "This Insurance may be terminated at any time at the request of the Insured", and "The Insurance may also at any time be terminated at the instance of the Company". These are all the words of the clause that matter for the present purpose. The words "at any time" can only mean "at any time the party concerned likes". Shortly put cl. 10 says "Either party may at its will terminate the policy". No other meaning of the words used is conceivable.We are unable to agree. The prevailing riots do not indicate what the intention of the parties, that is, of both of them, was. There is no question of reading the policy in the riotous conditions for they throw no certain light. Further, the riot risk cover agreement expressly provided that "all the conditions of the policy shall apply" to it and this agreement had been made in the light of the prevailing riot conditions. Obviously the parties intended that cl.10 of the conditions of the policy would be applicable to the riot risk cover also. We also think that plain and categorical language cannot be radically changed by relying upon the surrounding circumstances; a right to terminate at will cannot by reason of the circumstances, be read as a right to terminate for a reasonable cause.7. The rule read from Halsbury does not assist the appellant either for it does not permit a court to speculate. The court must be able to say with certainty what the intention was in order that it may add something to the language used by the parties. We venture to think that it would be difficult to imagine what would be a reasonable cause for terminating the policy. Obviously the parties would be poles apart on that question and could not therefore have both intended, as suggested that the policy would be terminable for a reasonable cause only. There is nothing here to show that the parties did not intend what they said.8. Another passage from the same paragraph in Halsburys Laws of England was read which stated that if the intention of the parties could be ascertained from the written instrument, the court would give effect to that intention notwithstanding ambiguities in the words used or defects in the operation of the instrument. This statement of the law is based on the principle that a deed shall never be void where the words may be applied to any intent to make it good. This rule also affords no assistance to the appellant for here, as we have already stated, there is no ambiguity in the words used or defect in the operation of the instrument. It is also plain to us that the policy is by no meanslearned counsel said that we should, therefore, treat cl, 10 asunenforceable. This principle of law, whatever its merits, has no application, to the present case for it was stated in connection with the ascertainment of a fundamental condition of the policy, that is, a condition a breach of which entitled the insurer to repudiate his liability under it. We have nothing to do with the interpretation of such a clause and the principle would have no application to the present case. Clause 10 sanctions no repudiation of liability already incurred but only terminates a contract as to the future; it prevents liability arising in future which is not a fundamental term of the variety to which the rule was applied in the passage read from Halsbury.10. We are besides of opinion that there is nothing capricious or unreasonable in cl. 10. The insurer was free at the beginning to decide whether he would agree to indemnify the assured against the risk or not, and if he decided to indemnify, for how long he would indemnify. If the assured cannot compel an insurer to take up a risk, he cannot complain of unreasonableness, caprice or even abuse of power if the insurer is prepared to take it up only on a condition that he would be free at any time to change his mind as to the future; Furthermore cl.10 gives the assured the same liberty to terminate the policy. Besides a term in the form contained in cl. 10 is a common term in policies and must, therefore, have been accepted as reasonable;It is well known however that the rule has no application where there is no ambiguity in the words in the standard form contract: London and Lancashire Fire Insurance Co. Ltd. v. Bolands, 1924 AC 836 at p. 848. We have already stated that the words in cl.10 give rise to no doubt as to their meaning. There is, therefore, no scope for applying that ruleis no doubt about this rule but it applies only when the latter clause wholly destroys the earlier. Here that is not the position. The earlier clause on which learned counsel relies for this purpose, is a clause fixing the term of the policy for one year. There is nothing repugnant to that in cl, 10. Both can stand together. Read together they produce the result that if nothing was done, then the policy would continue for a year, but either party was at liberty to bring it to an earlier termination. As the policy was expressly made subject to cl.10, that clause was in effect a proviso to the term fixing the tenure of the policy at one year. It would be absurd to apply the rule of repugnancy to such a proviso. We might add that this argument, if correct, would lead to the conclusion that Harts case (1889) 14 AC 98 was wrongly decided, but counsel for the appellant did not so contend. This argument was not even raised in Hartscase, even if right, has no application to the facts now before us, Clause 10 does not purport to annul a liability already incurred; its only effect is to prevent liability in future accruing. It gives a right to put an end to the contract only as to the future and affects no liability incurred. From the judgment of the Madras High Court an appeal was preferred to this Court and it held that the clause giving power to cancel the contract applied only when after the acceptance the railway had not placed any formal order for the supply of the goods at which stage no legal contract can be said to have been made and so the cancellation in question was not covered by that clause. This Court, however, expressly reserved its opinion on the contention urged for the railway that the stipulation in the tender amounted to a term in the contract itself for the discharge of the contract and, therefore, was valid: See Union of India v. Maddala Thathiah, C.A. No. 53 of 1961, unreproted, D/( Mad). It would therefore appear that the Court expressly left open the question whether the judgment of the Madras High Court was right. We may at this stage also notice Chotelal Lallubhai v. Champsay Umersey and Sons, AIR 1923 Bom 75 where it was held that a contract for sale of goods which provided that "to cannel or not to cancel the sale for any reason depended on the seller", should be interpreted as if implying in that clause a term that the cancellation could only be for a good reason. That was because it was felt that unless it was so read the contract would be void. This case has to be read subject to what this Court said in Civil Appeal No. 53 of 1961, supra. It does not in any case help as the present contract as we have earlier stated, does not become void unless a term is implied.14. It remains now to refer to two cases the precise effect of which on the case in hand was not clear to us. The first was Nelson v. James Nelson. 770. There the directors of a company had appointed a managing director on the term that he would hold office as long as he should remain a director but subsequently dismissed him from his office while he was still continuing as director. It was held that the dismissal was wrongful and it made no difference that the articles gave the directors the power to appoint a managing director for such period as they thought fit and to revoke the appointment. The real decision was that the agreement appointing the managing director was not ultra vires the power of the directors under the aforesaid articles, and, as in the letter of appointment, dismissal at will had not been provided for, the dismissal in the case was wrongful. The question there decided has no relevance to the present case. The contract there considered did not provide for the termination of the employment except on the one condition mentioned, that is, ceasing to be director; here the contract provides for a termination at will. The other case is Shindler v. Northern Raincoat Co., (1960) 1 WLR 1038 which referred at p. 1043 to Stirling v. Maitland, (1864) 5 B and S. 840 for the proposition that if a party enters into an arrangement which can only take effect by the continuances of a certain existing state of circumstances, there is an implied agreement in his part that he shall do nothing on his own motion to put an end to that state of circumstances under which alone the arrangement can be operative. The principle is of course very well known. But there is no scope for it to operate on the facts of the case in hand. It cannot operate where a proper reading of the contract is, as it is in the present case, that the contract will exist only till such time as either party has not chosen to bring it to an end. It was said that the principle applied because the respondent in its letter of August 7, 1947 imposed a condition of the shifting of the goods by the defendant company which condition if carried out would under the terms of the policy have brought it to an end. This term provided that the goods could not be shifted from the place where they wire statedin the policy to be insured without the previous consent of the insurer. Assuming that the principle is applicable to the present case as to which grave doubts may legitimately be entertained, it is in any case wrong to say that the condition if carried out would have brought the policy to an end for along with the condition about the shifting of the goods from the godown where they were stated in the policy to be insured, the respondent has offered to make an endorsement agreeing to the shifting which would have prevented the policy from lapsing. The insurer was doing no violence to the principle read from (1864) 5 B and Sexpress no opinion as to whether the clause would be bad if it did so, for we are clear in our mind that it did not. The argument that it did was based on the use of the wordrequest in the case of a termination by the assured and option in the case of a termination by the insurer. It was said that the word request implied that the request had to be accepted by the insurer before there was a termination whereas the word option indicated that the termination would be by an act of the insurer alone.We are unable to agree that such is the meaning of the word request. In our view, the clause means that the intimation by the assured to terminate the policy would bring it to an end without more, for the clause does not say that the termination shall take effect only when the assureds request has been accepted by the insurer.We have nothing to show that condition, if it was such, was impossible of performance.that may be, there is no question of any condition. The letter clearly terminated the policy. It gave an option to the assured to keep the policy on its feet if it did something. Further we do not think that it can be said that if a party has a right at will to terminate a contract the imposition by him of a condition, however hard on failure to fulfil which the termination was to take effect, would make the termination illegal, for the party affected was not entitled even to the benefit of a difficult condition. The agreement was that the power to, terminate could be exercised without more and that is what we think was done in this case.17. It remains now to deal with the point about interest on judgment. This interest is claimed by the appellant on that part of the decree which awarded damages for the goods looted. The trial court had allowed this interest but the High Court set aside the order allowing interest. The High Court first observed that interest on judgment had not been claimed in the plaint but in this the High Court was clearly in error. The High Court however also pointed out that soon after the judgment of the trial court the respondent deposited the amount of the decree in court. After the date of the deposit of course, the appellant would not be entitled to any interest. There is also nothing to show that the deposit was made long after the decree of the trial court. It was however said that the deposit was of no use to the appellant because it could not withdraw the money without furnishing security. There is no material on record to show that that was so. In view of these circumstances we do not think this to be a fit case for interfering with the High Courts order as to interest on judgment. | 0 | 4,472 | 2,640 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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the appointment. The real decision was that the agreement appointing the managing director was not ultra vires the power of the directors under the aforesaid articles, and, as in the letter of appointment, dismissal at will had not been provided for, the dismissal in the case was wrongful. The question there decided has no relevance to the present case. The contract there considered did not provide for the termination of the employment except on the one condition mentioned, that is, ceasing to be director; here the contract provides for a termination at will. The other case is Shindler v. Northern Raincoat Co., (1960) 1 WLR 1038 which referred at p. 1043 to Stirling v. Maitland, (1864) 5 B and S. 840 for the proposition that if a party enters into an arrangement which can only take effect by the continuances of a certain existing state of circumstances, there is an implied agreement in his part that he shall do nothing on his own motion to put an end to that state of circumstances under which alone the arrangement can be operative. The principle is of course very well known. But there is no scope for it to operate on the facts of the case in hand. It cannot operate where a proper reading of the contract is, as it is in the present case, that the contract will exist only till such time as either party has not chosen to bring it to an end. It was said that the principle applied because the respondent in its letter of August 7, 1947 imposed a condition of the shifting of the goods by the defendant company which condition if carried out would under the terms of the policy have brought it to an end. This term provided that the goods could not be shifted from the place where they wire statedin the policy to be insured without the previous consent of the insurer. Assuming that the principle is applicable to the present case as to which grave doubts may legitimately be entertained, it is in any case wrong to say that the condition if carried out would have brought the policy to an end for along with the condition about the shifting of the goods from the godown where they were stated in the policy to be insured, the respondent has offered to make an endorsement agreeing to the shifting which would have prevented the policy from lapsing. The insurer was doing no violence to the principle read from (1864) 5 B and S 840.15. The next argument was that cl.10 was bad as it gave more option to the insurer than to the assured. We express no opinion as to whether the clause would be bad if it did so, for we are clear in our mind that it did not. The argument that it did was based on the use of the wordrequest in the case of a termination by the assured and option in the case of a termination by the insurer. It was said that the word request implied that the request had to be accepted by the insurer before there was a termination whereas the word option indicated that the termination would be by an act of the insurer alone. We are unable to agree that such is the meaning of the word request. In our view, the clause means that the intimation by the assured to terminate the policy would bring it to an end without more, for the clause does not say that the termination shall take effect only when the assureds request has been accepted by the insurer.16. Lastly it was said that the termination of the contract by the letter of August 7, 1947 was a conditional termination and as the condition was impossible of performance in the circumstances prevailing, there was in fact no termination. That condition, it was said, was the removal of the goods from Bakarwana Bazar, Amritsar to a safer locality. We have nothing to show that condition, if it was such, was impossible of performance. How-ever that may be, there is no question of any condition. The letter clearly terminated the policy. It gave an option to the assured to keep the policy on its feet if it did something. Further we do not think that it can be said that if a party has a right at will to terminate a contract the imposition by him of a condition, however hard on failure to fulfil which the termination was to take effect, would make the termination illegal, for the party affected was not entitled even to the benefit of a difficult condition. The agreement was that the power to, terminate could be exercised without more and that is what we think was done in this case.17. It remains now to deal with the point about interest on judgment. This interest is claimed by the appellant on that part of the decree which awarded damages for the goods looted. The trial court had allowed this interest but the High Court set aside the order allowing interest. The High Court first observed that interest on judgment had not been claimed in the plaint but in this the High Court was clearly in error. The High Court however also pointed out that soon after the judgment of the trial court the respondent deposited the amount of the decree in court. After the date of the deposit of course, the appellant would not be entitled to any interest. There is also nothing to show that the deposit was made long after the decree of the trial court. It was however said that the deposit was of no use to the appellant because it could not withdraw the money without furnishing security. There is no material on record to show that that was so. In view of these circumstances we do not think this to be a fit case for interfering with the High Courts order as to interest on judgment.
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The first was Nelson v. James Nelson. 770. There the directors of a company had appointed a managing director on the term that he would hold office as long as he should remain a director but subsequently dismissed him from his office while he was still continuing as director. It was held that the dismissal was wrongful and it made no difference that the articles gave the directors the power to appoint a managing director for such period as they thought fit and to revoke the appointment. The real decision was that the agreement appointing the managing director was not ultra vires the power of the directors under the aforesaid articles, and, as in the letter of appointment, dismissal at will had not been provided for, the dismissal in the case was wrongful. The question there decided has no relevance to the present case. The contract there considered did not provide for the termination of the employment except on the one condition mentioned, that is, ceasing to be director; here the contract provides for a termination at will. The other case is Shindler v. Northern Raincoat Co., (1960) 1 WLR 1038 which referred at p. 1043 to Stirling v. Maitland, (1864) 5 B and S. 840 for the proposition that if a party enters into an arrangement which can only take effect by the continuances of a certain existing state of circumstances, there is an implied agreement in his part that he shall do nothing on his own motion to put an end to that state of circumstances under which alone the arrangement can be operative. The principle is of course very well known. But there is no scope for it to operate on the facts of the case in hand. It cannot operate where a proper reading of the contract is, as it is in the present case, that the contract will exist only till such time as either party has not chosen to bring it to an end. It was said that the principle applied because the respondent in its letter of August 7, 1947 imposed a condition of the shifting of the goods by the defendant company which condition if carried out would under the terms of the policy have brought it to an end. This term provided that the goods could not be shifted from the place where they wire statedin the policy to be insured without the previous consent of the insurer. Assuming that the principle is applicable to the present case as to which grave doubts may legitimately be entertained, it is in any case wrong to say that the condition if carried out would have brought the policy to an end for along with the condition about the shifting of the goods from the godown where they were stated in the policy to be insured, the respondent has offered to make an endorsement agreeing to the shifting which would have prevented the policy from lapsing. The insurer was doing no violence to the principle read from (1864) 5 B and Sexpress no opinion as to whether the clause would be bad if it did so, for we are clear in our mind that it did not. The argument that it did was based on the use of the wordrequest in the case of a termination by the assured and option in the case of a termination by the insurer. It was said that the word request implied that the request had to be accepted by the insurer before there was a termination whereas the word option indicated that the termination would be by an act of the insurer alone.We are unable to agree that such is the meaning of the word request. In our view, the clause means that the intimation by the assured to terminate the policy would bring it to an end without more, for the clause does not say that the termination shall take effect only when the assureds request has been accepted by the insurer.We have nothing to show that condition, if it was such, was impossible of performance.that may be, there is no question of any condition. The letter clearly terminated the policy. It gave an option to the assured to keep the policy on its feet if it did something. Further we do not think that it can be said that if a party has a right at will to terminate a contract the imposition by him of a condition, however hard on failure to fulfil which the termination was to take effect, would make the termination illegal, for the party affected was not entitled even to the benefit of a difficult condition. The agreement was that the power to, terminate could be exercised without more and that is what we think was done in this case.17. It remains now to deal with the point about interest on judgment. This interest is claimed by the appellant on that part of the decree which awarded damages for the goods looted. The trial court had allowed this interest but the High Court set aside the order allowing interest. The High Court first observed that interest on judgment had not been claimed in the plaint but in this the High Court was clearly in error. The High Court however also pointed out that soon after the judgment of the trial court the respondent deposited the amount of the decree in court. After the date of the deposit of course, the appellant would not be entitled to any interest. There is also nothing to show that the deposit was made long after the decree of the trial court. It was however said that the deposit was of no use to the appellant because it could not withdraw the money without furnishing security. There is no material on record to show that that was so. In view of these circumstances we do not think this to be a fit case for interfering with the High Courts order as to interest on judgment.
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Commissioner of Sales Tax, Gujarat State, Ahmedabad Vs. Sabarmati Reti Udyog Sahkari Mandali Ltd | equipment water, coal, labour etc. required for supply and manufacture of bricks shall have to be made by the contractor at his own cost. The Government shall give only land for excavating soil for manufacture of bricks to the contractors free of rent from the land reserved by the. Government for this purpose. The land shall have to be handed over back to the Government after the manufacturing of the brick work is completed.* * * *Clause 10:The contractor shall have no right to sell these bricks, brick bats, chharas or any other materials manufactured on this site to any other private parties. If, however, it is found that the materials have been sold by him to private parties or other bodies, he shall have to pay to Department at the rate of 10% of the value of materials at the tender rates."While giving the specifications Item No. l herein refers to "manufacturing and supplying of 1 Class kiln- burnt bricks of standard size including stacking in regular consignments etc. camp. as directed".7. Mr. V. S. Desai brings to our notice the common as well as the distinguishing features of this case and of Chandra Bhan Gosains case (supra). According to him the common features are the following:-The land was given free for manufacture of bricks in both the cases. The materials shall remain at the contractor`s risk till the date of final delivery. in Chandra Bhan Gosain`s case (supra) the contractor could not sell the bricks to third parties without previous permission of the company . Here also the contractor has no right to sell the bricks etc. but if he does sell he will have. to pay 10 percent of the value of the materials at the tender rates. Both the Clauses are, therefore, permissive Clauses and a re substantially the same. In both the contracts the contracting parties have used the words such as sell, purchase, deliver or rate of supply etc. in the contract.8. In Chandra Bhan Gosain`s case (supra) dealing;, with those very common features this Court observed as follows:-"It may be presumed that it was understood that in quoting his rate for the bricks, the appellant would take into account the free supply of earth for making the bricks. A gain what was supplied to the company by the appellant was not the earth which he got from it but bricks, which, we think, are something entirely different. It could not have been in intended that the property in the earth would continue in The company in spite of its conversion into such a different thing as bricks. Further we find that the contract provided that the bricks would remain at the appellants risk till delivery to the comp any. Now, obviously bricks could not remain at the appellants risk unless they were his property. Another Clause provided that the appellant would not be able to sell the bricks to other parties without the permission of the company. Apparently, it was contemplated that without such a provision the appellant could have sold the bricks to others. Now - he could not sell the bricks at all unless they belonged to him. Then we find that in the tender which the appellant submitted and the acceptance of which made the contract, he stated, "I/we hereby tender for the supply to the Hindus than Steel Private Ltd. Of the materials described in the undermentioned memorandum. The memorandum described the materials as bricks, and also stated the quantities to be delivered and the rate at which materials are to be supplied. All these provisions plainly show that the contract was for sale of bricks. If it were so, the property in the bricks must have been in the appellant and passed from him to the subject-matter.From the above extract, it is clear. that the decision in Chandra Bhan Gosains case (supra) will govern the p resent case where terms and conditions are almost identical so far as relating to the relevant subject-matter."9. Mr. Desai, however, took pains to point out certain distinguishing features of the present case such as maintenance of qualified Executive Engineer for supervision of work subject to removal at the instance of the Government; restriction on employment of children under 12 years; labour welfare provisions regarding wages; workmens compensation, etc.; provisions in relation to prevention of cruelty to animals; non-payment of royalty for excavating earth; use of tube-wells standing on the Government site manner of execution of the work regarding moulding and drying and provision against subletting which shall constitute a breach of the contract resulting in forfeiture of security deposit.10. All the above terms relate to a stage in the process of proper and efficient manufacturing of bricks and are not inconsistent in a contract of sale. These terms do not appear to impinge on the character of the contract as one for sale of the bricks manufactured. The Government in its overall interest and anxiety for general welfare could insist on compliance with certain beneficial legal measures. It could also insist on certain terms which will ensure efficient production of the material. Provision against subletting when the land was given free by Government is also understandable. All the above features do not negate the concept of a contract of sale of the bricks that are ultimately manufactured. The true test in this case is whether in making the contract to brick produced was transferred as a chattel for consideration and we are clearly of opinion that this has taken place in this case. The property in the bricks was entirely of the assessee. He had not only to manufacture that but also to stack them for facilitating delivery. The essence of the contract was, therefore. the delivery of the bricks after manufacture. The present case cannot be distinguished from the decision of the Chandra Bhan Gosains case (supra). We are, therefore, clearly of opinion that the contract in this case is a contract of sale and not a works contract. The assesse | 1[ds]Mr. Desai, however, took pains to point out certain distinguishing features of the present case such as maintenance of qualified Executive Engineer for supervision of work subject to removal at the instance of the Government; restriction on employment of children under 12 years; labour welfare provisions regarding wages; workmens compensation, etc.; provisions in relation to prevention of cruelty to animals; non-payment of royalty for excavating earth; use of tube-wells standing on the Government site manner of execution of the work regarding moulding and drying and provision against subletting which shall constitute a breach of the contract resulting in forfeiture of securitythe above terms relate to a stage in the process of proper and efficient manufacturing of bricks and are not inconsistent in a contract of sale. These terms do not appear to impinge on the character of the contract as one for sale of the bricks manufactured. The Government in its overall interest and anxiety for general welfare could insist on compliance with certain beneficial legal measures. It could also insist on certain terms which will ensure efficient production of the material. Provision against subletting when the land was given free by Government is also understandable. All the above features do not negate the concept of a contract of sale of the bricks that are ultimately manufactured. The true test in this case is whether in making the contract to brick produced was transferred as a chattel for consideration and we are clearly of opinion that this has taken place in this case. The property in the bricks was entirely of the assessee. He had not only to manufacture that but also to stack them for facilitating delivery. The essence of the contract was, therefore. the delivery of the bricks after manufacture. The present case cannot be distinguished from the decision of the Chandra Bhan Gosains case (supra). We are, therefore, clearly of opinion that the contract in this case is a contract of sale and not a worksassessee is, therefore liable to sales tax. The question is answered accordingly. The High Court was not right in answering the question in favour of the assessee. | 1 | 2,957 | 391 | ### 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:
equipment water, coal, labour etc. required for supply and manufacture of bricks shall have to be made by the contractor at his own cost. The Government shall give only land for excavating soil for manufacture of bricks to the contractors free of rent from the land reserved by the. Government for this purpose. The land shall have to be handed over back to the Government after the manufacturing of the brick work is completed.* * * *Clause 10:The contractor shall have no right to sell these bricks, brick bats, chharas or any other materials manufactured on this site to any other private parties. If, however, it is found that the materials have been sold by him to private parties or other bodies, he shall have to pay to Department at the rate of 10% of the value of materials at the tender rates."While giving the specifications Item No. l herein refers to "manufacturing and supplying of 1 Class kiln- burnt bricks of standard size including stacking in regular consignments etc. camp. as directed".7. Mr. V. S. Desai brings to our notice the common as well as the distinguishing features of this case and of Chandra Bhan Gosains case (supra). According to him the common features are the following:-The land was given free for manufacture of bricks in both the cases. The materials shall remain at the contractor`s risk till the date of final delivery. in Chandra Bhan Gosain`s case (supra) the contractor could not sell the bricks to third parties without previous permission of the company . Here also the contractor has no right to sell the bricks etc. but if he does sell he will have. to pay 10 percent of the value of the materials at the tender rates. Both the Clauses are, therefore, permissive Clauses and a re substantially the same. In both the contracts the contracting parties have used the words such as sell, purchase, deliver or rate of supply etc. in the contract.8. In Chandra Bhan Gosain`s case (supra) dealing;, with those very common features this Court observed as follows:-"It may be presumed that it was understood that in quoting his rate for the bricks, the appellant would take into account the free supply of earth for making the bricks. A gain what was supplied to the company by the appellant was not the earth which he got from it but bricks, which, we think, are something entirely different. It could not have been in intended that the property in the earth would continue in The company in spite of its conversion into such a different thing as bricks. Further we find that the contract provided that the bricks would remain at the appellants risk till delivery to the comp any. Now, obviously bricks could not remain at the appellants risk unless they were his property. Another Clause provided that the appellant would not be able to sell the bricks to other parties without the permission of the company. Apparently, it was contemplated that without such a provision the appellant could have sold the bricks to others. Now - he could not sell the bricks at all unless they belonged to him. Then we find that in the tender which the appellant submitted and the acceptance of which made the contract, he stated, "I/we hereby tender for the supply to the Hindus than Steel Private Ltd. Of the materials described in the undermentioned memorandum. The memorandum described the materials as bricks, and also stated the quantities to be delivered and the rate at which materials are to be supplied. All these provisions plainly show that the contract was for sale of bricks. If it were so, the property in the bricks must have been in the appellant and passed from him to the subject-matter.From the above extract, it is clear. that the decision in Chandra Bhan Gosains case (supra) will govern the p resent case where terms and conditions are almost identical so far as relating to the relevant subject-matter."9. Mr. Desai, however, took pains to point out certain distinguishing features of the present case such as maintenance of qualified Executive Engineer for supervision of work subject to removal at the instance of the Government; restriction on employment of children under 12 years; labour welfare provisions regarding wages; workmens compensation, etc.; provisions in relation to prevention of cruelty to animals; non-payment of royalty for excavating earth; use of tube-wells standing on the Government site manner of execution of the work regarding moulding and drying and provision against subletting which shall constitute a breach of the contract resulting in forfeiture of security deposit.10. All the above terms relate to a stage in the process of proper and efficient manufacturing of bricks and are not inconsistent in a contract of sale. These terms do not appear to impinge on the character of the contract as one for sale of the bricks manufactured. The Government in its overall interest and anxiety for general welfare could insist on compliance with certain beneficial legal measures. It could also insist on certain terms which will ensure efficient production of the material. Provision against subletting when the land was given free by Government is also understandable. All the above features do not negate the concept of a contract of sale of the bricks that are ultimately manufactured. The true test in this case is whether in making the contract to brick produced was transferred as a chattel for consideration and we are clearly of opinion that this has taken place in this case. The property in the bricks was entirely of the assessee. He had not only to manufacture that but also to stack them for facilitating delivery. The essence of the contract was, therefore. the delivery of the bricks after manufacture. The present case cannot be distinguished from the decision of the Chandra Bhan Gosains case (supra). We are, therefore, clearly of opinion that the contract in this case is a contract of sale and not a works contract. The assesse
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Mr. Desai, however, took pains to point out certain distinguishing features of the present case such as maintenance of qualified Executive Engineer for supervision of work subject to removal at the instance of the Government; restriction on employment of children under 12 years; labour welfare provisions regarding wages; workmens compensation, etc.; provisions in relation to prevention of cruelty to animals; non-payment of royalty for excavating earth; use of tube-wells standing on the Government site manner of execution of the work regarding moulding and drying and provision against subletting which shall constitute a breach of the contract resulting in forfeiture of securitythe above terms relate to a stage in the process of proper and efficient manufacturing of bricks and are not inconsistent in a contract of sale. These terms do not appear to impinge on the character of the contract as one for sale of the bricks manufactured. The Government in its overall interest and anxiety for general welfare could insist on compliance with certain beneficial legal measures. It could also insist on certain terms which will ensure efficient production of the material. Provision against subletting when the land was given free by Government is also understandable. All the above features do not negate the concept of a contract of sale of the bricks that are ultimately manufactured. The true test in this case is whether in making the contract to brick produced was transferred as a chattel for consideration and we are clearly of opinion that this has taken place in this case. The property in the bricks was entirely of the assessee. He had not only to manufacture that but also to stack them for facilitating delivery. The essence of the contract was, therefore. the delivery of the bricks after manufacture. The present case cannot be distinguished from the decision of the Chandra Bhan Gosains case (supra). We are, therefore, clearly of opinion that the contract in this case is a contract of sale and not a worksassessee is, therefore liable to sales tax. The question is answered accordingly. The High Court was not right in answering the question in favour of the assessee.
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Standard Vacuum Refining Co. Of India Vs. Its Workmen And Another | nor necessary to fix the amount with exactitude which should form the minimum living wage after an exhaustive enquiry for considering the question of bonus, because, according to the principle laid down the whole gap between the existing wages and the living wage need not be filled up. That is why is thought that it would be sufficient for the purpose if an approximate idea can be formed by taking into account the approximate expenditure on the necessary items of requirements of the living wage standard. On these considerations the plea raised by the companies was rejected. It would thus be seen that the oil companies have been persistently making the claim before the industrial tribunals that they need not be called up to pay bonus to their employees on the ground that they are paying them a living wage, and this plea has so far been consistently rejected. As we have already pointed out it may partly be because of this trend of industrial decisions that in the present proceedings the tribunal did not think it necessary to deal with the point elaborately or to make a definite finding.29. Before we part with this appeal we ought to add that if we had upheld the appellants claim it would have been necessary for us to consider the relevance and validity of the respondents alternative claim that in case living wage is paid by the appellant to them they should be allowed a share in the profits made by the appellant during the relevant year on the basis of profit-sharing. It is true that industrial adjudication so far has consistently emphasised the fact that the payment of bonus is intended to fill the gap between actual wages and the living wage. Obviously no occasion has so far arisen to consider whether a claim for bonus can be made even after the standard of living wage has been attained because no employer has so far succeeded in showing that a living wage standard has been reached. We are making these observations because we wish to make it clear that our decision in the present appeal should not be taken to mean that as soon as a living wage standard is reached no claim for bonus can be made by the workmen; that is a question which may have to be considered on its merits if and when it arises. Until the stage is reached where a plea that living wage is paid can be reasonably made and proved it is desirable that industrial adjudication in regard to the payment of bonus should not be unnecessarily complicated by raising such a plea from year to year.30. That takes us to the appeal preferred by the respondents. The tribunal did not think it necessary to work out calculations because, according to the bonus formula, it was conceded that the available surplus in the hands of the appellant was very large. It, however, took into account the wage scales and salaries in the appellants concerns and other relevant factors and concluded that awarding five months bonus "strikes a fair balance between the conflicting standards of the workmen and the company". Mr. Gokhale contends that five months bonus is too meagre and that the respondents were entitled to a much higher rate of bonus. On the other hand the learned Attorney-General contends that we should put a ceiling in the matter of awarding bonus so that excessive claims for bonus would be discouraged. In our opinion it would be inadvisable and inexpedient to put such a ceiling in the matter of awarding bonus. It is now well established that in awarding bonus industrial adjudication has to take into account the legitimate claims of the industry, its shareholders who are entitled to claim a return on the investment made by them and the workmen. This Court has consistently refused to lay down any rigid rule or formula which would govern the distribution of the available surplus between the three claimants. The decision of this question must inevitably depend on a proper assessment of all the relevant facts. If wages are small and the profits are high then the workmen would be entitled to have a high rate of bonus. Indeed, if an employer makes consistently high profits and the wages continue to be low it may justify the increase in the wage-structure itself; in other words, the award of bonus would have some relation to the wages paid to the employes. It is also true that unreasonably high or extravagant claims for bonus cannot be entertained just because the available surplus would justify such a claim. As has been observed by the Labour Appellate Tribunal in 1953-2 Lab LJ 246 care must be taken to see that the bonus which is given is not so excessive as to create fresh problems in the vicinity that upset emoluments all round or that it creates industrial discontent or the possible emergence of a privileged class. The impact of the award of bonus in an industrial dispute of comparable employments or on other employments in the region cannot be altogether ignored, though its effect should not be overestimated either. Having regard to the fact that the distribution of available surplus must inevitably depend in each case on its own facts this Court has generally refused to interfere with the decision of the tribunal on the ground that any decision on the question of distribution should be left to its discretion. It is only where the award passed by the tribunal appears to this Court to be wholly unreasonable and to be the result of the failure of the tribunal to take into account the necessary relevant facts that the jurisdiction of this Court under Art. 136 can be successfully invoked. In the present case the tribunal has considered all the relevant factors and has come to the conclusion that five months bonus would meet the ends of justice. We do not see any reason to interfere with this award. | 0[ds]We think it would have been better if the tribunal had addressed itself to the question raised before it by the appellant and made a more definite and precise finding. In this connection, it must, however, be added that the oil companies have been raising this plea for some years past and the plea has been consistently rejected by tribunals during all these years. The present tribunal itself has had occasion to deal with this plea raised by the oil distributing companies, and since the plea had never succeeded in the past and no material change had been proved in regard to the relevant year the tribunal was probably disinclined to treat the plea very seriously and that may explain the approach adopted by it in dealing with the said plea in the present proceedings.Besides, the tribunal took the view, and we think rightly, that the material produced by the appellant in support of its plea is wholly insufficient and meagre. The point raised is one of general importance and any positive finding on the content of the concept of a living wage in the context of today would naturally affect industrial adjudication in regard to claims of bonus in all industries. That in way, if the appellant was serious about its contention that the living wage standard had been reached in itsit should have produced more satisfactory evidence which would have enabled the tribunal to attempt the task of concretely defining what the concept of living wage means in the context of today. Absence of sufficient and satisfactory material may also explain the approach adopted by the tribunal in dealing with thishave rejected this request. The appellant knew fully well the implications of the plea raised by it and the very large issue which the tribunal would have to consider in dealing with the merits of the said plea. If the appellant was content to support its plea on certain material and did not attempt to lead more satisfactory evidence it cannot blame the tribunal for dealing with the matter on the material such as it was. In such a case it would be futile for the appellant to ask for indulgence from this Court at this late stage. It is admitted that the appellant has paid three months basic wages as bonus to the respondent voluntarily for the relevant year, and we are told that an agreement has been reached between the parties in respect of bonus for subsequent years until 1963. They have agreed that for the two succeeding years the decision of this Court will apply and for five years thereafter a specific agreement has been reached for raising theand providing for the payment of bonus at agreedso, the question raised by the appellant sounds academic and unrealistic, and that is another reason why it is not entitled to the indulgence for which the learnedhas pressed before us. We would, therefore, deal with the point seriously urged before us on behalf of the appellant on the material produced before the tribunal and such additional material as was brought to our notice.7. At the outset it is necessary to state that the plea raised by the appellant assumes that as soon as a living wage standard has been reached by any employer it would be unnecessary for him to pay any bonus to his employees. The learnedhas naturally relied on the decisions of this Court as well as the decisions of industrial tribunals in support of his argument that the Full Bench formula which governs the decision of bonus disputes postulates that a claim for bonus can be entertained if two conditions are satisfied; the employer must have made, profit in the relevant year, which after the deduction of prior charges leaves sufficient available surplus; and there must be a gap between the wages actually paid to the employees and the living wage standard which they hope to reach in due course. In dealing with bonus claims industrial adjudication has so far proceeded on the assumption that in the making of profits labour makes its contribution, and that since it is not receiving a living wage it is entitled to claim that the gap between the actual and the living wages should be filled by the payment of bonus for each relevant year; that no doubt appears to be the result of the relevant decisions on thes argument that we should first determine independently what amount in terms of rupees, annas and pies would be treated as a living wage today obviously ignores the complexity of the problem and the poverty of the material adduced by the appellant in the presentdealing with this contention there would be no justification for ignoring the idealistic character of the living wage as specified in Art. 43 of the Constitution; and so, it would be necessary to enquire whether the wage question satisfies the test laid down by the Royal Commission on the basic wage for the Commonwealth of Australia which has been endorsed by the Fair Wages Committees Report and broadly approved by this Court in the Express Newspapers case, 1959 SCR 12 : (AIR 1959 SC 578).In our opinion it would be unreasonable and unsafe to treat the conclusions of this Committee as to the monetary value of the living wage in 1940 as sound and to make it the basis of our calculations today. Incidentally the method of multiplying the figure deduced by the Committee by 3.5 is materially defective. The proper approach to adopt would be to evaluate each constituent of the concept of the living wage in the light of the prices prevailing today and thus reach a proper conclusion; but apart from it, the main objection against adopting the figure reached by the Committee is that even in 1940 the said figure could not be properly regarded as representing anything like a living wage standard. The object with which the Committee proceeded to hold its enquiry was in a sense negative; it was to determine the question as to how far the prevailing wages were deficient having regard to some reasonable concept of a living wage standard. The material before it was insufficient to determine satisfactorily theof the said concept and the Committee itself was conscious that its calculations were bound to be broad and general and conditioned by the date available to it, and what is more important conditioned by the notions of social justice then prevailing. Since 1940 the concept of social justice has made very great progress and the Constitution of the country has now put a seal of approval on the ideal of a welfare State. Besides, it may seem entirely unrealistic to talk of a living wage in the light of our national economy in 1940 and to evaluate its content at Rs. 50 to Rs. 55 per month. It is obvious that the Committee was really thinking of what is today described as the minimumwage, and it found that judged by the said standard the current wages were deficient. In its report the Committee has used the word "minimum" in regard to some of the constituents of the concept of living wage, and its calculations show that it did not proceed beyond the minimum level in respect of any of the said constituents. Therefore, though the expression "living wage standard has been used by the Committee in its report we are satisfied that Rs. 50 to Rs. 55 cannot be regarded as anything higher than theminimum wage at that time. If that be the true position the whole basis adopted by the appellant in making its calculations turns out to be illusory. All that the calculations made by the appellant would show is that the wages paid to the respondents are somewhat higher than what would be required by the concept of thewage. It is obvious that between thewage and the living wage there is a very long distance.24. This conclusion is strengthened by some of the observations made by the Commission of Enquiry on "the Emoluments and Conditions of Service of Central Government Employees" . In its report the Commission has referred to the Tripartite resolution on theminimum wage, and in the light of the exhaustive material produced before it, and after consulting experts and specialists whose advice was available to it, it has reached the conclusion that (a) the minimum remuneration worked out according to the recommended formula may be of the order of Rs. 125 as compared to Rs. 52.50 which with some exceptions is the upper limit of minimum wages fixed under the law. (b) that it would be about 70 to 80% higher than the rates generally prevailing in the organised sectors of industry where wages are fixed either by collective bargaining or through conciliation and adjudication proceedings, and (c) that it would be well above the highest wages, i.e., Rs. 112 (in cotton textiles industry infor 1958) which any considerable number of unskilled workers are at present getting in the country (p. 65). It would thus be seen that the figures thus worked out by the commission in the light of the Tripartite resolution support the inference that the corresponding figure specified by the Textile Report in 1940 approximates to the concept of theminimum wage and no more. We may incidentally add that having regard to its terms of reference the Commission did not feel it advisable to recommend the increase of the Central employees wages to the level of theminimum for reasons set out by it in its report. That is why it thought it reasonable to recommend that "the minimum remuneration payable to a Central employee which at present is Rs. 75 per mensem should be increased to Rs. 80 per mensem" (p.there can be no doubt that in dealing with the monetary value of the content of the concept of the living wage it would not be enough to evaluate the diet requirement with reference to the improved or even the balance diet. The improved vegetarian diet which was generally been taken into account in making the relevant calculations would be wholly inappropriate in making calculations with regard to a living wage. Under the living wage a workman would be entitled to claim an optimum diet as prescribed by Dr. Aykroyd. Similarly the requirements as to clothing and residence which have been recognised in the Tripartite resolution, though appropriate in reference to aminimum wage, would have to be widened in relation to a living wage. Besides, in determining the money value of the living wage it would be necessary to take into account the requirements of" good education for children, some amusement, and some expenditure forand it is hardly necessary to emphasise that the content of these requirements cannot be easily converted into terms of money and they would obviously vary from time to time and would show an expansive tendency with the growth of national economy and with the advent of increasing prosperity for the nation as a whole and for any given industry in particular. Therefore, in our opinion, on the material available in the present proceedings it is impossible to resist the conclusion that even the highest average of Rs. 370.11 nP shown by the appellant by calculating wages paid to the clerical staff is much below the standard of the living wage. In this connection it may be pertinent to observe that in deciding the question as to whether the living wage has been introduced by any employer normally it would be necessary to examine thepaid to the relevant working class as a whole. It isthat the claim for bonus is recognised on the basis of the contribution made by the working class as a whole to the profits of the employer, and we think it would be invidious, and on principle unreasonable, to isolate a few cases where higher wages may be paid and to claim immunity from the payment of bonus in respect of such cases. In the absence of special circumstances prima facie the most expedient method to adopt would be to take the average of the wagespaid to the relevant working class as a whole. Ithowever, unnecessary to pursue this matter further and no pronounce a definite decision on it because, as we have just indicated, even taking the clerical category where the average works highest at Rs. 370/11 nP we feel no hesitation in holding that the said average is much below the standard living wage. The said average is much above theminimum and may fall in the medium level of a fair wage; but that itself would show that it is much below the standard of the living wage. Similarly, Rs. 273.65 nP which is the average of the operatives as well as Rs. 301.16 nP which is the average of the operatives and the clerical staff taken together may be regarded as constitutingwhich is above theminimum structure and may be treated as approximating to the lower level of the fair wage. One has merely to take into account the various constituent elements of the living wage to realise that these averages fall far short of the standard of the living wage. In reaching such a conclusion it is hardly necessary first to arrive at a concrete determination as to the money value of the living wage.In our opinion, taking the broad aspect of the concept of the living wage into consideration, and bearing in mind its idealistic and expanding character, it would be possible, and not very difficult either, to say about a given wage such as the one with which we are concerned in the present appeal that it does not reach the standard of a living wage. We must accordingly hold that the claim made by the appellant that it is paying a living wage to its employees cannot bethe reasons which we have already indicated we must hold that the tribunal was in error in treating Rs.as the money value of the living wage even insame comment falls to be made about the calculations made by the Labour Appellate Tribunal inetc. Oil Companies in Madras v. Their Employees,Lab LJ 782. In that case the Appellate Tribunal thought that if 50% be added to the minimum wage of the employees that may assist them to attain the goal of the living wage, and this conclusion was based on the Textile Committees report. Similarly, the calculations made by the Industrial Tribunal, Madras, in Workers of S. V. O. C. Ltd. (Standard Vacuum Employees Union) v. Standard Vacuum, Oil Co. Ltd.,Lab LJ 165 suffers from the same infirmity Therefore, the three industrial decisions on which the appellant relied cannot assist it in establishing its contention that a living wage is paid to the respondents.27. InOil Storage and Distributing Co. of India, Ltd., Bombay v. Their Workmen,Lab LJ 246 the Labour Appellate Tribunal had occasion to consider the content of the living wage. In that connection it referred to the Report of the Fair Wages Committee, and observed that the level of national income in India is so low that the country is unable to afford to prescribe by law a minimum wage which would correspond to the concept of a living wage. "The rudder is set in the direction of a living wage", observed the Appellate Tribunal, "but the destination is not yet within sight; the gradual emergence of a welfare State will naturally help but even here progress is necessarily slow". In our opinion, this statement shows that correct approach to the problem of determining the content of the concept of the livingwe have already pointed out it may partly be because of this trend of industrial decisions that in the present proceedings the tribunal did not think it necessary to deal with the point elaborately or to make a definite finding.29. Before we part with this appeal we ought to add that if we had upheld the appellants claim it would have been necessary for us to consider the relevance and validity of the respondents alternative claim that in case living wage is paid by the appellant to them they should be allowed a share in the profits made by the appellant during the relevant year on the basis ofIt is true that industrial adjudication so far has consistently emphasised the fact that the payment of bonus is intended to fill the gap between actual wages and the living wage. Obviously no occasion has so far arisen to consider whether a claim for bonus can be made even after the standard of living wage has been attained because no employer has so far succeeded in showing that a living wage standard has been reached. We are making these observations because we wish to make it clear that our decision in the present appeal should not be taken to mean that as soon as a living wage standard is reached no claim for bonus can be made by the workmen; that is a question which may have to be considered on its merits if and when it arises. Until the stage is reached where a plea that living wage is paid can be reasonably made and proved it is desirable that industrial adjudication in regard to the payment of bonus should not be unnecessarily complicated by raising such a plea from year to year.30. That takes us to the appeal preferred by the respondents. The tribunal did not think it necessary to work out calculations because, according to the bonus formula, it was conceded that the available surplus in the hands of the appellant was very large. It, however, took into account the wage scales and salaries in the appellants concerns and other relevant factors and concluded that awarding five months bonus "strikes a fair balance between the conflicting standards of the workmen and theIn our opinion it would be inadvisable and inexpedient to put such a ceiling in the matter of awarding bonus. It is now well established that in awarding bonus industrial adjudication has to take into account the legitimate claims of the industry, its shareholders who are entitled to claim a return on the investment made by them and the workmen. This Court has consistently refused to lay down any rigid rule or formula which would govern the distribution of the available surplus between the three claimants. The decision of this question must inevitably depend on a proper assessment of all the relevant facts. If wages are small and the profits are high then the workmen would be entitled to have a high rate of bonus. Indeed, if an employer makes consistently high profits and the wages continue to be low it may justify the increase in theitself; in other words, the award of bonus would have some relation to the wages paid to the employes. It is also true that unreasonably high or extravagant claims for bonus cannot be entertained just because the available surplus would justify such a claim. As has been observed by the Labour Appellate Tribunal inLab LJ 246 care must be taken to see that the bonus which is given is not so excessive as to create fresh problems in the vicinity that upset emoluments all round or that it creates industrial discontent or the possible emergence of a privileged class. The impact of the award of bonus in an industrial dispute of comparable employments or on other employments in the region cannot be altogether ignored, though its effect should not be overestimated either. Having regard to the fact that the distribution of available surplus must inevitably depend in each case on its own facts this Court has generally refused to interfere with the decision of the tribunal on the ground that any decision on the question of distribution should be left to its discretion. It is only where the award passed by the tribunal appears to this Court to be wholly unreasonable and to be the result of the failure of the tribunal to take into account the necessary relevant facts that the jurisdiction of this Court under Art. 136 can be successfully invoked. In the present case the tribunal has considered all the relevant factors and has come to the conclusion that five months bonus would meet the ends of justice. We do not see any reason to interfere with this award. | 0 | 10,095 | 3,599 | ### Instruction:
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nor necessary to fix the amount with exactitude which should form the minimum living wage after an exhaustive enquiry for considering the question of bonus, because, according to the principle laid down the whole gap between the existing wages and the living wage need not be filled up. That is why is thought that it would be sufficient for the purpose if an approximate idea can be formed by taking into account the approximate expenditure on the necessary items of requirements of the living wage standard. On these considerations the plea raised by the companies was rejected. It would thus be seen that the oil companies have been persistently making the claim before the industrial tribunals that they need not be called up to pay bonus to their employees on the ground that they are paying them a living wage, and this plea has so far been consistently rejected. As we have already pointed out it may partly be because of this trend of industrial decisions that in the present proceedings the tribunal did not think it necessary to deal with the point elaborately or to make a definite finding.29. Before we part with this appeal we ought to add that if we had upheld the appellants claim it would have been necessary for us to consider the relevance and validity of the respondents alternative claim that in case living wage is paid by the appellant to them they should be allowed a share in the profits made by the appellant during the relevant year on the basis of profit-sharing. It is true that industrial adjudication so far has consistently emphasised the fact that the payment of bonus is intended to fill the gap between actual wages and the living wage. Obviously no occasion has so far arisen to consider whether a claim for bonus can be made even after the standard of living wage has been attained because no employer has so far succeeded in showing that a living wage standard has been reached. We are making these observations because we wish to make it clear that our decision in the present appeal should not be taken to mean that as soon as a living wage standard is reached no claim for bonus can be made by the workmen; that is a question which may have to be considered on its merits if and when it arises. Until the stage is reached where a plea that living wage is paid can be reasonably made and proved it is desirable that industrial adjudication in regard to the payment of bonus should not be unnecessarily complicated by raising such a plea from year to year.30. That takes us to the appeal preferred by the respondents. The tribunal did not think it necessary to work out calculations because, according to the bonus formula, it was conceded that the available surplus in the hands of the appellant was very large. It, however, took into account the wage scales and salaries in the appellants concerns and other relevant factors and concluded that awarding five months bonus "strikes a fair balance between the conflicting standards of the workmen and the company". Mr. Gokhale contends that five months bonus is too meagre and that the respondents were entitled to a much higher rate of bonus. On the other hand the learned Attorney-General contends that we should put a ceiling in the matter of awarding bonus so that excessive claims for bonus would be discouraged. In our opinion it would be inadvisable and inexpedient to put such a ceiling in the matter of awarding bonus. It is now well established that in awarding bonus industrial adjudication has to take into account the legitimate claims of the industry, its shareholders who are entitled to claim a return on the investment made by them and the workmen. This Court has consistently refused to lay down any rigid rule or formula which would govern the distribution of the available surplus between the three claimants. The decision of this question must inevitably depend on a proper assessment of all the relevant facts. If wages are small and the profits are high then the workmen would be entitled to have a high rate of bonus. Indeed, if an employer makes consistently high profits and the wages continue to be low it may justify the increase in the wage-structure itself; in other words, the award of bonus would have some relation to the wages paid to the employes. It is also true that unreasonably high or extravagant claims for bonus cannot be entertained just because the available surplus would justify such a claim. As has been observed by the Labour Appellate Tribunal in 1953-2 Lab LJ 246 care must be taken to see that the bonus which is given is not so excessive as to create fresh problems in the vicinity that upset emoluments all round or that it creates industrial discontent or the possible emergence of a privileged class. The impact of the award of bonus in an industrial dispute of comparable employments or on other employments in the region cannot be altogether ignored, though its effect should not be overestimated either. Having regard to the fact that the distribution of available surplus must inevitably depend in each case on its own facts this Court has generally refused to interfere with the decision of the tribunal on the ground that any decision on the question of distribution should be left to its discretion. It is only where the award passed by the tribunal appears to this Court to be wholly unreasonable and to be the result of the failure of the tribunal to take into account the necessary relevant facts that the jurisdiction of this Court under Art. 136 can be successfully invoked. In the present case the tribunal has considered all the relevant factors and has come to the conclusion that five months bonus would meet the ends of justice. We do not see any reason to interfere with this award.
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wage, and this conclusion was based on the Textile Committees report. Similarly, the calculations made by the Industrial Tribunal, Madras, in Workers of S. V. O. C. Ltd. (Standard Vacuum Employees Union) v. Standard Vacuum, Oil Co. Ltd.,Lab LJ 165 suffers from the same infirmity Therefore, the three industrial decisions on which the appellant relied cannot assist it in establishing its contention that a living wage is paid to the respondents.27. InOil Storage and Distributing Co. of India, Ltd., Bombay v. Their Workmen,Lab LJ 246 the Labour Appellate Tribunal had occasion to consider the content of the living wage. In that connection it referred to the Report of the Fair Wages Committee, and observed that the level of national income in India is so low that the country is unable to afford to prescribe by law a minimum wage which would correspond to the concept of a living wage. "The rudder is set in the direction of a living wage", observed the Appellate Tribunal, "but the destination is not yet within sight; the gradual emergence of a welfare State will naturally help but even here progress is necessarily slow". In our opinion, this statement shows that correct approach to the problem of determining the content of the concept of the livingwe have already pointed out it may partly be because of this trend of industrial decisions that in the present proceedings the tribunal did not think it necessary to deal with the point elaborately or to make a definite finding.29. Before we part with this appeal we ought to add that if we had upheld the appellants claim it would have been necessary for us to consider the relevance and validity of the respondents alternative claim that in case living wage is paid by the appellant to them they should be allowed a share in the profits made by the appellant during the relevant year on the basis ofIt is true that industrial adjudication so far has consistently emphasised the fact that the payment of bonus is intended to fill the gap between actual wages and the living wage. Obviously no occasion has so far arisen to consider whether a claim for bonus can be made even after the standard of living wage has been attained because no employer has so far succeeded in showing that a living wage standard has been reached. We are making these observations because we wish to make it clear that our decision in the present appeal should not be taken to mean that as soon as a living wage standard is reached no claim for bonus can be made by the workmen; that is a question which may have to be considered on its merits if and when it arises. Until the stage is reached where a plea that living wage is paid can be reasonably made and proved it is desirable that industrial adjudication in regard to the payment of bonus should not be unnecessarily complicated by raising such a plea from year to year.30. That takes us to the appeal preferred by the respondents. The tribunal did not think it necessary to work out calculations because, according to the bonus formula, it was conceded that the available surplus in the hands of the appellant was very large. It, however, took into account the wage scales and salaries in the appellants concerns and other relevant factors and concluded that awarding five months bonus "strikes a fair balance between the conflicting standards of the workmen and theIn our opinion it would be inadvisable and inexpedient to put such a ceiling in the matter of awarding bonus. It is now well established that in awarding bonus industrial adjudication has to take into account the legitimate claims of the industry, its shareholders who are entitled to claim a return on the investment made by them and the workmen. This Court has consistently refused to lay down any rigid rule or formula which would govern the distribution of the available surplus between the three claimants. The decision of this question must inevitably depend on a proper assessment of all the relevant facts. If wages are small and the profits are high then the workmen would be entitled to have a high rate of bonus. Indeed, if an employer makes consistently high profits and the wages continue to be low it may justify the increase in theitself; in other words, the award of bonus would have some relation to the wages paid to the employes. It is also true that unreasonably high or extravagant claims for bonus cannot be entertained just because the available surplus would justify such a claim. As has been observed by the Labour Appellate Tribunal inLab LJ 246 care must be taken to see that the bonus which is given is not so excessive as to create fresh problems in the vicinity that upset emoluments all round or that it creates industrial discontent or the possible emergence of a privileged class. The impact of the award of bonus in an industrial dispute of comparable employments or on other employments in the region cannot be altogether ignored, though its effect should not be overestimated either. Having regard to the fact that the distribution of available surplus must inevitably depend in each case on its own facts this Court has generally refused to interfere with the decision of the tribunal on the ground that any decision on the question of distribution should be left to its discretion. It is only where the award passed by the tribunal appears to this Court to be wholly unreasonable and to be the result of the failure of the tribunal to take into account the necessary relevant facts that the jurisdiction of this Court under Art. 136 can be successfully invoked. In the present case the tribunal has considered all the relevant factors and has come to the conclusion that five months bonus would meet the ends of justice. We do not see any reason to interfere with this award.
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U.A.BASHEER Thr. G.P.A. Holder Vs. THE STATE OF KARNATAKA & ANR. | we concur with the findings of the Division Bench. 14. We have also given due consideration to the provisions of Section 8 and Section 9 of the Principal Act, and in our opinion, the aforementioned Sections make it incumbent on the Competent Authority to issue notice to or provide an opportunity to be heard only to the person concerned, i.e., the person who has filed the statement under Section 6 of the Principal Act. The claims of all other persons interested in the vacant land are to be considered through issuing a Gazetted notification to that effect as per Section 10(1) of the Principal Act. The Competent Authority had duly issued such notification on 27.10.1995. 15. Now, coming to the question of possession, it is the Appellants contention that, subsequent to the declaration, he acquired the suit property from Smt. Leela Sapalyathi, by sale agreement dated 26.03.1994, and continues to be in possession of it. That Smt. Leela Sapalyathi was competent to sell the suit property, as it was a portion of the 1,983 sq. mts. of the joint family property she acquired by virtue of the partition deed dated 9.01.1984. We find that this argument is relevant in light of the passage of the Repeal Act, with effect from 8.07.1999. Section 4 of the Repeal Act provides as follows: 4. All proceedings relating to any order made or purported to be made under the principal Act pending immediately before the commencement of this Act, before any court, tribunal or other authority shall abate: Provided that this section shall not apply to the proceedings relating to sections 11,12,13 and 14 of the principal Act in so far as such proceedings are relatable to the land, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority. Section 3(1)(a) of the Repeal Act, which provides for a savings clause, throws light on this, by stating that the repeal shall not affect the vesting of any vacant land in the State Government by the Principal Act, the possession of which has been taken over by the concerned State Government. This is further qualified in Section 3(2) which states that vacant land vested in the State Government by the Principal Act, the possession for which has not been taken over, shall be restored only once any compensation paid to the land-holder has been returned. 16. It is clear from the aforementioned legislative provisions that the question of current possession of the suit property is absolutely material to a full adjudication of the controversy before us. This is because, if the Appellant does enjoy possession, as claimed by him, any proceedings for any excess land under the Principal Act are liable to abate, as per Section 3 and Section 4 of the Repeal Act, and the Appellant would be entitled to ownership and possession over the suit property. However, neither the partition deed dated 9.01.1984 that is alleged to have conferred title on Smt. Leela Sapalyathi, nor the sale deed dated 26.03.1994 that purportedly passed on the title to the Appellant, have been produced before this Court. There is, thus, nothing on record to establish Appellants purchase of, possession of, or interest in the suit property. 17. Whereas the Appellant maintains that he has locus standi to pray for abatement of the proceedings which are the subject matter of this appeal, being in possession of the suit property; the Competent Authoritys order dated 16.10.1996 declaring the award of compensation for the excess land, states that the Competent Authority had taken over possession of the suit property with effect from 12.07.1996, i.e., before the passage of the Repeal Act. In our opinion, there is nothing on record, that conclusively establishes possession of the suit property either by the Competent Authority or the Appellant herein. Given the conflicting averments made by the parties, this is a pure question of fact. 18. In this regard, the Division Bench in the impugned order has observed the following: 5. It is contended that the possession of the land is not taken by the Government in spite of the said order and the appellant continues to be in possession. It is clear from the repealed Act, if the possession has not been taken after the proceedings initiated under the Act, the order is ceased to have any effect and the person in possession is continued to be the owner. A perusal of the order discloses that 5 Sy. Nos. were involved in the declaration, from the order it is not possible to make out in which survey number the excess land falls. If there is no indication of the said excess land falling within any particular survey number and if the authorities have proceeded to take possession, it would not be in consonance with the order. If really possession has not yet been taken under the repealed Act, the petitioner is entitled to continue in possession of the land. All these matter cannot be the subject matter of the writ petition filed challenging the order under Section 10 filed by the declarant. Notwithstanding the dismissal of the writ appeal or writ petition, it is open to the appellant/petitioner to work out his remedy in accordance with law... (emphasis supplied) 19. We find ourselves unable to agree with the Division Bench on this aspect of the matter, and thus set aside the impugned judgment. It was incumbent on the Division Bench to enquire into and settle the questions of fact arising from the present controversy, such as whether the Appellants claim over the suit property was valid, whether he was in actual physical possession of the suit property, and resultantly, whether he had the locus standi to pray for abatement of the proceedings under the Repeal Act. This would have settled finally the question of abatement of the proceedings, and prevented the inefficient proliferation of further litigation between the parties. IV. Conclusions and Directions | 1[ds]10. Having undertaken a thorough perusal of the documents and submissions on record, we find ourselves unable to completely affirm the impugned judgment dated 26.03.2009 of the Division Bench. Before proceeding to lay down our conclusions, it may be useful to first refer to the findings of the learned Single Judge and the learned Division Bench.13. At this juncture, it is pertinent to refer to Section 6 of the Principal Act, which requires that a statement be filed before the Competent Authority by every person holding vacant land in excess of the ceiling limit at the commencement of the Act… (emphasis supplied). Thus, the determination of excess land is to be made considering the status of the land at the time of commencement of the Principal Act, and not at the time of filing of the declaration. In our considered opinion, since it is an admitted fact that the partition, if any, was only effected after the Principal Acts commencement, the Division Bench was correct in holding that the partition deed dated 9.01.1984 would not affect the validity of the Competent Authoritys determination of excess land owned by the joint family at the time of commencement of the Act. Hence, to this limited extent, we concur with the findings of the Division Bench.14. We have also given due consideration to the provisions of Section 8 and Section 9 of the Principal Act, and in our opinion, the aforementioned Sections make it incumbent on the Competent Authority to issue notice to or provide an opportunity to be heard only to the person concerned, i.e., the person who has filed the statement under Section 6 of the Principal Act. The claims of all other persons interested in the vacant land are to be considered through issuing a Gazetted notification to that effect as per Section 10(1) of the Principal Act. The Competent Authority had duly issued such notification on 27.10.1995.We find that this argument is relevant in light of the passage of the Repeal Act, with effect from 8.07.1999. Section 4 of the Repeal Act provides as follows:4. All proceedings relating to any order made or purported to be made under the principal Act pending immediately before the commencement of this Act, before any court, tribunal or other authority shall abate:Provided that this section shall not apply to the proceedings relating to sections 11,12,13 and 14 of the principal Act in so far as such proceedings are relatable to the land, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority.Section 3(1)(a) of the Repeal Act, which provides for a savings clause, throws light on this, by stating that the repeal shall not affect the vesting of any vacant land in the State Government by the Principal Act, the possession of which has been taken over by the concerned State Government. This is further qualified in Section 3(2) which states that vacant land vested in the State Government by the Principal Act, the possession for which has not been taken over, shall be restored only once any compensation paid to the land-holder has been returned.16. It is clear from the aforementioned legislative provisions that the question of current possession of the suit property is absolutely material to a full adjudication of the controversy before us. This is because, if the Appellant does enjoy possession, as claimed by him, any proceedings for any excess land under the Principal Act are liable to abate, as per Section 3 and Section 4 of the Repeal Act, and the Appellant would be entitled to ownership and possession over the suit property. However, neither the partition deed dated 9.01.1984 that is alleged to have conferred title on Smt. Leela Sapalyathi, nor the sale deed dated 26.03.1994 that purportedly passed on the title to the Appellant, have been produced before this Court. There is, thus, nothing on record to establish Appellants purchase of, possession of, or interest in the suit property.17. Whereas the Appellant maintains that he has locus standi to pray for abatement of the proceedings which are the subject matter of this appeal, being in possession of the suit property; the Competent Authoritys order dated 16.10.1996 declaring the award of compensation for the excess land, states that the Competent Authority had taken over possession of the suit property with effect from 12.07.1996, i.e., before the passage of the Repeal Act. In our opinion, there is nothing on record, that conclusively establishes possession of the suit property either by the Competent Authority or the Appellant herein. Given the conflicting averments made by the parties, this is a pure question of fact.19. We find ourselves unable to agree with the Division Bench on this aspect of the matter, and thus set aside the impugned judgment. It was incumbent on the Division Bench to enquire into and settle the questions of fact arising from the present controversy, such as whether the Appellants claim over the suit property was valid, whether he was in actual physical possession of the suit property, and resultantly, whether he had the locus standi to pray for abatement of the proceedings under the Repeal Act. This would have settled finally the question of abatement of the proceedings, and prevented the inefficient proliferation of further litigation between the parties. | 1 | 3,403 | 987 | ### Instruction:
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we concur with the findings of the Division Bench. 14. We have also given due consideration to the provisions of Section 8 and Section 9 of the Principal Act, and in our opinion, the aforementioned Sections make it incumbent on the Competent Authority to issue notice to or provide an opportunity to be heard only to the person concerned, i.e., the person who has filed the statement under Section 6 of the Principal Act. The claims of all other persons interested in the vacant land are to be considered through issuing a Gazetted notification to that effect as per Section 10(1) of the Principal Act. The Competent Authority had duly issued such notification on 27.10.1995. 15. Now, coming to the question of possession, it is the Appellants contention that, subsequent to the declaration, he acquired the suit property from Smt. Leela Sapalyathi, by sale agreement dated 26.03.1994, and continues to be in possession of it. That Smt. Leela Sapalyathi was competent to sell the suit property, as it was a portion of the 1,983 sq. mts. of the joint family property she acquired by virtue of the partition deed dated 9.01.1984. We find that this argument is relevant in light of the passage of the Repeal Act, with effect from 8.07.1999. Section 4 of the Repeal Act provides as follows: 4. All proceedings relating to any order made or purported to be made under the principal Act pending immediately before the commencement of this Act, before any court, tribunal or other authority shall abate: Provided that this section shall not apply to the proceedings relating to sections 11,12,13 and 14 of the principal Act in so far as such proceedings are relatable to the land, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority. Section 3(1)(a) of the Repeal Act, which provides for a savings clause, throws light on this, by stating that the repeal shall not affect the vesting of any vacant land in the State Government by the Principal Act, the possession of which has been taken over by the concerned State Government. This is further qualified in Section 3(2) which states that vacant land vested in the State Government by the Principal Act, the possession for which has not been taken over, shall be restored only once any compensation paid to the land-holder has been returned. 16. It is clear from the aforementioned legislative provisions that the question of current possession of the suit property is absolutely material to a full adjudication of the controversy before us. This is because, if the Appellant does enjoy possession, as claimed by him, any proceedings for any excess land under the Principal Act are liable to abate, as per Section 3 and Section 4 of the Repeal Act, and the Appellant would be entitled to ownership and possession over the suit property. However, neither the partition deed dated 9.01.1984 that is alleged to have conferred title on Smt. Leela Sapalyathi, nor the sale deed dated 26.03.1994 that purportedly passed on the title to the Appellant, have been produced before this Court. There is, thus, nothing on record to establish Appellants purchase of, possession of, or interest in the suit property. 17. Whereas the Appellant maintains that he has locus standi to pray for abatement of the proceedings which are the subject matter of this appeal, being in possession of the suit property; the Competent Authoritys order dated 16.10.1996 declaring the award of compensation for the excess land, states that the Competent Authority had taken over possession of the suit property with effect from 12.07.1996, i.e., before the passage of the Repeal Act. In our opinion, there is nothing on record, that conclusively establishes possession of the suit property either by the Competent Authority or the Appellant herein. Given the conflicting averments made by the parties, this is a pure question of fact. 18. In this regard, the Division Bench in the impugned order has observed the following: 5. It is contended that the possession of the land is not taken by the Government in spite of the said order and the appellant continues to be in possession. It is clear from the repealed Act, if the possession has not been taken after the proceedings initiated under the Act, the order is ceased to have any effect and the person in possession is continued to be the owner. A perusal of the order discloses that 5 Sy. Nos. were involved in the declaration, from the order it is not possible to make out in which survey number the excess land falls. If there is no indication of the said excess land falling within any particular survey number and if the authorities have proceeded to take possession, it would not be in consonance with the order. If really possession has not yet been taken under the repealed Act, the petitioner is entitled to continue in possession of the land. All these matter cannot be the subject matter of the writ petition filed challenging the order under Section 10 filed by the declarant. Notwithstanding the dismissal of the writ appeal or writ petition, it is open to the appellant/petitioner to work out his remedy in accordance with law... (emphasis supplied) 19. We find ourselves unable to agree with the Division Bench on this aspect of the matter, and thus set aside the impugned judgment. It was incumbent on the Division Bench to enquire into and settle the questions of fact arising from the present controversy, such as whether the Appellants claim over the suit property was valid, whether he was in actual physical possession of the suit property, and resultantly, whether he had the locus standi to pray for abatement of the proceedings under the Repeal Act. This would have settled finally the question of abatement of the proceedings, and prevented the inefficient proliferation of further litigation between the parties. IV. Conclusions and Directions
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10. Having undertaken a thorough perusal of the documents and submissions on record, we find ourselves unable to completely affirm the impugned judgment dated 26.03.2009 of the Division Bench. Before proceeding to lay down our conclusions, it may be useful to first refer to the findings of the learned Single Judge and the learned Division Bench.13. At this juncture, it is pertinent to refer to Section 6 of the Principal Act, which requires that a statement be filed before the Competent Authority by every person holding vacant land in excess of the ceiling limit at the commencement of the Act… (emphasis supplied). Thus, the determination of excess land is to be made considering the status of the land at the time of commencement of the Principal Act, and not at the time of filing of the declaration. In our considered opinion, since it is an admitted fact that the partition, if any, was only effected after the Principal Acts commencement, the Division Bench was correct in holding that the partition deed dated 9.01.1984 would not affect the validity of the Competent Authoritys determination of excess land owned by the joint family at the time of commencement of the Act. Hence, to this limited extent, we concur with the findings of the Division Bench.14. We have also given due consideration to the provisions of Section 8 and Section 9 of the Principal Act, and in our opinion, the aforementioned Sections make it incumbent on the Competent Authority to issue notice to or provide an opportunity to be heard only to the person concerned, i.e., the person who has filed the statement under Section 6 of the Principal Act. The claims of all other persons interested in the vacant land are to be considered through issuing a Gazetted notification to that effect as per Section 10(1) of the Principal Act. The Competent Authority had duly issued such notification on 27.10.1995.We find that this argument is relevant in light of the passage of the Repeal Act, with effect from 8.07.1999. Section 4 of the Repeal Act provides as follows:4. All proceedings relating to any order made or purported to be made under the principal Act pending immediately before the commencement of this Act, before any court, tribunal or other authority shall abate:Provided that this section shall not apply to the proceedings relating to sections 11,12,13 and 14 of the principal Act in so far as such proceedings are relatable to the land, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority.Section 3(1)(a) of the Repeal Act, which provides for a savings clause, throws light on this, by stating that the repeal shall not affect the vesting of any vacant land in the State Government by the Principal Act, the possession of which has been taken over by the concerned State Government. This is further qualified in Section 3(2) which states that vacant land vested in the State Government by the Principal Act, the possession for which has not been taken over, shall be restored only once any compensation paid to the land-holder has been returned.16. It is clear from the aforementioned legislative provisions that the question of current possession of the suit property is absolutely material to a full adjudication of the controversy before us. This is because, if the Appellant does enjoy possession, as claimed by him, any proceedings for any excess land under the Principal Act are liable to abate, as per Section 3 and Section 4 of the Repeal Act, and the Appellant would be entitled to ownership and possession over the suit property. However, neither the partition deed dated 9.01.1984 that is alleged to have conferred title on Smt. Leela Sapalyathi, nor the sale deed dated 26.03.1994 that purportedly passed on the title to the Appellant, have been produced before this Court. There is, thus, nothing on record to establish Appellants purchase of, possession of, or interest in the suit property.17. Whereas the Appellant maintains that he has locus standi to pray for abatement of the proceedings which are the subject matter of this appeal, being in possession of the suit property; the Competent Authoritys order dated 16.10.1996 declaring the award of compensation for the excess land, states that the Competent Authority had taken over possession of the suit property with effect from 12.07.1996, i.e., before the passage of the Repeal Act. In our opinion, there is nothing on record, that conclusively establishes possession of the suit property either by the Competent Authority or the Appellant herein. Given the conflicting averments made by the parties, this is a pure question of fact.19. We find ourselves unable to agree with the Division Bench on this aspect of the matter, and thus set aside the impugned judgment. It was incumbent on the Division Bench to enquire into and settle the questions of fact arising from the present controversy, such as whether the Appellants claim over the suit property was valid, whether he was in actual physical possession of the suit property, and resultantly, whether he had the locus standi to pray for abatement of the proceedings under the Repeal Act. This would have settled finally the question of abatement of the proceedings, and prevented the inefficient proliferation of further litigation between the parties.
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M.P. POWER MANAGEMENT COMPANY LTD Vs. RENEW CLEAN ENERGY PVT. LTD | on respondent No.1. Being aggrieved, respondent No.1 filed Writ Petition No.12432 of 2017 before the High Court praying that the appellant be directed not to give effect to termination and encashment of performance bank guarantee. The High Court vide impugned judgment dated 18.08.2017 partly allowed the writ petition setting aside the order of termination of the contract while maintaining the invocation of the bank guarantee. 8. We have heard the learned counsel appearing for the parties and perused the impugned judgment and materials on record. 9. Clause 2.1 of the PPA required respondent No.1 to fulfil all Conditions Subsequent within a period of 210 days from the effective date i.e. 06.06.2017, failing which Article 2.5 of the PPA allowed further extension up to nine months for fulfillment of the Conditions Subsequent subject to payment of liquidated damages in terms of the PPA. Clause 2.5 of the PPA reads as follows:- 2.5 DELAY IN ACHIEVING CONDITIONS SUBSEQUENT: 2.5.1. In case of delay in achieving any of the Conditions Subsequent under clause 2.1 (a to h), as may be applicable, MPPMCL shall encash CPG (submitted by Seller @ Rs.30 Lakhs/MW) as under, subject to Force Majeure: a) Delay from 0-3 months - 1% per week. b) Delay from 3-6 months - 2% per week for the period exceeding 3 months, apart from (a) above. c) Delay from 6-9 months - 3% per week for the period exceeding 6 months, apart from (a) and (b) above. d) In case of delay of more than 9 months, MPPMCL shall terminate PPA and release balance amount of CPG. 10. Since respondent No.1 was unable to obtain the requisite land, on request by respondent No.1, the State Government allotted 96.73 acres of land at district Rajgarh to the appellant for being allotted to respondent No.1 on lease. According to respondent No.1, upon initiation of measurement and demarcation exercise by the revenue officials, the land was found to be heavily encroached and there was stiff resistance which continued every time respondent No.1 tried to approach the said land and therefore, respondent No.1 could not access the project site and commence any construction activities. On request by respondent No.1 by its letter dated 29.09.2016, respondent No.1 sought for change of location of the project. The Board of Directors considered the request of respondent No.1 and by Resolution dated 29.12.2016 allowed change of location of the project. Thereafter, respondent No.1 purchased the land to an extent of 253 acres in village Bansara and Pipriya Rai in Ashok Nagar district within a period of about eighty three days from the date of the appellants approval. After acquiring the land, respondent No.1 undertook the construction activities and the project in an advanced stage of synchronization as early as on 10.07.2017. The same was notified to the appellant by communication dated 10.07.2017 stating that the commissioning of the project is in final stage and that the expected date of commissioning of the project is 31.08.2017 which according to respondent No.1 is ahead of the scheduled commissioning date i.e. 07.09.2017 in terms of the PPA. 11. Even when respondent No.1 has undertaken the construction activities in the changed location and informed the appellant that the expected date of commissioning of the project is 31.08.2017, the appellant terminated the contract by its order dated 11.08.2017. As pointed out by respondent No.1 in its counter affidavit, on 06.06.2016, respondent No.1 has got sanction of the term debt facility of Rs.267.37 crores from PTC India Financial Services Limited and has spent huge amount in purchasing the land to an extent of 253 acres in Ashok Nagar district. Respondent No.1 has also spent substantial amount in development of the project in the changed location and reached an advanced stage of commissioning the project by 31.08.2017. The delay in commissioning the project appears to be due to unavoidable circumstances like resistance faced at the allotted site in Rajgarh district and subsequent change of location of the project. These circumstances, though not a Force Majeure event, time taken by respondent No.1 in change of location and construction of the plant have to be kept in view for counting the delay. Having invested huge amount in purchasing the land and development of the project at Ashok Nagar district and when the project is in the final stage of commissioning, the termination of the contract is not fair. 12. The High Court observed that the delay in completing the project was only for sixteen days. But according to the appellant, respondent No.1 was granted time period of 210 days to complete the Conditions Subsequent after which the penalty was leviable for the delay and if the delay exceeded more than nine months, the appellant could terminate the contract. According to appellant, the delay was not of sixteen days; but the said delay of sixteen days is beyond the period of nine months permissible under the PPA. In the light of our observations above, we are not inclined to go into the merits of this contention. Suffice to note that in cases of delay, Articles 2.5 and 2.6 provide for levy of penalty. As observed by the High Court, since the contract permits imposition of penalty, respondent No.1 is liable to pay penalty in terms of clause 2.5.1 of the PPA for the delay. But the action of the appellant in terminating the contract is arbitrary and was rightly set aside by the High Court. 13. While setting aside the termination of the contract, the High Court maintained the action of invocation of bank guarantee in terms of clause 2.5.1 of the PPA. By order dated 22.09.2017, this Court has stayed the order of the High Court subject to restitution by the appellant of the amount covered by the bank guarantee which has been invoked which is said to have been complied with by the appellant. In our view, interest of justice would be met by directing respondent No.1 to pay penalty amount of Rs.11,95,54,200/- imposed upon respondent No.1 by the appellant. | 0[ds]11. Even when respondent No.1 has undertaken the construction activities in the changed location and informed the appellant that the expected date of commissioning of the project is 31.08.2017, the appellant terminated the contract by its order dated 11.08.2017. As pointed out by respondent No.1 in its counter affidavit, on 06.06.2016, respondent No.1 has got sanction of the term debt facility of Rs.267.37 crores from PTC India Financial Services Limited and has spent huge amount in purchasing the land to an extent of 253 acres in Ashok Nagar district. Respondent No.1 has also spent substantial amount in development of the project in the changed location and reached an advanced stage of commissioning the project by 31.08.2017. The delay in commissioning the project appears to be due to unavoidable circumstances like resistance faced at the allotted site in Rajgarh district and subsequent change of location of the project. These circumstances, though not a Force Majeure event, time taken by respondent No.1 in change of location and construction of the plant have to be kept in view for counting the delay. Having invested huge amount in purchasing the land and development of the project at Ashok Nagar district and when the project is in the final stage of commissioning, the termination of the contract is not fair.The High Court observed that the delay in completing the project was only for sixteen days.But according to the appellant, respondent No.1 was granted time period of 210 days to complete the Conditions Subsequent after which the penalty was leviable for the delay and if the delay exceeded more than nine months, the appellant could terminate the contract. According to appellant, the delay was not of sixteen days; but the said delay of sixteen days is beyond the period of nine months permissible under the PPA.In the light of our observations above, we are not inclined to go into the merits of this contention. Suffice to note that in cases of delay, Articles 2.5 and 2.6 provide for levy of penalty. As observed by the High Court, since the contract permits imposition of penalty, respondent No.1 is liable to pay penalty in terms of clause 2.5.1 of the PPA for the delay. But the action of the appellant in terminating the contract is arbitrary and was rightly set aside by the High Court.While setting aside the termination of the contract, the High Court maintained the action of invocation of bank guarantee in terms of clause 2.5.1 of the PPA. By order dated 22.09.2017, this Court has stayed the order of the High Court subject to restitution by the appellant of the amount covered by the bank guarantee which has been invoked which is said to have been complied with by the appellant. In our view, interest of justice would be met by directing respondent No.1 to pay penalty amount of Rs.11,95,54,200/imposed upon respondent No.1 by the appellant. | 0 | 1,760 | 515 | ### 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:
on respondent No.1. Being aggrieved, respondent No.1 filed Writ Petition No.12432 of 2017 before the High Court praying that the appellant be directed not to give effect to termination and encashment of performance bank guarantee. The High Court vide impugned judgment dated 18.08.2017 partly allowed the writ petition setting aside the order of termination of the contract while maintaining the invocation of the bank guarantee. 8. We have heard the learned counsel appearing for the parties and perused the impugned judgment and materials on record. 9. Clause 2.1 of the PPA required respondent No.1 to fulfil all Conditions Subsequent within a period of 210 days from the effective date i.e. 06.06.2017, failing which Article 2.5 of the PPA allowed further extension up to nine months for fulfillment of the Conditions Subsequent subject to payment of liquidated damages in terms of the PPA. Clause 2.5 of the PPA reads as follows:- 2.5 DELAY IN ACHIEVING CONDITIONS SUBSEQUENT: 2.5.1. In case of delay in achieving any of the Conditions Subsequent under clause 2.1 (a to h), as may be applicable, MPPMCL shall encash CPG (submitted by Seller @ Rs.30 Lakhs/MW) as under, subject to Force Majeure: a) Delay from 0-3 months - 1% per week. b) Delay from 3-6 months - 2% per week for the period exceeding 3 months, apart from (a) above. c) Delay from 6-9 months - 3% per week for the period exceeding 6 months, apart from (a) and (b) above. d) In case of delay of more than 9 months, MPPMCL shall terminate PPA and release balance amount of CPG. 10. Since respondent No.1 was unable to obtain the requisite land, on request by respondent No.1, the State Government allotted 96.73 acres of land at district Rajgarh to the appellant for being allotted to respondent No.1 on lease. According to respondent No.1, upon initiation of measurement and demarcation exercise by the revenue officials, the land was found to be heavily encroached and there was stiff resistance which continued every time respondent No.1 tried to approach the said land and therefore, respondent No.1 could not access the project site and commence any construction activities. On request by respondent No.1 by its letter dated 29.09.2016, respondent No.1 sought for change of location of the project. The Board of Directors considered the request of respondent No.1 and by Resolution dated 29.12.2016 allowed change of location of the project. Thereafter, respondent No.1 purchased the land to an extent of 253 acres in village Bansara and Pipriya Rai in Ashok Nagar district within a period of about eighty three days from the date of the appellants approval. After acquiring the land, respondent No.1 undertook the construction activities and the project in an advanced stage of synchronization as early as on 10.07.2017. The same was notified to the appellant by communication dated 10.07.2017 stating that the commissioning of the project is in final stage and that the expected date of commissioning of the project is 31.08.2017 which according to respondent No.1 is ahead of the scheduled commissioning date i.e. 07.09.2017 in terms of the PPA. 11. Even when respondent No.1 has undertaken the construction activities in the changed location and informed the appellant that the expected date of commissioning of the project is 31.08.2017, the appellant terminated the contract by its order dated 11.08.2017. As pointed out by respondent No.1 in its counter affidavit, on 06.06.2016, respondent No.1 has got sanction of the term debt facility of Rs.267.37 crores from PTC India Financial Services Limited and has spent huge amount in purchasing the land to an extent of 253 acres in Ashok Nagar district. Respondent No.1 has also spent substantial amount in development of the project in the changed location and reached an advanced stage of commissioning the project by 31.08.2017. The delay in commissioning the project appears to be due to unavoidable circumstances like resistance faced at the allotted site in Rajgarh district and subsequent change of location of the project. These circumstances, though not a Force Majeure event, time taken by respondent No.1 in change of location and construction of the plant have to be kept in view for counting the delay. Having invested huge amount in purchasing the land and development of the project at Ashok Nagar district and when the project is in the final stage of commissioning, the termination of the contract is not fair. 12. The High Court observed that the delay in completing the project was only for sixteen days. But according to the appellant, respondent No.1 was granted time period of 210 days to complete the Conditions Subsequent after which the penalty was leviable for the delay and if the delay exceeded more than nine months, the appellant could terminate the contract. According to appellant, the delay was not of sixteen days; but the said delay of sixteen days is beyond the period of nine months permissible under the PPA. In the light of our observations above, we are not inclined to go into the merits of this contention. Suffice to note that in cases of delay, Articles 2.5 and 2.6 provide for levy of penalty. As observed by the High Court, since the contract permits imposition of penalty, respondent No.1 is liable to pay penalty in terms of clause 2.5.1 of the PPA for the delay. But the action of the appellant in terminating the contract is arbitrary and was rightly set aside by the High Court. 13. While setting aside the termination of the contract, the High Court maintained the action of invocation of bank guarantee in terms of clause 2.5.1 of the PPA. By order dated 22.09.2017, this Court has stayed the order of the High Court subject to restitution by the appellant of the amount covered by the bank guarantee which has been invoked which is said to have been complied with by the appellant. In our view, interest of justice would be met by directing respondent No.1 to pay penalty amount of Rs.11,95,54,200/- imposed upon respondent No.1 by the appellant.
### Response:
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### Explanation:
11. Even when respondent No.1 has undertaken the construction activities in the changed location and informed the appellant that the expected date of commissioning of the project is 31.08.2017, the appellant terminated the contract by its order dated 11.08.2017. As pointed out by respondent No.1 in its counter affidavit, on 06.06.2016, respondent No.1 has got sanction of the term debt facility of Rs.267.37 crores from PTC India Financial Services Limited and has spent huge amount in purchasing the land to an extent of 253 acres in Ashok Nagar district. Respondent No.1 has also spent substantial amount in development of the project in the changed location and reached an advanced stage of commissioning the project by 31.08.2017. The delay in commissioning the project appears to be due to unavoidable circumstances like resistance faced at the allotted site in Rajgarh district and subsequent change of location of the project. These circumstances, though not a Force Majeure event, time taken by respondent No.1 in change of location and construction of the plant have to be kept in view for counting the delay. Having invested huge amount in purchasing the land and development of the project at Ashok Nagar district and when the project is in the final stage of commissioning, the termination of the contract is not fair.The High Court observed that the delay in completing the project was only for sixteen days.But according to the appellant, respondent No.1 was granted time period of 210 days to complete the Conditions Subsequent after which the penalty was leviable for the delay and if the delay exceeded more than nine months, the appellant could terminate the contract. According to appellant, the delay was not of sixteen days; but the said delay of sixteen days is beyond the period of nine months permissible under the PPA.In the light of our observations above, we are not inclined to go into the merits of this contention. Suffice to note that in cases of delay, Articles 2.5 and 2.6 provide for levy of penalty. As observed by the High Court, since the contract permits imposition of penalty, respondent No.1 is liable to pay penalty in terms of clause 2.5.1 of the PPA for the delay. But the action of the appellant in terminating the contract is arbitrary and was rightly set aside by the High Court.While setting aside the termination of the contract, the High Court maintained the action of invocation of bank guarantee in terms of clause 2.5.1 of the PPA. By order dated 22.09.2017, this Court has stayed the order of the High Court subject to restitution by the appellant of the amount covered by the bank guarantee which has been invoked which is said to have been complied with by the appellant. In our view, interest of justice would be met by directing respondent No.1 to pay penalty amount of Rs.11,95,54,200/imposed upon respondent No.1 by the appellant.
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Maharashtra State Elect.Distrn.Co.L.&Anr Vs. Datar Switchgear Ltd | It rather demonstrates that it was the Chief Engineer who was made responsible for looking after the interest of the appellant No. 1 in those proceedings. In this regard, it would be useful to advert to the observations made by a three judge bench of this Court in S.M.S. Pharmaceuticals (supra): “There is no universal rule that a director of a company is in charge of its everyday affairs. We have discussed about the position of a director in a company in order to illustrate the point that there is no magic as such in a particular word, be it director, manager or secretary. It all depends upon the respective roles assigned to the officers in a company. A company may have managers or secretaries for different departments, which means, it may have more than one manager or secretary.” 29. It is trite law that wherever by a legal fiction the principle of vicarious liability is attracted and a person who is otherwise not personally involved in the commission of an offence is made liable for the same, it has to be specifically provided in the statute concerned. In our opinion, neither Section 192, IPC nor Section 199, IPC, incorporate the principle of vicarious liability, and therefore, it was incumbent on the complainant to specifically aver the role of each of the accused in the complaint. It would be profitable to extract the following observations made in S.K. Alagh (supra): “As, admittedly, drafts were drawn in the name of the Company, even if the appellant was its Managing Director, he cannot be said to have committed an offence under Section 406 of the Penal Code. If and when a statute contemplates creation of such a legal fiction, it provides specifically therefor. In absence of any provision laid down under the statute, a Director of a Company or an employee cannot be held to be vicariously liable for any offence committed by the Company itself.” 30. Therefore, we are of the view that even the Board Resolution, adduced by the complainant, does not establish that appellant No. 2 was involved in the alleged fabrication of false evidence or adducing the same in evidence before the Arbitral Tribunal. In the absence of any such specific averment demonstrating the role of appellant No. 2 in the commission of the offence, we find it difficult to hold that the complaint, even assuming it to be correct in its entirety, discloses the commission of an offence by appellant No. 2 under Sections 192 and 199 of IPC.31. However, insofar as the case of appellant No. 1 company is concerned, bearing in mind the fact that Exhibit C-64 was submitted with the intention to support the averments in the written statement filed on their behalf, which could possibly influence the decision of the Arbitral Tribunal in relation to the conduct of the respondent No. 1 while discharging their obligations under the contract between them and appellant No. 1, we are unable to hold that prima facie, a case of offences under Sections 192 and 199, IPC is not made out against them. It is evident from the observations of the Tribunal quoted in para 9 (supra) that had the Tribunal not doubted the veracity of the said document, it could have made a material difference to the result of the arbitral proceedings.32. It was faintly argued that the arbitral award on the basis whereof the said complaint has been filed has been set aside and therefore, the complaint is liable to be quashed on this ground. The submission is untenable as the offences under Sections 192 and 199, IPC, if made out, exist independent of the final arbitral award. We are, therefore, of the opinion, that it is not a fit case for the exercise of power under Section 482 of the Code, in favour of appellant No. 1.33. We shall now examine whether appellant No. 2 could be made liable for the afore-mentioned offences by operation of Section 34 of IPC. It is trite that Section 34, IPC does not constitute a substantive offence, and is merely in the nature of a rule of evidence, and liability is fastened on a person who may have not been directly involved in the commission of the offence on the basis of a pre-arranged plan between that person and the persons who actually committed the offence. In order to attract Section 34, IPC, the following ingredients must be established: “(i) there was common intention in the sense of a pre-arranged plan;(ii) the person sought to be so held liable had participated in some manner in the act constituting the offence.” [See: Chandrakant Murgyappa Umrani & Ors. v. State of Maharashtra, 1998 SCC (Cr.) 698; Hamlet @ Sasi & Ors. v. State of Kerala, V (2003) SLT 33=III (2003) CCR 189 (SC)=(2003) 10 SCC 108 ; Surendra Chauhan v. State of M.P., III (2000) SLT 209=I (2009) CCR 343 (SC)=(2000) 4 SCC 110 ]34. It is manifest that common intention refers to a prior concert or meeting of minds, and though, it is not necessary that the existence of a distinct previous plan must be proved, as such common intention may develop at the spur of the moment, yet the meeting of minds must be prior to the commission of offence suggesting the existence of a pre-arranged plan. Therefore, in order to attract Section 34 of the IPC, the complaint must, prima facie, reflect a common prior concert or planning amongst all the accused. In our opinion, in the present case, the complaint does not indicate the existence of any pre-arranged plan whereby appellant No. 2 had, in collusion, with the other accused decided to fabricate the document in question and adduce it in evidence before the Arbitral Tribunal. There is not even a whisper in the complaint indicating any participation of appellant No. 2 in the acts constituting the offence, and that being the case we are convinced that Section 34, IPC is not attracted in his case. | 0[ds]28. A bare perusal of the complaint shows that the gravamen of the allegation is that a fabricated document containing the offending endorsement was tendered in evidence before the Arbitral Tribunal on behalf of MSEB by accused No. 6, who wasof Shirpur Section. It is evident from theparagraphs of the complaint that other accused have been named in the complaint because, according to the complainant,No. 1 was acting under their control and management. It bears repetition that the only averment made against appellant No. 2 is that appellant No. 1, i.e. MSEB was acting under the control and management of appellant No. 2 along with other three accused. There is no denying the fact that appellant No. 2 happened to be the Chairman of MSEB at the relevant time but it is a settled proposition of law that one cannot draw a presumption that a Chairman of a company is responsible for all acts committed by or on behalf of the Company. In the entire body of the complaint there is no allegation that appellant No. 2 had personally participated in the arbitration proceedings or was monitoring them in his capacity as the Chairman of MSEB and it was at his instance the subject interpolation was made in ExhibitAt this stage, we may refer to the extract of a Board resolution, pressed into service by the respondents in support of their plea that appellant No. 2 was responsible for the conduct of business of appellant No. 1. The said resolution merely authorises the Chief Engineer to file counter claim before the Arbitral Tribunal in proceedings between appellant No. 1 and respondent No. 1. It rather demonstrates that it was the Chief Engineer who was made responsible for looking after the interest of the appellant No. 1 in those proceedings. In this regard, it would be useful to advert to the observations made by a three judge bench of this Court in S.M.S. Pharmaceuticalsis no universal rule that a director of a company is in charge of its everyday affairs. We have discussed about the position of a director in a company in order to illustrate the point that there is no magic as such in a particular word, be it director, manager or secretary. It all depends upon the respective roles assigned to the officers in a company. A company may have managers or secretaries for different departments, which means, it may have more than one manager or secretary.It is trite law that wherever by a legal fiction the principle of vicarious liability is attracted and a person who is otherwise not personally involved in the commission of an offence is made liable for the same, it has to be specifically provided in the statute concerned. In our opinion, neither Section 192, IPC nor Section 199, IPC, incorporate the principle of vicarious liability, and therefore, it was incumbent on the complainant to specifically aver the role of each of the accused in the complaint. It would be profitable to extract the following observations made in S.K. Alaghadmittedly, drafts were drawn in the name of the Company, even if the appellant was its Managing Director, he cannot be said to have committed an offence under Section 406 of the Penal Code. If and when a statute contemplates creation of such a legal fiction, it provides specifically therefor. In absence of any provision laid down under the statute, a Director of a Company or an employee cannot be held to be vicariously liable for any offence committed by the Company itself.Therefore, we are of the view that even the Board Resolution, adduced by the complainant, does not establish that appellant No. 2 was involved in the alleged fabrication of false evidence or adducing the same in evidence before the Arbitral Tribunal. In the absence of any such specific averment demonstrating the role of appellant No. 2 in the commission of the offence, we find it difficult to hold that the complaint, even assuming it to be correct in its entirety, discloses the commission of an offence by appellant No. 2 under Sections 192 and 199 of IPC.31. However, insofar as the case of appellant No. 1 company is concerned, bearing in mind the fact that Exhibitwas submitted with the intention to support the averments in the written statement filed on their behalf, which could possibly influence the decision of the Arbitral Tribunal in relation to the conduct of the respondent No. 1 while discharging their obligations under the contract between them and appellant No. 1, we are unable to hold that prima facie, a case of offences under Sections 192 and 199, IPC is not made out against them. It is evident from the observations of the Tribunal quoted in para 9 (supra) that had the Tribunal not doubted the veracity of the said document, it could have made a material difference to the result of the arbitral proceedings.32. It was faintly argued that the arbitral award on the basis whereof the said complaint has been filed has been set aside and therefore, the complaint is liable to be quashed on this ground. The submission is untenable as the offences under Sections 192 and 199, IPC, if made out, exist independent of the final arbitral award. We are, therefore, of the opinion, that it is not a fit case for the exercise of power under Section 482 of the Code, in favour of appellant No. 1.33. We shall now examine whether appellant No. 2 could be made liable for theoffences by operation of Section 34 of IPC. It is trite that Section 34, IPC does not constitute a substantive offence, and is merely in the nature of a rule of evidence, and liability is fastened on a person who may have not been directly involved in the commission of the offence on the basis of aplan between that person and the persons who actually committed the offence. In order to attract Section 34, IPC, the following ingredients must bethere was common intention in the sense of aplan;(ii) the person sought to be so held liable had participated in some manner in the act constituting theChandrakant Murgyappa Umrani & Ors. v. State of Maharashtra, 1998 SCC (Cr.) 698; Hamlet @ Sasi & Ors. v. State of Kerala, V (2003) SLT 33=III (2003) CCR 189 (SC)=(2003) 10 SCC 108 ; Surendra Chauhan v. State of M.P., III (2000) SLT 209=I (2009) CCR 343 (SC)=(2000) 4 SCC 110 ]34. It is manifest that common intention refers to a prior concert or meeting of minds, and though, it is not necessary that the existence of a distinct previous plan must be proved, as such common intention may develop at the spur of the moment, yet the meeting of minds must be prior to the commission of offence suggesting the existence of aplan. Therefore, in order to attract Section 34 of the IPC, the complaint must, prima facie, reflect a common prior concert or planning amongst all the accused. In our opinion, in the present case, the complaint does not indicate the existence of anyplan whereby appellant No. 2 had, in collusion, with the other accused decided to fabricate the document in question and adduce it in evidence before the Arbitral Tribunal. There is not even a whisper in the complaint indicating any participation of appellant No. 2 in the acts constituting the offence, and that being the case we are convinced that Section 34, IPC is not attracted in his case. | 0 | 5,844 | 1,406 | ### 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:
It rather demonstrates that it was the Chief Engineer who was made responsible for looking after the interest of the appellant No. 1 in those proceedings. In this regard, it would be useful to advert to the observations made by a three judge bench of this Court in S.M.S. Pharmaceuticals (supra): “There is no universal rule that a director of a company is in charge of its everyday affairs. We have discussed about the position of a director in a company in order to illustrate the point that there is no magic as such in a particular word, be it director, manager or secretary. It all depends upon the respective roles assigned to the officers in a company. A company may have managers or secretaries for different departments, which means, it may have more than one manager or secretary.” 29. It is trite law that wherever by a legal fiction the principle of vicarious liability is attracted and a person who is otherwise not personally involved in the commission of an offence is made liable for the same, it has to be specifically provided in the statute concerned. In our opinion, neither Section 192, IPC nor Section 199, IPC, incorporate the principle of vicarious liability, and therefore, it was incumbent on the complainant to specifically aver the role of each of the accused in the complaint. It would be profitable to extract the following observations made in S.K. Alagh (supra): “As, admittedly, drafts were drawn in the name of the Company, even if the appellant was its Managing Director, he cannot be said to have committed an offence under Section 406 of the Penal Code. If and when a statute contemplates creation of such a legal fiction, it provides specifically therefor. In absence of any provision laid down under the statute, a Director of a Company or an employee cannot be held to be vicariously liable for any offence committed by the Company itself.” 30. Therefore, we are of the view that even the Board Resolution, adduced by the complainant, does not establish that appellant No. 2 was involved in the alleged fabrication of false evidence or adducing the same in evidence before the Arbitral Tribunal. In the absence of any such specific averment demonstrating the role of appellant No. 2 in the commission of the offence, we find it difficult to hold that the complaint, even assuming it to be correct in its entirety, discloses the commission of an offence by appellant No. 2 under Sections 192 and 199 of IPC.31. However, insofar as the case of appellant No. 1 company is concerned, bearing in mind the fact that Exhibit C-64 was submitted with the intention to support the averments in the written statement filed on their behalf, which could possibly influence the decision of the Arbitral Tribunal in relation to the conduct of the respondent No. 1 while discharging their obligations under the contract between them and appellant No. 1, we are unable to hold that prima facie, a case of offences under Sections 192 and 199, IPC is not made out against them. It is evident from the observations of the Tribunal quoted in para 9 (supra) that had the Tribunal not doubted the veracity of the said document, it could have made a material difference to the result of the arbitral proceedings.32. It was faintly argued that the arbitral award on the basis whereof the said complaint has been filed has been set aside and therefore, the complaint is liable to be quashed on this ground. The submission is untenable as the offences under Sections 192 and 199, IPC, if made out, exist independent of the final arbitral award. We are, therefore, of the opinion, that it is not a fit case for the exercise of power under Section 482 of the Code, in favour of appellant No. 1.33. We shall now examine whether appellant No. 2 could be made liable for the afore-mentioned offences by operation of Section 34 of IPC. It is trite that Section 34, IPC does not constitute a substantive offence, and is merely in the nature of a rule of evidence, and liability is fastened on a person who may have not been directly involved in the commission of the offence on the basis of a pre-arranged plan between that person and the persons who actually committed the offence. In order to attract Section 34, IPC, the following ingredients must be established: “(i) there was common intention in the sense of a pre-arranged plan;(ii) the person sought to be so held liable had participated in some manner in the act constituting the offence.” [See: Chandrakant Murgyappa Umrani & Ors. v. State of Maharashtra, 1998 SCC (Cr.) 698; Hamlet @ Sasi & Ors. v. State of Kerala, V (2003) SLT 33=III (2003) CCR 189 (SC)=(2003) 10 SCC 108 ; Surendra Chauhan v. State of M.P., III (2000) SLT 209=I (2009) CCR 343 (SC)=(2000) 4 SCC 110 ]34. It is manifest that common intention refers to a prior concert or meeting of minds, and though, it is not necessary that the existence of a distinct previous plan must be proved, as such common intention may develop at the spur of the moment, yet the meeting of minds must be prior to the commission of offence suggesting the existence of a pre-arranged plan. Therefore, in order to attract Section 34 of the IPC, the complaint must, prima facie, reflect a common prior concert or planning amongst all the accused. In our opinion, in the present case, the complaint does not indicate the existence of any pre-arranged plan whereby appellant No. 2 had, in collusion, with the other accused decided to fabricate the document in question and adduce it in evidence before the Arbitral Tribunal. There is not even a whisper in the complaint indicating any participation of appellant No. 2 in the acts constituting the offence, and that being the case we are convinced that Section 34, IPC is not attracted in his case.
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No. 1. The said resolution merely authorises the Chief Engineer to file counter claim before the Arbitral Tribunal in proceedings between appellant No. 1 and respondent No. 1. It rather demonstrates that it was the Chief Engineer who was made responsible for looking after the interest of the appellant No. 1 in those proceedings. In this regard, it would be useful to advert to the observations made by a three judge bench of this Court in S.M.S. Pharmaceuticalsis no universal rule that a director of a company is in charge of its everyday affairs. We have discussed about the position of a director in a company in order to illustrate the point that there is no magic as such in a particular word, be it director, manager or secretary. It all depends upon the respective roles assigned to the officers in a company. A company may have managers or secretaries for different departments, which means, it may have more than one manager or secretary.It is trite law that wherever by a legal fiction the principle of vicarious liability is attracted and a person who is otherwise not personally involved in the commission of an offence is made liable for the same, it has to be specifically provided in the statute concerned. In our opinion, neither Section 192, IPC nor Section 199, IPC, incorporate the principle of vicarious liability, and therefore, it was incumbent on the complainant to specifically aver the role of each of the accused in the complaint. It would be profitable to extract the following observations made in S.K. Alaghadmittedly, drafts were drawn in the name of the Company, even if the appellant was its Managing Director, he cannot be said to have committed an offence under Section 406 of the Penal Code. If and when a statute contemplates creation of such a legal fiction, it provides specifically therefor. In absence of any provision laid down under the statute, a Director of a Company or an employee cannot be held to be vicariously liable for any offence committed by the Company itself.Therefore, we are of the view that even the Board Resolution, adduced by the complainant, does not establish that appellant No. 2 was involved in the alleged fabrication of false evidence or adducing the same in evidence before the Arbitral Tribunal. In the absence of any such specific averment demonstrating the role of appellant No. 2 in the commission of the offence, we find it difficult to hold that the complaint, even assuming it to be correct in its entirety, discloses the commission of an offence by appellant No. 2 under Sections 192 and 199 of IPC.31. However, insofar as the case of appellant No. 1 company is concerned, bearing in mind the fact that Exhibitwas submitted with the intention to support the averments in the written statement filed on their behalf, which could possibly influence the decision of the Arbitral Tribunal in relation to the conduct of the respondent No. 1 while discharging their obligations under the contract between them and appellant No. 1, we are unable to hold that prima facie, a case of offences under Sections 192 and 199, IPC is not made out against them. It is evident from the observations of the Tribunal quoted in para 9 (supra) that had the Tribunal not doubted the veracity of the said document, it could have made a material difference to the result of the arbitral proceedings.32. It was faintly argued that the arbitral award on the basis whereof the said complaint has been filed has been set aside and therefore, the complaint is liable to be quashed on this ground. The submission is untenable as the offences under Sections 192 and 199, IPC, if made out, exist independent of the final arbitral award. We are, therefore, of the opinion, that it is not a fit case for the exercise of power under Section 482 of the Code, in favour of appellant No. 1.33. We shall now examine whether appellant No. 2 could be made liable for theoffences by operation of Section 34 of IPC. It is trite that Section 34, IPC does not constitute a substantive offence, and is merely in the nature of a rule of evidence, and liability is fastened on a person who may have not been directly involved in the commission of the offence on the basis of aplan between that person and the persons who actually committed the offence. In order to attract Section 34, IPC, the following ingredients must bethere was common intention in the sense of aplan;(ii) the person sought to be so held liable had participated in some manner in the act constituting theChandrakant Murgyappa Umrani & Ors. v. State of Maharashtra, 1998 SCC (Cr.) 698; Hamlet @ Sasi & Ors. v. State of Kerala, V (2003) SLT 33=III (2003) CCR 189 (SC)=(2003) 10 SCC 108 ; Surendra Chauhan v. State of M.P., III (2000) SLT 209=I (2009) CCR 343 (SC)=(2000) 4 SCC 110 ]34. It is manifest that common intention refers to a prior concert or meeting of minds, and though, it is not necessary that the existence of a distinct previous plan must be proved, as such common intention may develop at the spur of the moment, yet the meeting of minds must be prior to the commission of offence suggesting the existence of aplan. Therefore, in order to attract Section 34 of the IPC, the complaint must, prima facie, reflect a common prior concert or planning amongst all the accused. In our opinion, in the present case, the complaint does not indicate the existence of anyplan whereby appellant No. 2 had, in collusion, with the other accused decided to fabricate the document in question and adduce it in evidence before the Arbitral Tribunal. There is not even a whisper in the complaint indicating any participation of appellant No. 2 in the acts constituting the offence, and that being the case we are convinced that Section 34, IPC is not attracted in his case.
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Commissioner of Income Tax (Central), Calcutta Vs. Daulatram Rawatmull | have reached those findings. This is so even if the High Court left to itself would on the evidence have reached a conclusion different from that of the Tribunal. The rules which govern the approach of the High Court are"(i) When the point for determination is a pure question of law such as construction of a statute or document of title, the decision of the Tribunal is open to reference to the court under section 66(1).(ii) When the point for determination is a mixed question of law and fact, while the finding of the Tribunal on the facts found is final, its decision as to the legal effect of those findings is a question of law which can be reviewed by the court.(iii) A finding on a question of fact is open to attack under section 66(1) as erroneous in law when there is no evidence to support it or if it is perverse.(iv) When the finding is one of fact, the fact that it is itself an inference from other basic facts will not alter its character as one of fact."Mr. Sastri says that the income-tax authorities had found the following facts(1) that the three deposits were made in quick succession, and the deposits in the name of Raghunath Prasad Agarwalla and B. N. Gupta were in fact held by the Tribunal as representing "secreted profits" of the assessee ;(2) that the three deposits were in the same bank in the same Indian State and at the same branch and were made in similar circumstances ;(3) that the same modus was adopted for making overdraft arrangements in British India in respect of the three deposit receipts with the aid of these " secreted funds ";(4) that the names utilised for making the deposits were of the sons of the three partners of the assessee ;(5) that the source of the fixed deposits was clouded in obscurity and that the deposits could not represent bona fide transactions. If it was so intended, a loan could have been directly. advanced to Sri Hanuman Sugar Mills Ltd. by Sheo Prasad Agarwalla, instead of adopting the circuitous method involving payment of large amount of interest and commission charges to the Central Bank of India ;(6) that the assessee had denied connection with Sri Hanuman Sugar Mills Ltd., but the record disclosed that a large amount exceeding Rs. 8, 00, 000 was advanced to Hanuman Investment Ltd.---managing agents of the Sugar Mills Ltd. and the entire amount so advanced had ultimately found its way into the account of the Sugar Mills. Out of the six partners of the assessee three were directors of Sri Hanuman Sugar Mills Ltd. and the Sugar Mills Ltd. was under, the control of the assessee firmThese facts Mr. Sastri contends are capable of only one inference, viz., that the deposit in the name of Sheo Prasad Agarwalla was of the assessee and represented its " secreted profits " and any conclusion contrary thereto must be regarded as perverse. We are unable to agree with that contention5. The High Court exercises an advisory jurisdiction under section 66 of the Indian Income-tax Act. Only a question which arises out of the order passed by the Appellate Tribunal can be referred by that authority under section 66(1) of the Indian Income-tax Act and if the Tribunal declines to state a case, the High Court if it is not satisfied of the correctness of the decision of the Tribunal may require the Appellate Tribunal to state a case and to refer it. But the High Court has no power to call upon the Tribunal to state a case, if there is some evidence to support the finding recorded by the Tribunal, even if it appears to the High Court that on re-appreciation of the evidence, it might arrive at a conclusion different from that of the Tribunal.6. It cannot be said that the conclusion recorded by the Tribunal on the facts brought to our notice by Mr. Sastri is perverse. The Tribunal has rightly pointed out that the similarity of the transactions in respect of the three deposit receipts and the proximity of time were matters which may raise suspicion and this suspicion may be strengthened because Sri Hanuman Sugar Mills Ltd. was the ultimate beneficiary of the amount deposited on October 11, 1944, and the deposit was apparently obtained in the name of Sheo Prasad Agarwalla benami for the real owner. But these facts did not justify an inference that the assessee had anything to do with the deposit of Rs. 5, 00, 000 out of its " secreted profits ". The circumstances relied upon fail to establish the one link which must be established by evidence that the assessee was concerned with the transaction of the deposit made on October 11, 1944. It may be noticed that the amount of Rs. 5, 00, 000 deposited on November 8, 1944, in the name of Raghunath Prasad Agarwalla together with the interest thereon was brought into the account of the assessee. Even the connection of the assessee with the deposit dated November 21, 1944, was indicated by the letter of guarantee and the " letter of continuity " signed by Raghunath Prasad Agarwalla and B. N. Gupta and from the fact that on the security of the two deposit receipts an overdraft account was opened on November 24, 1944. But in respect of the deposit made on October 11, 1944, no such connection appears. We are not in this case called upon to consider whether any question of law arises from the finding of the Tribunal in respect of the two deposit receipts in the names of Raghunath Prasad Agarwalla and B. N. Gupta, but it would be impossible to hold that the finding of the Tribunal in respect of the deposit made on October 11, 1944, in the name of Sheo Prasad Agarwalla was so perverse that no reason able body of persons properly instructed in the law could have reached it. | 0[ds]We are unable to agree with that contention5. The High Court exercises an advisory jurisdiction under section 66 of the IndianAct. Only a question which arises out of the order passed by the Appellate Tribunal can be referred by that authority under section 66(1) of the IndianAct and if the Tribunal declines to state a case, the High Court if it is not satisfied of the correctness of the decisionof the Tribunalmay require the Appellate Tribunal to state a case and to refer it. But the High Court has no power to call upon the Tribunal to state a case, if there is some evidence to support the finding recorded by the Tribunal, even if it appears to the High Court that onof the evidence, it might arrive at a conclusion different from that6. It cannot be said that the conclusion recorded by the Tribunal on the facts brought to our notice by Mr. Sastri is perverse. The Tribunal has rightly pointed out that the similarity of the transactions in respect of the three deposit receipts and the proximity of time were matters which may raise suspicion and this suspicion may be strengthened because Sri Hanuman Sugar Mills Ltd. was the ultimate beneficiary of the amount deposited on October 11, 1944, and the deposit was apparently obtained in the name of Sheo Prasad Agarwalla benami for the real owner. But these facts did not justify an inference that the assessee had anything to do with the deposit of Rs. 5, 00, 000 out of its ";. Thecircumstances relied upon fail to establish the one link which must be established by evidence that the assessee was concerned with the transaction of the deposit made on October 11, 1944. It may be noticed that the amount of Rs. 5, 00, 000 deposited on November 8, 1944, in the name of Raghunath Prasad Agarwalla together with the interest thereon was brought into the account of the assessee. Even the connection of the assessee with the deposit dated November 21, 1944, was indicated by the letter of guarantee and the " letter of continuity " signed by Raghunath Prasad Agarwalla and B. N. Gupta and from the fact that on the security of the two deposit receipts an overdraft account was opened on November 24, 1944. But in respect of the deposit made on October 11, 1944, no such connection appears. We are not in this case called upon to consider whether any question of law arises from the findingof the Tribunalin respect of the two deposit receipts in the names of Raghunath Prasad Agarwalla and B. N. Gupta, but it would be impossible to hold that the findingof the Tribunalin respect of the deposit made on October 11, 1944, in the name of Sheo Prasad Agarwalla was so perverse that no reason able body of persons properly instructed in the law could have reached it. | 0 | 2,770 | 526 | ### Instruction:
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have reached those findings. This is so even if the High Court left to itself would on the evidence have reached a conclusion different from that of the Tribunal. The rules which govern the approach of the High Court are"(i) When the point for determination is a pure question of law such as construction of a statute or document of title, the decision of the Tribunal is open to reference to the court under section 66(1).(ii) When the point for determination is a mixed question of law and fact, while the finding of the Tribunal on the facts found is final, its decision as to the legal effect of those findings is a question of law which can be reviewed by the court.(iii) A finding on a question of fact is open to attack under section 66(1) as erroneous in law when there is no evidence to support it or if it is perverse.(iv) When the finding is one of fact, the fact that it is itself an inference from other basic facts will not alter its character as one of fact."Mr. Sastri says that the income-tax authorities had found the following facts(1) that the three deposits were made in quick succession, and the deposits in the name of Raghunath Prasad Agarwalla and B. N. Gupta were in fact held by the Tribunal as representing "secreted profits" of the assessee ;(2) that the three deposits were in the same bank in the same Indian State and at the same branch and were made in similar circumstances ;(3) that the same modus was adopted for making overdraft arrangements in British India in respect of the three deposit receipts with the aid of these " secreted funds ";(4) that the names utilised for making the deposits were of the sons of the three partners of the assessee ;(5) that the source of the fixed deposits was clouded in obscurity and that the deposits could not represent bona fide transactions. If it was so intended, a loan could have been directly. advanced to Sri Hanuman Sugar Mills Ltd. by Sheo Prasad Agarwalla, instead of adopting the circuitous method involving payment of large amount of interest and commission charges to the Central Bank of India ;(6) that the assessee had denied connection with Sri Hanuman Sugar Mills Ltd., but the record disclosed that a large amount exceeding Rs. 8, 00, 000 was advanced to Hanuman Investment Ltd.---managing agents of the Sugar Mills Ltd. and the entire amount so advanced had ultimately found its way into the account of the Sugar Mills. Out of the six partners of the assessee three were directors of Sri Hanuman Sugar Mills Ltd. and the Sugar Mills Ltd. was under, the control of the assessee firmThese facts Mr. Sastri contends are capable of only one inference, viz., that the deposit in the name of Sheo Prasad Agarwalla was of the assessee and represented its " secreted profits " and any conclusion contrary thereto must be regarded as perverse. We are unable to agree with that contention5. The High Court exercises an advisory jurisdiction under section 66 of the Indian Income-tax Act. Only a question which arises out of the order passed by the Appellate Tribunal can be referred by that authority under section 66(1) of the Indian Income-tax Act and if the Tribunal declines to state a case, the High Court if it is not satisfied of the correctness of the decision of the Tribunal may require the Appellate Tribunal to state a case and to refer it. But the High Court has no power to call upon the Tribunal to state a case, if there is some evidence to support the finding recorded by the Tribunal, even if it appears to the High Court that on re-appreciation of the evidence, it might arrive at a conclusion different from that of the Tribunal.6. It cannot be said that the conclusion recorded by the Tribunal on the facts brought to our notice by Mr. Sastri is perverse. The Tribunal has rightly pointed out that the similarity of the transactions in respect of the three deposit receipts and the proximity of time were matters which may raise suspicion and this suspicion may be strengthened because Sri Hanuman Sugar Mills Ltd. was the ultimate beneficiary of the amount deposited on October 11, 1944, and the deposit was apparently obtained in the name of Sheo Prasad Agarwalla benami for the real owner. But these facts did not justify an inference that the assessee had anything to do with the deposit of Rs. 5, 00, 000 out of its " secreted profits ". The circumstances relied upon fail to establish the one link which must be established by evidence that the assessee was concerned with the transaction of the deposit made on October 11, 1944. It may be noticed that the amount of Rs. 5, 00, 000 deposited on November 8, 1944, in the name of Raghunath Prasad Agarwalla together with the interest thereon was brought into the account of the assessee. Even the connection of the assessee with the deposit dated November 21, 1944, was indicated by the letter of guarantee and the " letter of continuity " signed by Raghunath Prasad Agarwalla and B. N. Gupta and from the fact that on the security of the two deposit receipts an overdraft account was opened on November 24, 1944. But in respect of the deposit made on October 11, 1944, no such connection appears. We are not in this case called upon to consider whether any question of law arises from the finding of the Tribunal in respect of the two deposit receipts in the names of Raghunath Prasad Agarwalla and B. N. Gupta, but it would be impossible to hold that the finding of the Tribunal in respect of the deposit made on October 11, 1944, in the name of Sheo Prasad Agarwalla was so perverse that no reason able body of persons properly instructed in the law could have reached it.
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We are unable to agree with that contention5. The High Court exercises an advisory jurisdiction under section 66 of the IndianAct. Only a question which arises out of the order passed by the Appellate Tribunal can be referred by that authority under section 66(1) of the IndianAct and if the Tribunal declines to state a case, the High Court if it is not satisfied of the correctness of the decisionof the Tribunalmay require the Appellate Tribunal to state a case and to refer it. But the High Court has no power to call upon the Tribunal to state a case, if there is some evidence to support the finding recorded by the Tribunal, even if it appears to the High Court that onof the evidence, it might arrive at a conclusion different from that6. It cannot be said that the conclusion recorded by the Tribunal on the facts brought to our notice by Mr. Sastri is perverse. The Tribunal has rightly pointed out that the similarity of the transactions in respect of the three deposit receipts and the proximity of time were matters which may raise suspicion and this suspicion may be strengthened because Sri Hanuman Sugar Mills Ltd. was the ultimate beneficiary of the amount deposited on October 11, 1944, and the deposit was apparently obtained in the name of Sheo Prasad Agarwalla benami for the real owner. But these facts did not justify an inference that the assessee had anything to do with the deposit of Rs. 5, 00, 000 out of its ";. Thecircumstances relied upon fail to establish the one link which must be established by evidence that the assessee was concerned with the transaction of the deposit made on October 11, 1944. It may be noticed that the amount of Rs. 5, 00, 000 deposited on November 8, 1944, in the name of Raghunath Prasad Agarwalla together with the interest thereon was brought into the account of the assessee. Even the connection of the assessee with the deposit dated November 21, 1944, was indicated by the letter of guarantee and the " letter of continuity " signed by Raghunath Prasad Agarwalla and B. N. Gupta and from the fact that on the security of the two deposit receipts an overdraft account was opened on November 24, 1944. But in respect of the deposit made on October 11, 1944, no such connection appears. We are not in this case called upon to consider whether any question of law arises from the findingof the Tribunalin respect of the two deposit receipts in the names of Raghunath Prasad Agarwalla and B. N. Gupta, but it would be impossible to hold that the findingof the Tribunalin respect of the deposit made on October 11, 1944, in the name of Sheo Prasad Agarwalla was so perverse that no reason able body of persons properly instructed in the law could have reached it.
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Gurdeep Singh Vs. Bhim Singh & Others | some confusion with regard to the actual Registration number of the bus belonging to M/s Kataria Tours and Travellers.8. In the evidence of RW-1 - Bhim Singh (Driver of the bus owned by Haryana Roadways), it has come on record that accident had actually occurred with the bus bearing Registration No. DL-1-P-1529 and there was no accident with bus bearing Registration No. DL-1-P-1521. Similar is the evidence of RW-2 - Suresh Kumar, Conductor of the bus owned by Haryana Roadways, who has also deposed in the same manner in which RW-1 - Bhim Singh had deposed, that the accident had taken place between the bus bearing Registration No. DL-1-P-1529 and the bus of Haryana Roadways, but it was on account of rash and negligent driving of the driver of the bus owned by M/s Kataria Tours and Travellers.9. Initially, the Appellant had given correct Registration number of the bus owned by M/s Kataria Tours and Travellers, but, later on, by way of amended Claim Petition filed by Appellant on 22.12.1997, he changed the bus Registration number and averred that bus bearing Registration No. DL-1-P-1521 was involved in the accident and not the bus bearing Registration No. DL-1-P-1529.10. We do not find the reason what prompted the Appellant to change the Registration number of the offending vehicle. It is not in dispute that soon after the accident, a report was lodged by the Appellant at the Police Station, Sadar Hansi, with regard to the said accident but the Registration number of the bus in which the Appellant was travelling, was not mentioned in the said Report. On the strength of the Report, no formal First Information Report (for short FIR) was registered, maybe for want of details. 11. It also cannot be disputed, which is even otherwise borne out from the record, that the Appellant had suffered grievous injuries in the accident as after First-Aid, he was referred to the aforesaid hospital. His permanent disability certificate is on record, issued by Dr. A.K. Singh, Consultant, Central Institute of Orthopaedics, Safdarjung Hospital, New Delhi. He has certified that his permanent disability is to the extent of 40% physical impairment and loss of function of right lower limb. He has also given the details of the surgeries performed on the Appellant. 12. From the aforesaid facts, it cannot be disputed that Appellant did suffer injuries which he had sustained in a motor road accident but only on account of technicalities, his Claim Petition has been defeated by the Claims Tribunal. 13. Learned Single Judge of the the High Court of Punjab & Haryana at Chandigarh vide order dated 24.12.2008 in FAO No.3716 of, also considered this aspect of the matter but recorded a finding against the Appellant on the ground that Appellant has not been able to prove that he had been travelling in the bus which had actually met with the accident. This finding has been recorded by learned Single Judge of the High Court on the strength of the Registration number of bus given by Appellant in his Claim Petition filed in the Claims Tribunal as well as in the evidence. Thus, the learned Single Judge of the High Court also dismissed the Appeal of the Appellant. Hence, this Appeal on variety of grounds before us. 14. We have, accordingly, heard the learned counsel for the parties at length and perused the record. 15. Learned counsel appearing for Respondent No.6 - United India Insurance Co. Ltd. (for short Insurance Company) submitted that in the light of the admission made by Appellant that he was travelling in bus bearing Registration No. DL-1-P-1521 and not in the bus bearing Registration No. DL-1-P-1529 said to have been involved in the accident, the Claims Tribunal and the High Court committed no error in dismissing the Appellants Claim Petition as well as his Appeal. On the other hand, learned counsel appearing for Appellant contended that on such technicalities, the Claim Petition filed by the Appellant should not have been dismissed by the Claims Tribunal.16. The finding of the Claims Tribunal is that, in fact, the accident had taken place between the bus owned by Haryana Roadways and the bus bearing Registration No.DL-1-P-1529 of M/s Kataria Tours and Travellers. However, finding of High Court is that bus bearing Registration No. DL-1-P-1529 was not insured with the Insurance Company (Respondent No.6 herein) and therefore, no liability could be fastened on the Insurance Company. The case of the Insurance Company was that it was the bus bearing Registration No. DL-1-P-1521 that was insured with it. But in view of the pleadings and the evidence of Appellant, he was not travelling in said bus and was travelling in bus bearing Registration No. DL-1-P-1529 which was not insured by the Insurance Company. 17. It is a matter of common knowledge that in motor road accidents claim cases, it is very difficult to get witnesses. The eye-witnesses are also not readily available. Even if available, they are not easily ready and willing to come and depose in court of law for many reasons. Thus, we have to go by the oath of the Claimant only. From the materials available on record, it is established and crystal clear that Appellant had definitely met with the accident. He was also travelling in the bus, operated by M/s Kataria Tours and Travellers. It is also proved that the accident was between two buses on the intervening night ofth andth September, 1994.18. At the time of accident, Appellant was aged about years. He was engaged in a touring job and doing a business in Tractor spare-parts. He was earning an income of Rs.5,500/- per month out of this business. He had three college going children and wife. He became disabled after the said accident.19. Thus, looking to the facts and features of the case, we are of the considered opinion that Appellant deserves to be awarded just, proper and reasonable compensation keeping in view the medical evidence and his disability certificate.20. In view of the above, | 1[ds]17. It is a matter of common knowledge that in motor road accidents claim cases, it is very difficult to get witnesses. The eye-witnesses are also not readily available. Even if available, they are not easily ready and willing to come and depose in court of law for many reasons. Thus, we have to go by the oath of the Claimant only. From the materials available on record, it is established and crystal clear that Appellant had definitely met with the accident. He was also travelling in the bus, operated by M/s Kataria Tours and Travellers. It is also proved that the accident was between two buses on the intervening night ofth andth September, 1994.18. At the time of accident, Appellant was aged about years. He was engaged in a touring job and doing a business in Tractor spare-parts. He was earning an income of Rs.5,500/- per month out of this business. He had three college going children and wife. He became disabled after the said accident.19. Thus, looking to the facts and features of the case, we are of the considered opinion that Appellant deserves to be awarded just, proper and reasonable compensation keeping in view the medical evidence and his disability certificate. | 1 | 1,664 | 232 | ### Instruction:
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some confusion with regard to the actual Registration number of the bus belonging to M/s Kataria Tours and Travellers.8. In the evidence of RW-1 - Bhim Singh (Driver of the bus owned by Haryana Roadways), it has come on record that accident had actually occurred with the bus bearing Registration No. DL-1-P-1529 and there was no accident with bus bearing Registration No. DL-1-P-1521. Similar is the evidence of RW-2 - Suresh Kumar, Conductor of the bus owned by Haryana Roadways, who has also deposed in the same manner in which RW-1 - Bhim Singh had deposed, that the accident had taken place between the bus bearing Registration No. DL-1-P-1529 and the bus of Haryana Roadways, but it was on account of rash and negligent driving of the driver of the bus owned by M/s Kataria Tours and Travellers.9. Initially, the Appellant had given correct Registration number of the bus owned by M/s Kataria Tours and Travellers, but, later on, by way of amended Claim Petition filed by Appellant on 22.12.1997, he changed the bus Registration number and averred that bus bearing Registration No. DL-1-P-1521 was involved in the accident and not the bus bearing Registration No. DL-1-P-1529.10. We do not find the reason what prompted the Appellant to change the Registration number of the offending vehicle. It is not in dispute that soon after the accident, a report was lodged by the Appellant at the Police Station, Sadar Hansi, with regard to the said accident but the Registration number of the bus in which the Appellant was travelling, was not mentioned in the said Report. On the strength of the Report, no formal First Information Report (for short FIR) was registered, maybe for want of details. 11. It also cannot be disputed, which is even otherwise borne out from the record, that the Appellant had suffered grievous injuries in the accident as after First-Aid, he was referred to the aforesaid hospital. His permanent disability certificate is on record, issued by Dr. A.K. Singh, Consultant, Central Institute of Orthopaedics, Safdarjung Hospital, New Delhi. He has certified that his permanent disability is to the extent of 40% physical impairment and loss of function of right lower limb. He has also given the details of the surgeries performed on the Appellant. 12. From the aforesaid facts, it cannot be disputed that Appellant did suffer injuries which he had sustained in a motor road accident but only on account of technicalities, his Claim Petition has been defeated by the Claims Tribunal. 13. Learned Single Judge of the the High Court of Punjab & Haryana at Chandigarh vide order dated 24.12.2008 in FAO No.3716 of, also considered this aspect of the matter but recorded a finding against the Appellant on the ground that Appellant has not been able to prove that he had been travelling in the bus which had actually met with the accident. This finding has been recorded by learned Single Judge of the High Court on the strength of the Registration number of bus given by Appellant in his Claim Petition filed in the Claims Tribunal as well as in the evidence. Thus, the learned Single Judge of the High Court also dismissed the Appeal of the Appellant. Hence, this Appeal on variety of grounds before us. 14. We have, accordingly, heard the learned counsel for the parties at length and perused the record. 15. Learned counsel appearing for Respondent No.6 - United India Insurance Co. Ltd. (for short Insurance Company) submitted that in the light of the admission made by Appellant that he was travelling in bus bearing Registration No. DL-1-P-1521 and not in the bus bearing Registration No. DL-1-P-1529 said to have been involved in the accident, the Claims Tribunal and the High Court committed no error in dismissing the Appellants Claim Petition as well as his Appeal. On the other hand, learned counsel appearing for Appellant contended that on such technicalities, the Claim Petition filed by the Appellant should not have been dismissed by the Claims Tribunal.16. The finding of the Claims Tribunal is that, in fact, the accident had taken place between the bus owned by Haryana Roadways and the bus bearing Registration No.DL-1-P-1529 of M/s Kataria Tours and Travellers. However, finding of High Court is that bus bearing Registration No. DL-1-P-1529 was not insured with the Insurance Company (Respondent No.6 herein) and therefore, no liability could be fastened on the Insurance Company. The case of the Insurance Company was that it was the bus bearing Registration No. DL-1-P-1521 that was insured with it. But in view of the pleadings and the evidence of Appellant, he was not travelling in said bus and was travelling in bus bearing Registration No. DL-1-P-1529 which was not insured by the Insurance Company. 17. It is a matter of common knowledge that in motor road accidents claim cases, it is very difficult to get witnesses. The eye-witnesses are also not readily available. Even if available, they are not easily ready and willing to come and depose in court of law for many reasons. Thus, we have to go by the oath of the Claimant only. From the materials available on record, it is established and crystal clear that Appellant had definitely met with the accident. He was also travelling in the bus, operated by M/s Kataria Tours and Travellers. It is also proved that the accident was between two buses on the intervening night ofth andth September, 1994.18. At the time of accident, Appellant was aged about years. He was engaged in a touring job and doing a business in Tractor spare-parts. He was earning an income of Rs.5,500/- per month out of this business. He had three college going children and wife. He became disabled after the said accident.19. Thus, looking to the facts and features of the case, we are of the considered opinion that Appellant deserves to be awarded just, proper and reasonable compensation keeping in view the medical evidence and his disability certificate.20. In view of the above,
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17. It is a matter of common knowledge that in motor road accidents claim cases, it is very difficult to get witnesses. The eye-witnesses are also not readily available. Even if available, they are not easily ready and willing to come and depose in court of law for many reasons. Thus, we have to go by the oath of the Claimant only. From the materials available on record, it is established and crystal clear that Appellant had definitely met with the accident. He was also travelling in the bus, operated by M/s Kataria Tours and Travellers. It is also proved that the accident was between two buses on the intervening night ofth andth September, 1994.18. At the time of accident, Appellant was aged about years. He was engaged in a touring job and doing a business in Tractor spare-parts. He was earning an income of Rs.5,500/- per month out of this business. He had three college going children and wife. He became disabled after the said accident.19. Thus, looking to the facts and features of the case, we are of the considered opinion that Appellant deserves to be awarded just, proper and reasonable compensation keeping in view the medical evidence and his disability certificate.
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Gregory Patrao and Ors Vs. Mangalore Refinery and Petrochemicals Limited & Ors | it has allowed and remanded the case to the Reference Court for reconsideration of the claims after affording opportunity to the Company, which order suffers from error in law and therefore, the same is liable to be set aside. 64. Further, the learned Judge of the High Court has erroneously held that the allottee Company is a beneficiary of the acquired land of the appellants, which finding of the learned Judge is not correct both on facts and in law. The findings and reasons recorded by the High Court in the impugned judgment in allowing the writ petition and quashing the award of the Reference Court and remanding it back to the Reference Court and allowing the Company to participate in the proceedings for redetermination of compensation for the acquired land is wholly impermissible in law and the same are in contravention of the provisions of the KIAD Act, the LA Act, the KIADB Regulations and the lease agreement, which has been executed by KIADB in favour of the Company and therefore, the impugned judgment and order [State of Karnataka v. Peerappa Hanmantha Harijan, Review Petition No. 2537 of 2013 in MFA No. 32157 of 2012, order dated 22-9-2014 (KAR)] is liable to be set aside by allowing the appeals of the owners. 65. Further, the learned Single Judge of the High Court has further committed an error in law in not appreciating Section 54 of the LA Act, which provision provides the right to appeal to the landowners, or State Government and beneficiaries of the acquired land but not to the company which is the lessee. When the company does not have the right to file an appeal against the award it also has no right to file a writ petition. KIADB has filed the belated appeal after disposal of the appeal filed by the appellants by the High Court and against which award it has filed the present appeal questioning the correctness of the same and prayed for enhancement of compensation and the said appeal is being disposed of by this common judgment after adverting to the rival legal contentions urged on behalf of the parties. The High Court has rightly dismissed the belated appeal filed by KIADB. 7.3 This Court thereafter had considered the decisions in the case of UP Awas Evam Vikas Parishad (supra) and Himalayan Tiles and Marble (P) Ltd. (supra) and has distinguished the same and has observed and held that the decisions in the case of UP Awas Evam Vikas Parishad (supra) and Himalayan Tiles and Marble (P) Ltd. (supra) shall not be appliable with respect to the acquisition under the KIAD Act, 1966. Once, this Court in the subsequent decision in the case of Peerappa Hanmantha Harijan (supra) dealt with and considered the earlier decisions in the case of UP Awas Evam Vikas Parishad (supra) and Himalayan Tiles and Marble (P) Ltd. (supra) and distinguished the same and observed and held with respect to the acquisition under the KIAD Act, 1966 that the allottee company can neither be said to be a person interested nor entitled for hearing before determination of compensation, the said ratio was binding upon the High Court. Thus, it was not open for the High Court to not follow the binding decision of this Court in the case of Peerappa Hanmantha Harijan (supra) by observing that in the subsequent decision in the case of Peerappa Hanmantha Harijan (supra), the earlier decisions in the case of UP Awas Evam Vikas Parishad (supra) and Himalayan Tiles and Marble (P) Ltd. (supra) have not been considered. The High Court has not noted that as such while deciding the case of Peerappa Hanmantha Harijan (supra), this Court did consider the earlier decisions in the case of UP Awas Evam Vikas Parishad (supra) and Himalayan Tiles and Marble (P) Ltd. (supra) and had clearly distinguished the same. Not following the binding precedents of this Court by the High Court is contrary to Article 141 of the Constitution of India. Being a subsequent decision, in which the earlier decisions were considered and distinguished by this Court, the subsequent decision of this Court was binding upon the High Court and not the earlier decisions, which were distinguished by this Court. 7.4 Under the circumstances, the High Court has committed a grave/serious error in passing the impugned judgment and order by relying upon the judgments of this Court in the case of UP Awas Evam Vikas Parishad (supra) and Himalayan Tiles and Marble (P) Ltd. (supra) and by not following the subsequent decision of this Court in the case of Peerappa Hanmantha Harijan (supra). 7.5 Now, so far as the reliance placed upon the decisions of this Court in the case of UP Awas Evam Vikas Parishad (supra) and Himalayan Tiles and Marble (P) Ltd. (supra) relied upon by the respondent No.1 – MRPL and even relied upon by the High Court is concerned, at the outset, it is required to be noted that the said decisions were with respect to the acquisition under the Land Acquisition Act, 1894 and the provisions of Land Acquisition Act, 1894, more particularly, Section 50 of the Land Acquisition Act fell for consideration before this Court. As observed and held by this Court in the subsequent decision in the case of Peerappa Hanmantha Harijan (supra), the acquisition under the Land Acquisition Act, 1894 and the acquisition under the KIAD Act, 1966 are both distinct and the provisions under both the Acts are distinguishable. 7.6 We see no reason to take a different view than the view taken by this Court in the case of Peerappa Hanmantha Harijan (supra) that the MRPL being a subsequent allottee after the land was acquired by KIADB, can neither be said to be a beneficiary nor a person interested for the purpose of determination of compensation. Under the circumstances, the impugned judgment and order passed by the High Court taking a contrary view is unsustainable and the same deserves to be quashed and set aside. | 1[ds]7. While answering the aforesaid issue/question, it is required to be noted that in the present case, the land has been acquired under the provisions of the KIAD Act, 1966 and the notification has been issued under Section 28(1) of the KIAD Act, 1966. The land has been acquired by the State Government for KIADB under three different notifications. After the lands were acquired, respondent No.1 – MRPL has been allotted the lands acquired as per the agreements between the KIADB and the MRPL. The present is not an acquisition under the provisions of the Land Acquisition Act and therefore, as such, neither Section 50 of the Land Acquisition Act, 1894 nor any other provisions of the Land Acquisition Act, 1894 shall be applicable with respect to the lands acquired under the provisions of the KIAD Act, 1966. Taking into consideration, the aforesaid factual aspects, the impugned judgment and order passed by the High Court in which it has heavily relied upon the decisions of this Court in the case of UP Awas Evam Vikas Parishad (supra) and Himalayan Tiles and Marble (P) Ltd. (supra) are required to be considered.7.1 At the outset, it is required to be noted that as such, the issue involved in the present appeal in respect of the acquisitions under the KIAD Act, 1966 and the right of the subsequent allottee to participate in the reference proceedings and whether the subsequent allottee can be said to be a person interested under the provisions of the KIAD Act, 1966 is no longer res integra. While deciding the acquisition under the very KIAD Act, 1966 and the right of the subsequent allottee, who has been allotted the land by the KIADB in the case of Peerappa Hanmantha Harijan (supra) after distinguishing the decision of this Court in the case of UP Awas Evam Vikas Parishad (supra) and Himalayan Tiles and Marble (P) Ltd. (supra), it is specifically observed and held by this Court that an allottee company cannot be said to be a beneficiary or a person interested entitled for hearing before determination of compensation. By observing and holding so, this Court had an occasion to consider the entire scheme of acquisition under the KIAD Act, 1966 and has distinguished the acquisition under the Land Acquisition Act, 1894. Before this Court also, the High Court remanded the matter at the instance of the allottee company in the writ petition filed by the allottee company to the Reference Court. This Court set aside the same while holding that the allottee company, who has been allotted the land under the provisions of the KIAD Act, 1966, can neither be said to be a beneficiary nor a party interested entitled for hearing before determination of compensation. This Court in the case of Peerappa Hanmantha Harijan (supra) considered in detail the allotment/lease agreement in favour of the allottee/lessee and also the relevant provisions of the KIAD Act, 1966 and has observed in paragraphs 50 to 54 as under:-50. On a careful examination of the aforesaid clauses of the lease agreement executed between the parties in respect of the land of the appellants, it becomes manifestly clear that the said agreement is executed by KIADB in favour of the Company after allotment of land was made in favour of the Company as provided under Regulations 10(a) and (c) of the KIADB Regulations respectively by following the procedure of inviting applications and submission of the applications by the interested parties along with the required deposits towards the cost of the land. Further, Clauses 5(a) and (b) of the lease agreement referred to supra, would clearly state that the premium indicated in Clause 1 of the lease agreement represents the tentative cost of the land and in the event of the lessor incurring payment of amounts to the landowners over and above the awards made by the acquiring authority by virtue of the award passed by the competent court of law or in view of the provisions of the LA Act in respect of demised premises or any part thereof, the same shall be met by the lessee within one month from the date of receipt of the communication signed by the Executive Member or any other officer authorised by the lessor. Clause 5(b) also makes similar provision to that effect between the lessor and the lessee.51. From a careful reading of the aforesaid clauses of the lease agreement along with the provisions of Section 32(2) of the KIAD Act and Regulations 4, 7, 10(b), (c) and (d) of the KIADB Regulations, it is clear that the Company is only the lessee by way of allotment of the land as the same has been allotted by KIADB in its favour and has executed the lease deed in its favour in respect of the allotted land.52. In view of the aforesaid documents, namely, the notifications issued under Sections 28(1) and 28(4) of the KIAD Act by the State Government, it can be safely concluded by us that the acquisition of the land involved in these proceedings is for the purpose of industrial development by KIADB in Sedam Taluk. Therefore, the beneficiary of the acquired land is only KIADB but not the Company as claimed by it. A reading of Section 28(5) of the KIAD Act makes it clear that the land which is acquired by the State Government statutorily vests absolutely with it. After following the procedure provided under Sections 28(6) and (7) of the KIAD Act, the State Government takes possession of the acquired land from the owners/person/persons who are in possession of the land and transfers the same in favour of KIADB for its development and disposal of the same in accordance with Regulation 10(a) of the KIADB Regulations, referred to supra.53. In the instant case, a perusal of the provisions of the lease agreement executed between the parties referred to supra and Regulation 10 clauses (a), (c), (d) and (e) of the KIADB Regulations make it abundantly clear that the Company is only the allottee/lessee of the acquired land and as per Clauses 5(a) and (b) of the lease agreement referred to supra, the premium indicated in the lease agreement in respect of the allotted land in its favour represents the tentative cost of the land. It has been further specified in the lease agreement that in the event of the lessor incurring the payment of amounts to the landowners over and above the awards made by the acquiring authority by virtue of awards passed by the competent court of law in view of the provisions of the Land Acquisition (Amendment) Act, 1984 in respect of demised premises or any part thereof, the same shall be met by the lessee within one month from the date of receipt of communication signed by the Executive Member or any other officer authorised by the lessor. In view of the above conditions of the lease agreement, neither KIADB nor the Company can contend that the acquisition of the land involved in these proceedings is in favour of the lessee Company. Therefore, the Company is neither a beneficiary nor an interested person as claimed by them in terms of Section 2(11) of the KIAD Act or under Section 3(b) of the LA Act as per which, person interested includes all persons claiming an interest in compensation to be made on account of the acquisition of land under the KIAD Act and that a person shall be deemed to be interested in the land if he is interested in an easement affecting the land. It is necessary to examine Section 3(b) read with Section 9 of the LA Act, which deals with notice to persons interested and Section 11, which deals with enquiry and award to be passed by the Deputy Commissioner/Land Acquisition Officer.54. A careful reading of the aforesaid provisions of the LA Act, the KIAD Act and the KIADB Regulations would clearly go to show that the Company is neither a beneficiary, nor an interested person in the land as on the date of acquisition of the land, as the land was acquired by the State Government in favour of KIADB who is the beneficiary and it has allotted in favour of the Company after the acquired land was transferred in its favour by the State Government and executed the lease agreement referred to supra.7.2 Thereafter, this Court distinguished the nature of acquisition under the Land Acquisition Act from the acquisition under the KIAD Act, 1966 by observing as under in paragraphs 57, 58 and 60 to 65:-57. For the acquisition of land under the provisions of the LA Act in favour of a company the mandatory procedure as provided under Part VII of the LA Act and Rules must be adhered to, that is not the case in the acquisition of land involved in these proceedings as the acquisition of land is under the provisions of the KIAD Act and therefore the reliance placed upon the provision of Section 3(f)(viii) of Karnataka LA Amended Act 17 of 1961 is not applicable to the facts of the case on hand and therefore, the said provision cannot be made applicable to the case on hand.58. The definition of public purpose under the LA Act cannot be imported to the acquisition of land by the State Government for the industrial development under the provision of the KIAD Act as the words development, industrial area and industrial estate have been clearly defined under sub-sections (5), (6) and (7) of Section 2 of the KIAD Act which reads thus:2. (5) Development with its grammatical variations means the carrying out of levelling, digging, building, engineering, quarrying or other operations in, on, over or under land, or the making of any material change in any building or land, and includes redevelopment; and to develop shall be construed accordingly;(6) Industrial area means any area declared to be an industrial area by the State Government by notification which is to be developed and where industries are to be accommodated; and industrial infrastructural facilities and amenities are to be provided and includes, an industrial estate;(7) Industrial estate means any site selected by the State Government where factories and other buildings are built for use by any industries or class of industries.X X X X60. The reliance placed upon the provisions of Sections 50(1) and (2) of the LA Act, also are not applicable to the case on hand for the reason that Section 50 of the LA Act applies to the acquisition of land in favour of a company by the State Government by following the mandatory procedure contemplated under Part VII of the LA Act and relevant rules framed for that purpose. Therefore, the claim made by the Company that it has got every right to participate in the proceedings for determination and redetermination of the market value of the acquired land and award of compensation passed by the Land Acquisition Officer or Deputy Commissioner or before the Reference Court or the appellate court is wholly untenable in law and therefore, the submissions made on behalf of the Company cannot be accepted and the same is rejected.61. Further, both the learned Senior Counsel on behalf of KIADB and the Company have placed reliance on various decisions rendered by this Court in support of their above respective legal submissions that the Company is an interested person and, therefore, it has got right to participate in the proceedings before the Reference Court for determination of compensation before passing the award either by the Land Acquisition Officer or the Deputy Commissioner or the Reference Court at the instance of the owner or any other interested person. These include judgments rendered by this Court in U.P. Awas Evam Vikas Parishad v. Gyan Devi [(1995) 2 SCC 326] , Himalayan Tiles and Marble (P) Ltd. v. Francis Victor Coutinho [(1980) 3 SCC 223] and P. Narayanappa v. State of Karnataka [(2006) 7 SCC 578] and other decisions which are not required to be mentioned in this judgment as they are all reiteration of the law laid down in the above cases.62. The reliance placed on the various decisions of this Court by both the learned Senior Counsel on behalf of KIADB and the Company, is misplaced as none of the said judgments relied upon are applicable to the fact situation in the present case for the reason that those cases dealt with reference to the acquisition of land under the provisions of the LA Act, either in favour of the company or development authorities, whereas in the case on hand, the acquisition proceedings have been initiated under the KIAD Act for industrial development by KIADB. Further, the original acquisition record in respect of the acquired land involved in the proceedings by the learned Standing Counsel on behalf of the State of Karnataka as per our directions issued vide our orders dated 17-11-2014 [Peerappa Hanmantha Harijan v. State of Karnataka, 2014 SCC OnLine SC 1678, wherein it was directed: Issue notice to the State Government. The learned counsel for the petitioners to take out notice to the learned Standing Counsel appearing for the State Government. Dasti, in addition, is also permitted. Mr V.N. Raghupathy, learned counsel accepts notice for the State of Karnataka and Mr Nishanth Patil, learned counsel accepts notice for Karnataka Industrial Area Development Board (for short KIADB). The learned counsel appearing for the State Government and the learned counsel appearing for KIADB are directed to produce the relevant records in respect of the proceedings relating to land acquisition involved in these matters. There shall be stay of the effect and operation of the impugned order during the pendency of these petitions. List the matters after four weeks. In the meanwhile, all the respondents are at liberty to file written statements, if any.] and 24-3-2015 [Peerappa Hanmantha Harijan v. State of Karnataka, 2015 SCC OnLine SC 1707, wherein it was directed: Heard Ms Kiran Suri, learned Senior Counsel for the petitioners in SLPs (C) Nos. 31624- 25 of 2014 in part. List all the matters as part for further hearing. Vide order dated 17-11-2014, learned counsel for the State as well as the learned counsel for KIADB were directed to produce the relevant records in respect of the proceedings relating to land acquisition involved in these matters, record as well as the records relating to allotment of land. However, as per office records, nothing has been produced so far. In this view of the matter, the learned counsel for the State as well as the learned counsel for KIADB are directed to comply with the order dated 17-11- 2014 and produce the relevant records in respect of the proceedings relating to land acquisition and the allotment of land involved in these matters before the next date of hearing. List the matters on 15-4-2015.], do not disclose the fact that the acquisition of lands covered in the acquisition notifications are in favour of the Company. Thus, the acquisition of land in favour of KIADB is abundantly clear from the preliminary and final notifications issued by the State Government and thereafter following the procedure under sub-sections (6) and (7) of Section 28 of the KIAD Act, it took possession of the acquired land from the owners who were in possession of the same and was transferred in favour of KIADB for its disposal for the purpose for which lands were acquired as provided under Section 32(2) of the KIAD Act read with the Regulations referred to supra framed by KIADB under Section 41(2)(b) of the KIAD Act. Therefore, the reliance placed upon the judgments of this Court by the learned Senior Counsel on behalf of the Company and KIADB, are wholly inapplicable to the fact situation and do not support the case of the Company.63. In view of the foregoing reasons recorded by us on the basis of the acquisition notifications issued by the State Government under the statutory provisions of the KIAD Act and therefore, we have to answer Points (i), (ii) and (iii) in favour of the landowners holding that the Company is neither the beneficiary nor interested person of the acquired land, hence, it has no right to participate in the award proceedings for determination of the market value and award the compensation amount of the acquired land of the appellants. Hence, the writ petition filed by the Company questioning the correctness of the award passed by the Reference Court which is affirmed by the High Court is not at all maintainable in law. On this ground itself, the writ petition filed by the Company should have been rejected by the High Court, instead it has allowed and remanded the case to the Reference Court for reconsideration of the claims after affording opportunity to the Company, which order suffers from error in law and therefore, the same is liable to be set aside.64. Further, the learned Judge of the High Court has erroneously held that the allottee Company is a beneficiary of the acquired land of the appellants, which finding of the learned Judge is not correct both on facts and in law. The findings and reasons recorded by the High Court in the impugned judgment in allowing the writ petition and quashing the award of the Reference Court and remanding it back to the Reference Court and allowing the Company to participate in the proceedings for redetermination of compensation for the acquired land is wholly impermissible in law and the same are in contravention of the provisions of the KIAD Act, the LA Act, the KIADB Regulations and the lease agreement, which has been executed by KIADB in favour of the Company and therefore, the impugned judgment and order [State of Karnataka v. Peerappa Hanmantha Harijan, Review Petition No. 2537 of 2013 in MFA No. 32157 of 2012, order dated 22-9-2014 (KAR)] is liable to be set aside by allowing the appeals of the owners.65. Further, the learned Single Judge of the High Court has further committed an error in law in not appreciating Section 54 of the LA Act, which provision provides the right to appeal to the landowners, or State Government and beneficiaries of the acquired land but not to the company which is the lessee. When the company does not have the right to file an appeal against the award it also has no right to file a writ petition. KIADB has filed the belated appeal after disposal of the appeal filed by the appellants by the High Court and against which award it has filed the present appeal questioning the correctness of the same and prayed for enhancement of compensation and the said appeal is being disposed of by this common judgment after adverting to the rival legal contentions urged on behalf of the parties. The High Court has rightly dismissed the belated appeal filed by KIADB.7.3 This Court thereafter had considered the decisions in the case of UP Awas Evam Vikas Parishad (supra) and Himalayan Tiles and Marble (P) Ltd. (supra) and has distinguished the same and has observed and held that the decisions in the case of UP Awas Evam Vikas Parishad (supra) and Himalayan Tiles and Marble (P) Ltd. (supra) shall not be appliable with respect to the acquisition under the KIAD Act, 1966. Once, this Court in the subsequent decision in the case of Peerappa Hanmantha Harijan (supra) dealt with and considered the earlier decisions in the case of UP Awas Evam Vikas Parishad (supra) and Himalayan Tiles and Marble (P) Ltd. (supra) and distinguished the same and observed and held with respect to the acquisition under the KIAD Act, 1966 that the allottee company can neither be said to be a person interested nor entitled for hearing before determination of compensation, the said ratio was binding upon the High Court. Thus, it was not open for the High Court to not follow the binding decision of this Court in the case of Peerappa Hanmantha Harijan (supra) by observing that in the subsequent decision in the case of Peerappa Hanmantha Harijan (supra), the earlier decisions in the case of UP Awas Evam Vikas Parishad (supra) and Himalayan Tiles and Marble (P) Ltd. (supra) have not been considered. The High Court has not noted that as such while deciding the case of Peerappa Hanmantha Harijan (supra), this Court did consider the earlier decisions in the case of UP Awas Evam Vikas Parishad (supra) and Himalayan Tiles and Marble (P) Ltd. (supra) and had clearly distinguished the same. Not following the binding precedents of this Court by the High Court is contrary to Article 141 of the Constitution of India. Being a subsequent decision, in which the earlier decisions were considered and distinguished by this Court, the subsequent decision of this Court was binding upon the High Court and not the earlier decisions, which were distinguished by this Court.7.4 Under the circumstances, the High Court has committed a grave/serious error in passing the impugned judgment and order by relying upon the judgments of this Court in the case of UP Awas Evam Vikas Parishad (supra) and Himalayan Tiles and Marble (P) Ltd. (supra) and by not following the subsequent decision of this Court in the case of Peerappa Hanmantha Harijan (supra).7.5 Now, so far as the reliance placed upon the decisions of this Court in the case of UP Awas Evam Vikas Parishad (supra) and Himalayan Tiles and Marble (P) Ltd. (supra) relied upon by the respondent No.1 – MRPL and even relied upon by the High Court is concerned, at the outset, it is required to be noted that the said decisions were with respect to the acquisition under the Land Acquisition Act, 1894 and the provisions of Land Acquisition Act, 1894, more particularly, Section 50 of the Land Acquisition Act fell for consideration before this Court. As observed and held by this Court in the subsequent decision in the case of Peerappa Hanmantha Harijan (supra), the acquisition under the Land Acquisition Act, 1894 and the acquisition under the KIAD Act, 1966 are both distinct and the provisions under both the Acts are distinguishable.7.6 We see no reason to take a different view than the view taken by this Court in the case of Peerappa Hanmantha Harijan (supra) that the MRPL being a subsequent allottee after the land was acquired by KIADB, can neither be said to be a beneficiary nor a person interested for the purpose of determination of compensation. Under the circumstances, the impugned judgment and order passed by the High Court taking a contrary view is unsustainable and the same deserves to be quashed and set aside. | 1 | 7,527 | 4,207 | ### Instruction:
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it has allowed and remanded the case to the Reference Court for reconsideration of the claims after affording opportunity to the Company, which order suffers from error in law and therefore, the same is liable to be set aside. 64. Further, the learned Judge of the High Court has erroneously held that the allottee Company is a beneficiary of the acquired land of the appellants, which finding of the learned Judge is not correct both on facts and in law. The findings and reasons recorded by the High Court in the impugned judgment in allowing the writ petition and quashing the award of the Reference Court and remanding it back to the Reference Court and allowing the Company to participate in the proceedings for redetermination of compensation for the acquired land is wholly impermissible in law and the same are in contravention of the provisions of the KIAD Act, the LA Act, the KIADB Regulations and the lease agreement, which has been executed by KIADB in favour of the Company and therefore, the impugned judgment and order [State of Karnataka v. Peerappa Hanmantha Harijan, Review Petition No. 2537 of 2013 in MFA No. 32157 of 2012, order dated 22-9-2014 (KAR)] is liable to be set aside by allowing the appeals of the owners. 65. Further, the learned Single Judge of the High Court has further committed an error in law in not appreciating Section 54 of the LA Act, which provision provides the right to appeal to the landowners, or State Government and beneficiaries of the acquired land but not to the company which is the lessee. When the company does not have the right to file an appeal against the award it also has no right to file a writ petition. KIADB has filed the belated appeal after disposal of the appeal filed by the appellants by the High Court and against which award it has filed the present appeal questioning the correctness of the same and prayed for enhancement of compensation and the said appeal is being disposed of by this common judgment after adverting to the rival legal contentions urged on behalf of the parties. The High Court has rightly dismissed the belated appeal filed by KIADB. 7.3 This Court thereafter had considered the decisions in the case of UP Awas Evam Vikas Parishad (supra) and Himalayan Tiles and Marble (P) Ltd. (supra) and has distinguished the same and has observed and held that the decisions in the case of UP Awas Evam Vikas Parishad (supra) and Himalayan Tiles and Marble (P) Ltd. (supra) shall not be appliable with respect to the acquisition under the KIAD Act, 1966. Once, this Court in the subsequent decision in the case of Peerappa Hanmantha Harijan (supra) dealt with and considered the earlier decisions in the case of UP Awas Evam Vikas Parishad (supra) and Himalayan Tiles and Marble (P) Ltd. (supra) and distinguished the same and observed and held with respect to the acquisition under the KIAD Act, 1966 that the allottee company can neither be said to be a person interested nor entitled for hearing before determination of compensation, the said ratio was binding upon the High Court. Thus, it was not open for the High Court to not follow the binding decision of this Court in the case of Peerappa Hanmantha Harijan (supra) by observing that in the subsequent decision in the case of Peerappa Hanmantha Harijan (supra), the earlier decisions in the case of UP Awas Evam Vikas Parishad (supra) and Himalayan Tiles and Marble (P) Ltd. (supra) have not been considered. The High Court has not noted that as such while deciding the case of Peerappa Hanmantha Harijan (supra), this Court did consider the earlier decisions in the case of UP Awas Evam Vikas Parishad (supra) and Himalayan Tiles and Marble (P) Ltd. (supra) and had clearly distinguished the same. Not following the binding precedents of this Court by the High Court is contrary to Article 141 of the Constitution of India. Being a subsequent decision, in which the earlier decisions were considered and distinguished by this Court, the subsequent decision of this Court was binding upon the High Court and not the earlier decisions, which were distinguished by this Court. 7.4 Under the circumstances, the High Court has committed a grave/serious error in passing the impugned judgment and order by relying upon the judgments of this Court in the case of UP Awas Evam Vikas Parishad (supra) and Himalayan Tiles and Marble (P) Ltd. (supra) and by not following the subsequent decision of this Court in the case of Peerappa Hanmantha Harijan (supra). 7.5 Now, so far as the reliance placed upon the decisions of this Court in the case of UP Awas Evam Vikas Parishad (supra) and Himalayan Tiles and Marble (P) Ltd. (supra) relied upon by the respondent No.1 – MRPL and even relied upon by the High Court is concerned, at the outset, it is required to be noted that the said decisions were with respect to the acquisition under the Land Acquisition Act, 1894 and the provisions of Land Acquisition Act, 1894, more particularly, Section 50 of the Land Acquisition Act fell for consideration before this Court. As observed and held by this Court in the subsequent decision in the case of Peerappa Hanmantha Harijan (supra), the acquisition under the Land Acquisition Act, 1894 and the acquisition under the KIAD Act, 1966 are both distinct and the provisions under both the Acts are distinguishable. 7.6 We see no reason to take a different view than the view taken by this Court in the case of Peerappa Hanmantha Harijan (supra) that the MRPL being a subsequent allottee after the land was acquired by KIADB, can neither be said to be a beneficiary nor a person interested for the purpose of determination of compensation. Under the circumstances, the impugned judgment and order passed by the High Court taking a contrary view is unsustainable and the same deserves to be quashed and set aside.
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rejected by the High Court, instead it has allowed and remanded the case to the Reference Court for reconsideration of the claims after affording opportunity to the Company, which order suffers from error in law and therefore, the same is liable to be set aside.64. Further, the learned Judge of the High Court has erroneously held that the allottee Company is a beneficiary of the acquired land of the appellants, which finding of the learned Judge is not correct both on facts and in law. The findings and reasons recorded by the High Court in the impugned judgment in allowing the writ petition and quashing the award of the Reference Court and remanding it back to the Reference Court and allowing the Company to participate in the proceedings for redetermination of compensation for the acquired land is wholly impermissible in law and the same are in contravention of the provisions of the KIAD Act, the LA Act, the KIADB Regulations and the lease agreement, which has been executed by KIADB in favour of the Company and therefore, the impugned judgment and order [State of Karnataka v. Peerappa Hanmantha Harijan, Review Petition No. 2537 of 2013 in MFA No. 32157 of 2012, order dated 22-9-2014 (KAR)] is liable to be set aside by allowing the appeals of the owners.65. Further, the learned Single Judge of the High Court has further committed an error in law in not appreciating Section 54 of the LA Act, which provision provides the right to appeal to the landowners, or State Government and beneficiaries of the acquired land but not to the company which is the lessee. When the company does not have the right to file an appeal against the award it also has no right to file a writ petition. KIADB has filed the belated appeal after disposal of the appeal filed by the appellants by the High Court and against which award it has filed the present appeal questioning the correctness of the same and prayed for enhancement of compensation and the said appeal is being disposed of by this common judgment after adverting to the rival legal contentions urged on behalf of the parties. The High Court has rightly dismissed the belated appeal filed by KIADB.7.3 This Court thereafter had considered the decisions in the case of UP Awas Evam Vikas Parishad (supra) and Himalayan Tiles and Marble (P) Ltd. (supra) and has distinguished the same and has observed and held that the decisions in the case of UP Awas Evam Vikas Parishad (supra) and Himalayan Tiles and Marble (P) Ltd. (supra) shall not be appliable with respect to the acquisition under the KIAD Act, 1966. Once, this Court in the subsequent decision in the case of Peerappa Hanmantha Harijan (supra) dealt with and considered the earlier decisions in the case of UP Awas Evam Vikas Parishad (supra) and Himalayan Tiles and Marble (P) Ltd. (supra) and distinguished the same and observed and held with respect to the acquisition under the KIAD Act, 1966 that the allottee company can neither be said to be a person interested nor entitled for hearing before determination of compensation, the said ratio was binding upon the High Court. Thus, it was not open for the High Court to not follow the binding decision of this Court in the case of Peerappa Hanmantha Harijan (supra) by observing that in the subsequent decision in the case of Peerappa Hanmantha Harijan (supra), the earlier decisions in the case of UP Awas Evam Vikas Parishad (supra) and Himalayan Tiles and Marble (P) Ltd. (supra) have not been considered. The High Court has not noted that as such while deciding the case of Peerappa Hanmantha Harijan (supra), this Court did consider the earlier decisions in the case of UP Awas Evam Vikas Parishad (supra) and Himalayan Tiles and Marble (P) Ltd. (supra) and had clearly distinguished the same. Not following the binding precedents of this Court by the High Court is contrary to Article 141 of the Constitution of India. Being a subsequent decision, in which the earlier decisions were considered and distinguished by this Court, the subsequent decision of this Court was binding upon the High Court and not the earlier decisions, which were distinguished by this Court.7.4 Under the circumstances, the High Court has committed a grave/serious error in passing the impugned judgment and order by relying upon the judgments of this Court in the case of UP Awas Evam Vikas Parishad (supra) and Himalayan Tiles and Marble (P) Ltd. (supra) and by not following the subsequent decision of this Court in the case of Peerappa Hanmantha Harijan (supra).7.5 Now, so far as the reliance placed upon the decisions of this Court in the case of UP Awas Evam Vikas Parishad (supra) and Himalayan Tiles and Marble (P) Ltd. (supra) relied upon by the respondent No.1 – MRPL and even relied upon by the High Court is concerned, at the outset, it is required to be noted that the said decisions were with respect to the acquisition under the Land Acquisition Act, 1894 and the provisions of Land Acquisition Act, 1894, more particularly, Section 50 of the Land Acquisition Act fell for consideration before this Court. As observed and held by this Court in the subsequent decision in the case of Peerappa Hanmantha Harijan (supra), the acquisition under the Land Acquisition Act, 1894 and the acquisition under the KIAD Act, 1966 are both distinct and the provisions under both the Acts are distinguishable.7.6 We see no reason to take a different view than the view taken by this Court in the case of Peerappa Hanmantha Harijan (supra) that the MRPL being a subsequent allottee after the land was acquired by KIADB, can neither be said to be a beneficiary nor a person interested for the purpose of determination of compensation. Under the circumstances, the impugned judgment and order passed by the High Court taking a contrary view is unsustainable and the same deserves to be quashed and set aside.
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Sheo Kuer Vs. Nathuni Prasad Singh & Ors | the property left by Trilok Prasad Singh between themselves. The appellant, Sheo Kuer, who was appointed as a shebait under the deed of arpannama has thereafter, obtained special leave to appeal to this Court from the judgment of the High Court. We are, in this judgment, concerned with Sheo Kuers appeal, not with the appeal filed by Kachnar Kuer by certificate. 7. The High Court has rejected the evidence led to show that Trilok Prasad Singh had given authority to Kachnar Kuer to make an adoption to him. The finding that the adoption is without the authority of the husband and therefore void is not challenged before us either by Kachnar Kuer or by the adopted son and that finding must therefore be confirmed. 8. Since the evidence on the other question as to whether Trilok Prasad Singh had given authority to Kachnar Kuer to create a religious endowment was closely linked with the question regarding the authority to adopt and since the pattern of evidence on both the question is identical, the High Court held that Kachnar Kuer did not either have the authority of her husband to instal the deity or dedicate any property to the deity. This finding is not challenged before us by Sheo Kuer, the shebait appointed under the arpannama, and therefore we must proceed on the basis that the dedication was created by Kachnar Kuer without the authority of her husband. 9. The point involved for determination in the appeal thus relates to the powers of a Hindu female on whom property has devolved upon the death of her husband, to alienate the property for religious purposes. This question has been the subject-matter of several decisions of the Indian High Courts as also of the Judicial Committee. These decisions, beginning with one of the earliest pronouncements on the subject in Collector of Masulipatan v. Cavaly Vencata upto the decision of this Court in Kamala Devi v. Bachu Lal Gupta have been discussed with fullness and clarity by Mr. Justice Bijan Kumar Mukherjea in his Tagore Law Lectures on the Hindu Law of Religious and Charitable Trust. It is unnecessary to analyse the various decisions which the learned author has considered because the true position on the subject is crystallised in the decision in Kamala Devis case (supra). The law must now be taken as well-settled that a Hindu widow possessing a widows estate cannot alienate the property which was devolved on her except for special purposes. To support an alienation for purely worldly purposes she must show necessity but she has a larger power of disposition for religious and charitable purposes or for those purposes which are supposed to conduce to the spiritual welfare of her husband. As pointed out by the Privy Council in Sardar Singh v. Kunj Behari (49 IA 383 : AIR 1922 PC 261 : 69 IC 36), the Hindu system recognises two sets of religious acts : those which are considered as essential for the salvation of the soul of the deceased and others which, though not essential or obligatory, are still pious observances which conduce to the bliss of the deceaseds soul. The powers of Hindu female to alienate property are wider in respect of acts which conduce to the spiritual benefit of her deceased husband. The widow is entitled to sell the property, even the whole of it, if the income of the property is not sufficient to cover the expenses for such acts. In regard to alienations for pious observances, which are not essential or obligatory, her powers are limited to alienating only a small portion of the property. 10. Applying the principle accepted in Kamala Devis case (supra) the simple question for decision, in view of the fact that the arpannama was executed for a merely pious and not for an essential or obligatory purpose, is whether the alienation effected by Kachnar Kuer in favour of the deity is of a reasonable portion of her husbands property. Respondents Nos. 1 and 2, in paragraph 7 of their plaint, passingly mentioned that Kachnar Kuer had transferred "a considerable portion" of the properties left by her husband. In paragraph 13 of the written statement which Kachnar Kuer filed on behalf of herself and her adopted son, it was stated that in view of the fact that Trilok Prasad Singh had left about 150 bighas of land, the alienation of about 30 bighas in favour of the deity could not be said to be unreasonable or excessive. One hundred and fifty bighas are treated in the area as roughly equal to 90 acres so that 30 bighas come to about 18 acres. Whether the alienation for a pious purpose is of a reasonable portion of the property must necessarily depend the total extent of the property which has devolved upon the widow. The mere circumstance that a 100 acres are alienated by the widow for a pious purpose will not justify the setting aside of the alienation on the ground that 100 acres is large property. The High Court, without adverting to the fact that the widow had alienated only a one-fifth portion of the property which had devolved upon her, held that a dedication of a large part of the property, more than 18 acres of land, cannot be defended on the part of a holder of a widows estate . . . . This is all that the High Court has to say on the point and obviously, what it has said is not enough or relevant for invalidating the alienation. 11. Whether the alienation is of a reasonable portion of the property is not a matter to be decided on precedents because what is reasonable must depend upon the facts and circumstances of each case. But an alienation of a one-fifth portion cannot be said to be unreasonable and excessive. The finding of the High Court must therefore be set aside and along with it its judgment allowing the reversioners appeal and decreeing their suit. | 1[ds]We are, in this judgment, concerned with Sheo Kuers appeal, not with the appeal filed by Kachnar Kuer by certificateThe finding that the adoption is without the authority of the husband and therefore void is not challenged before us either by Kachnar Kuer or by the adopted son and that finding must therefore be confirmed8. Since the evidence on the other question as to whetherTrilok Prasad Singh had given authority to Kachnar Kuer to create a religious endowmentwas closely linked with the question regarding the authority to adopt and since the pattern of evidence on both the question is identical, the High Court held that Kachnar Kuer did not either have the authority of her husband to instal the deity or dedicate any property to the deity. This finding is not challenged before us by Sheo Kuer, the shebait appointed under the arpannama, and therefore we must proceed on the basis that the dedication was created by Kachnar Kuer without the authority of her husband10. Applying the principle accepted in Kamala Devis case (supra) the simple question for decision, in view of the fact that the arpannama was executed for a merely pious and not for an essential or obligatory purpose, is whether the alienation effected by Kachnar Kuer in favour of the deity is of a reasonable portion of her husbands property. Respondents Nos. 1 and 2, in paragraph 7 of their plaint, passingly mentioned that Kachnar Kuer had transferred "a considerable portion" of the properties left by her husband. In paragraph 13 of the written statement which Kachnar Kuer filed on behalf of herself and her adopted son, it was stated that in view of the fact that Trilok Prasad Singh had left about 150 bighas of land, the alienation of about 30 bighas in favour of the deity could not be said to be unreasonable or excessive. One hundred and fifty bighas are treated in the area as roughly equal to 90 acres so that 30 bighas come to about 18 acres.Whether the alienation for a pious purpose is of a reasonable portion of the propertymust necessarily depend the total extent of the property which has devolved upon the widow. The mere circumstance that a 100 acres are alienated by the widow for a pious purpose will not justify the setting aside of the alienation on the ground that 100 acres is large property. The High Court, without adverting to the fact that the widow had alienated only a one-fifth portion of the property which had devolved upon her, held thata dedication of a large part of the property, more than 18 acres of land, cannot be defended on the part of a holder of a widows estate .This is all that the High Court has to say on the point and obviously, what it has said is not enough or relevant for invalidating the alienation11. Whether the alienation is of a reasonable portion of the property is not a matter to be decided on precedents because what is reasonable must depend upon the facts and circumstances of each case. But an alienation of a one-fifth portion cannot be said to be unreasonable and excessive. The finding of the High Court must therefore be set aside and along with it its judgment allowing the reversioners appeal and decreeing their suit. | 1 | 1,641 | 593 | ### Instruction:
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the property left by Trilok Prasad Singh between themselves. The appellant, Sheo Kuer, who was appointed as a shebait under the deed of arpannama has thereafter, obtained special leave to appeal to this Court from the judgment of the High Court. We are, in this judgment, concerned with Sheo Kuers appeal, not with the appeal filed by Kachnar Kuer by certificate. 7. The High Court has rejected the evidence led to show that Trilok Prasad Singh had given authority to Kachnar Kuer to make an adoption to him. The finding that the adoption is without the authority of the husband and therefore void is not challenged before us either by Kachnar Kuer or by the adopted son and that finding must therefore be confirmed. 8. Since the evidence on the other question as to whether Trilok Prasad Singh had given authority to Kachnar Kuer to create a religious endowment was closely linked with the question regarding the authority to adopt and since the pattern of evidence on both the question is identical, the High Court held that Kachnar Kuer did not either have the authority of her husband to instal the deity or dedicate any property to the deity. This finding is not challenged before us by Sheo Kuer, the shebait appointed under the arpannama, and therefore we must proceed on the basis that the dedication was created by Kachnar Kuer without the authority of her husband. 9. The point involved for determination in the appeal thus relates to the powers of a Hindu female on whom property has devolved upon the death of her husband, to alienate the property for religious purposes. This question has been the subject-matter of several decisions of the Indian High Courts as also of the Judicial Committee. These decisions, beginning with one of the earliest pronouncements on the subject in Collector of Masulipatan v. Cavaly Vencata upto the decision of this Court in Kamala Devi v. Bachu Lal Gupta have been discussed with fullness and clarity by Mr. Justice Bijan Kumar Mukherjea in his Tagore Law Lectures on the Hindu Law of Religious and Charitable Trust. It is unnecessary to analyse the various decisions which the learned author has considered because the true position on the subject is crystallised in the decision in Kamala Devis case (supra). The law must now be taken as well-settled that a Hindu widow possessing a widows estate cannot alienate the property which was devolved on her except for special purposes. To support an alienation for purely worldly purposes she must show necessity but she has a larger power of disposition for religious and charitable purposes or for those purposes which are supposed to conduce to the spiritual welfare of her husband. As pointed out by the Privy Council in Sardar Singh v. Kunj Behari (49 IA 383 : AIR 1922 PC 261 : 69 IC 36), the Hindu system recognises two sets of religious acts : those which are considered as essential for the salvation of the soul of the deceased and others which, though not essential or obligatory, are still pious observances which conduce to the bliss of the deceaseds soul. The powers of Hindu female to alienate property are wider in respect of acts which conduce to the spiritual benefit of her deceased husband. The widow is entitled to sell the property, even the whole of it, if the income of the property is not sufficient to cover the expenses for such acts. In regard to alienations for pious observances, which are not essential or obligatory, her powers are limited to alienating only a small portion of the property. 10. Applying the principle accepted in Kamala Devis case (supra) the simple question for decision, in view of the fact that the arpannama was executed for a merely pious and not for an essential or obligatory purpose, is whether the alienation effected by Kachnar Kuer in favour of the deity is of a reasonable portion of her husbands property. Respondents Nos. 1 and 2, in paragraph 7 of their plaint, passingly mentioned that Kachnar Kuer had transferred "a considerable portion" of the properties left by her husband. In paragraph 13 of the written statement which Kachnar Kuer filed on behalf of herself and her adopted son, it was stated that in view of the fact that Trilok Prasad Singh had left about 150 bighas of land, the alienation of about 30 bighas in favour of the deity could not be said to be unreasonable or excessive. One hundred and fifty bighas are treated in the area as roughly equal to 90 acres so that 30 bighas come to about 18 acres. Whether the alienation for a pious purpose is of a reasonable portion of the property must necessarily depend the total extent of the property which has devolved upon the widow. The mere circumstance that a 100 acres are alienated by the widow for a pious purpose will not justify the setting aside of the alienation on the ground that 100 acres is large property. The High Court, without adverting to the fact that the widow had alienated only a one-fifth portion of the property which had devolved upon her, held that a dedication of a large part of the property, more than 18 acres of land, cannot be defended on the part of a holder of a widows estate . . . . This is all that the High Court has to say on the point and obviously, what it has said is not enough or relevant for invalidating the alienation. 11. Whether the alienation is of a reasonable portion of the property is not a matter to be decided on precedents because what is reasonable must depend upon the facts and circumstances of each case. But an alienation of a one-fifth portion cannot be said to be unreasonable and excessive. The finding of the High Court must therefore be set aside and along with it its judgment allowing the reversioners appeal and decreeing their suit.
### Response:
1
### Explanation:
We are, in this judgment, concerned with Sheo Kuers appeal, not with the appeal filed by Kachnar Kuer by certificateThe finding that the adoption is without the authority of the husband and therefore void is not challenged before us either by Kachnar Kuer or by the adopted son and that finding must therefore be confirmed8. Since the evidence on the other question as to whetherTrilok Prasad Singh had given authority to Kachnar Kuer to create a religious endowmentwas closely linked with the question regarding the authority to adopt and since the pattern of evidence on both the question is identical, the High Court held that Kachnar Kuer did not either have the authority of her husband to instal the deity or dedicate any property to the deity. This finding is not challenged before us by Sheo Kuer, the shebait appointed under the arpannama, and therefore we must proceed on the basis that the dedication was created by Kachnar Kuer without the authority of her husband10. Applying the principle accepted in Kamala Devis case (supra) the simple question for decision, in view of the fact that the arpannama was executed for a merely pious and not for an essential or obligatory purpose, is whether the alienation effected by Kachnar Kuer in favour of the deity is of a reasonable portion of her husbands property. Respondents Nos. 1 and 2, in paragraph 7 of their plaint, passingly mentioned that Kachnar Kuer had transferred "a considerable portion" of the properties left by her husband. In paragraph 13 of the written statement which Kachnar Kuer filed on behalf of herself and her adopted son, it was stated that in view of the fact that Trilok Prasad Singh had left about 150 bighas of land, the alienation of about 30 bighas in favour of the deity could not be said to be unreasonable or excessive. One hundred and fifty bighas are treated in the area as roughly equal to 90 acres so that 30 bighas come to about 18 acres.Whether the alienation for a pious purpose is of a reasonable portion of the propertymust necessarily depend the total extent of the property which has devolved upon the widow. The mere circumstance that a 100 acres are alienated by the widow for a pious purpose will not justify the setting aside of the alienation on the ground that 100 acres is large property. The High Court, without adverting to the fact that the widow had alienated only a one-fifth portion of the property which had devolved upon her, held thata dedication of a large part of the property, more than 18 acres of land, cannot be defended on the part of a holder of a widows estate .This is all that the High Court has to say on the point and obviously, what it has said is not enough or relevant for invalidating the alienation11. Whether the alienation is of a reasonable portion of the property is not a matter to be decided on precedents because what is reasonable must depend upon the facts and circumstances of each case. But an alienation of a one-fifth portion cannot be said to be unreasonable and excessive. The finding of the High Court must therefore be set aside and along with it its judgment allowing the reversioners appeal and decreeing their suit.
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PAUL Vs. T. MOHAN AND ANOTHER | annum from the date of auction i.e. on 04.03.2010 till the date of deposit, before the Executing Court namely; the learned Ist Additional Subordinate Judge, Madurai, within a period of two weeks from the date of receipt of a copy of this order; (c) The 2 nd respondent/auction purchaser shall be entitled to claim the amount by making necessary application before the Executing Court; (d) The Executing Court namely; the learned Ist Additional Subordinate Court, Madurai is directed to pass orders for proclamation informing the concerned Registrar of Registration Department for making necessary entry to this effect and further cancel the entry regarding the sale certificate dated 21.7.2014 issued in favour of 2 nd respondent/auction purchaser; (e) The Executing Court is directed to complete the said exercise within a period of two weeks from the date of deposit of the amount by revision petitioner as directed in clause (b); (f) The revision petitioner is entitled to make necessary application before the executing court seeking refund of the amount deposited by the 2 nd respondent/auction purchaser, pursuant to the auction held on 04.03.2010, which application shall be decided by the Executing Court after giving notice and sufficient opportunity to the Ist respondent chits, which exercise shall be completed within a period of two months from the date of such application. No costs. Consequently, connected miscellaneous petition is closed. 6. The specific case of respondent No. 1 before the High Court was that the petition filed by the respondent No. 2- Chits Company before the Deputy Registrar of Chits, Madurai South was itself not maintainable, as no prior notice was issued to the respondent No. 1. It was also contended that straightaway upset price fixed as Rs. 1,77,000/- was very much lower than the guidelines contemplated under CPC and those issued by this Court. It was further contended that respondent No. 1 was merely the guarantor of one Rajendran and the Deputy Registrar of Chits should have first considered recovering the amount from the said Rajendran before proceeding against the respondent No. 1. The specific case of respondent No. 1 was that he had paid the entire amount within a week of the auction and obtained the no-due certificate from respondent No. 2 -Chits Company, of which the Executing Court did not take notice and the matter was kept pending for nearly four years. With regard to dismissal of his Revision by the Ist Additional Subordinate Judge on the ground that the provisions of Order XXI Rule 89 CPC were not complied with, it was contended that the application preferred by respondent No. 1 to set-aside the auction was also filed under Section 151 CPC and since the entire amount had already been paid by the respondent No. 1 to the respondent No. 2-Chits Company, which had also issued a no-due certificate, there was no necessity to deposit the auction amount along with 5% interest as required under Order XXI Rule 89 CPC. 7. The main contention of the appellant before the High Court was that the Revision of respondent No. 1 was rightly dismissed by the Revisional Court for non-compliance of the provisions of Order XXI Rule 89 CPC and as such, the auction was rightly held and confirmed. 8. The High Court took notice of the said contentions of both the parties and was of the opinion that before applying the legal provisions and testing their applicability, the Court has to look into the facts and circumstances of that particular case. The High Court noted that the respondent No. 1 was merely a guarantor and not a borrower and that the entire due amount was deposited by respondent No. 1 with the respondent No. 2 – Chits Company, for which no-dues certificate was also issued, of which due information was given to the Execution Court, which had not been considered. Thus, since the Revision had been filed within less than a week of the auction and entire dues had been settled, the confirmation of the auction was not justified. The High Court further held that the application had been filed also under Section 151 CPC and the inherent powers ought to have been invoked in the facts of the present case, as the entire amount due had been paid and the respondent No. 1 was merely a guarantor, and not the borrower. After noticing that the right to property is a constitutional right, which could not be infringed in the manner as has been done in the present case, the High Court allowed the Civil Revision Petition. The High Court further held that the present case was that of a real fraud committed by the borrower, and the guarantor had lost his property and was knocking the doors of the High Court to save his right to hold the suit property. The High Court noticed that there would be substantial injury caused to the respondent No. 1-guarantor, if his property was allowed to be taken away. It was, in such facts and circumstances of this case, that the Civil Revision Petition was allowed with the directions, as have been quoted hereinabove. 9. The submission of the appellant herein is primarily based on the Revision of respondent No. 1 having been dismissed by the Revisional Court on the ground of non- compliance of Order XXI Rule 89 CPC. In our view, the said question has been dealt with by the High Court in detail and in the peculiar facts and circumstances of this case, we are of the opinion that the view taken by the High Court is not such, which would call for interference under Article 136 of the Constitution of India, as in our view, substantial justice between the parties has already been done. Without laying down any law with regard to the issue relating to the application or non-compliance of Rule XXI Order 89 CPC, in the peculiar facts and circumstances of this case, we are not inclined to interfere with the view taken by the High Court. | 0[ds]9. The submission of the appellant herein is primarily based on the Revision of respondent No. 1 having been dismissed by the Revisional Court on the ground of non- compliance of Order XXI Rule 89 CPC. In our view, the said question has been dealt with by the High Court in detail and in the peculiar facts and circumstances of this case, we are of the opinion that the view taken by the High Court is not such, which would call for interference under Article 136 of the Constitution of India, as in our view, substantial justice between the parties has already been done. Without laying down any law with regard to the issue relating to the application or non-compliance of Rule XXI Order 89 CPC, in the peculiar facts and circumstances of this case, we are not inclined to interfere with the view taken by the High Court. | 0 | 1,962 | 165 | ### Instruction:
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annum from the date of auction i.e. on 04.03.2010 till the date of deposit, before the Executing Court namely; the learned Ist Additional Subordinate Judge, Madurai, within a period of two weeks from the date of receipt of a copy of this order; (c) The 2 nd respondent/auction purchaser shall be entitled to claim the amount by making necessary application before the Executing Court; (d) The Executing Court namely; the learned Ist Additional Subordinate Court, Madurai is directed to pass orders for proclamation informing the concerned Registrar of Registration Department for making necessary entry to this effect and further cancel the entry regarding the sale certificate dated 21.7.2014 issued in favour of 2 nd respondent/auction purchaser; (e) The Executing Court is directed to complete the said exercise within a period of two weeks from the date of deposit of the amount by revision petitioner as directed in clause (b); (f) The revision petitioner is entitled to make necessary application before the executing court seeking refund of the amount deposited by the 2 nd respondent/auction purchaser, pursuant to the auction held on 04.03.2010, which application shall be decided by the Executing Court after giving notice and sufficient opportunity to the Ist respondent chits, which exercise shall be completed within a period of two months from the date of such application. No costs. Consequently, connected miscellaneous petition is closed. 6. The specific case of respondent No. 1 before the High Court was that the petition filed by the respondent No. 2- Chits Company before the Deputy Registrar of Chits, Madurai South was itself not maintainable, as no prior notice was issued to the respondent No. 1. It was also contended that straightaway upset price fixed as Rs. 1,77,000/- was very much lower than the guidelines contemplated under CPC and those issued by this Court. It was further contended that respondent No. 1 was merely the guarantor of one Rajendran and the Deputy Registrar of Chits should have first considered recovering the amount from the said Rajendran before proceeding against the respondent No. 1. The specific case of respondent No. 1 was that he had paid the entire amount within a week of the auction and obtained the no-due certificate from respondent No. 2 -Chits Company, of which the Executing Court did not take notice and the matter was kept pending for nearly four years. With regard to dismissal of his Revision by the Ist Additional Subordinate Judge on the ground that the provisions of Order XXI Rule 89 CPC were not complied with, it was contended that the application preferred by respondent No. 1 to set-aside the auction was also filed under Section 151 CPC and since the entire amount had already been paid by the respondent No. 1 to the respondent No. 2-Chits Company, which had also issued a no-due certificate, there was no necessity to deposit the auction amount along with 5% interest as required under Order XXI Rule 89 CPC. 7. The main contention of the appellant before the High Court was that the Revision of respondent No. 1 was rightly dismissed by the Revisional Court for non-compliance of the provisions of Order XXI Rule 89 CPC and as such, the auction was rightly held and confirmed. 8. The High Court took notice of the said contentions of both the parties and was of the opinion that before applying the legal provisions and testing their applicability, the Court has to look into the facts and circumstances of that particular case. The High Court noted that the respondent No. 1 was merely a guarantor and not a borrower and that the entire due amount was deposited by respondent No. 1 with the respondent No. 2 – Chits Company, for which no-dues certificate was also issued, of which due information was given to the Execution Court, which had not been considered. Thus, since the Revision had been filed within less than a week of the auction and entire dues had been settled, the confirmation of the auction was not justified. The High Court further held that the application had been filed also under Section 151 CPC and the inherent powers ought to have been invoked in the facts of the present case, as the entire amount due had been paid and the respondent No. 1 was merely a guarantor, and not the borrower. After noticing that the right to property is a constitutional right, which could not be infringed in the manner as has been done in the present case, the High Court allowed the Civil Revision Petition. The High Court further held that the present case was that of a real fraud committed by the borrower, and the guarantor had lost his property and was knocking the doors of the High Court to save his right to hold the suit property. The High Court noticed that there would be substantial injury caused to the respondent No. 1-guarantor, if his property was allowed to be taken away. It was, in such facts and circumstances of this case, that the Civil Revision Petition was allowed with the directions, as have been quoted hereinabove. 9. The submission of the appellant herein is primarily based on the Revision of respondent No. 1 having been dismissed by the Revisional Court on the ground of non- compliance of Order XXI Rule 89 CPC. In our view, the said question has been dealt with by the High Court in detail and in the peculiar facts and circumstances of this case, we are of the opinion that the view taken by the High Court is not such, which would call for interference under Article 136 of the Constitution of India, as in our view, substantial justice between the parties has already been done. Without laying down any law with regard to the issue relating to the application or non-compliance of Rule XXI Order 89 CPC, in the peculiar facts and circumstances of this case, we are not inclined to interfere with the view taken by the High Court.
### Response:
0
### Explanation:
9. The submission of the appellant herein is primarily based on the Revision of respondent No. 1 having been dismissed by the Revisional Court on the ground of non- compliance of Order XXI Rule 89 CPC. In our view, the said question has been dealt with by the High Court in detail and in the peculiar facts and circumstances of this case, we are of the opinion that the view taken by the High Court is not such, which would call for interference under Article 136 of the Constitution of India, as in our view, substantial justice between the parties has already been done. Without laying down any law with regard to the issue relating to the application or non-compliance of Rule XXI Order 89 CPC, in the peculiar facts and circumstances of this case, we are not inclined to interfere with the view taken by the High Court.
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Bihar State Road Transport Corporation Vs. State Of Bihar & Ors | that the reason for terminating the services of respondent 3 was that he had been found to have committed irregularities of a serious nature in the discharge of his duties. That being so, the termination of services of respondent 3 was on account of the aforesaid irregularities in the discharge of his duties and prima facie was by way of punishment and not termination simpliciter. As is well established, even though the order of termination may be couched in terms of an order of termination simpliciter, a Labour Court to which an industrial dispute is referred for adjudication is entitled to go behind the apparent language of the order in question and consider whether the order is termination simpliciter or is imposed by way of punishment. The Labour Court, with which also the High Court agreed, came to the conclusion that the order was not one of termination of services simpliciter, but was by way of penalty imposed upon respondent 3 for aforesaid irregularities. There is nothing to show that the said conclusion was either unreasonable or perverse, and consequently, the High Court would not be entitled to interfere with such a finding in a writ for certiorari. The High Court was, therefore, right in refusing to interfere with the finding of the Labour Court in exercise of its prerogative jurisdiction.7. It is quite clear from the record that the cause of respondent 3 was taken over and espoused by the respondent union before the conciliation officer.The dispute, therefore, was an industrial dispute referable under Section 10 (1) of the Industrial Disputes Act by the Government of Bihar and the reference was a competent one.8. The next question is whether the appellant corporation was the successor-in-title of the said Rajya Transport Authority, and therefore, the obligations and liabilities of the said Authority devolved on the appellant corporation. The contention was that not such a successor-in-title and that once the Rajya Transport Authority ceased to carry on the said undertaking, the relationship of master and servant between that Authority and respondent 3 ceased, and therefore, whatever remedy respondent 3 had would be against that Authority and not against the appellant corporation. It was also contended that under the terms of the notification by which the appellant corporation was set up the corporation took over only the powers and functions of the said Authority and not its obligations and liabilities. Consequently, the order of reinstatement and compensation was contrary to law.9.The appellant corporation, as aforesaid, was set up by means of the Notification dated April 20, 1959 issued under Section 3 of the Road Transport Corporations Act, 1950. Under clause 2 of that notification the appellant corporation was empowered to exercise all the powers and perform, all the functions which were till then exercised and performed by the Rajya Transport Authority. It is manifest that the powers and functions of the Rajya Transport Authority were to carry on and conduct the transport undertaking. For that purpose its principal function would be the administration and management of that undertaking which would necessitate the employment of an adequate staff of employees. Employment of such a staff and regulating their conditions of service, including disciplinary action, would clearly be one of the powers or functions of the Rajya Transport Authority, which power or function was also to be exercised and performed by the appellant corporation under the said notification. Furthermore, in para 5 of the writ petition filed by the appellant corporation in the High Court, the corporation in clear terms averred that it had taken over as from May 1, 1959 such of the employees of the Rajya Transport Authority into its service who were on the rolls of the said Authority on the date it came into existence. As rightly observed by the High Court, on a proper construction of the said averment, if the termination of the services of respondent 3 was invalid, it never became operative and respondent 3, therefore, would be deemed to be continuing in the service of the Rajya Transport Authority on May 1, 1959, and therefore, on its rolls. In that view, the appellant corporation must be deemed to have taken over the services of respondent 3. The argument, however, was that the true meaning of the said averment was that only those of the employees of the Rajya Transport Authority who were actually on its rolls were taken over and not those who were deemed to be on its rolls. It is difficult to understand the distinction sought to be made between those whose names were actually on the rolls and those whose names, though not physically on the rolls, were deemed in law to be on the rolls. If respondent 3 continued in law to be in the service, it makes little difference whether his name actually figured in the rolls or not. The expression "on the rolls" must mean those who were on May 1, 1959 in the service of the Rajya Transport Authority. By reason of the order discharging him from service being illegal, respondent 3 was and must be regarded to be in the service of the said Authority, and therefore, he would be one of those whose services were taken over by the appellant corporation.10. Apart, therefore, from the question of the appellant corporation being the successor-in-title of the said Authority, respondent 3, in the absence of any valid termination of his services, continued and still continues to be in the service of the appellant corporation since May 1, 1959, and therefore,the corporation was bound to pay his wages including all the emoluments to which he was entitled as from May 1, 1959.For the period from February to April the Rajya Transport Authority was liable to pay his wages and other emoluments, if any, to which he was entitled. The corporation, as successor-in-title of the said Authority, became liable to pay the said wages for the said period and not from February to September 1959 as directed by the Labour Court. | 1[ds]The Labour Court, with which also the High Court agreed, came to the conclusion that the order was not one of termination of services simpliciter, but was by way of penalty imposed upon respondent 3 for aforesaid irregularities. There is nothing to show that the said conclusion was either unreasonable or perverse, and consequently, the High Court would not be entitled to interfere with such a finding in a writ for certiorari. The High Court was, therefore, right in refusing to interfere with the finding of the Labour Court in exercise of its prerogative jurisdiction.7. It is quite clear from the record that the cause of respondent 3 was taken over and espoused by the respondent union before the conciliation officer.The dispute, therefore, was an industrial dispute referable under Section 10 (1) of the Industrial Disputes Act by the Government of Bihar and the reference was a competentrightly observed by the High Court, on a proper construction of the said averment, if the termination of the services of respondent 3 was invalid, it never became operative and respondent 3, therefore, would be deemed to be continuing in the service of the Rajya Transport Authority on May 1, 1959, and therefore, on its rolls. In that view, the appellant corporation must be deemed to have taken over the services of respondent 3. The argument, however, was that the true meaning of the said averment was that only those of the employees of the Rajya Transport Authority who were actually on its rolls were taken over and not those who were deemed to be on its rolls. It is difficult to understand the distinction sought to be made between those whose names were actually on the rolls and those whose names, though not physically on the rolls, were deemed in law to be on the rolls. If respondent 3 continued in law to be in the service, it makes little difference whether his name actually figured in the rolls or not. The expression "on the rolls" must mean those who were on May 1, 1959 in the service of the Rajya Transport Authority. By reason of the order discharging him from service being illegal, respondent 3 was and must be regarded to be in the service of the said Authority, and therefore, he would be one of those whose services were taken over by the appellant corporation.Apart, therefore, from the question of the appellant corporation being the successor-in-title of the said Authority, respondent 3, in the absence of any valid termination of his services, continued and still continues to be in the service of the appellant corporation since May 1, 1959, and therefore,the corporation was bound to pay his wages including all the emoluments to which he was entitled as from May 1, 1959.For the period from February to April the Rajya Transport Authority was liable to pay his wages and other emoluments, if any, to which he was entitled. The corporation, as successor-in-title of the said Authority, became liable to pay the said wages for the said period and not from February to September 1959 as directed by the Labour Court. | 1 | 2,730 | 580 | ### Instruction:
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that the reason for terminating the services of respondent 3 was that he had been found to have committed irregularities of a serious nature in the discharge of his duties. That being so, the termination of services of respondent 3 was on account of the aforesaid irregularities in the discharge of his duties and prima facie was by way of punishment and not termination simpliciter. As is well established, even though the order of termination may be couched in terms of an order of termination simpliciter, a Labour Court to which an industrial dispute is referred for adjudication is entitled to go behind the apparent language of the order in question and consider whether the order is termination simpliciter or is imposed by way of punishment. The Labour Court, with which also the High Court agreed, came to the conclusion that the order was not one of termination of services simpliciter, but was by way of penalty imposed upon respondent 3 for aforesaid irregularities. There is nothing to show that the said conclusion was either unreasonable or perverse, and consequently, the High Court would not be entitled to interfere with such a finding in a writ for certiorari. The High Court was, therefore, right in refusing to interfere with the finding of the Labour Court in exercise of its prerogative jurisdiction.7. It is quite clear from the record that the cause of respondent 3 was taken over and espoused by the respondent union before the conciliation officer.The dispute, therefore, was an industrial dispute referable under Section 10 (1) of the Industrial Disputes Act by the Government of Bihar and the reference was a competent one.8. The next question is whether the appellant corporation was the successor-in-title of the said Rajya Transport Authority, and therefore, the obligations and liabilities of the said Authority devolved on the appellant corporation. The contention was that not such a successor-in-title and that once the Rajya Transport Authority ceased to carry on the said undertaking, the relationship of master and servant between that Authority and respondent 3 ceased, and therefore, whatever remedy respondent 3 had would be against that Authority and not against the appellant corporation. It was also contended that under the terms of the notification by which the appellant corporation was set up the corporation took over only the powers and functions of the said Authority and not its obligations and liabilities. Consequently, the order of reinstatement and compensation was contrary to law.9.The appellant corporation, as aforesaid, was set up by means of the Notification dated April 20, 1959 issued under Section 3 of the Road Transport Corporations Act, 1950. Under clause 2 of that notification the appellant corporation was empowered to exercise all the powers and perform, all the functions which were till then exercised and performed by the Rajya Transport Authority. It is manifest that the powers and functions of the Rajya Transport Authority were to carry on and conduct the transport undertaking. For that purpose its principal function would be the administration and management of that undertaking which would necessitate the employment of an adequate staff of employees. Employment of such a staff and regulating their conditions of service, including disciplinary action, would clearly be one of the powers or functions of the Rajya Transport Authority, which power or function was also to be exercised and performed by the appellant corporation under the said notification. Furthermore, in para 5 of the writ petition filed by the appellant corporation in the High Court, the corporation in clear terms averred that it had taken over as from May 1, 1959 such of the employees of the Rajya Transport Authority into its service who were on the rolls of the said Authority on the date it came into existence. As rightly observed by the High Court, on a proper construction of the said averment, if the termination of the services of respondent 3 was invalid, it never became operative and respondent 3, therefore, would be deemed to be continuing in the service of the Rajya Transport Authority on May 1, 1959, and therefore, on its rolls. In that view, the appellant corporation must be deemed to have taken over the services of respondent 3. The argument, however, was that the true meaning of the said averment was that only those of the employees of the Rajya Transport Authority who were actually on its rolls were taken over and not those who were deemed to be on its rolls. It is difficult to understand the distinction sought to be made between those whose names were actually on the rolls and those whose names, though not physically on the rolls, were deemed in law to be on the rolls. If respondent 3 continued in law to be in the service, it makes little difference whether his name actually figured in the rolls or not. The expression "on the rolls" must mean those who were on May 1, 1959 in the service of the Rajya Transport Authority. By reason of the order discharging him from service being illegal, respondent 3 was and must be regarded to be in the service of the said Authority, and therefore, he would be one of those whose services were taken over by the appellant corporation.10. Apart, therefore, from the question of the appellant corporation being the successor-in-title of the said Authority, respondent 3, in the absence of any valid termination of his services, continued and still continues to be in the service of the appellant corporation since May 1, 1959, and therefore,the corporation was bound to pay his wages including all the emoluments to which he was entitled as from May 1, 1959.For the period from February to April the Rajya Transport Authority was liable to pay his wages and other emoluments, if any, to which he was entitled. The corporation, as successor-in-title of the said Authority, became liable to pay the said wages for the said period and not from February to September 1959 as directed by the Labour Court.
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The Labour Court, with which also the High Court agreed, came to the conclusion that the order was not one of termination of services simpliciter, but was by way of penalty imposed upon respondent 3 for aforesaid irregularities. There is nothing to show that the said conclusion was either unreasonable or perverse, and consequently, the High Court would not be entitled to interfere with such a finding in a writ for certiorari. The High Court was, therefore, right in refusing to interfere with the finding of the Labour Court in exercise of its prerogative jurisdiction.7. It is quite clear from the record that the cause of respondent 3 was taken over and espoused by the respondent union before the conciliation officer.The dispute, therefore, was an industrial dispute referable under Section 10 (1) of the Industrial Disputes Act by the Government of Bihar and the reference was a competentrightly observed by the High Court, on a proper construction of the said averment, if the termination of the services of respondent 3 was invalid, it never became operative and respondent 3, therefore, would be deemed to be continuing in the service of the Rajya Transport Authority on May 1, 1959, and therefore, on its rolls. In that view, the appellant corporation must be deemed to have taken over the services of respondent 3. The argument, however, was that the true meaning of the said averment was that only those of the employees of the Rajya Transport Authority who were actually on its rolls were taken over and not those who were deemed to be on its rolls. It is difficult to understand the distinction sought to be made between those whose names were actually on the rolls and those whose names, though not physically on the rolls, were deemed in law to be on the rolls. If respondent 3 continued in law to be in the service, it makes little difference whether his name actually figured in the rolls or not. The expression "on the rolls" must mean those who were on May 1, 1959 in the service of the Rajya Transport Authority. By reason of the order discharging him from service being illegal, respondent 3 was and must be regarded to be in the service of the said Authority, and therefore, he would be one of those whose services were taken over by the appellant corporation.Apart, therefore, from the question of the appellant corporation being the successor-in-title of the said Authority, respondent 3, in the absence of any valid termination of his services, continued and still continues to be in the service of the appellant corporation since May 1, 1959, and therefore,the corporation was bound to pay his wages including all the emoluments to which he was entitled as from May 1, 1959.For the period from February to April the Rajya Transport Authority was liable to pay his wages and other emoluments, if any, to which he was entitled. The corporation, as successor-in-title of the said Authority, became liable to pay the said wages for the said period and not from February to September 1959 as directed by the Labour Court.
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Somnath Sahu Vs. State of Orissa & Others | of the letter respondent No. 4 has said that the appellant had refused to disclose the names of the members of the Supervisory Staff taking part in the union activities and the appellant had not extended co-operation to the Personnel Superintendent who was his immediate superior officer. For these reasons respondent No. 4 thought that the appellant failed in his duty of obedience to superior officers and was also not showing loyalty to the management. But no finding of misconduct was recorded by respondent No. 4 and the order of removal dated the 11th March, 1960 was really tantamount to a simple order of discharge under the terms of the contract. There is no element of punitive action in the order of respondent No. 4 dated the 11th March, 1960. In form and substance it is no more than an order of discharge effected under the terms of contract and it cannot in law be regarded as an order of dismissal because respondent No. 4 was actuated by the motive that the appellant did not deserve to be continued in service for alleged misconduct. We are, therefore, of opinion that respondent No. 4 was not required to issue notice to the appellant or to make an enquiry and there was no violation of principle of natural justice.6. We shall, however, assume in favour of the appellant that the order of respondent No. 4 dated the 11th March, 1966 was illegal because no enquiry into the alleged misconduct was made before making that order. Even on that assumption we are of opinion that the appellant is not entitled to the grant of a writ under Article 226 of the Constitution. The reason is that the appellant preferred an appeal to the State Government against the order of respondent No. 4, under Rule 6 (2) of the Orissa Welfare Officers (Recruitment and Conditions of Service) Rules, 1961. Rule 6(2) states :"The conditions of service of a Welfare Officer shall be the same as of other members of the corresponding status in the factory; provided that, in the case of discharge or dismissal, the Welfare Officer shall have a right of appeal to the State Government whose decision thereon shall be final and binding upon the occupier."The apellant was heard by the State Government in support of his appeal and ultimately the State Government dismissed the appeal in its order mated the 2nd January, 1962. In these circumstances we are of opinion that the order of respondent No. 4 dated the 11th March, 1960 has merged in the appellate order of the State Government dated the 2nd January, 1962 and it is the appellate decision alone which subsists and is operative in law and is capable of enforcement. In other words the original decision of respondent No. 4 dated the 11th March, 1960 no longer subsists for it has merged in the appellate decision of the State Government and unless the appellant is able to establish that the appellate decision of the State Government is defective in law the appellant will not be entitled to the grant of any relief. There can be no doubt that if an appeal is provided by a statutory rule against an order passed by a tribunal the decision of the appellate authority is the operative decision in law if the appellate authority modifies or reverses it. In law the position would be just the same even if the appellate decision merely confirms the decision of the Tribunal. As a result of the confirmation or affirmance of the decision of the Tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which is subsisting and is operative and capable of enforcement. (See the decisions of this Court in C.I.T. v. Amritlal Bhagilal & Co., [(1959) SCR 713) ] and Madan Gopal Rungla v. Secretary to the Government of Orissa).((1962) Supp 3 SCR 906).7. It is not, however, shown by the appellant in the present case that the appellate order of the State Government dated the 2nd January, 1962 is defective in law. It is contended that non-disclosure of the names of the members of the Supervisory Staff by the appellant was not one of the duties enjoined in Rule 7 of the Orissa Welfare Officers (Recruitment and Conditions of Service) Rules, 1951. But Rule 7 is not exhaustive of the duties required to be performed by the appellant. Apart from the duties mentioned in Rule 7 the contractual terms of employment incorporated in the letter dated the 25th January, 1956 also impose additional obligations on the appellant. It has been found by the appellate authority that there was evidence to support the finding of respondent No. 4 that the appellant was guilty of disobedience to superior officers and an act of disloyalty to the management in refusing to disclose the names of members of the supervisory staff taking part in union activities. The appellate authority also found that there was no colourable exercise of power on the part of respondent No. 4. The High Court is not constituted under Article 226 of the Constitution as a Court of Appeal over the decision of a statutory authority hearing the appeal. Where there is some evidence which the appellate authority has accepted and which evidence may reasonably support the conclusion that the officer was guilty of improper conduct, it is not the function of the High Court in a petition for writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may interfere where the statutory authority has acted without or in excess of its jurisdiction or where it has committed an error of law apparent on the face of the record. In the present case, however, it is not shown on behalf of the appellant that the statutory authority has committed any error of jurisdiction or the appellate order dated the 2nd January, 1962 is defective in law. | 1[ds]We are unable to accept this argument as correct. The order of dismissal was made by respondent No. 4 not because of any imputation of misconduct but in terms of the contract of service incorporated in the letter of respondent No. 4 dated the 25th June, 1956 which stateshave the pleasure in offering you a position in our Hirakud project for a trial period of six months commencing from July 16th, 1956. You will be confirmed in the post on your satisfactory completion of the probationary period.X X X X X XYou will be subject to the staff rules fixed or modified from time to time and after confirmation of your appointment you will also be entitled to the privilege of the Company as fixed or modified from time to time. You will undertake not to divulge any information concerning the Company or its activities and to treat as confidential all processes, activities, figures or any other information that may become known to you in the course of your duties. Infringement of this rule or any other misconduct, negligence or disobedience of your superiors will make you liable to instant and summary dismissal without notice or salary in lieu of notice.The Company reserves the right to post you in any of its plants or office in India.X X X X X XThe Company will have the right to dispense with your services at any time without assigning any reason on giving you one calendar months notice dating from the time of such notice or alternatively, salary in lieu of notice. This clause in no way affects the Companys rights to determine your engagement summarily as provided above for the infringement of certain rules, misconduct, negligence of orders of your superiors.It is clear from this letter that respondent No. 4 had a contractual right to terminate the service of the appellant without assigning any reason by giving one months notice or one months salary in lieu of notice. Upon a reading of the letter dated the 11th March, 1960 we are of opinion that the removal of the appellant was effected in accordance with the terms of the contract. It is true that in the first part of the letter respondent No. 4 has said that the appellant had refused to disclose the names of the members of the Supervisory Staff taking part in the union activities and the appellant had not extended co-operation to the Personnel Superintendent who was his immediate superior officer. For these reasons respondent No. 4 thought that the appellant failed in his duty of obedience to superior officers and was also not showing loyalty to the management. But no finding of misconduct was recorded by respondent No. 4 and the order of removal dated the 11th March, 1960 was really tantamount to a simple order of discharge under the terms of the contract. There is no element of punitive action in the order of respondent No. 4 dated the 11th March, 1960. In form and substance it is no more than an order of discharge effected under the terms of contract and it cannot in law be regarded as an order of dismissal because respondent No. 4 was actuated by the motive that the appellant did not deserve to be continued in service for alleged misconduct. We are, therefore, of opinion that respondent No. 4 was not required to issue notice to the appellant or to make an enquiry and there was no violation of principle of natural justice.6. We shall, however, assume in favour of the appellant that the order of respondent No. 4 dated the 11th March, 1966 was illegal because no enquiry into the alleged misconduct was made before making that order. Even on that assumption we are of opinion that the appellant is not entitled to the grant of a writ under Article 226 of the Constitution. The reason is that the appellant preferred an appeal to the State Government against the order of respondent No. 4, under Rule 6 (2) of the Orissa Welfare Officers (Recruitment and Conditions of Service) Rules, 1961. Rule 6(2) statesconditions of service of a Welfare Officer shall be the same as of other members of the corresponding status in the factory; provided that, in the case of discharge or dismissal, the Welfare Officer shall have a right of appeal to the State Government whoseapellant was heard by the State Government in support of his appeal and ultimately the State Government dismissed the appeal in its order mated the 2nd January, 1962. In these circumstances we are of opinion that the order of respondent No. 4 dated the 11th March, 1960 has merged in the appellate order of the State Government dated the 2nd January, 1962 and it is the appellate decision alone which subsists and is operative in law and is capable of enforcement. In other words the original decision of respondent No. 4 dated the 11th March, 1960 no longer subsists for it has merged in the appellate decision of the State Government and unless the appellant is able to establish that the appellate decision of the State Government is defective in law the appellant will not be entitled to the grant of any relief. There can be no doubt that if an appeal is provided by a statutory rule against an order passed by a tribunal the decision of the appellate authority is the operative decision in law if the appellate authority modifies or reverses it. In law the position would be just the same even if the appellate decision merely confirms the decision of the Tribunal. As a result of the confirmation or affirmance of the decision of the Tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which is subsisting and is operative and capable of enforcement. (See the decisions of this Court in C.I.T. v. Amritlal Bhagilal & Co., [(1959) SCR 713) ] and Madan Gopal Rungla v. Secretary to the Government of Orissa).((1962) Supp 3 SCR 906).7. It is not, however, shown by the appellant in the present case that the appellate order of the State Government dated the 2nd January, 1962 is defective in law. It is contended that non-disclosure of the names of the members of the Supervisory Staff by the appellant was not one of the duties enjoined in Rule 7 of the Orissa Welfare Officers (Recruitment and Conditions of Service) Rules, 1951. But Rule 7 is not exhaustive of the duties required to be performed by the appellant. Apart from the duties mentioned in Rule 7 the contractual terms of employment incorporated in the letter dated the 25th January, 1956 also impose additional obligations on the appellant. It has been found by the appellate authority that there was evidence to support the finding of respondent No. 4 that the appellant was guilty of disobedience to superior officers and an act of disloyalty to the management in refusing to disclose the names of members of the supervisory staff taking part in union activities. The appellate authority also found that there was no colourable exercise of power on the part of respondent No. 4. The High Court is not constituted under Article 226 of the Constitution as a Court of Appeal over the decision of a statutory authority hearing the appeal. Where there is some evidence which the appellate authority has accepted and which evidence may reasonably support the conclusion that the officer was guilty of improper conduct, it is not the function of the High Court in a petition for writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may interfere where the statutory authority has acted without or in excess of its jurisdiction or where it has committed an error of law apparent on the face of the record. In the present case, however, it is not shown on behalf of the appellant that the statutory authority has committed any error of jurisdiction or the appellate order dated the 2nd January, 1962 is defective in law. | 1 | 2,117 | 1,463 | ### 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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of the letter respondent No. 4 has said that the appellant had refused to disclose the names of the members of the Supervisory Staff taking part in the union activities and the appellant had not extended co-operation to the Personnel Superintendent who was his immediate superior officer. For these reasons respondent No. 4 thought that the appellant failed in his duty of obedience to superior officers and was also not showing loyalty to the management. But no finding of misconduct was recorded by respondent No. 4 and the order of removal dated the 11th March, 1960 was really tantamount to a simple order of discharge under the terms of the contract. There is no element of punitive action in the order of respondent No. 4 dated the 11th March, 1960. In form and substance it is no more than an order of discharge effected under the terms of contract and it cannot in law be regarded as an order of dismissal because respondent No. 4 was actuated by the motive that the appellant did not deserve to be continued in service for alleged misconduct. We are, therefore, of opinion that respondent No. 4 was not required to issue notice to the appellant or to make an enquiry and there was no violation of principle of natural justice.6. We shall, however, assume in favour of the appellant that the order of respondent No. 4 dated the 11th March, 1966 was illegal because no enquiry into the alleged misconduct was made before making that order. Even on that assumption we are of opinion that the appellant is not entitled to the grant of a writ under Article 226 of the Constitution. The reason is that the appellant preferred an appeal to the State Government against the order of respondent No. 4, under Rule 6 (2) of the Orissa Welfare Officers (Recruitment and Conditions of Service) Rules, 1961. Rule 6(2) states :"The conditions of service of a Welfare Officer shall be the same as of other members of the corresponding status in the factory; provided that, in the case of discharge or dismissal, the Welfare Officer shall have a right of appeal to the State Government whose decision thereon shall be final and binding upon the occupier."The apellant was heard by the State Government in support of his appeal and ultimately the State Government dismissed the appeal in its order mated the 2nd January, 1962. In these circumstances we are of opinion that the order of respondent No. 4 dated the 11th March, 1960 has merged in the appellate order of the State Government dated the 2nd January, 1962 and it is the appellate decision alone which subsists and is operative in law and is capable of enforcement. In other words the original decision of respondent No. 4 dated the 11th March, 1960 no longer subsists for it has merged in the appellate decision of the State Government and unless the appellant is able to establish that the appellate decision of the State Government is defective in law the appellant will not be entitled to the grant of any relief. There can be no doubt that if an appeal is provided by a statutory rule against an order passed by a tribunal the decision of the appellate authority is the operative decision in law if the appellate authority modifies or reverses it. In law the position would be just the same even if the appellate decision merely confirms the decision of the Tribunal. As a result of the confirmation or affirmance of the decision of the Tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which is subsisting and is operative and capable of enforcement. (See the decisions of this Court in C.I.T. v. Amritlal Bhagilal & Co., [(1959) SCR 713) ] and Madan Gopal Rungla v. Secretary to the Government of Orissa).((1962) Supp 3 SCR 906).7. It is not, however, shown by the appellant in the present case that the appellate order of the State Government dated the 2nd January, 1962 is defective in law. It is contended that non-disclosure of the names of the members of the Supervisory Staff by the appellant was not one of the duties enjoined in Rule 7 of the Orissa Welfare Officers (Recruitment and Conditions of Service) Rules, 1951. But Rule 7 is not exhaustive of the duties required to be performed by the appellant. Apart from the duties mentioned in Rule 7 the contractual terms of employment incorporated in the letter dated the 25th January, 1956 also impose additional obligations on the appellant. It has been found by the appellate authority that there was evidence to support the finding of respondent No. 4 that the appellant was guilty of disobedience to superior officers and an act of disloyalty to the management in refusing to disclose the names of members of the supervisory staff taking part in union activities. The appellate authority also found that there was no colourable exercise of power on the part of respondent No. 4. The High Court is not constituted under Article 226 of the Constitution as a Court of Appeal over the decision of a statutory authority hearing the appeal. Where there is some evidence which the appellate authority has accepted and which evidence may reasonably support the conclusion that the officer was guilty of improper conduct, it is not the function of the High Court in a petition for writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may interfere where the statutory authority has acted without or in excess of its jurisdiction or where it has committed an error of law apparent on the face of the record. In the present case, however, it is not shown on behalf of the appellant that the statutory authority has committed any error of jurisdiction or the appellate order dated the 2nd January, 1962 is defective in law.
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terms of the contract. It is true that in the first part of the letter respondent No. 4 has said that the appellant had refused to disclose the names of the members of the Supervisory Staff taking part in the union activities and the appellant had not extended co-operation to the Personnel Superintendent who was his immediate superior officer. For these reasons respondent No. 4 thought that the appellant failed in his duty of obedience to superior officers and was also not showing loyalty to the management. But no finding of misconduct was recorded by respondent No. 4 and the order of removal dated the 11th March, 1960 was really tantamount to a simple order of discharge under the terms of the contract. There is no element of punitive action in the order of respondent No. 4 dated the 11th March, 1960. In form and substance it is no more than an order of discharge effected under the terms of contract and it cannot in law be regarded as an order of dismissal because respondent No. 4 was actuated by the motive that the appellant did not deserve to be continued in service for alleged misconduct. We are, therefore, of opinion that respondent No. 4 was not required to issue notice to the appellant or to make an enquiry and there was no violation of principle of natural justice.6. We shall, however, assume in favour of the appellant that the order of respondent No. 4 dated the 11th March, 1966 was illegal because no enquiry into the alleged misconduct was made before making that order. Even on that assumption we are of opinion that the appellant is not entitled to the grant of a writ under Article 226 of the Constitution. The reason is that the appellant preferred an appeal to the State Government against the order of respondent No. 4, under Rule 6 (2) of the Orissa Welfare Officers (Recruitment and Conditions of Service) Rules, 1961. Rule 6(2) statesconditions of service of a Welfare Officer shall be the same as of other members of the corresponding status in the factory; provided that, in the case of discharge or dismissal, the Welfare Officer shall have a right of appeal to the State Government whoseapellant was heard by the State Government in support of his appeal and ultimately the State Government dismissed the appeal in its order mated the 2nd January, 1962. In these circumstances we are of opinion that the order of respondent No. 4 dated the 11th March, 1960 has merged in the appellate order of the State Government dated the 2nd January, 1962 and it is the appellate decision alone which subsists and is operative in law and is capable of enforcement. In other words the original decision of respondent No. 4 dated the 11th March, 1960 no longer subsists for it has merged in the appellate decision of the State Government and unless the appellant is able to establish that the appellate decision of the State Government is defective in law the appellant will not be entitled to the grant of any relief. There can be no doubt that if an appeal is provided by a statutory rule against an order passed by a tribunal the decision of the appellate authority is the operative decision in law if the appellate authority modifies or reverses it. In law the position would be just the same even if the appellate decision merely confirms the decision of the Tribunal. As a result of the confirmation or affirmance of the decision of the Tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which is subsisting and is operative and capable of enforcement. (See the decisions of this Court in C.I.T. v. Amritlal Bhagilal & Co., [(1959) SCR 713) ] and Madan Gopal Rungla v. Secretary to the Government of Orissa).((1962) Supp 3 SCR 906).7. It is not, however, shown by the appellant in the present case that the appellate order of the State Government dated the 2nd January, 1962 is defective in law. It is contended that non-disclosure of the names of the members of the Supervisory Staff by the appellant was not one of the duties enjoined in Rule 7 of the Orissa Welfare Officers (Recruitment and Conditions of Service) Rules, 1951. But Rule 7 is not exhaustive of the duties required to be performed by the appellant. Apart from the duties mentioned in Rule 7 the contractual terms of employment incorporated in the letter dated the 25th January, 1956 also impose additional obligations on the appellant. It has been found by the appellate authority that there was evidence to support the finding of respondent No. 4 that the appellant was guilty of disobedience to superior officers and an act of disloyalty to the management in refusing to disclose the names of members of the supervisory staff taking part in union activities. The appellate authority also found that there was no colourable exercise of power on the part of respondent No. 4. The High Court is not constituted under Article 226 of the Constitution as a Court of Appeal over the decision of a statutory authority hearing the appeal. Where there is some evidence which the appellate authority has accepted and which evidence may reasonably support the conclusion that the officer was guilty of improper conduct, it is not the function of the High Court in a petition for writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may interfere where the statutory authority has acted without or in excess of its jurisdiction or where it has committed an error of law apparent on the face of the record. In the present case, however, it is not shown on behalf of the appellant that the statutory authority has committed any error of jurisdiction or the appellate order dated the 2nd January, 1962 is defective in law.
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All India Voltas & Volkart Employees' Federation Vs. Voltas Limited and Another | perhaps that the more technical their knowledge the better for them in order to earn their commission but it is not for the technical knowledge that they were employed because they go from business to business and canvass orders and that is the main and substantial part of the work which they have to do and for which they were engaged. It cannot, therefore, be held that they were employed to do clerical or technical work. ( 22 ) THAT this is the light in which questions of this kind ought to be decided is laid down by the supreme Court in a recent decision in Burmah Shell Oil Storage and Distributing Co. of India ltd. v. The Burmah Shell Management Staff Association, [1970 - II L. L. J. 590]; A. I. R. 1971 s. C. 922. The Supreme Court laid down the following as the guiding principles (vide paragraph 6) : "the next aspect that has to be taken notice of is that, in practice, quite a large number of employees are employed in industries to do work of more than one of the kinds mentioned in the definition. In cases where an employee is employed to do purely skilled or unskilled manual work, or supervisory work, or technical work, of clerical work, there would be no difficulty in holding him to be a workman under the appropriate classification. Frequently, however, an employee is required to do more than one kind of work. He may be doing manual work as well as supervisory work. He may be doing technical work as well as supervisory work. In such cases, it would be necessary to determine under which classification he will fall for the purpose of finding out whether he does or does not go out of the definition of workman under the exceptions. The principle is now well-settled that, for this purpose, a workman must be held to be employed to do that work which is the main work he is required to do, even though he may be incidentally doing other types of work. " the Supreme Court in this respect relied upon an earlier decision of its own in May and Baker (India) Ltd. v. Their Workmen, [1961 - II L. L. J. 94]; A. I. R. 1967 S. C. 678. In the latter case several categories of workmen were before the Supreme Court, one such category being Sales engineering Representatives, and a Perusal of paragraphs 24 and 25 and the evidence discussed therein would show that the nature of the work of those workmen was similar to the salesmen in the present case, or perhaps it would be true to say that in those cases more technical knowledge was found to be required. None the less the Supreme Court said in that case, (see page 938 at the end of paragraph 25) that "the amount of technical work that a Sales Engineering Representative does is all ancillary to his chief duty of promoting sales and giving advice. As we have held earlier, the mere fact that he is required to have technical knowledge for such a purpose does not make his work technical work. The work of advising and removing complaints so as to promote sales remains outside the scope of technical work. Consequently, the Tribunals decision that the sales Engineering Representative is a workman is set aside". In that case the Tribunal had been impressed by the evidence given as to the quantum of technical knowledge required by a Sales engineering Representative and, therefore, it held that they were doing technical work. In the present case, as we have said, there is hardly anything to show that any of these employees called salesmen were actually doing clerical or technical work. Even assuming the affidavit of dsouza to be true, we still do not see that the technical know-how to which he refers or the clerical work which he did, was the main part of his duties as a salesman. On the other hand, it seems to us that all these salesmen on commission were originally non-technical persons who in the course of their work as salesmen did acquire some technical knowledge of the goods that they were daily selling and now claim that they are principally required to display the technical knowledge. It seems to us that, technical knowledge forms an infinitesimal part of their qualities as salesmen. As regards the alternative submission that they were doing some sort of supervisory or administrative work, there is not even an iota of evidence. There is nothing to show that there was anybody to supervise or anything to administer. In fact it does not appear that in the course of salesmens work he has to supervise anything or anybody nor has he any administrative duty in regard to any personnel in the company.( 23 ) AN earnest plea was made on behalf of these employees that their case has gone by default and that although they pleaded that there was considerable evidence of technical knowledge involved in the discharge of their duties as salesmen, no evidence has been led and that, therefore, an opportunity should be given to them to lead that evidence. In short it was urged that the matter should be remanded to the Tribunal for further evidence. We are unable to accede to this request because we do not find that there was any grievance made before the Tribunal or even a request that either party should be allowed to lead evidence. On the other hand, both the parties chose to go to trial upon the affidavits which they had filed. It does not also appear that any request was made on the part of either party to be allowed to lead evidence in support of their affidavits. We cannot, therefore, without any valid grounds send back the case for fresh evidence. ( 24 ) THESE were all the arguments advanced to show how the award has been vitiated. We are unable to accept them. | 0[ds]( 6 ) IN the first place we do not think that the company had any such motive as was sought to be attributed to it because though no doubt the letter of 14th January, 1966 was written after the bonus Act came into force, the scheme itself was in force in the company long before the Bonus act was brought into force or even contemplated. The scheme is contained in the printed pamphlet issued by the company the gist of which is given in a circular letter No.dated 19th February, 1959 which the company issued. That scheme, therefore, could never have been proposed in contemplation of the Bonus Act, much less in order to defeat any of its provisions. The circular letter datedon which so much reliance has been placed to suggest such a motive on the part of the company was written pursuant to the need to dovetail the provisions of the old scheme which was already extant in the company with the provisions of the new status and that is why the following sentence on which great emphasis was just put on behalf of the employees by Mr. Kulkarni finds place in the letter of 14th January, 1966the Bonus Act permits an employees to come to an arrangement with the employer different from the one provided under the Bonus Act, and, therefore, we could continue our present arrangementsin order that the present arrangement should continue unaffected, the consent of each and every employee had to be obtained and that is why the letter came to be written. There is not the slightest indication that the company wrote this letter or did anything else in order to circumvent the provisions of the Bonus7 ) TURNING then to the provisions of the Act an the scheme it is clear that there is nothing in the provisions of the Act to bar bonus being paid by an agreement with the workers by the company subject of course to the minimum bonus being payable in any case as prescribed by the Act and subject to the other limitations which the Act prescribes. In entering into an agreement, therefore, to implement the bonus scheme which was already in force in this company, we cannot see that the company in any manner contravened any provision of the Bonus11 ) WE are unable to accept this contention. In the first place despite this scheme every employee of the company continues to get bonus still. Secondly it seems to us that there is nothing in the Act which prevents an employee from surrendering his right to bonus or to a part of bonus payable to him, and since the payments which the company made to the Life Insurance corporation under the scheme would ultimately be of greater benefit to the employees than if they were to receive the regular bonus paid to them by the company year after year the employees agreed to accept the scheme. In the case of the higher paid staff the high rates of income and super tax would leave very little out of the bonus if it were paid to them annually. It is, therefore, understandable that the higher paid staff was agreeable to forego their right to receive the yearly bonus because it would be considerably to their advantage if they could be better safeguarded financially when they have to retire and it was therefore an advantage to contribute to the retiring gratuity scheme. We can see nothing improper or illegal in this arrangement. It is permissible under the Act and in any event was permissible when the scheme was first adumbrated and put into force in 1956 long before the Act came into force. We must, however, add that no part of the scheme touches the minimum bonus prescribed under the Act which every employee entitled under the Act continues to receive nor does it in any way legally affect the right of the rest of the employees to receive bonus under the Act. The scheme is thus primarily a scheme for provision for superannuation. There are various rights and privilege recognised in favour of the employee under the Industrial Law such as right to bonus, free housing, leave, overtime allowance etc. These are all distinct heads of payments or benefits which the employee may normally receive under the Industrial Law. Two such heads which are also recognised are superannuation benefits and retirement gratuity benefits. If superannuation and gratuity benefits are recognised heads of the rights and privileges to which an employee may be entitled, the terms of the scheme cannot be held to be illegal or improper. It seems to us that the scheme which the company launched upon was primarily and mainly for providing these latter benefits to its employees. All the employees were entitled to that benefit if they so chose to take it. It could not therefore be said that it was a scheme to provide a bonus either immediately or in future to any of its employees. Any payment made under the scheme can hardly be said to be bonus paid to employees in respect of previous accounting years as mentioned in item 3 (a) of the Second Schedule.( 12 ) THE word "bonus" is surprisingly enough not defined in the Bonus Act and that prompted an argument that it should be given a wide connotation as used in items 2 (a) and 3 (a) of the Second schedule. Bonus which was originally intended to be purely an ex gratia payment by an employer to his employee has, however, with the passage of time and the arising of the idea of social justice and equality, undergone a major change, so much so that today bonus is recognised as a right in an employee and does not depend upon the volition of the employer. Originally also the word "bonus" implied a reward or a gratuitous payment of the profits earned by an employer, but with the development of the idea of social justice that idea of bonus has also undergone a change and today according to the provisions of the very Act with we are dealing the payment of bonus does not depend upon the making of profits by an employer. The minimum bonus under the Act is payable irrespective of whether he makes a profit or not. Some of these shades of meaning of the word "bonus" have been dealt with and pronounced upon by the Supreme Court itself. One of such cases is to be found reported in Associated Cement Companies Ltd. v. Their workmen, [1959I L. L. J. 644]; A. I. R. 1959 S. C. 967, and that is what the Supreme Court said after considering their previous decision in Muir Mills Co. Ltd. v. Suti Mill Mazdoor Union, kanpur, [1955I L. L. J. 1]; (1955) 1 S. C. R. 991, in paragraph 5 at page 980judgment in that case indicates that without committing itself to the acceptance of the formula in its entirety, this Court in general accepted as sound the view that since labour and capital both contribute to the earnings of the industrial concern, it is fair that labour should derive some benefit if there is a surplus after meeting the four prior or necessary charges specified in the formula. It is relevant to add that in dealing with the concept of bonus this Court ruled that bonus is neither a gratuitous payment made by the employer to his workmen nor can it be regarded as a deferred wage. According to this decision, where wages fall short of the living standard and the industry makes profit part of which is due to the contribution of labour, a claim for bonus can be legitimatelythis pronouncement the concept has further changed by virtue of the provisions of the bonus Act itself as we have indicated above. But giving it the widest possible connotation we cannot find that any payment to be made under this scheme framed by the company is a payment of bonus to its employee in present or as a deferred payment. When item 3 of the Second schedule says "bonus paid to employees in respect of previous accounting years" it necessarily means bonus paid as bonus to the employees, and not a retirement gratuity even though in receiving it or becoming entitled to it the employee may have in the past given up partially his right to bonus. In this view we are unable to accept the contention. We think that on this point the Tribunal came to a correct15 ) WE are not here really concerned with the general provisions of theAct or the normal principles of accounting adopted by a company. What is to be deducted, and what is not to be deducted is statutorily prescribed in the Act and we must go strictly in accordance with the provisions of that Act. The company has claimed to deduct the total amount ofunder the provisions of S. 6 (c) of the Act. Under theAct and other special laws the declaration of dividends is now severely controlled by the law and it is not possible for a company to keep on declaring higher and higher dividends to any extent. One such provision is the one to which we have already referred in the Finance Act, 1966. Therefore, it is very doubtful if a company can use its discretion to declare dividend as an instrument to defeat the employees rights under the Bonus Act. There is moreover nothing to show that this company declared the dividend in question with that object in view. We have no evidence of any such intention on the part of this company. It also appears to us that the Act did not intend to further fetter the discretion of the company to declare such dividends as the company in a general meeting may decide to declare and it is not permissible for one of workers, taking advantage of the provisions of the Act to say that another of workers shall not be given a certain benefit, so long as the company acts fairly and in a bona fide manner as in the present16 ) IN the accounting yearthe company issued 7% depentures redeemable insecured by a mortgage of its assets and a floating charge on other assets upon certain conditions. The total debentures issued were of the order of one crore of rupees and in connection with that issue the company incurred certain expense. This the company deducted in arriving at its figure of gross profits. The expenses amount to Rs. 4,41,528 and are to found debited under the head "expenses" item 4 (d) in thefor the year ending 31st August, 1966. It was urged that this amount is really in the nature of a capital expenditure and, therefore, must be added back having regard to the provisions of items 3 (d) of the Second Schedule which defines the item as followsexpenditure (other than capital expenditure on scientific research which is allowed as a deduction under any law for the time being in force relating to direct taxes) and capital losses. . . . . . . . . . . . . "There is aadded which says "if, and to the extent, credited to Profit and Loss account". The item here has been credited to the profit and loss account but the question whether this is an expenditure of a capital nature. We are quite unable to see how expenditure incurred by a company in negotiating and settling a loan to it albeit upon the security of its assets could possibly partake of the assets of a capital nature. On behalf of the company a statement showing theof this figure of Rs. 4,41,528 has been given and theshows the following payments of expenditure; Underwriting commission, brokerage, legal charges, stamp duty, printing charges and advertising charges. Every one of these charges are normally and in business practice always considered as revenue expenditure. It is hardly necessary to elaborate upon this. We may only refer to one decision of the Supreme Court in India Cements Ltd. v. Commissioner of60 I. T. R. 52, In that case the assessee had obtained a loan of Rs. 40 lakhs from the Industrial Finance Corporation secured by a charge on its fixed assets, and in connection with the obtaining of that loan it had spent a sum of Rs. 84,633 towards stamp duty, registration fees, lawyers fees etc. , and it claimed that amount as business expenditure. It was held that it was allowable under S. 10 (2) (xv) of the oldAct and that the amount spent was not in the nature of capital expenditure but was laid out or expended wholly and exclusively for the purpose of the assessees business and therefore was allowable as a deduction. The Supreme Court also observed that the act of borrowing money was incidental to the carrying on of business, and that the loan obtained was not an asset or an advantage of an enduring nature. The expenditure was made for securing the use of money for a certain period, and it was irrelevant to consider the object with which the loan was obtained. That is precisely the case here. The company did not acquire any asset of an enduring nature or, in other words, any capital assets, when it borrowed moneys on the issue of debentures. It was a simple transaction of loan albeit secured by its immovable property but the company did not acquire any asset which was in the nature of a capital asset. Any expenditure, therefore, which was incurred in securing the loan was rightly allowed to be deducted as a business expenditure. We do not think that there is any difference in the expression "capital expenditure" in item 3 (d) and the accepted connotation of that term in business and under the IndianAct. This item, therefore, cannot be ordered to be18 ) THESE were all the items which were disputed and which go to make up the figure of gross profits on the basis of which the available surplus is to be computed under S. 5 of the Act for the purposes of giving of bonus under the Act. We are unable to allow any one of these amounts to be added back and, therefore, we must hold that the figure of gross profit is a correct computation. The figure of available surplus and the bonus awarded on that basis will, therefore, beit is no doubt true that the decision of the supreme Court cannot directly be relied upon here as a matter of res judicata between the parties because conditions may have changed and since almost 10 years have elapsed since that decision it will be difficult to hold that those findingsare today binding, but the Tribunal has gone further and come to the conclusion that "the facts continue to be the same and this point cannot, therefore, be allowed to be reagitated". On this question we think that the Tribunal was not right because even assuming that the facts continued to be the same, the point raised is not the same as it was when it was raised before the Supreme Court. In the case before the Supreme court they were concerned only with the provisions of the then operative Industrial Disputes Act and in fact then the Bonus Act was not even in force, whereas in the present case we are only governed by the provisions of the Bonus Act. Therefore, we do not think that much support can be gained from the decision of the Supreme Court to which we have referred. We, however, notice that in the present case it is urged that salesmen are employees and do the same work as employees because they do some sort of technical or clerical work. There is hardly any evidence in this respect before us beyond the statements in the affidavits to which we have referred and the contrary averments in the affidavit on behalf of the company. The Tribunal has found that these salesmen are not employees within the meaning of the Act. In dealing with this question certain broad principles have to be borne in mind. In almost every sphere of human activity different skills must exist and are called into play. Even a manual worker occasionally writes down specifications andEven a clerk sometimes does manual work. He lifts up a typewriter or a load of books or files from one place and keeps it at another place and thus does some manual work. But it is not the casual or occasional work which a particular employee does which is decisive of what is the nature of his employment nor decisive of the question whether he is an employee at all falling within a particular definition. The test is what is the substance of the work which he does and what he was in substance employed to do. It is not in dispute in the present case that these particular employees, with whom we are concerned, were substantially employed as salesmen and it may be that in the course of their duties as such salesmen they were required to show some special knowledge of the products which they sell. It may be perhaps that the more technical their knowledge the better for them in order to earn their commission but it is not for the technical knowledge that they were employed because they go from business to business and canvass orders and that is the main and substantial part of the work which they have to do and for which they were engaged. It cannot, therefore, be held that they were employed to do clerical or technical22 ) THAT this is the light in which questions of this kind ought to be decided is laid down by the supreme Court in a recent decision in Burmah Shell Oil Storage and Distributing Co. of India ltd. v. The Burmah Shell Management Staff Association, [1970II L. L. J. 590]; A. I. R. 1971 s. C. 922. The Supreme Court laid down the following as the guiding principles (vide paragraph 6) : "the next aspect that has to be taken notice of is that, in practice, quite a large number of employees are employed in industries to do work of more than one of the kinds mentioned in the definition. In cases where an employee is employed to do purely skilled or unskilled manual work, or supervisory work, or technical work, of clerical work, there would be no difficulty in holding him to be a workman under the appropriate classification. Frequently, however, an employee is required to do more than one kind of work. He may be doing manual work as well as supervisory work. He may be doing technical work as well as supervisory work. In such cases, it would be necessary to determine under which classification he will fall for the purpose of finding out whether he does or does not go out of the definition of workman under the exceptions. The principle is nowthat, for this purpose, a workman must be held to be employed to do that work which is the main work he is required to do, even though he may be incidentally doing other types of work. " the Supreme Court in this respect relied upon an earlier decision of its own in May and Baker (India) Ltd. v. Their Workmen, [1961II L. L. J. 94]; A. I. R. 1967 S. C. 678. In the latter case several categories of workmen were before the Supreme Court, one such category being Sales engineering Representatives, and a Perusal of paragraphs 24 and 25 and the evidence discussed therein would show that the nature of the work of those workmen was similar to the salesmen in the present case, or perhaps it would be true to say that in those cases more technical knowledge was found to be required. None the less the Supreme Court said in that case, (see page 938 at the end of paragraph 25) that "the amount of technical work that a Sales Engineering Representative does is all ancillary to his chief duty of promoting sales and giving advice. As we have held earlier, the mere fact that he is required to have technical knowledge for such a purpose does not make his work technical work. The work of advising and removing complaints so as to promote sales remains outside the scope of technical work. Consequently, the Tribunals decision that the sales Engineering Representative is a workman is set aside". In that case the Tribunal had been impressed by the evidence given as to the quantum of technical knowledge required by a Sales engineering Representative and, therefore, it held that they were doing technical work. In the present case, as we have said, there is hardly anything to show that any of these employees called salesmen were actually doing clerical or technical work. Even assuming the affidavit of dsouza to be true, we still do not see that the technicalto which he refers or the clerical work which he did, was the main part of his duties as a salesman. On the other hand, it seems to us that all these salesmen on commission were originallypersons who in the course of their work as salesmen did acquire some technical knowledge of the goods that they were daily selling and now claim that they are principally required to display the technical knowledge. It seems to us that, technical knowledge forms an infinitesimal part of their qualities as salesmen. As regards the alternative submission that they were doing some sort of supervisory or administrative work, there is not even an iota of evidence. There is nothing to show that there was anybody to supervise or anything to administer. In fact it does not appear that in the course of salesmens work he has to supervise anything or anybody nor has he any administrative duty in regard to any personnel in the company.( 23 ) AN earnest plea was made on behalf of these employees that their case has gone by default and that although they pleaded that there was considerable evidence of technical knowledge involved in the discharge of their duties as salesmen, no evidence has been led and that, therefore, an opportunity should be given to them to lead that evidence. In short it was urged that the matter should be remanded to the Tribunal for further evidence. We are unable to accede to this request because we do not find that there was any grievance made before the Tribunal or even a request that either party should be allowed to lead evidence. On the other hand, both the parties chose to go to trial upon the affidavits which they had filed. It does not also appear that any request was made on the part of either party to be allowed to lead evidence in support of their affidavits. We cannot, therefore, without any valid grounds send back the case for fresh24 ) THESE were all the arguments advanced to show how the award has been vitiated. We are unable to accept them. | 0 | 9,862 | 4,162 | ### Instruction:
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perhaps that the more technical their knowledge the better for them in order to earn their commission but it is not for the technical knowledge that they were employed because they go from business to business and canvass orders and that is the main and substantial part of the work which they have to do and for which they were engaged. It cannot, therefore, be held that they were employed to do clerical or technical work. ( 22 ) THAT this is the light in which questions of this kind ought to be decided is laid down by the supreme Court in a recent decision in Burmah Shell Oil Storage and Distributing Co. of India ltd. v. The Burmah Shell Management Staff Association, [1970 - II L. L. J. 590]; A. I. R. 1971 s. C. 922. The Supreme Court laid down the following as the guiding principles (vide paragraph 6) : "the next aspect that has to be taken notice of is that, in practice, quite a large number of employees are employed in industries to do work of more than one of the kinds mentioned in the definition. In cases where an employee is employed to do purely skilled or unskilled manual work, or supervisory work, or technical work, of clerical work, there would be no difficulty in holding him to be a workman under the appropriate classification. Frequently, however, an employee is required to do more than one kind of work. He may be doing manual work as well as supervisory work. He may be doing technical work as well as supervisory work. In such cases, it would be necessary to determine under which classification he will fall for the purpose of finding out whether he does or does not go out of the definition of workman under the exceptions. The principle is now well-settled that, for this purpose, a workman must be held to be employed to do that work which is the main work he is required to do, even though he may be incidentally doing other types of work. " the Supreme Court in this respect relied upon an earlier decision of its own in May and Baker (India) Ltd. v. Their Workmen, [1961 - II L. L. J. 94]; A. I. R. 1967 S. C. 678. In the latter case several categories of workmen were before the Supreme Court, one such category being Sales engineering Representatives, and a Perusal of paragraphs 24 and 25 and the evidence discussed therein would show that the nature of the work of those workmen was similar to the salesmen in the present case, or perhaps it would be true to say that in those cases more technical knowledge was found to be required. None the less the Supreme Court said in that case, (see page 938 at the end of paragraph 25) that "the amount of technical work that a Sales Engineering Representative does is all ancillary to his chief duty of promoting sales and giving advice. As we have held earlier, the mere fact that he is required to have technical knowledge for such a purpose does not make his work technical work. The work of advising and removing complaints so as to promote sales remains outside the scope of technical work. Consequently, the Tribunals decision that the sales Engineering Representative is a workman is set aside". In that case the Tribunal had been impressed by the evidence given as to the quantum of technical knowledge required by a Sales engineering Representative and, therefore, it held that they were doing technical work. In the present case, as we have said, there is hardly anything to show that any of these employees called salesmen were actually doing clerical or technical work. Even assuming the affidavit of dsouza to be true, we still do not see that the technical know-how to which he refers or the clerical work which he did, was the main part of his duties as a salesman. On the other hand, it seems to us that all these salesmen on commission were originally non-technical persons who in the course of their work as salesmen did acquire some technical knowledge of the goods that they were daily selling and now claim that they are principally required to display the technical knowledge. It seems to us that, technical knowledge forms an infinitesimal part of their qualities as salesmen. As regards the alternative submission that they were doing some sort of supervisory or administrative work, there is not even an iota of evidence. There is nothing to show that there was anybody to supervise or anything to administer. In fact it does not appear that in the course of salesmens work he has to supervise anything or anybody nor has he any administrative duty in regard to any personnel in the company.( 23 ) AN earnest plea was made on behalf of these employees that their case has gone by default and that although they pleaded that there was considerable evidence of technical knowledge involved in the discharge of their duties as salesmen, no evidence has been led and that, therefore, an opportunity should be given to them to lead that evidence. In short it was urged that the matter should be remanded to the Tribunal for further evidence. We are unable to accede to this request because we do not find that there was any grievance made before the Tribunal or even a request that either party should be allowed to lead evidence. On the other hand, both the parties chose to go to trial upon the affidavits which they had filed. It does not also appear that any request was made on the part of either party to be allowed to lead evidence in support of their affidavits. We cannot, therefore, without any valid grounds send back the case for fresh evidence. ( 24 ) THESE were all the arguments advanced to show how the award has been vitiated. We are unable to accept them.
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were required to show some special knowledge of the products which they sell. It may be perhaps that the more technical their knowledge the better for them in order to earn their commission but it is not for the technical knowledge that they were employed because they go from business to business and canvass orders and that is the main and substantial part of the work which they have to do and for which they were engaged. It cannot, therefore, be held that they were employed to do clerical or technical22 ) THAT this is the light in which questions of this kind ought to be decided is laid down by the supreme Court in a recent decision in Burmah Shell Oil Storage and Distributing Co. of India ltd. v. The Burmah Shell Management Staff Association, [1970II L. L. J. 590]; A. I. R. 1971 s. C. 922. The Supreme Court laid down the following as the guiding principles (vide paragraph 6) : "the next aspect that has to be taken notice of is that, in practice, quite a large number of employees are employed in industries to do work of more than one of the kinds mentioned in the definition. In cases where an employee is employed to do purely skilled or unskilled manual work, or supervisory work, or technical work, of clerical work, there would be no difficulty in holding him to be a workman under the appropriate classification. Frequently, however, an employee is required to do more than one kind of work. He may be doing manual work as well as supervisory work. He may be doing technical work as well as supervisory work. In such cases, it would be necessary to determine under which classification he will fall for the purpose of finding out whether he does or does not go out of the definition of workman under the exceptions. The principle is nowthat, for this purpose, a workman must be held to be employed to do that work which is the main work he is required to do, even though he may be incidentally doing other types of work. " the Supreme Court in this respect relied upon an earlier decision of its own in May and Baker (India) Ltd. v. Their Workmen, [1961II L. L. J. 94]; A. I. R. 1967 S. C. 678. In the latter case several categories of workmen were before the Supreme Court, one such category being Sales engineering Representatives, and a Perusal of paragraphs 24 and 25 and the evidence discussed therein would show that the nature of the work of those workmen was similar to the salesmen in the present case, or perhaps it would be true to say that in those cases more technical knowledge was found to be required. None the less the Supreme Court said in that case, (see page 938 at the end of paragraph 25) that "the amount of technical work that a Sales Engineering Representative does is all ancillary to his chief duty of promoting sales and giving advice. As we have held earlier, the mere fact that he is required to have technical knowledge for such a purpose does not make his work technical work. The work of advising and removing complaints so as to promote sales remains outside the scope of technical work. Consequently, the Tribunals decision that the sales Engineering Representative is a workman is set aside". In that case the Tribunal had been impressed by the evidence given as to the quantum of technical knowledge required by a Sales engineering Representative and, therefore, it held that they were doing technical work. In the present case, as we have said, there is hardly anything to show that any of these employees called salesmen were actually doing clerical or technical work. Even assuming the affidavit of dsouza to be true, we still do not see that the technicalto which he refers or the clerical work which he did, was the main part of his duties as a salesman. On the other hand, it seems to us that all these salesmen on commission were originallypersons who in the course of their work as salesmen did acquire some technical knowledge of the goods that they were daily selling and now claim that they are principally required to display the technical knowledge. It seems to us that, technical knowledge forms an infinitesimal part of their qualities as salesmen. As regards the alternative submission that they were doing some sort of supervisory or administrative work, there is not even an iota of evidence. There is nothing to show that there was anybody to supervise or anything to administer. In fact it does not appear that in the course of salesmens work he has to supervise anything or anybody nor has he any administrative duty in regard to any personnel in the company.( 23 ) AN earnest plea was made on behalf of these employees that their case has gone by default and that although they pleaded that there was considerable evidence of technical knowledge involved in the discharge of their duties as salesmen, no evidence has been led and that, therefore, an opportunity should be given to them to lead that evidence. In short it was urged that the matter should be remanded to the Tribunal for further evidence. We are unable to accede to this request because we do not find that there was any grievance made before the Tribunal or even a request that either party should be allowed to lead evidence. On the other hand, both the parties chose to go to trial upon the affidavits which they had filed. It does not also appear that any request was made on the part of either party to be allowed to lead evidence in support of their affidavits. We cannot, therefore, without any valid grounds send back the case for fresh24 ) THESE were all the arguments advanced to show how the award has been vitiated. We are unable to accept them.
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Majji Sannemma @ Sanyasirao Vs. Reddy Sridevi & Ors | to take bed rest for the said period. However, there is no explanation for the period after 15.03.2017. Thus, the period of delay from 15.03.2017 till the Second Appeal was filed in the year 2021 has not at all been explained. Therefore, the High Court has not exercised the discretion judiciously. 7. At this stage, a few decisions of this Court on delay in filing the appeal are referred to and considered as under:- 7.1 In the case of Ramlal, Motilal and Chhotelal (supra), it is observed and held as under:- In construing s. 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be lightheartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chattappan, (1890) J.L.R. 13 Mad. 269, s. 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words sufficient cause receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant. 7.2 In the case of P.K. Ramachandran (supra), while refusing to condone the delay of 565 days, it is observed that in the absence of reasonable, satisfactory or even appropriate explanation for seeking condonation of delay, the same is not to be condoned lightly. It is further observed that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds. It is further observed that while exercising discretion for condoning the delay, the court has to exercise discretion judiciously. 7.3 In the case of Pundlik Jalam Patil (supra), it is observed as under:- The laws of limitation are founded on public policy. Statutes of limitation are sometimes described as statutes of peace. An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. The principle is based on the maxim interest reipublicae ut sit finis litium, that is, the interest of the State requires that there should be end to litigation but at the same time laws of limitation are a means to ensure private justice suppressing fraud and perjury, quickening diligence and preventing oppression. The object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy. 7.4 In the case of Basawaraj (supra), it is observed and held by this Court that the discretion to condone the delay has to be exercised judiciously based on facts and circumstances of each case. It is further observed that the expression sufficient cause cannot be liberally interpreted if negligence, inaction or lack of bona fides is attributed to the party. It is further observed that even though limitation may harshly affect rights of a party but it has to be applied with all its rigour when prescribed by statute. It is further observed that in case a party has acted with negligence, lack of bona fides or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions. It is observed that each application for condonation of delay has to be decided within the framework laid down by this Court. It is further observed that if courts start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to violation of statutory principles and showing utter disregard to legislature. 7.5 In the case of Pundlik Jalam Patil (supra), it is observed by this Court that the court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The Courts help those who are vigilant and do not slumber over their rights. 8. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and considering the averments in the application for condonation of delay, we are of the opinion that as such no explanation much less a sufficient or a satisfactory explanation had been offered by respondent Nos.1 and 2 herein – appellants before the High Court for condonation of huge delay of 1011 days in preferring the Second Appeal. The High Court is not at all justified in exercising its discretion to condone such a huge delay. The High Court has not exercised the discretion judiciously. The reasoning given by the High Court while condoning huge delay of 1011 days is not germane. Therefore, the High Court has erred in condoning the huge delay of 1011 days in preferring the appeal by respondent Nos.1 and 2 herein – original defendants. Impugned order passed by the High Court is unsustainable both, on law as well as on facts. | 1[ds]Thus from the aforesaid, it can be seen that the High Court has not observed that any sufficient cause explaining the huge delay of 1011 days has been made out.6.1 The High Court has observed that if the delay is condoned no prejudice will be caused to the appellant as the appeal would be heard on merits. The High Court has also observed that there is no wilful negligence on the part of the respondents herein nor it suffers from want of due diligence. However, from the averments in the application for condonation of delay, we are of the opinion that it was a case of a gross negligence and/or want of due diligence on the part of the respondents herein – appellants before the High Court in filing such a belated appeal.6.2 We have gone through the averments in the application for the condonation of delay. There is no sufficient explanation for the period from 15.03.2017 till the Second Appeal was preferred in the year 2021. In the application seeking condonation of delay it was stated that she is aged 45 years and was looking after the entire litigation and that she was suffering from health issues and she had fallen sick from 01.01.2017 to 15.03.2017 and she was advised to take bed rest for the said period. However, there is no explanation for the period after 15.03.2017. Thus, the period of delay from 15.03.2017 till the Second Appeal was filed in the year 2021 has not at all been explained. Therefore, the High Court has not exercised the discretion judiciously.7.1 In the case of Ramlal, Motilal and Chhotelal (supra), it is observed and held as under:-In construing s. 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be lightheartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chattappan, (1890) J.L.R. 13 Mad. 269, s. 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words sufficient cause receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant.7.3 In the case of Pundlik Jalam Patil (supra), it is observed as under:-The laws of limitation are founded on public policy. Statutes of limitation are sometimes described as statutes of peace. An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. The principle is based on the maxim interest reipublicae ut sit finis litium, that is, the interest of the State requires that there should be end to litigation but at the same time laws of limitation are a means to ensure private justice suppressing fraud and perjury, quickening diligence and preventing oppression. The object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.7.4 In the case of Basawaraj (supra), it is observed and held by this Court that the discretion to condone the delay has to be exercised judiciously based on facts and circumstances of each case. It is further observed that the expression sufficient cause cannot be liberally interpreted if negligence, inaction or lack of bona fides is attributed to the party. It is further observed that even though limitation may harshly affect rights of a party but it has to be applied with all its rigour when prescribed by statute. It is further observed that in case a party has acted with negligence, lack of bona fides or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions. It is observed that each application for condonation of delay has to be decided within the framework laid down by this Court. It is further observed that if courts start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to violation of statutory principles and showing utter disregard to legislature.8. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and considering the averments in the application for condonation of delay, we are of the opinion that as such no explanation much less a sufficient or a satisfactory explanation had been offered by respondent Nos.1 and 2 herein – appellants before the High Court for condonation of huge delay of 1011 days in preferring the Second Appeal. The High Court is not at all justified in exercising its discretion to condone such a huge delay. The High Court has not exercised the discretion judiciously. The reasoning given by the High Court while condoning huge delay of 1011 days is not germane. Therefore, the High Court has erred in condoning the huge delay of 1011 days in preferring the appeal by respondent Nos.1 and 2 herein – original defendants. Impugned order passed by the High Court is unsustainable both, on law as well as on facts. | 1 | 2,375 | 1,102 | ### Instruction:
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to take bed rest for the said period. However, there is no explanation for the period after 15.03.2017. Thus, the period of delay from 15.03.2017 till the Second Appeal was filed in the year 2021 has not at all been explained. Therefore, the High Court has not exercised the discretion judiciously. 7. At this stage, a few decisions of this Court on delay in filing the appeal are referred to and considered as under:- 7.1 In the case of Ramlal, Motilal and Chhotelal (supra), it is observed and held as under:- In construing s. 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be lightheartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chattappan, (1890) J.L.R. 13 Mad. 269, s. 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words sufficient cause receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant. 7.2 In the case of P.K. Ramachandran (supra), while refusing to condone the delay of 565 days, it is observed that in the absence of reasonable, satisfactory or even appropriate explanation for seeking condonation of delay, the same is not to be condoned lightly. It is further observed that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds. It is further observed that while exercising discretion for condoning the delay, the court has to exercise discretion judiciously. 7.3 In the case of Pundlik Jalam Patil (supra), it is observed as under:- The laws of limitation are founded on public policy. Statutes of limitation are sometimes described as statutes of peace. An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. The principle is based on the maxim interest reipublicae ut sit finis litium, that is, the interest of the State requires that there should be end to litigation but at the same time laws of limitation are a means to ensure private justice suppressing fraud and perjury, quickening diligence and preventing oppression. The object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy. 7.4 In the case of Basawaraj (supra), it is observed and held by this Court that the discretion to condone the delay has to be exercised judiciously based on facts and circumstances of each case. It is further observed that the expression sufficient cause cannot be liberally interpreted if negligence, inaction or lack of bona fides is attributed to the party. It is further observed that even though limitation may harshly affect rights of a party but it has to be applied with all its rigour when prescribed by statute. It is further observed that in case a party has acted with negligence, lack of bona fides or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions. It is observed that each application for condonation of delay has to be decided within the framework laid down by this Court. It is further observed that if courts start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to violation of statutory principles and showing utter disregard to legislature. 7.5 In the case of Pundlik Jalam Patil (supra), it is observed by this Court that the court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The Courts help those who are vigilant and do not slumber over their rights. 8. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and considering the averments in the application for condonation of delay, we are of the opinion that as such no explanation much less a sufficient or a satisfactory explanation had been offered by respondent Nos.1 and 2 herein – appellants before the High Court for condonation of huge delay of 1011 days in preferring the Second Appeal. The High Court is not at all justified in exercising its discretion to condone such a huge delay. The High Court has not exercised the discretion judiciously. The reasoning given by the High Court while condoning huge delay of 1011 days is not germane. Therefore, the High Court has erred in condoning the huge delay of 1011 days in preferring the appeal by respondent Nos.1 and 2 herein – original defendants. Impugned order passed by the High Court is unsustainable both, on law as well as on facts.
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been made out.6.1 The High Court has observed that if the delay is condoned no prejudice will be caused to the appellant as the appeal would be heard on merits. The High Court has also observed that there is no wilful negligence on the part of the respondents herein nor it suffers from want of due diligence. However, from the averments in the application for condonation of delay, we are of the opinion that it was a case of a gross negligence and/or want of due diligence on the part of the respondents herein – appellants before the High Court in filing such a belated appeal.6.2 We have gone through the averments in the application for the condonation of delay. There is no sufficient explanation for the period from 15.03.2017 till the Second Appeal was preferred in the year 2021. In the application seeking condonation of delay it was stated that she is aged 45 years and was looking after the entire litigation and that she was suffering from health issues and she had fallen sick from 01.01.2017 to 15.03.2017 and she was advised to take bed rest for the said period. However, there is no explanation for the period after 15.03.2017. Thus, the period of delay from 15.03.2017 till the Second Appeal was filed in the year 2021 has not at all been explained. Therefore, the High Court has not exercised the discretion judiciously.7.1 In the case of Ramlal, Motilal and Chhotelal (supra), it is observed and held as under:-In construing s. 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be lightheartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chattappan, (1890) J.L.R. 13 Mad. 269, s. 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words sufficient cause receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant.7.3 In the case of Pundlik Jalam Patil (supra), it is observed as under:-The laws of limitation are founded on public policy. Statutes of limitation are sometimes described as statutes of peace. An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. The principle is based on the maxim interest reipublicae ut sit finis litium, that is, the interest of the State requires that there should be end to litigation but at the same time laws of limitation are a means to ensure private justice suppressing fraud and perjury, quickening diligence and preventing oppression. The object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.7.4 In the case of Basawaraj (supra), it is observed and held by this Court that the discretion to condone the delay has to be exercised judiciously based on facts and circumstances of each case. It is further observed that the expression sufficient cause cannot be liberally interpreted if negligence, inaction or lack of bona fides is attributed to the party. It is further observed that even though limitation may harshly affect rights of a party but it has to be applied with all its rigour when prescribed by statute. It is further observed that in case a party has acted with negligence, lack of bona fides or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions. It is observed that each application for condonation of delay has to be decided within the framework laid down by this Court. It is further observed that if courts start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to violation of statutory principles and showing utter disregard to legislature.8. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and considering the averments in the application for condonation of delay, we are of the opinion that as such no explanation much less a sufficient or a satisfactory explanation had been offered by respondent Nos.1 and 2 herein – appellants before the High Court for condonation of huge delay of 1011 days in preferring the Second Appeal. The High Court is not at all justified in exercising its discretion to condone such a huge delay. The High Court has not exercised the discretion judiciously. The reasoning given by the High Court while condoning huge delay of 1011 days is not germane. Therefore, the High Court has erred in condoning the huge delay of 1011 days in preferring the appeal by respondent Nos.1 and 2 herein – original defendants. Impugned order passed by the High Court is unsustainable both, on law as well as on facts.
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Bela Das & Ors Vs. Samarendra Nath Bose | the current and future rent. The defendant resisted the claim of the plaintiffs under Section 11-A of the Act on the ground that besides them there were other landlords of the building in question. But an order under Section 11-A of the Act was made against the defendant by the Trial Court on 6-2-1964. To safeguard the interest of the defendant the Court directed that the plaintiffs would not withdraw the amounts deposited in pursuance of the order made under Section 11-A of the Act until the disposal of the suit. The defendant defaulted in compliance with the order. Hence his defence as against ejectment was struck out by an order of the Trial Court made on 8-7-1964. The suit was eventually taken up for ex parte hearing on 1-7-1967. The defendant wanted to obstruct the hearing of the suit proceeding ex parte but failed.3. At the ex parte hearing plaintiff No. 3 was examined as plaintiffs witness No. 1. He supported their case in toto including their claim that they were the absolute owners of the building of which the defendant was the tenant. The Munsif, third Court, Patna believed the evidence adduced on behalf of the plaintiffs and passed an ex parte decree directing eviction of the defendant. The latter went up in appeal which was dismissed by Subordinate Judge, First Court, Patna on 21-4-1969. All arguments raised on behalf of the defendant appellant to challenge the ex parte decree failed. He preferred second appeal No. 262/1969 in the High Court of judicature at Patna. A learned Judge of that Court sitting singly allowed the appeal and remitted the case back to the Trial Court for a fresh trial and decision after allowing opportunity to the parties to adduce their evidence in the light of the judgment of the High Court. The plaintiffs appellants challenge the propriety and legality of the High Court judgment passed in the second appeal.4. The High Court rejected some of the contentions raised on behalf of the defendant to challenge the legality of the order made under Section 11-A of the Act as also the order striking out his defence as against ejectment. But it has taken the view following the Full Bench decision of the Patna High Court in the case of Mahabir Ram v. Shiva Shankar Prasad, AIR 1968 Pat 415 (FB) that since the defendant had not admitted the plaintiffs to be his 16 annas landlord there was a denial of relationship of landlord and tenant between the parties and as such the order striking out the defence as against ejectment of the defendant qua tenant could not prevent him from contesting the suit on the question of title. In our opinion the High Court has fallen into an error of law in applying the ratio of the Full Bench decision of the High Court referred to above to the facts of the instant case.5. The defence set up by the defendant that he was not the tenant but the tenant was Liberty and Co. was a mere pretence. The High Court has also not thought it fit to remit the case back, because of this defence. The defendant was carrying on the business in the assumed name of Liberty and Co., which was not any legal entity or a person different from the defendant.6. The defendant had admitted that he was the tenant under the plaintiffs but was merely asserting that there were some more landlords of the premises in question. It was not a case of denial of relationship of landlord and tenant between the parties.In the case-of Mahabir Ram. AIR 1968 Pat 415 , the tenant had denied the title of the plaintiffs and set up a title in himself.In the instant case the plea of the defendant has been that the plaintiffs being landlords of the suit premises for a moiety of share could not alone claim a decree for eviction against him. Such a plea set up by the defendant to resist the suit for eviction was a plea qua-tenant and not de-hors it. The striking out of the defence on 8-1-1964 had the effect of striking out all defence raised by the defendant qua tenant including his defence that the plaintiffs alone being cosharer landlords were not entitled to maintain the suit for eviction. It may also be added that the learned Munsif in his order dated 8-7-1964 striking out the defence, which order was confirmed by a Bench of the High Court in Civil Revn. No. 824 of 1964 decided on 21-4-1964 (Pat), had pointed out on the basis of the defendants statements in his written statement as also in his rejoinder to the plaintiffs petition under Section 11-A of the Act that the defendant had admitted that he was paying rent to the plaintiffs and had recognised them to be their landlords. In that view of the matter also the plaintiffs were the landlords of the suit premises occupied by the defendant within the meaning of clause (d) of Section 2 of the Act.In either view of the matter there is no escape for the defendant in this case that his entire defence in the suit was in his capacity as a tenant and on its striking out it was struck out as a whole. The hearing of the suit ex parte was, therefore, legal and valid. The contrary view taken by the High Court is erroneous in law.7. Mr. H. B. Datar, learned counsel for the respondent endeavoured to persuade us to remit back the case to the High Court for the rehearing of the second appeal in order to find out whether the ex parse decree passed on the evidence adduced was sustainable in law. We did not feel persuaded to accede to this request of the counsel as on perusal of the judgment of the Trial Court as also of the first appellate Court we found no error of law in them. The suit for eviction was rightly decreed. | 1[ds]5. The defence set up by the defendant that he was not the tenant but the tenant was Liberty and Co. was a mere pretence. The High Court has also not thought it fit to remit the case back, because of this defence. The defendant was carrying on the business in the assumed name of Liberty and Co., which was not any legal entity or a person different from the defendant.6. The defendant had admitted that he was the tenant under the plaintiffs but was merely asserting that there were some more landlords of the premises in question. It was not a case of denial of relationship of landlord and tenant between the parties.In the case-of Mahabir Ram. AIR 1968 Pat 415 , the tenant had denied the title of the plaintiffs and set up a title in himself.In the instant case the plea of the defendant has been that the plaintiffs being landlords of the suit premises for a moiety of share could not alone claim a decree for eviction against him. Such a plea set up by the defendant to resist the suit for eviction was a plea qua-tenant and not de-hors it. The striking out of the defence on 8-1-1964 had the effect of striking out all defence raised by the defendant qua tenant including his defence that the plaintiffs alone being cosharer landlords were not entitled to maintain the suit for eviction. It may also be added that the learned Munsif in his order dated 8-7-1964 striking out the defence, which order was confirmed by a Bench of the High Court in Civil Revn. No. 824 of 1964 decided on 21-4-1964 (Pat), had pointed out on the basis of the defendants statements in his written statement as also in his rejoinder to the plaintiffs petition under Section 11-A of the Act that the defendant had admitted that he was paying rent to the plaintiffs and had recognised them to be their landlords. In that view of the matter also the plaintiffs were the landlords of the suit premises occupied by the defendant within the meaning of clause (d) of Section 2 of the Act.In either view of the matter there is no escape for the defendant in this case that his entire defence in the suit was in his capacity as a tenant and on its striking out it was struck out as a whole. The hearing of the suit ex parte was, therefore, legal and valid. The contrary view taken by the High Court is erroneous in law.The High Court rejected some of the contentions raised on behalf of the defendant to challenge the legality of the order made under Sectionof the Act as also the order striking out his defence as against ejectment. But it has taken the view following the Full Bench decision of the Patna High Court in the case of Mahabir Ram v. Shiva Shankar Prasad, AIR 1968 Pat 415 (FB) that since the defendant had not admitted the plaintiffs to be his 16 annas landlord there was a denial of relationship of landlord and tenant between the parties and as such the order striking out the defence as against ejectment of the defendant qua tenant could not prevent him from contesting the suit on the question of title. In our opinion the High Court has fallen into an error of law in applying the ratio of the Full Bench decision of the High Court referred to above to the facts of the instantdid not feel persuaded to accede to this request of the counsel as on perusal of the judgment of the Trial Court as also of the first appellate Court we found no error of law in them. The suit for eviction was rightly decreed. | 1 | 1,326 | 661 | ### Instruction:
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the current and future rent. The defendant resisted the claim of the plaintiffs under Section 11-A of the Act on the ground that besides them there were other landlords of the building in question. But an order under Section 11-A of the Act was made against the defendant by the Trial Court on 6-2-1964. To safeguard the interest of the defendant the Court directed that the plaintiffs would not withdraw the amounts deposited in pursuance of the order made under Section 11-A of the Act until the disposal of the suit. The defendant defaulted in compliance with the order. Hence his defence as against ejectment was struck out by an order of the Trial Court made on 8-7-1964. The suit was eventually taken up for ex parte hearing on 1-7-1967. The defendant wanted to obstruct the hearing of the suit proceeding ex parte but failed.3. At the ex parte hearing plaintiff No. 3 was examined as plaintiffs witness No. 1. He supported their case in toto including their claim that they were the absolute owners of the building of which the defendant was the tenant. The Munsif, third Court, Patna believed the evidence adduced on behalf of the plaintiffs and passed an ex parte decree directing eviction of the defendant. The latter went up in appeal which was dismissed by Subordinate Judge, First Court, Patna on 21-4-1969. All arguments raised on behalf of the defendant appellant to challenge the ex parte decree failed. He preferred second appeal No. 262/1969 in the High Court of judicature at Patna. A learned Judge of that Court sitting singly allowed the appeal and remitted the case back to the Trial Court for a fresh trial and decision after allowing opportunity to the parties to adduce their evidence in the light of the judgment of the High Court. The plaintiffs appellants challenge the propriety and legality of the High Court judgment passed in the second appeal.4. The High Court rejected some of the contentions raised on behalf of the defendant to challenge the legality of the order made under Section 11-A of the Act as also the order striking out his defence as against ejectment. But it has taken the view following the Full Bench decision of the Patna High Court in the case of Mahabir Ram v. Shiva Shankar Prasad, AIR 1968 Pat 415 (FB) that since the defendant had not admitted the plaintiffs to be his 16 annas landlord there was a denial of relationship of landlord and tenant between the parties and as such the order striking out the defence as against ejectment of the defendant qua tenant could not prevent him from contesting the suit on the question of title. In our opinion the High Court has fallen into an error of law in applying the ratio of the Full Bench decision of the High Court referred to above to the facts of the instant case.5. The defence set up by the defendant that he was not the tenant but the tenant was Liberty and Co. was a mere pretence. The High Court has also not thought it fit to remit the case back, because of this defence. The defendant was carrying on the business in the assumed name of Liberty and Co., which was not any legal entity or a person different from the defendant.6. The defendant had admitted that he was the tenant under the plaintiffs but was merely asserting that there were some more landlords of the premises in question. It was not a case of denial of relationship of landlord and tenant between the parties.In the case-of Mahabir Ram. AIR 1968 Pat 415 , the tenant had denied the title of the plaintiffs and set up a title in himself.In the instant case the plea of the defendant has been that the plaintiffs being landlords of the suit premises for a moiety of share could not alone claim a decree for eviction against him. Such a plea set up by the defendant to resist the suit for eviction was a plea qua-tenant and not de-hors it. The striking out of the defence on 8-1-1964 had the effect of striking out all defence raised by the defendant qua tenant including his defence that the plaintiffs alone being cosharer landlords were not entitled to maintain the suit for eviction. It may also be added that the learned Munsif in his order dated 8-7-1964 striking out the defence, which order was confirmed by a Bench of the High Court in Civil Revn. No. 824 of 1964 decided on 21-4-1964 (Pat), had pointed out on the basis of the defendants statements in his written statement as also in his rejoinder to the plaintiffs petition under Section 11-A of the Act that the defendant had admitted that he was paying rent to the plaintiffs and had recognised them to be their landlords. In that view of the matter also the plaintiffs were the landlords of the suit premises occupied by the defendant within the meaning of clause (d) of Section 2 of the Act.In either view of the matter there is no escape for the defendant in this case that his entire defence in the suit was in his capacity as a tenant and on its striking out it was struck out as a whole. The hearing of the suit ex parte was, therefore, legal and valid. The contrary view taken by the High Court is erroneous in law.7. Mr. H. B. Datar, learned counsel for the respondent endeavoured to persuade us to remit back the case to the High Court for the rehearing of the second appeal in order to find out whether the ex parse decree passed on the evidence adduced was sustainable in law. We did not feel persuaded to accede to this request of the counsel as on perusal of the judgment of the Trial Court as also of the first appellate Court we found no error of law in them. The suit for eviction was rightly decreed.
### Response:
1
### Explanation:
5. The defence set up by the defendant that he was not the tenant but the tenant was Liberty and Co. was a mere pretence. The High Court has also not thought it fit to remit the case back, because of this defence. The defendant was carrying on the business in the assumed name of Liberty and Co., which was not any legal entity or a person different from the defendant.6. The defendant had admitted that he was the tenant under the plaintiffs but was merely asserting that there were some more landlords of the premises in question. It was not a case of denial of relationship of landlord and tenant between the parties.In the case-of Mahabir Ram. AIR 1968 Pat 415 , the tenant had denied the title of the plaintiffs and set up a title in himself.In the instant case the plea of the defendant has been that the plaintiffs being landlords of the suit premises for a moiety of share could not alone claim a decree for eviction against him. Such a plea set up by the defendant to resist the suit for eviction was a plea qua-tenant and not de-hors it. The striking out of the defence on 8-1-1964 had the effect of striking out all defence raised by the defendant qua tenant including his defence that the plaintiffs alone being cosharer landlords were not entitled to maintain the suit for eviction. It may also be added that the learned Munsif in his order dated 8-7-1964 striking out the defence, which order was confirmed by a Bench of the High Court in Civil Revn. No. 824 of 1964 decided on 21-4-1964 (Pat), had pointed out on the basis of the defendants statements in his written statement as also in his rejoinder to the plaintiffs petition under Section 11-A of the Act that the defendant had admitted that he was paying rent to the plaintiffs and had recognised them to be their landlords. In that view of the matter also the plaintiffs were the landlords of the suit premises occupied by the defendant within the meaning of clause (d) of Section 2 of the Act.In either view of the matter there is no escape for the defendant in this case that his entire defence in the suit was in his capacity as a tenant and on its striking out it was struck out as a whole. The hearing of the suit ex parte was, therefore, legal and valid. The contrary view taken by the High Court is erroneous in law.The High Court rejected some of the contentions raised on behalf of the defendant to challenge the legality of the order made under Sectionof the Act as also the order striking out his defence as against ejectment. But it has taken the view following the Full Bench decision of the Patna High Court in the case of Mahabir Ram v. Shiva Shankar Prasad, AIR 1968 Pat 415 (FB) that since the defendant had not admitted the plaintiffs to be his 16 annas landlord there was a denial of relationship of landlord and tenant between the parties and as such the order striking out the defence as against ejectment of the defendant qua tenant could not prevent him from contesting the suit on the question of title. In our opinion the High Court has fallen into an error of law in applying the ratio of the Full Bench decision of the High Court referred to above to the facts of the instantdid not feel persuaded to accede to this request of the counsel as on perusal of the judgment of the Trial Court as also of the first appellate Court we found no error of law in them. The suit for eviction was rightly decreed.
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G.S. Dhara Singh Vs. E.K. Thomas & Ors | the Additional Sub-Judge, Cochin against the decrees passed by the Munsiff in favour of Respondent Nos. 1 and 3 respectively. After hearing the par ties the learned Sub Judge found that the petitioner and Respondent No. 3 had received from the management amounts on behalf of the workmen concerned towards gratuity and accident benefit fund but the plaintiffs were not entitled to the decree a t the hands of the Civil Court since the suits were not maintainable in view of the provisions of the Payment of Gratuity Act, 19)7?. and the Workmens Compensation Act, 1923 which provided for separate remedies. He accordingly set a side the decrees passed in favour of Respondent Nos. 1 and 2 in the suits filed by them. Aggrieved by the common Judgment dated 21.8.1980 of the learned Additional Sub-Judge Respondent Nos. 1 and 7 filed Second Appeal No. 537 of 1981-F and Second Appeal No. 535 of 1981-G respectively on the file of the High Court of Kerala. The two second appeals were heard together and the High Court by its common Judgment dated 22. 10. 1987 set aside the judgment and decrees passed by the First Appellate Court and restored the judgment and decrees passed by the Trial Court. This Special Leave Petition is filed by the petitioner against the said common judgment of the High Court under Article 136 of the Constitution of India.At the hearing of the Special Leave Petition the learned counsel for the petitioner stated and we think rightly that the ground on which the First Appellate Court had set aside the decrees passed by the Trial Court, namely, that the suits were barred under the provisions of the Payment of Gratuity Act, 1972 and the Workmens Compensation Act, 1923 was unsustainable. But he, however, contended that since the amounts had been realised by the petitioner and Respondent No. 3 from the management under settlements which had been entered into through the trade union Respondents 1 and 2 could not claim the amount after resigning from the membership of the trade union as the said amounts formed part of the general fund of the trade union to which a member who had resigned had no right. The learned counsel further urged that since the amounts were made available to the trade union by the employer for the benefit of the member s of the trade union on the happening of certain contingencies and since the resignation from membership of the trade union was not one such contingency a member of a trade union who had resigned from the membership of the trade union could not claim the amount. He further urged that only on the dissolution of the trade union its funds could be distributed as per the rules of the trade union and where the rules did not provide for the same then the fund was liable to be distribute d as per rule 11(1) of the Central Trade Union Regulations, 1938. 3. We do not find that the petitioner is right in his contentions. Admittedly, the amounts were received by the trade union from the employer concerned towards the gratuity and accident benefit to which the workers were entitled. There was no scheme drawn up by the trade union regarding the payment of the gratuity amount and the accident benefit fund received on behalf of the Workmen to the workmen concerned. The re was no agreement between the trade union and its members that the amount received towards gratuity and accident benefit should form part of funds of the trade union. Any amount received for and on behalf of the members is liable to he refunded t o the workmen concerned.. In the instant case the amount which had been received on behalf of Respondent Nos. 1 and 1 by the petitioner and Respondent No. 3 had, therefore, to be refunded to them on their resignation from the membership of the trade union. We do not find any tenable defence which the trade union could put forward in the circumstances of the case.On the question that the workmen concerned were entitled to the amounts received on their behalf there is a concurrent finding of all the three courts in favour of the plaintiffs. The decision in Balmer Lawrie Workers Union, Bombay and Anr. v. Balmer Lawrie and Co. Ltd. and Ors., [ l985 ] 2 S.C.R. 492 is of no assistance to the petitioner. In that case this Court was concerned with the validity of clause 17 of the Settlement, referred to therein, which read as follows: "Arrears will be paid within two months from the date of signing of the settlement. Further, the Company shall collect from each workman an amount equivalent to 15% of the gross arrears payable to each employee under this settlement as contribution to the Union Fund and this Amount shall be paid to the Union within 3 days of the payment of arrears by Payees A/c Cheque." (emphasis added) 4. The appellant in the above case which was a non-recognised union had challenged the validity of clause 17, referred to above, on the ground that it permitted a compulsory exaction not permitted by the Payment of Wages Act from the arrears payable to the workmen. This Court rejected the said contention since under clause 17 the amount of 15% of the gross arrears received by the Union was to be treated as contribution to the Union Fund and that the said clause was a valid one. 5. In the case before us the petitioner and Respondent No. 3 have not shown that there was any such settlement between the management and the trade union or a scheme prepared by the trade union which was binding on the workmen under which the amounts received towards the gratuity and the accident benefit fund on behalf of the workmen would become a part of the Union fund. 6. We do not, therefore, find any ground to interfere with the judgment of the High Court. | 0[ds]At the hearing of the Special Leave Petition the learned counsel for the petitioner stated and we think rightly that the ground on which the First Appellate Court had set aside the decrees passed by the Trial Court, namely, that the suits were barred under the provisions of the Payment of Gratuity Act, 1972 and the Workmens Compensation Act, 1923 was unsustainable3. We do not find that the petitioner is right in his contentions. Admittedly, the amounts were received by the trade union from the employer concerned towards the gratuity and accident benefit to which the workers were entitled. There was no scheme drawn up by the trade union regarding the payment of the gratuity amount and the accident benefit fund received on behalf of the Workmen to the workmen concerned. The re was no agreement between the trade union and its members that the amount received towards gratuity and accident benefit should form part of funds of the trade union. Any amount received for and on behalf of the members is liable to he refunded t o the workmen concerned.. In the instant case the amount which had been received on behalf of Respondent Nos. 1 and 1 by the petitioner and Respondent No. 3 had, therefore, to be refunded to them on their resignation from the membership of the trade union. We do not find any tenable defence which the trade union could put forward in the circumstances of the case.On the question that the workmen concerned were entitled to the amounts received on their behalf there is a concurrent finding of all the three courts in favour of the plaintiffs. The decision in Balmer Lawrie Workers Union, Bombay and Anr. v. Balmer Lawrie and Co. Ltd. and Ors., [ l985 ] 2 S.C.R. 492 is of no assistance to the petitioner. In that case this Court was concerned with the validity of clause 17 of the Settlement, referred to therein, which read as follows:"Arrears will be paid within two months from the date of signing of the settlement. Further, the Company shall collect from each workman an amount equivalent to 15% of the gross arrears payable to each employee under this settlement as contribution to the Union Fund and this Amount shall be paid to the Union within 3 days of the payment of arrears by Payees A/c Cheque." (emphasis added)4. The appellant in the above case which was ad union had challenged the validity of clause 17, referred to above, on the ground that it permitted a compulsory exaction not permitted by the Payment of Wages Act from the arrears payable to the workmen. This Court rejected the said contention since under clause 17 the amount of 15% of the gross arrears received by the Union was to be treated as contribution to the Union Fund and that the said clause was a valid one5. In the case before us the petitioner and Respondent No. 3 have not shown that there was any such settlement between the management and the trade union or a scheme prepared by the trade union which was binding on the workmen under which the amounts received towards the gratuity and the accident benefit fund on behalf of the workmen would become a part of the Union fund6. We do not, therefore, find any ground to interfere with the judgment of the High Court. | 0 | 2,134 | 612 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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the Additional Sub-Judge, Cochin against the decrees passed by the Munsiff in favour of Respondent Nos. 1 and 3 respectively. After hearing the par ties the learned Sub Judge found that the petitioner and Respondent No. 3 had received from the management amounts on behalf of the workmen concerned towards gratuity and accident benefit fund but the plaintiffs were not entitled to the decree a t the hands of the Civil Court since the suits were not maintainable in view of the provisions of the Payment of Gratuity Act, 19)7?. and the Workmens Compensation Act, 1923 which provided for separate remedies. He accordingly set a side the decrees passed in favour of Respondent Nos. 1 and 2 in the suits filed by them. Aggrieved by the common Judgment dated 21.8.1980 of the learned Additional Sub-Judge Respondent Nos. 1 and 7 filed Second Appeal No. 537 of 1981-F and Second Appeal No. 535 of 1981-G respectively on the file of the High Court of Kerala. The two second appeals were heard together and the High Court by its common Judgment dated 22. 10. 1987 set aside the judgment and decrees passed by the First Appellate Court and restored the judgment and decrees passed by the Trial Court. This Special Leave Petition is filed by the petitioner against the said common judgment of the High Court under Article 136 of the Constitution of India.At the hearing of the Special Leave Petition the learned counsel for the petitioner stated and we think rightly that the ground on which the First Appellate Court had set aside the decrees passed by the Trial Court, namely, that the suits were barred under the provisions of the Payment of Gratuity Act, 1972 and the Workmens Compensation Act, 1923 was unsustainable. But he, however, contended that since the amounts had been realised by the petitioner and Respondent No. 3 from the management under settlements which had been entered into through the trade union Respondents 1 and 2 could not claim the amount after resigning from the membership of the trade union as the said amounts formed part of the general fund of the trade union to which a member who had resigned had no right. The learned counsel further urged that since the amounts were made available to the trade union by the employer for the benefit of the member s of the trade union on the happening of certain contingencies and since the resignation from membership of the trade union was not one such contingency a member of a trade union who had resigned from the membership of the trade union could not claim the amount. He further urged that only on the dissolution of the trade union its funds could be distributed as per the rules of the trade union and where the rules did not provide for the same then the fund was liable to be distribute d as per rule 11(1) of the Central Trade Union Regulations, 1938. 3. We do not find that the petitioner is right in his contentions. Admittedly, the amounts were received by the trade union from the employer concerned towards the gratuity and accident benefit to which the workers were entitled. There was no scheme drawn up by the trade union regarding the payment of the gratuity amount and the accident benefit fund received on behalf of the Workmen to the workmen concerned. The re was no agreement between the trade union and its members that the amount received towards gratuity and accident benefit should form part of funds of the trade union. Any amount received for and on behalf of the members is liable to he refunded t o the workmen concerned.. In the instant case the amount which had been received on behalf of Respondent Nos. 1 and 1 by the petitioner and Respondent No. 3 had, therefore, to be refunded to them on their resignation from the membership of the trade union. We do not find any tenable defence which the trade union could put forward in the circumstances of the case.On the question that the workmen concerned were entitled to the amounts received on their behalf there is a concurrent finding of all the three courts in favour of the plaintiffs. The decision in Balmer Lawrie Workers Union, Bombay and Anr. v. Balmer Lawrie and Co. Ltd. and Ors., [ l985 ] 2 S.C.R. 492 is of no assistance to the petitioner. In that case this Court was concerned with the validity of clause 17 of the Settlement, referred to therein, which read as follows: "Arrears will be paid within two months from the date of signing of the settlement. Further, the Company shall collect from each workman an amount equivalent to 15% of the gross arrears payable to each employee under this settlement as contribution to the Union Fund and this Amount shall be paid to the Union within 3 days of the payment of arrears by Payees A/c Cheque." (emphasis added) 4. The appellant in the above case which was a non-recognised union had challenged the validity of clause 17, referred to above, on the ground that it permitted a compulsory exaction not permitted by the Payment of Wages Act from the arrears payable to the workmen. This Court rejected the said contention since under clause 17 the amount of 15% of the gross arrears received by the Union was to be treated as contribution to the Union Fund and that the said clause was a valid one. 5. In the case before us the petitioner and Respondent No. 3 have not shown that there was any such settlement between the management and the trade union or a scheme prepared by the trade union which was binding on the workmen under which the amounts received towards the gratuity and the accident benefit fund on behalf of the workmen would become a part of the Union fund. 6. We do not, therefore, find any ground to interfere with the judgment of the High Court.
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### Explanation:
At the hearing of the Special Leave Petition the learned counsel for the petitioner stated and we think rightly that the ground on which the First Appellate Court had set aside the decrees passed by the Trial Court, namely, that the suits were barred under the provisions of the Payment of Gratuity Act, 1972 and the Workmens Compensation Act, 1923 was unsustainable3. We do not find that the petitioner is right in his contentions. Admittedly, the amounts were received by the trade union from the employer concerned towards the gratuity and accident benefit to which the workers were entitled. There was no scheme drawn up by the trade union regarding the payment of the gratuity amount and the accident benefit fund received on behalf of the Workmen to the workmen concerned. The re was no agreement between the trade union and its members that the amount received towards gratuity and accident benefit should form part of funds of the trade union. Any amount received for and on behalf of the members is liable to he refunded t o the workmen concerned.. In the instant case the amount which had been received on behalf of Respondent Nos. 1 and 1 by the petitioner and Respondent No. 3 had, therefore, to be refunded to them on their resignation from the membership of the trade union. We do not find any tenable defence which the trade union could put forward in the circumstances of the case.On the question that the workmen concerned were entitled to the amounts received on their behalf there is a concurrent finding of all the three courts in favour of the plaintiffs. The decision in Balmer Lawrie Workers Union, Bombay and Anr. v. Balmer Lawrie and Co. Ltd. and Ors., [ l985 ] 2 S.C.R. 492 is of no assistance to the petitioner. In that case this Court was concerned with the validity of clause 17 of the Settlement, referred to therein, which read as follows:"Arrears will be paid within two months from the date of signing of the settlement. Further, the Company shall collect from each workman an amount equivalent to 15% of the gross arrears payable to each employee under this settlement as contribution to the Union Fund and this Amount shall be paid to the Union within 3 days of the payment of arrears by Payees A/c Cheque." (emphasis added)4. The appellant in the above case which was ad union had challenged the validity of clause 17, referred to above, on the ground that it permitted a compulsory exaction not permitted by the Payment of Wages Act from the arrears payable to the workmen. This Court rejected the said contention since under clause 17 the amount of 15% of the gross arrears received by the Union was to be treated as contribution to the Union Fund and that the said clause was a valid one5. In the case before us the petitioner and Respondent No. 3 have not shown that there was any such settlement between the management and the trade union or a scheme prepared by the trade union which was binding on the workmen under which the amounts received towards the gratuity and the accident benefit fund on behalf of the workmen would become a part of the Union fund6. We do not, therefore, find any ground to interfere with the judgment of the High Court.
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THE TEMPLE OF HANEMANN HOMOEOPATHIC MEDICAL COLLEGE AND HOSPITAL Vs. UNION OF INDIA & ORS | receipt of any complaint, or otherwise as may be considered necessary. The regulation does not deal with who will inspect and who will appoint a team of medical inspectors that is dealt with in S.17 of the Act of 1973.15. The Single Bench of the High Court has opined that Inspectors cannot be appointed by the Central Government in exercise of powers to cause inspection under Regulation 3 (5) of the aforesaid Regulations, 2013, whereas the Division Bench has opined that Regulation 3(5) has to be given effect to as such the Central Government has the power to appoint a team of inspectors in order to grant permission and to approve the particular scheme. The decision of the Division Bench of the High Court at Patna is questioned in appeal.16. We have heard the learned counsel for the parties at length. It was submitted by the learned counsel appearing on behalf of the appellants that the provisions contained in Section 17 has to prevail and the interpretation of Regulation 3 (5) of the Regulations, 2013 has to be made in the context of the Act not repugnant thereto. Even if it is held that Central Government can order the inspection to be made but for that request would only be made by Central Government to Central Council. The Central Government cannot exercise the power to appoint a team of Inspectors and that is specifically conferred under section 17 on the CCH.17. Learned counsel appearing on behalf of the respondent Shri Balasubramanian tried in vain to salvage the situation by placing reliance upon the judgment rendered by the Division Bench of the High Court as well as the object of the Act and regulations. He has vehemently contended that Central Government is empowered to appoint the inspectors as per Regulation 3(5) and the regulation cannot be said to be in violation of provisions contained under Sections 17, 18 or 19 of the Act of 1973. Thus, no case for interference is made out.18. After hearing the learned counsel for the parties, we are of the considered opinion that various legislations enacted by the Central Government, it has provided for constitution of statutory bodies, experts to deal with such matters of various kinds of education in the country for Medical Education, Medical Council of India has been constituted. Similarly, for legal education, power has been given under the Advocates Act to the Bar Council of India and with respect to other technical courses, power has been given to the AICTE and other bodies.19. The Central Government has not reserved the power to appoint Inspectors with it under the main enactment itself, i.e., the Act of 1973.20. A bare reading of the provisions contained under Section 17 makes it clear that as per statutory provision, duty has been enjoined upon the CCH to appoint a team of Inspectors. Such a power has been specifically conferred on such Expert Bodies under various enactments also. It is the function of the expert bodies in the field and they are supposed to appoint a team of Inspectors and it is for expert bodies to make the recommendations to the Central Government. The role of the Central Government is a supervisory one and not to start an investigation by making the appointment of a team of Inspectors, as that is not envisaged under the Act of 1973 itself.21. Regulation 3(5) of the 2013 Regulations envisages random checks to be ordered on receipt of a complaint or otherwise as deemed necessary either by the Central Government or by the CCH. In case, CCH or Central Government receives any complaint, random checks can be ordered, but the regulations stop at that. It does not deal with the aspect who will appoint a team of inspectors for the purpose of inspection to be carried out. In our considered opinion, it is only the Central Council which is empowered to appoint a team of inspectors under Section 17 and visitors for the examination under Section 18 for making recommendation to the Central Government on the basis of report submitted by the team of inspectors or visitors as envisaged under Sections 17 and 18 of the Act.22. Regulation 3(5) of Regulations of 2013 has to be harmoniously interpreted with the provisions of section 17 of the Act not repugnant thereto. The provision of section 17 is not capable of interpretation empowering the Central Government to appoint a team of inspectors at all. Thus, the power conferred under section 17 has to be exercised only by the CCH. Any other interpretation would be against the legislative mandate. The regulations have to be subservient to the provisions of the Act. No other provision could be pointed out under which the Act may have conferred the power upon the Central Government to appoint a team of Medical Inspectors.23. Thus, the Division Bench of the High Court has clearly erred in holding that the power to appoint the Inspectors is with the Central Government while interpreting Regulation 3(5) of the Regulations, 2013. The Central Government cannot appoint a team of Inspectors as this power has not been conferred upon the Central Government either under the said Regulation 3 (5) or any of provisions contained in the Act. It is only CCH which can appoint a team of inspectors as per Section 17 if the request is made by the Central Government under Regulation 3(5).24. In our opinion, though Central Government on a complaint or otherwise, as contemplated under Regulation 3(5) of the Regulations, 2013 may cause inspection would mean only that inspection to be made by a team to be appointed by CCH. A team of inspectors or visitors as the case may be, can be appointed by CCH under Section 17 or 18 of the Act. However, after an inspection is made, action has to be taken on the basis of the report as provided under the Act and the Regulations by the Central Government on the basis of the recommendation made by the CCH. | 1[ds]18. After hearing the learned counsel for the parties, we are of the considered opinion that various legislations enacted by the Central Government, it has provided for constitution of statutory bodies, experts to deal with such matters of various kinds of education in the country for Medical Education, Medical Council of India has been constituted. Similarly, for legal education, power has been given under the Advocates Act to the Bar Council of India and with respect to other technical courses, power has been given to the AICTE and other bodies19. The Central Government has not reserved the power to appoint Inspectors with it under the main enactment itself, i.e., the Act of 197320. A bare reading of the provisions contained under Section 17 makes it clear that as per statutory provision, duty has been enjoined upon the CCH to appoint a team of Inspectors. Such a power has been specifically conferred on such Expert Bodies under various enactments also. It is the function of the expert bodies in the field and they are supposed to appoint a team of Inspectors and it is for expert bodies to make the recommendations to the Central Government. The role of the Central Government is a supervisory one and not to start an investigation by making the appointment of a team of Inspectors, as that is not envisaged under the Act of 1973 itself21. Regulation 3(5) of the 2013 Regulations envisages random checks to be ordered on receipt of a complaint or otherwise as deemed necessary either by the Central Government or by the CCH. In case, CCH or Central Government receives any complaint, random checks can be ordered, but the regulations stop at that. It does not deal with the aspect who will appoint a team of inspectors for the purpose of inspection to be carried out. In our considered opinion, it is only the Central Council which is empowered to appoint a team of inspectors under Section 17 and visitors for the examination under Section 18 for making recommendation to the Central Government on the basis of report submitted by the team of inspectors or visitors as envisaged under Sections 17 and 18 of the Act22. Regulation 3(5) of Regulations of 2013 has to be harmoniously interpreted with the provisions of section 17 of the Act not repugnant thereto. The provision of section 17 is not capable of interpretation empowering the Central Government to appoint a team of inspectors at all. Thus, the power conferred under section 17 has to be exercised only by the CCH. Any other interpretation would be against the legislative mandate. The regulations have to be subservient to the provisions of the Act. No other provision could be pointed out under which the Act may have conferred the power upon the Central Government to appoint a team of Medical Inspectors23. Thus, the Division Bench of the High Court has clearly erred in holding that the power to appoint the Inspectors is with the Central Government while interpreting Regulation 3(5) of the Regulations, 2013. The Central Government cannot appoint a team of Inspectors as this power has not been conferred upon the Central Government either under the said Regulation 3 (5) or any of provisions contained in the Act. It is only CCH which can appoint a team of inspectors as per Section 17 if the request is made by the Central Government under Regulation 3(5)24. In our opinion, though Central Government on a complaint or otherwise, as contemplated under Regulation 3(5) of the Regulations, 2013 may cause inspection would mean only that inspection to be made by a team to be appointed by CCH. A team of inspectors or visitors as the case may be, can be appointed by CCH under Section 17 or 18 of the Act. However, after an inspection is made, action has to be taken on the basis of the report as provided under the Act and the Regulations by the Central Government on the basis of the recommendation made by the CCH. | 1 | 3,411 | 740 | ### 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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receipt of any complaint, or otherwise as may be considered necessary. The regulation does not deal with who will inspect and who will appoint a team of medical inspectors that is dealt with in S.17 of the Act of 1973.15. The Single Bench of the High Court has opined that Inspectors cannot be appointed by the Central Government in exercise of powers to cause inspection under Regulation 3 (5) of the aforesaid Regulations, 2013, whereas the Division Bench has opined that Regulation 3(5) has to be given effect to as such the Central Government has the power to appoint a team of inspectors in order to grant permission and to approve the particular scheme. The decision of the Division Bench of the High Court at Patna is questioned in appeal.16. We have heard the learned counsel for the parties at length. It was submitted by the learned counsel appearing on behalf of the appellants that the provisions contained in Section 17 has to prevail and the interpretation of Regulation 3 (5) of the Regulations, 2013 has to be made in the context of the Act not repugnant thereto. Even if it is held that Central Government can order the inspection to be made but for that request would only be made by Central Government to Central Council. The Central Government cannot exercise the power to appoint a team of Inspectors and that is specifically conferred under section 17 on the CCH.17. Learned counsel appearing on behalf of the respondent Shri Balasubramanian tried in vain to salvage the situation by placing reliance upon the judgment rendered by the Division Bench of the High Court as well as the object of the Act and regulations. He has vehemently contended that Central Government is empowered to appoint the inspectors as per Regulation 3(5) and the regulation cannot be said to be in violation of provisions contained under Sections 17, 18 or 19 of the Act of 1973. Thus, no case for interference is made out.18. After hearing the learned counsel for the parties, we are of the considered opinion that various legislations enacted by the Central Government, it has provided for constitution of statutory bodies, experts to deal with such matters of various kinds of education in the country for Medical Education, Medical Council of India has been constituted. Similarly, for legal education, power has been given under the Advocates Act to the Bar Council of India and with respect to other technical courses, power has been given to the AICTE and other bodies.19. The Central Government has not reserved the power to appoint Inspectors with it under the main enactment itself, i.e., the Act of 1973.20. A bare reading of the provisions contained under Section 17 makes it clear that as per statutory provision, duty has been enjoined upon the CCH to appoint a team of Inspectors. Such a power has been specifically conferred on such Expert Bodies under various enactments also. It is the function of the expert bodies in the field and they are supposed to appoint a team of Inspectors and it is for expert bodies to make the recommendations to the Central Government. The role of the Central Government is a supervisory one and not to start an investigation by making the appointment of a team of Inspectors, as that is not envisaged under the Act of 1973 itself.21. Regulation 3(5) of the 2013 Regulations envisages random checks to be ordered on receipt of a complaint or otherwise as deemed necessary either by the Central Government or by the CCH. In case, CCH or Central Government receives any complaint, random checks can be ordered, but the regulations stop at that. It does not deal with the aspect who will appoint a team of inspectors for the purpose of inspection to be carried out. In our considered opinion, it is only the Central Council which is empowered to appoint a team of inspectors under Section 17 and visitors for the examination under Section 18 for making recommendation to the Central Government on the basis of report submitted by the team of inspectors or visitors as envisaged under Sections 17 and 18 of the Act.22. Regulation 3(5) of Regulations of 2013 has to be harmoniously interpreted with the provisions of section 17 of the Act not repugnant thereto. The provision of section 17 is not capable of interpretation empowering the Central Government to appoint a team of inspectors at all. Thus, the power conferred under section 17 has to be exercised only by the CCH. Any other interpretation would be against the legislative mandate. The regulations have to be subservient to the provisions of the Act. No other provision could be pointed out under which the Act may have conferred the power upon the Central Government to appoint a team of Medical Inspectors.23. Thus, the Division Bench of the High Court has clearly erred in holding that the power to appoint the Inspectors is with the Central Government while interpreting Regulation 3(5) of the Regulations, 2013. The Central Government cannot appoint a team of Inspectors as this power has not been conferred upon the Central Government either under the said Regulation 3 (5) or any of provisions contained in the Act. It is only CCH which can appoint a team of inspectors as per Section 17 if the request is made by the Central Government under Regulation 3(5).24. In our opinion, though Central Government on a complaint or otherwise, as contemplated under Regulation 3(5) of the Regulations, 2013 may cause inspection would mean only that inspection to be made by a team to be appointed by CCH. A team of inspectors or visitors as the case may be, can be appointed by CCH under Section 17 or 18 of the Act. However, after an inspection is made, action has to be taken on the basis of the report as provided under the Act and the Regulations by the Central Government on the basis of the recommendation made by the CCH.
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18. After hearing the learned counsel for the parties, we are of the considered opinion that various legislations enacted by the Central Government, it has provided for constitution of statutory bodies, experts to deal with such matters of various kinds of education in the country for Medical Education, Medical Council of India has been constituted. Similarly, for legal education, power has been given under the Advocates Act to the Bar Council of India and with respect to other technical courses, power has been given to the AICTE and other bodies19. The Central Government has not reserved the power to appoint Inspectors with it under the main enactment itself, i.e., the Act of 197320. A bare reading of the provisions contained under Section 17 makes it clear that as per statutory provision, duty has been enjoined upon the CCH to appoint a team of Inspectors. Such a power has been specifically conferred on such Expert Bodies under various enactments also. It is the function of the expert bodies in the field and they are supposed to appoint a team of Inspectors and it is for expert bodies to make the recommendations to the Central Government. The role of the Central Government is a supervisory one and not to start an investigation by making the appointment of a team of Inspectors, as that is not envisaged under the Act of 1973 itself21. Regulation 3(5) of the 2013 Regulations envisages random checks to be ordered on receipt of a complaint or otherwise as deemed necessary either by the Central Government or by the CCH. In case, CCH or Central Government receives any complaint, random checks can be ordered, but the regulations stop at that. It does not deal with the aspect who will appoint a team of inspectors for the purpose of inspection to be carried out. In our considered opinion, it is only the Central Council which is empowered to appoint a team of inspectors under Section 17 and visitors for the examination under Section 18 for making recommendation to the Central Government on the basis of report submitted by the team of inspectors or visitors as envisaged under Sections 17 and 18 of the Act22. Regulation 3(5) of Regulations of 2013 has to be harmoniously interpreted with the provisions of section 17 of the Act not repugnant thereto. The provision of section 17 is not capable of interpretation empowering the Central Government to appoint a team of inspectors at all. Thus, the power conferred under section 17 has to be exercised only by the CCH. Any other interpretation would be against the legislative mandate. The regulations have to be subservient to the provisions of the Act. No other provision could be pointed out under which the Act may have conferred the power upon the Central Government to appoint a team of Medical Inspectors23. Thus, the Division Bench of the High Court has clearly erred in holding that the power to appoint the Inspectors is with the Central Government while interpreting Regulation 3(5) of the Regulations, 2013. The Central Government cannot appoint a team of Inspectors as this power has not been conferred upon the Central Government either under the said Regulation 3 (5) or any of provisions contained in the Act. It is only CCH which can appoint a team of inspectors as per Section 17 if the request is made by the Central Government under Regulation 3(5)24. In our opinion, though Central Government on a complaint or otherwise, as contemplated under Regulation 3(5) of the Regulations, 2013 may cause inspection would mean only that inspection to be made by a team to be appointed by CCH. A team of inspectors or visitors as the case may be, can be appointed by CCH under Section 17 or 18 of the Act. However, after an inspection is made, action has to be taken on the basis of the report as provided under the Act and the Regulations by the Central Government on the basis of the recommendation made by the CCH.
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Ratan N. Tata and Others Vs. State of Maharashtra and Others | a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons. Under Section 190 of the Code, it is the application of judicial mind to the averments in the complaint that constitutes cognizance. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. If there is sufficient ground for proceeding then the Magistrate is empowered for issuance of process under Section 204 of the Code. 31. Under the amended sub-section (1) to Section 202 Cr.P.C., it is obligatory upon the Magistrate that before summoning the accused residing beyond its jurisdiction, he shall enquire into the case himself or direct the investigation to be made by a police officer or by such other person as he thinks fit for finding out whether or not there is sufficient ground for proceeding against the accused. 32. By Cr.P.C. (Amendment) Act, 2005, in Section 202 Cr.P.C. of the Principal Act with effect from 23.06.2006, in sub-section (1), the words and shall, in a case where accused is residing at a place beyond the area in which he exercises jurisdiction were inserted by Section 19 of the Criminal Procedure Code (Amendment) Act, 2005. In the opinion of the legislature, such amendment was necessary as false complaints are filed against persons residing at far off places in order to harass them. The object of the amendment is to ensure that persons residing at far off places are not harassed by filing false complaints making it obligatory for the Magistrate to enquire. Notes on Clause 19 reads as under:- False complaints are filed against persons residing at far off places simply to harass them. In order to see that the innocent persons are not harassed by unscrupulous persons, this clause seeks to amend subsection (1) of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused. 34. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The application of mind has to be indicated by disclosure of mind on the satisfaction. Considering the duties on the part of the Magistrate for issuance of summons to accused in a complaint case and that there must be sufficient indication as to the application of mind and observing that the Magistrate is not to act as a post office in taking cognizance of the complaint. 30. The Apex Court, therefore, held that since summoning of an accused is a serious matter affecting ones dignity and reputation in the Society, there has to be application of mind before proceeding against the accused persons and though it may not contemplate a detail order but the Magistrate has to be prima facie satisfied that there are sufficient grounds for proceeding against the accused. Shri Ponda has made a submission that the Code of Criminal Procedure do not specify any mode or manner of enquiry under Section 202 though the Apex Court in case of Birla Corporation Vs. Adventz (supra) has laid down the guidelines revolving around the exercise of the said power. He would rely upon the same judgment relied upon by the learned senior counsel for the petitioners and invite our attention to the specific paragraphs. He would canvass that the Magistrate had two options before considering the issuance of process and the Magistrate passed an order issuing of process instead of postponing the same. We do not find the said submission to be tenable since we have already held that there is no compliance of the provisions of Section 202 in letter and spirit and by this, we do not mean that it could have called for a detailed enquiry but we surely intend to convey that the Magistrate has failed to apply his mind before issuing the process against the accused. 31. Though Mr. Singhvi has observed that one of the aspect of non application of mind is the fact that the place of residence of the petitioner Nos. 5 to 11 is beyond the jurisdiction of the learned Magistrate, since, the process was issued, we would not deliberate on the said issue in detail as we are clearly of the view that the Magistrate has failed to take into consideration the very basis of exercise of his power and did not satisfy himself about the issuance of process. The Magistrate has in a mechanical manner referred to the list of documents and we really wonder whether these documents are really perused by the Magistrate before issuance of the process and before recording his satisfaction that the petitioners are guilty of offence of defamation. In any contingency, since, we have recorded that the petitioners cannot be held liable for defamation, and the Magistrate who has failed to conduct an inquiry, the impugned order cannot be sustained and deserves to be dismissed. 32. We are of the specific view that the impugned order passed by the Magistrate looked at from this angle also suffers from non-application of mind but we would not deliberate on the issue further since we have already formed an opinion that the Magistrate has failed to take into consideration the very genesis of exercise of his power about being satisfied that the allegations in the complaint constitute an offence of defamation and there is no indication in the impugned order demonstrating his satisfaction based on the material placed before him. | 1[ds]It is trite position of law that the power conferred on this Court under Section 482 of the Cr.P.C. is the inherent power and the said power is to be exercised with great circumspection and in rarest of rare case where the complaint does not disclose any offence. It is settled position of law that if the complaint itself discloses an offences, then it is not permissible for this Court to embark upon an inquiry as to genuineness of the allegation made in the complaint or whether those allegations are likely to be established on evidence or not. It is not permissible for the Court to verify the authenticity or truthfulness of the allegations made in a complaint and if an offence prima facie falls under the provisions of the Penal Code, the launching of prosecution cannot be thwarted by the High Court under Section 482 of the Cr.P.C16. Since we have already averred to the necessary facts, we would straightway refer to the contents of the Special Notice which have been alleged to be defamatory. It is to be noted that the statements/imputations which are alleged to be defamatory are contained in a Special Notice/requisition by the promoter company, namely, the Tata Sons Ltd., for convening the Extraordinary General Meeting of the Shareholders of the Tata Chemicals, Tata Motors and Tata Steels and to issue Special Notices to propose resolution for removal of the respondent No. 2 as Director of the Relevant Tata companies19. We have already reproduced the statement which is referred to as defamatory as contained in the Special Notice dated 10.11.2016. We must make it clear that we are not here to judge the truthfulness of the said statement and to ascertain as to whether the statements were made after due verification or whether they are baseless, not being backed without any supporting material. The alleged statement is contained as an accompaniment giving the brief background of the subject to be discussed, namely, removal of Mr. Nusli Wadia as a Director by taking recourse to the provisions of Section 169 and other applicable provisions of the Companies Act, 201323. We have perused the imputations contained in the Special Notice. It undisputedly makes a reference to certain acts of the respondent No. 2 in reference to the erstwhile Chairman Mr. Cyrus Mistry. The Special Notices contain certain statement in respect of the respondent No. 2 and his conduct, but this imputation will have to be read in reference to the purpose for which it find place in the Special Notice. The Special Notice issued by the Tata Sons Ltd., as a promoter is in form of requisition to the holding companies to call for an Extraordinary General Meeting for removal of their independent Director in whom Principal shareholder (Tata Sons) have lost confidence. The Special Notice is thus issued for the purpose of seeking removal of an independent Director of the Company since the principal shareholders are of the opinion that the respondent No. 2 is acting in a manner that is designed to harm the Tata Group and his conduct reflect that he is not conducting himself independently and instead has been inter alia galvanizing independent Directors and acting prejudicial and as such, the Principal shareholder are apprehensive that in future his action may put the company and its future in great jeopardy and impact the overall morals of the works, employees and management who have joined Tata Company. The imputation contained forms part of the resolution passed by the Board of Directors of Tata Sons Ltd. i.e. the present petitioners and it is contained in a requisition/Special Notice proposing resolutions for removal of the respondent No. 2 as Director of the Relevant Tata Companies seeking vote in favour of such resolution. It is not to be construed as an independent statement but will have to be referred to in the background in which it is made, namely, an act or conduct of the independent Director who is sought to be removed by the Company who is empowered to remove its Director after following the procedure prescribed under Section 169 of the Companies Act, 2013It is not necessary for us to assess or judge the truthfulness of the imputation/allegation since ultimately the allegations levelled against the respondent No. 2 has caused his removal by the Board of Directors of the respective companies. The imputation contained in the Special Notice cannot be viewed independent of the purpose for which it is included in the Special Notice and if the petitioners have adopted a legal course permissible to be adopted under the frame work of the statute governing it, we do not think the allegations can be termed as per se defamatory. The Special Notices though categorically have mentioned that there was no legal requirement, legal or otherwise and is discretion of the Relevant Tata companies that the Special Notices were circulated to the shareholders of the Relevant Tata companies, they cannot be held liable since the statutory scheme itself contemplates that the notice should be accompanied by a brief statement of information and facts that would enable the members to understand the meaning, scope and implication of the items and business to be transacted in the meeting and to take decision thereof. If removal of the respondent No. 2 was one of the agenda of the notice and it is accompanied by a brief statement why such action of removal is initiated, we are not ready to accept the submission of Shri. Ponda and examine the bona fides or otherwise of the said action since, we are of the clear opinion that the imputations are contained in a Special Notice which is statutory in nature and it had ultimately resulted into removal of the respondent No. 2 as independent Director from the three Tata Companies by requisite majorityMoreover, we also do not agree with the submission of Mr. Ponda who has asseverated before us the mala fides and malice in the imputation. If the petitioners in exercise of the statutory obligation have included the statement, which is challenged to be defamatory, we do not perceive any mens rea to the petitioner which is a condition precedent to constitute a particular offence. The petitioners can, by no imagination said to have an intention to cause harm to the reputation of the respondent No. 2 but its action was only directed towards removal of the respondent No. 2 as an independent Director of the three holding companies and it succeeded in the said exercise. The Special Notices were prepared and submitted in the name of Tata Sons and the petitioners being the Directors/Officers of Tata Sons Ltd., cannot be held to be vicariously liable and no malice can be attributed to the petitioners, since the power under Section 169 has been exercised by the Tata Sons Ltd., a corporate entity. We therefore do not find any justification in the Metropolitan Magistrate issuing process to the present petitioners and holding that the imputation contained in the Special Notice is per se defamatory24. The facts placed before us do disclose that the requisition by the Tata Sons Ltd., to its three holding companies for convening Extraordinary General Meeting for removal of the respondent No. 2 was acted upon by the holding Companies and the holding companies have issued the notices of Extraordinary General Meeting to its shareholders and scheduled the holding of the meeting which was accompanied with the copy of Special Notice and also the explanatory statement. We do not intend to precipitate the issue as to whether the circulation was by the respondent No. 2s consent as the subsequent conduct of the respondent No. 2 reflect that he had submitted a detailed representation under Section 169(4) availing the opportunity to rebute the imputations and while addressing the representation to the respective companies, he has reminded the companies, that they are obliged to circulate the representation to shareholders so that they are able to take an informed decision. He also made it clear that company has reasonable time to circulate the representation to the shareholders in visible as well as electronic form. He also clarified that the documents referred to in the representation are also available for inspection/perusal and supplied his e-mail address from where this information can be sought. In the detailed representation, the respondent No. 2 himself has referred to the allegation and rebutted them one by one and offered his explanation. Not only this, he independently addressed a letter to the shareholders on 21.12.2016 and requested the shareholders to take conscious decision in the interest of the entire institution of independent Directors. In the backdrop of this fact, we express that the respondent No. 2 has also chosen to avail statutory right available to him under sub-Section (4) of Section 169 and has responded to the resolution of removal and availed the opportunity of appealing to the shareholder to take a conscious decision after going through the response submitted by him through his representation to the allegation/imputations levelled in the Special Notice. Therefore, it is not that the imputations have been first time contained in the Special Notice but in the representation, the respondent No. 2 repeated then and offered an explanation as to how they are not true and rather levelled allegation against the petitioner No. 1 as to how he has manipulated the action of his removal and therefore when the respondent No. 2 has also availed the statutory remedy and offered his explanation in form of a representation and addressed an independent letter to the shareholder, we fail to understand how the offence of defamation is made out and if it is not made out whether the Magistrate is justified in issuing process to the petitioners by the impugned order25. As far as the conduct of the respondent No. 2 in the meeting dated 10.11.2016 which forms the basis of Tata sons Ltd., losing their confidence in him as an independent Director, it is reflected in the affidavit of Mr. Rajiv Chandan, Company Secretary and General Counsel of Tata Chemicals as well as affidavit of Shri. R. Mukundan, Managing Director of Tata Chemicals and one Mr. Bhaskar Bhat, Director of Tata Chemicals. The said affidavits are subsequently filed in a Suit No. 50 of 2017 filed by few public shareholders in relation to the removal of the respondent No. 2. In any contingency, it is informed that the said suit came to be withdrawn unconditionally on 06.02.2019. We do not intend to go into the veracity or truthfulness of the alleged conduct of the respondent No. 2 in the meeting dated 10.11.2016 since we have already observed that the Tata Sons Ltd., was exercising its statutory power of removal of its Director in whom they had lost confidence and it is to be noted that respondent No. 2 has never challenged his removal before any Court of Law meaning hereby he has accepted his removal as an independent Director from the holding companies of Tata Group and do not question the power of Tata Sons Ltd., to remove himThe impugned order is a clear reflection of non application of mind on the part of the learned Additional Chief Metropolitan Magistrate apart from the fact that he only relied on the statement of the complainant whom he examined under Section 200 and failed to examine any other witness. The Magistrate has committed a haste in issuing the process without conducting an inquiry into the allegation of the complainant considering other relevant material to satisfy himself whether there was sufficient ground for initiating the proceedings against the accused as contemplated under Section 202 of Cr.P.C27. We are satisfied that there is no prima facie case of defamation in the present case as there was no intent on the part of the petitioners to cause harm to the reputation of the respondent as contemplated by Section 499 of the IPC nor can we discern any actual harm caused to his reputation, since the element of mens rea being absent and since the publication was only limited to the Board of Directors of the holding Company and the respective shareholders of these Companies, it could not be said that it was circulated widely over a section of general public. Publication of the news about a resolution being passed by a well acclaimed business house happened to be a business news for the media and both the petitioner no. 1 and respondent no. 2 being well-known business personalities, they drew the attention of the media and the allegations/imputations and the story of removal of the respondent no. 2, no wonder, happened to be a hot topic for media. However, it is not conclusively established as to it is the petitioners who have leaked the information to the media and particularly when we have noted that the respondent no. 2 himself had addressed the communication to the shareholders independent of his representation in terms of sub-section (4) of Section 169 and which he requested for being circulated to the shareholders. The allegations of the respondent no. 2 in respect of disparaging remarks/comments being widely circulated is also not correct since it was only circulated to the shareholders and they had a right to know the background of the resolution on which they were supposed to vote. In light of the decision of the Apex Court in case of S. Khushboo (supra), since there was no intention to malign the image of respondent no. 2 by making his conduct known to the public and particularly when the petitioners were exercising their statutory power, we record that there is no prima facie case of defamation in the present case which the Magistrate has failed to consider28. The Magistrate before issuing the process, has failed to take into consideration the conspectus of the matter and though it is the duty cast upon him to be satisfied before issuance of a process, he had concluded without any material being placed before him that the statement is defamatoryWe do not find the said submission to be tenable since we have already held that there is no compliance of the provisions of Section 202 in letter and spirit and by this, we do not mean that it could have called for a detailed enquiry but we surely intend to convey that the Magistrate has failed to apply his mind before issuing the process against the accused31. Though Mr. Singhvi has observed that one of the aspect of non application of mind is the fact that the place of residence of the petitioner Nos. 5 to 11 is beyond the jurisdiction of the learned Magistrate, since, the process was issued, we would not deliberate on the said issue in detail as we are clearly of the view that the Magistrate has failed to take into consideration the very basis of exercise of his power and did not satisfy himself about the issuance of process. The Magistrate has in a mechanical manner referred to the list of documents and we really wonder whether these documents are really perused by the Magistrate before issuance of the process and before recording his satisfaction that the petitioners are guilty of offence of defamation. In any contingency, since, we have recorded that the petitioners cannot be held liable for defamation, and the Magistrate who has failed to conduct an inquiry, the impugned order cannot be sustained and deserves to be dismissed32. We are of the specific view that the impugned order passed by the Magistrate looked at from this angle also suffers from non-application of mind but we would not deliberate on the issue further since we have already formed an opinion that the Magistrate has failed to take into consideration the very genesis of exercise of his power about being satisfied that the allegations in the complaint constitute an offence of defamation and there is no indication in the impugned order demonstrating his satisfaction based on the material placed before him. | 1 | 17,521 | 2,826 | ### 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:
a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons. Under Section 190 of the Code, it is the application of judicial mind to the averments in the complaint that constitutes cognizance. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. If there is sufficient ground for proceeding then the Magistrate is empowered for issuance of process under Section 204 of the Code. 31. Under the amended sub-section (1) to Section 202 Cr.P.C., it is obligatory upon the Magistrate that before summoning the accused residing beyond its jurisdiction, he shall enquire into the case himself or direct the investigation to be made by a police officer or by such other person as he thinks fit for finding out whether or not there is sufficient ground for proceeding against the accused. 32. By Cr.P.C. (Amendment) Act, 2005, in Section 202 Cr.P.C. of the Principal Act with effect from 23.06.2006, in sub-section (1), the words and shall, in a case where accused is residing at a place beyond the area in which he exercises jurisdiction were inserted by Section 19 of the Criminal Procedure Code (Amendment) Act, 2005. In the opinion of the legislature, such amendment was necessary as false complaints are filed against persons residing at far off places in order to harass them. The object of the amendment is to ensure that persons residing at far off places are not harassed by filing false complaints making it obligatory for the Magistrate to enquire. Notes on Clause 19 reads as under:- False complaints are filed against persons residing at far off places simply to harass them. In order to see that the innocent persons are not harassed by unscrupulous persons, this clause seeks to amend subsection (1) of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused. 34. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The application of mind has to be indicated by disclosure of mind on the satisfaction. Considering the duties on the part of the Magistrate for issuance of summons to accused in a complaint case and that there must be sufficient indication as to the application of mind and observing that the Magistrate is not to act as a post office in taking cognizance of the complaint. 30. The Apex Court, therefore, held that since summoning of an accused is a serious matter affecting ones dignity and reputation in the Society, there has to be application of mind before proceeding against the accused persons and though it may not contemplate a detail order but the Magistrate has to be prima facie satisfied that there are sufficient grounds for proceeding against the accused. Shri Ponda has made a submission that the Code of Criminal Procedure do not specify any mode or manner of enquiry under Section 202 though the Apex Court in case of Birla Corporation Vs. Adventz (supra) has laid down the guidelines revolving around the exercise of the said power. He would rely upon the same judgment relied upon by the learned senior counsel for the petitioners and invite our attention to the specific paragraphs. He would canvass that the Magistrate had two options before considering the issuance of process and the Magistrate passed an order issuing of process instead of postponing the same. We do not find the said submission to be tenable since we have already held that there is no compliance of the provisions of Section 202 in letter and spirit and by this, we do not mean that it could have called for a detailed enquiry but we surely intend to convey that the Magistrate has failed to apply his mind before issuing the process against the accused. 31. Though Mr. Singhvi has observed that one of the aspect of non application of mind is the fact that the place of residence of the petitioner Nos. 5 to 11 is beyond the jurisdiction of the learned Magistrate, since, the process was issued, we would not deliberate on the said issue in detail as we are clearly of the view that the Magistrate has failed to take into consideration the very basis of exercise of his power and did not satisfy himself about the issuance of process. The Magistrate has in a mechanical manner referred to the list of documents and we really wonder whether these documents are really perused by the Magistrate before issuance of the process and before recording his satisfaction that the petitioners are guilty of offence of defamation. In any contingency, since, we have recorded that the petitioners cannot be held liable for defamation, and the Magistrate who has failed to conduct an inquiry, the impugned order cannot be sustained and deserves to be dismissed. 32. We are of the specific view that the impugned order passed by the Magistrate looked at from this angle also suffers from non-application of mind but we would not deliberate on the issue further since we have already formed an opinion that the Magistrate has failed to take into consideration the very genesis of exercise of his power about being satisfied that the allegations in the complaint constitute an offence of defamation and there is no indication in the impugned order demonstrating his satisfaction based on the material placed before him.
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### Explanation:
reflected in the affidavit of Mr. Rajiv Chandan, Company Secretary and General Counsel of Tata Chemicals as well as affidavit of Shri. R. Mukundan, Managing Director of Tata Chemicals and one Mr. Bhaskar Bhat, Director of Tata Chemicals. The said affidavits are subsequently filed in a Suit No. 50 of 2017 filed by few public shareholders in relation to the removal of the respondent No. 2. In any contingency, it is informed that the said suit came to be withdrawn unconditionally on 06.02.2019. We do not intend to go into the veracity or truthfulness of the alleged conduct of the respondent No. 2 in the meeting dated 10.11.2016 since we have already observed that the Tata Sons Ltd., was exercising its statutory power of removal of its Director in whom they had lost confidence and it is to be noted that respondent No. 2 has never challenged his removal before any Court of Law meaning hereby he has accepted his removal as an independent Director from the holding companies of Tata Group and do not question the power of Tata Sons Ltd., to remove himThe impugned order is a clear reflection of non application of mind on the part of the learned Additional Chief Metropolitan Magistrate apart from the fact that he only relied on the statement of the complainant whom he examined under Section 200 and failed to examine any other witness. The Magistrate has committed a haste in issuing the process without conducting an inquiry into the allegation of the complainant considering other relevant material to satisfy himself whether there was sufficient ground for initiating the proceedings against the accused as contemplated under Section 202 of Cr.P.C27. We are satisfied that there is no prima facie case of defamation in the present case as there was no intent on the part of the petitioners to cause harm to the reputation of the respondent as contemplated by Section 499 of the IPC nor can we discern any actual harm caused to his reputation, since the element of mens rea being absent and since the publication was only limited to the Board of Directors of the holding Company and the respective shareholders of these Companies, it could not be said that it was circulated widely over a section of general public. Publication of the news about a resolution being passed by a well acclaimed business house happened to be a business news for the media and both the petitioner no. 1 and respondent no. 2 being well-known business personalities, they drew the attention of the media and the allegations/imputations and the story of removal of the respondent no. 2, no wonder, happened to be a hot topic for media. However, it is not conclusively established as to it is the petitioners who have leaked the information to the media and particularly when we have noted that the respondent no. 2 himself had addressed the communication to the shareholders independent of his representation in terms of sub-section (4) of Section 169 and which he requested for being circulated to the shareholders. The allegations of the respondent no. 2 in respect of disparaging remarks/comments being widely circulated is also not correct since it was only circulated to the shareholders and they had a right to know the background of the resolution on which they were supposed to vote. In light of the decision of the Apex Court in case of S. Khushboo (supra), since there was no intention to malign the image of respondent no. 2 by making his conduct known to the public and particularly when the petitioners were exercising their statutory power, we record that there is no prima facie case of defamation in the present case which the Magistrate has failed to consider28. The Magistrate before issuing the process, has failed to take into consideration the conspectus of the matter and though it is the duty cast upon him to be satisfied before issuance of a process, he had concluded without any material being placed before him that the statement is defamatoryWe do not find the said submission to be tenable since we have already held that there is no compliance of the provisions of Section 202 in letter and spirit and by this, we do not mean that it could have called for a detailed enquiry but we surely intend to convey that the Magistrate has failed to apply his mind before issuing the process against the accused31. Though Mr. Singhvi has observed that one of the aspect of non application of mind is the fact that the place of residence of the petitioner Nos. 5 to 11 is beyond the jurisdiction of the learned Magistrate, since, the process was issued, we would not deliberate on the said issue in detail as we are clearly of the view that the Magistrate has failed to take into consideration the very basis of exercise of his power and did not satisfy himself about the issuance of process. The Magistrate has in a mechanical manner referred to the list of documents and we really wonder whether these documents are really perused by the Magistrate before issuance of the process and before recording his satisfaction that the petitioners are guilty of offence of defamation. In any contingency, since, we have recorded that the petitioners cannot be held liable for defamation, and the Magistrate who has failed to conduct an inquiry, the impugned order cannot be sustained and deserves to be dismissed32. We are of the specific view that the impugned order passed by the Magistrate looked at from this angle also suffers from non-application of mind but we would not deliberate on the issue further since we have already formed an opinion that the Magistrate has failed to take into consideration the very genesis of exercise of his power about being satisfied that the allegations in the complaint constitute an offence of defamation and there is no indication in the impugned order demonstrating his satisfaction based on the material placed before him.
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Ram Saran Lall And Others Vs. Mst. Domini Kuer And Others | was done on February 9, 1946, when the instrument was copied out in the books of the Registration Office. In this view of the matter, the High Court came to the conclusion that the appellants were not entitled to enforce their right of pre-emption because they had not made the preliminary demand after the completion of the sale as the law required them to do, but before, that is, on February 2, 1946.7. In answer to this view of the High Court, the learned Attorney-General appearing for the appellants says that the High Court overlooked S. 47 of the Registration Act the effect of which was to make a registered document operate from the time from which it would have commenced to operate if no registration thereof had been required and not from the time of its registration. His contention is that once a document is registered, as the deed of sale in this case was, it begins to operate from the time it would have otherwise operated and therefore, the position in this case is that the sale became operative and hence complete on January 31, 1946. The learned Attorney-General further contends that the proper construction of the deed of sale was that it became operative from the day it was executed and that if it was not so, it was not a sale but could only be an agreement to sell in which later case his clients, though this present suit might fail, would be entitled, if they so desired, to enforce their right of preemption when the sale was completed in pursuance of that agreement. As authority in support of his contention that in view of S. 47 of the Registration Act the sale in the present case must be deemed to have been completed on the day the instrument was executed, the learned Attorney-General relied on Bindeshri v. Somnath Bhadry, AIR 1916 All 199 and Gopal Ram v. Lachmi Misir, AIR 1926 All 549.8. We do not think that the learned Attorney-Generals contention is well founded. We will assume that the learned Attorney-Generals construction of the instrument of sale that the property was intended to pass under it on the date of the instrument is correct. Section 47 of the Registration Act does not however, say when a sale would be deemed to be complete. It only permits a document when registered, to operate from a certain date which may be earlier than the date when it was registered. The object of this section is to decide which of two or more registered instruments in respect of the same property is to have effect. The section applies to a document only after it has been registered. It has nothing to do with the completion of the registration and therefore nothing to do with the completion of a sale when the instrument is one of sale. A sale which is admittedly not completed until the registration of the instrument of sale is completed, cannot be said to have been completed earlier because by virtue of S. 47 the instrument by which it is effected, after it has been registered, commences to operate from an earlier date. Therefore we do not think that the sale in this case can be said, in view of S. 47, to have been completed on January 31, 1946. The view that we have taken of S. 47 of the Registration Act seems to have been taken in Tilakdhari Singh v. Gour Narain, AIR 1921 Pat 150 . We believe that the same view was expressed in Nareshchandra Dutta v. Girishchandra Das, ILR 62 Cal 979 : (AIR 1936 Cal 17 ) and Gobardhan Bar v. Gana Dhar Bar, ILR (1940) 2 Cal 270 : (AIR 1941 Cal 78 ).9. With regard to the two cases on which the Attorney-General has relied, it has to be observed that they were not concerned with a right of pre-emption arising on a sale of property. Bindeshri Prasads case, AIR 1916 All 199 concerned with a suit for zar-i-chaharum. It does not appear from the report what that right was or when it arose. It is not possible therefore to derive much assistance from it. Gopal Rams case AIR 1926 All 549 was concerned with a right of pre-emption arising on the grant of a lease and the question was whether the suit for the enforcement of such a right was barred by limitation. It appears that Art. 120 was applied to that suit and it was held that the cause of action for the exercise of the right of pre-emption arose as soon as the lease was executed and even before it was registered though before the actual registration the suit for pre-emption could not have been maintained. This view was taken in reliance upon S. 47 of the Registration Act. We are not aware whether the law of pre-emption applicable to the case required that there should be a completed lease before the right to pre-empt could be enforced. If that law did so require, then we do not think that the case was rightly decided. It was said in that case that "When the law has given to a transaction a retrospective effect, it must have that effect." We do not think that a transaction which when completed has a retrospective operation can be said for that reason to have been completed on the date from which it has that operation.10. In the view that we have taken, it is not necessary to discuss the question of the construction of the instrument of sale in this case, that is, to decide whether on its proper reading the transfer was intended to take immediate effect on its execution or later on after the balance of the purchase money had been paid. Nor do we think it necessary to pronounce on the other argument of the learned Attorney-General that a transfer which does not convey the property immediately can only be an agreement to transfer. | 0[ds]We will assume that the learned Attorney-Generals construction of the instrument of sale that the property was intended to pass under it on the date of the instrument is correct. Section 47 of the Registration Act does not however, say when a sale would be deemed to be complete. It only permits a document when registered, to operate from a certain date which may be earlier than the date when it was registered. The object of this section is to decide which of two or more registered instruments in respect of the same property is to have effect. The section applies to a document only after it has been registered. It has nothing to do with the completion of the registration and therefore nothing to do with the completion of a sale when the instrument is one of sale. A sale which is admittedly not completed until the registration of the instrument of sale is completed, cannot be said to have been completed earlier because by virtue of S. 47 the instrument by which it is effected, after it has been registered, commences to operate from an earlier date. Therefore we do not think that the sale in this case can be said, in view of S. 47, to have been completed on January 31, 1946.With regard to the two cases on which the Attorney-General has relied, it has to be observed that they were not concerned with a right of pre-emption arising on a sale of property. Bindeshri Prasads case, AIR 1916 All 199 concerned with a suit for zar-i-chaharum. It does not appear from the report what that right was or when it arose. It is not possible therefore to derive much assistance from it. Gopal Rams case AIR 1926 All 549 was concerned with a right of pre-emption arising on the grant of a lease and the question was whether the suit for the enforcement of such a right was barred by limitation. It appears that Art. 120 was applied to that suit and it was held that the cause of action for the exercise of the right of pre-emption arose as soon as the lease was executed and even before it was registered though before the actual registration the suit for pre-emption could not have been maintained. This view was taken in reliance upon S. 47 of the Registration Act. We are not aware whether the law of pre-emption applicable to the case required that there should be a completed lease before the right to pre-empt could be enforced. If that law did so require, then we do not think that the case was rightly decided. It was said in that case that "When the law has given to a transaction a retrospective effect, it must have that effect." We do not think that a transaction which when completed has a retrospective operation can be said for that reason to have been completed on the date from which it has that operation.10. In the view that we have taken, it is not necessary to discuss the question of the construction of the instrument of sale in this case, that is, to decide whether on its proper reading the transfer was intended to take immediate effect on its execution or later on after the balance of the purchase money had been paid. Nor do we think it necessary to pronounce on the other argument of the learned Attorney-General that a transfer which does not convey the property immediately can only be an agreement to transfer. | 0 | 2,031 | 631 | ### Instruction:
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was done on February 9, 1946, when the instrument was copied out in the books of the Registration Office. In this view of the matter, the High Court came to the conclusion that the appellants were not entitled to enforce their right of pre-emption because they had not made the preliminary demand after the completion of the sale as the law required them to do, but before, that is, on February 2, 1946.7. In answer to this view of the High Court, the learned Attorney-General appearing for the appellants says that the High Court overlooked S. 47 of the Registration Act the effect of which was to make a registered document operate from the time from which it would have commenced to operate if no registration thereof had been required and not from the time of its registration. His contention is that once a document is registered, as the deed of sale in this case was, it begins to operate from the time it would have otherwise operated and therefore, the position in this case is that the sale became operative and hence complete on January 31, 1946. The learned Attorney-General further contends that the proper construction of the deed of sale was that it became operative from the day it was executed and that if it was not so, it was not a sale but could only be an agreement to sell in which later case his clients, though this present suit might fail, would be entitled, if they so desired, to enforce their right of preemption when the sale was completed in pursuance of that agreement. As authority in support of his contention that in view of S. 47 of the Registration Act the sale in the present case must be deemed to have been completed on the day the instrument was executed, the learned Attorney-General relied on Bindeshri v. Somnath Bhadry, AIR 1916 All 199 and Gopal Ram v. Lachmi Misir, AIR 1926 All 549.8. We do not think that the learned Attorney-Generals contention is well founded. We will assume that the learned Attorney-Generals construction of the instrument of sale that the property was intended to pass under it on the date of the instrument is correct. Section 47 of the Registration Act does not however, say when a sale would be deemed to be complete. It only permits a document when registered, to operate from a certain date which may be earlier than the date when it was registered. The object of this section is to decide which of two or more registered instruments in respect of the same property is to have effect. The section applies to a document only after it has been registered. It has nothing to do with the completion of the registration and therefore nothing to do with the completion of a sale when the instrument is one of sale. A sale which is admittedly not completed until the registration of the instrument of sale is completed, cannot be said to have been completed earlier because by virtue of S. 47 the instrument by which it is effected, after it has been registered, commences to operate from an earlier date. Therefore we do not think that the sale in this case can be said, in view of S. 47, to have been completed on January 31, 1946. The view that we have taken of S. 47 of the Registration Act seems to have been taken in Tilakdhari Singh v. Gour Narain, AIR 1921 Pat 150 . We believe that the same view was expressed in Nareshchandra Dutta v. Girishchandra Das, ILR 62 Cal 979 : (AIR 1936 Cal 17 ) and Gobardhan Bar v. Gana Dhar Bar, ILR (1940) 2 Cal 270 : (AIR 1941 Cal 78 ).9. With regard to the two cases on which the Attorney-General has relied, it has to be observed that they were not concerned with a right of pre-emption arising on a sale of property. Bindeshri Prasads case, AIR 1916 All 199 concerned with a suit for zar-i-chaharum. It does not appear from the report what that right was or when it arose. It is not possible therefore to derive much assistance from it. Gopal Rams case AIR 1926 All 549 was concerned with a right of pre-emption arising on the grant of a lease and the question was whether the suit for the enforcement of such a right was barred by limitation. It appears that Art. 120 was applied to that suit and it was held that the cause of action for the exercise of the right of pre-emption arose as soon as the lease was executed and even before it was registered though before the actual registration the suit for pre-emption could not have been maintained. This view was taken in reliance upon S. 47 of the Registration Act. We are not aware whether the law of pre-emption applicable to the case required that there should be a completed lease before the right to pre-empt could be enforced. If that law did so require, then we do not think that the case was rightly decided. It was said in that case that "When the law has given to a transaction a retrospective effect, it must have that effect." We do not think that a transaction which when completed has a retrospective operation can be said for that reason to have been completed on the date from which it has that operation.10. In the view that we have taken, it is not necessary to discuss the question of the construction of the instrument of sale in this case, that is, to decide whether on its proper reading the transfer was intended to take immediate effect on its execution or later on after the balance of the purchase money had been paid. Nor do we think it necessary to pronounce on the other argument of the learned Attorney-General that a transfer which does not convey the property immediately can only be an agreement to transfer.
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We will assume that the learned Attorney-Generals construction of the instrument of sale that the property was intended to pass under it on the date of the instrument is correct. Section 47 of the Registration Act does not however, say when a sale would be deemed to be complete. It only permits a document when registered, to operate from a certain date which may be earlier than the date when it was registered. The object of this section is to decide which of two or more registered instruments in respect of the same property is to have effect. The section applies to a document only after it has been registered. It has nothing to do with the completion of the registration and therefore nothing to do with the completion of a sale when the instrument is one of sale. A sale which is admittedly not completed until the registration of the instrument of sale is completed, cannot be said to have been completed earlier because by virtue of S. 47 the instrument by which it is effected, after it has been registered, commences to operate from an earlier date. Therefore we do not think that the sale in this case can be said, in view of S. 47, to have been completed on January 31, 1946.With regard to the two cases on which the Attorney-General has relied, it has to be observed that they were not concerned with a right of pre-emption arising on a sale of property. Bindeshri Prasads case, AIR 1916 All 199 concerned with a suit for zar-i-chaharum. It does not appear from the report what that right was or when it arose. It is not possible therefore to derive much assistance from it. Gopal Rams case AIR 1926 All 549 was concerned with a right of pre-emption arising on the grant of a lease and the question was whether the suit for the enforcement of such a right was barred by limitation. It appears that Art. 120 was applied to that suit and it was held that the cause of action for the exercise of the right of pre-emption arose as soon as the lease was executed and even before it was registered though before the actual registration the suit for pre-emption could not have been maintained. This view was taken in reliance upon S. 47 of the Registration Act. We are not aware whether the law of pre-emption applicable to the case required that there should be a completed lease before the right to pre-empt could be enforced. If that law did so require, then we do not think that the case was rightly decided. It was said in that case that "When the law has given to a transaction a retrospective effect, it must have that effect." We do not think that a transaction which when completed has a retrospective operation can be said for that reason to have been completed on the date from which it has that operation.10. In the view that we have taken, it is not necessary to discuss the question of the construction of the instrument of sale in this case, that is, to decide whether on its proper reading the transfer was intended to take immediate effect on its execution or later on after the balance of the purchase money had been paid. Nor do we think it necessary to pronounce on the other argument of the learned Attorney-General that a transfer which does not convey the property immediately can only be an agreement to transfer.
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Chilamkurti Bala Subrahmanyam Vs. Samanthapudi Vijaya Lakshimi | us, no such particulars have been given by the respondent of the alleged collusion between the other respondents and the auction-purchaser. There is also no material irregularity in publishing or conducting the sale. There was sufficient compliance with Order 21 Rule 67(1) read with Order 21 Rule 54(2). No doubt, the trial court has said that the sale should be given wide publicity but that does not necessarily mean by publication in the newspapers. The provisions of Order 21 Rule 67 clearly provide if the sale is to be advertised in the local newspaper, there must be specific direction of the court to that effect. In the absence of such direction, the proclamation of sale has to be made under Order 21 Rule 67(1) "as nearly as may be, in the manner prescribed by Rule 54 sub-rule (2)". Rule 54 sub-rule (2) provides for the method of publication of notice and reads as follows:"54. (2) The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode, and a copy of the order shall be affixed on a conspicuous part of the property and then upon a conspicuous part of the courthouse, and also, where the property is land paying revenue to the Government, in the office of the Collector of the district in which the land is situate and, where the property is land situate in a village, also in the office of the Gram Panchayat, if any, having jurisdiction over that village."15. After examining the facts of this case in the light of the law laid down in the case of Saheb Khan (supra), we are of the considered opinion that the reasoning and the conclusion arrived at by the executing Court deserves to be restored as against that of the High Court in the impugned order. In other words, no case was made out by the judgment debtor for setting aside of the sale of the property in question on the ground of committing any material irregularity or fraud in publishing or in conducting the sale so as to enable the Court to invoke its powers under Order 21 Rule 90 (2) of the Code.16. It is noticed that respondent No. 1, in her application for setting aside the sale, had mainly raised four objections. Firstly, clear 15 days notice was not given for sale of the properties as required under the Rules. Secondly, the valuation of the property was not properly mentioned in the concerned documents so as to enable the parties to know its proper valuation prevailing on the date of sale. Thirdly, the market value of the property on the date of auction was more than the price actually fetched in the auction, and fourthly, no proper publication including beating of drum was made before the date of auction due to which there was less participation of the bidders in the auction sale.17. The executing Court dealt with all the four objections with reference to the record of the proceedings and found as a fact that none of the objections had any merit. The High Court, however, found fault in the same though not in all but essentially in the matter relating to giving of clear 15 days notice and the manner in which it was issued and finding merit in the objection, set aside the sale on imposing certain conditions enumerated above.18. In our considered opinion, as mentioned above, the executing Court was justified in overruling the objections and we concur with the reasoning and the conclusion of the executing Court.19. We also find on facts that firstly, the proper publicity was given for auction sale in papers so also by beat of drums pursuant to which as many as seven bidders including the appellant herein participated in the auction sale. Had there been no publicity, it would not have been possible for seven persons to participate in the auction proceedings.20. Secondly, the details of the valuation of the property were duly mentioned, namely, decree holders valuation at Rs. 2,75,000/- likewise, Amins valuation at Rs. 4 lacs whereas the property was sold in auction for Rs. 7,50,000/-. In this view of the matter, it could not be said that the bidders did not know the valuation or/and that it was not mentioned in the auction papers.21. Thirdly, judgment debtor did not adduce any evidence nor brought any bidder to purchase the property for a higher price than the purchase bid (Rs.7,50,000/-) except to say in the application that value of the property was between Rs. 12 lakhs to Rs. 14 lakhs. In our view, this objection has no substance for want of any evidence.22. Fourthly, there was adequate publicity given with the aid of beat of drums in the locality. It was proved with the record of the executing Court as was rightly held by the executing Court and lastly, in our view, a clear 15 days notice was given for auction sale fixed for 17.11.1999 when counted from 05.10.1999. In other words, 15 days have to be counted from 05.10.1999 because it is on this date the order was issued as contemplated under Order 21 Rule 64 for proclamation of sale fixing the date of sale as 17.11.1999.23. The executing Court, therefore, substantially and in letter and spirit followed the procedure prescribed under Order 21 Rules 64 and 66 of the Code while conducting the sale of the property in question.24. The law on the question involved herein is clear. It is not the material irregularity that alone is sufficient for setting aside of the sale. The judgment debtor has to go further and establish to the satisfaction of the Court that the material irregularity or fraud, as the case may be, has resulted in causing substantial injury to the judgment- debtor in conducting the sale. It is only then the sale so conducted could be set aside under Order 21 Rule 90(2) of the Code. Such is not the case here. | 1[ds]13. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal finding merit therein.Therefore before the sale can be set aside merely establishing a material irregularity or fraud will not do. The applicant must go further and establish to the satisfaction of the court that the material irregularity or fraud has resulted in substantial injury to the applicant. Conversely even if the applicant has suffered substantial injury by reason of the sale, this would not be sufficient to set the sale aside unless substantial injury has been occasioned by a material irregularity or fraud in publishing or conducting the sale. (See Dhirendra Nath Gorai v. Sudhir Chandra Ghosh;(1964) 6 SCR 1001 , Jaswantlal Natvarlal Thakkar v. Sushilaben Manilal Dangarwala, 1991 Supp(2) SCC 691 and Kadiyala Rama Rao v. Gutala Kahna Rao,(2000) 3 SCC 87 )14. A charge of fraud or material irregularity under Order 21 Rule 90 must be specifically made with sufficient particulars. Bald allegations would not do. The facts must be established which could reasonably sustain such a charge. In the case before us, no such particulars have been given by the respondent of the alleged collusion between the other respondents and the auction-purchaser. There is also no material irregularity in publishing or conducting the sale. There was sufficient compliance with Order 21 Rule 67(1) read with Order 21 Rule 54(2). No doubt, the trial court has said that the sale should be given wide publicity but that does not necessarily mean by publication in the newspapers.After examining the facts of this case in the light of the law laid down in the case of Saheb Khan (supra), we are of the considered opinion that the reasoning and the conclusion arrived at by the executing Court deserves to be restored as against that of the High Court in the impugned order. In other words, no case was made out by the judgment debtor for setting aside of the sale of the property in question on the ground of committing any material irregularity or fraud in publishing or in conducting the sale so as to enable the Court to invoke its powers under Order 21 Rule 90 (2) of the Code.16. It is noticed that respondent No. 1, in her application for setting aside the sale, had mainly raised four objections. Firstly, clear 15 days notice was not given for sale of the properties as required under the Rules. Secondly, the valuation of the property was not properly mentioned in the concerned documents so as to enable the parties to know its proper valuation prevailing on the date of sale. Thirdly, the market value of the property on the date of auction was more than the price actually fetched in the auction, and fourthly, no proper publication including beating of drum was made before the date of auction due to which there was less participation of the bidders in the auction sale.17. The executing Court dealt with all the four objections with reference to the record of the proceedings and found as a fact that none of the objections had any merit. The High Court, however, found fault in the same though not in all but essentially in the matter relating to giving of clear 15 days notice and the manner in which it was issued and finding merit in the objection, set aside the sale on imposing certain conditions enumerated above.18. In our considered opinion, as mentioned above, the executing Court was justified in overruling the objections and we concur with the reasoning and the conclusion of the executing Court.19. We also find on facts that firstly, the proper publicity was given for auction sale in papers so also by beat of drums pursuant to which as many as seven bidders including the appellant herein participated in the auction sale. Had there been no publicity, it would not have been possible for seven persons to participate in the auction proceedings.20. Secondly, the details of the valuation of the property were duly mentioned, namely, decree holders valuation at Rs. 2,75,000/- likewise, Amins valuation at Rs. 4 lacs whereas the property was sold in auction for Rs. 7,50,000/-. In this view of the matter, it could not be said that the bidders did not know the valuation or/and that it was not mentioned in the auction papers.21. Thirdly, judgment debtor did not adduce any evidence nor brought any bidder to purchase the property for a higher price than the purchase bid (Rs.7,50,000/-) except to say in the application that value of the property was between Rs. 12 lakhs to Rs. 14 lakhs. In our view, this objection has no substance for want of any evidence.22. Fourthly, there was adequate publicity given with the aid of beat of drums in the locality. It was proved with the record of the executing Court as was rightly held by the executing Court and lastly, in our view, a clear 15 days notice was given for auction sale fixed for 17.11.1999 when counted from 05.10.1999. In other words, 15 days have to be counted from 05.10.1999 because it is on this date the order was issued as contemplated under Order 21 Rule 64 for proclamation of sale fixing the date of sale as 17.11.1999.23. The executing Court, therefore, substantially and in letter and spirit followed the procedure prescribed under Order 21 Rules 64 and 66 of the Code while conducting the sale of the property in question.24. The law on the question involved herein is clear. It is not the material irregularity that alone is sufficient for setting aside of the sale. The judgment debtor has to go further and establish to the satisfaction of the Court that the material irregularity or fraud, as the case may be, has resulted in causing substantial injury to the judgment- debtor in conducting the sale. It is only then the sale so conducted could be set aside under Order 21 Rule 90(2) of the Code. Such is not the case here.Learned Counsel for the respondent has placed reliance on the decisions in Gajadhar Prasad & Ors. v. Babu Bhakta Ratan & Ors., (1973) 2 SCC 629 , Ambati Narasayya v. M. Subba Rao & Anr., 1989 Supl(2) SCC 693, Desh Bandhu Gupta v. N.L. Anand & Rajinder Singh, (1994) 1 SCC 131 and Saheb Khan v. Mohd. Yousufuddin & Ors.,(2006) 4 SCC 476. We have gone through these cases and find that all are distinguishable on facts. When we have held on facts that there are no material irregularities noticed in the case and that there was compliance of the provisions of Order 21 Rules 64 to 68 then, in our view, the law laid down in these decisions are of no help to the respondent-judgment | 1 | 2,584 | 1,263 | ### Instruction:
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us, no such particulars have been given by the respondent of the alleged collusion between the other respondents and the auction-purchaser. There is also no material irregularity in publishing or conducting the sale. There was sufficient compliance with Order 21 Rule 67(1) read with Order 21 Rule 54(2). No doubt, the trial court has said that the sale should be given wide publicity but that does not necessarily mean by publication in the newspapers. The provisions of Order 21 Rule 67 clearly provide if the sale is to be advertised in the local newspaper, there must be specific direction of the court to that effect. In the absence of such direction, the proclamation of sale has to be made under Order 21 Rule 67(1) "as nearly as may be, in the manner prescribed by Rule 54 sub-rule (2)". Rule 54 sub-rule (2) provides for the method of publication of notice and reads as follows:"54. (2) The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode, and a copy of the order shall be affixed on a conspicuous part of the property and then upon a conspicuous part of the courthouse, and also, where the property is land paying revenue to the Government, in the office of the Collector of the district in which the land is situate and, where the property is land situate in a village, also in the office of the Gram Panchayat, if any, having jurisdiction over that village."15. After examining the facts of this case in the light of the law laid down in the case of Saheb Khan (supra), we are of the considered opinion that the reasoning and the conclusion arrived at by the executing Court deserves to be restored as against that of the High Court in the impugned order. In other words, no case was made out by the judgment debtor for setting aside of the sale of the property in question on the ground of committing any material irregularity or fraud in publishing or in conducting the sale so as to enable the Court to invoke its powers under Order 21 Rule 90 (2) of the Code.16. It is noticed that respondent No. 1, in her application for setting aside the sale, had mainly raised four objections. Firstly, clear 15 days notice was not given for sale of the properties as required under the Rules. Secondly, the valuation of the property was not properly mentioned in the concerned documents so as to enable the parties to know its proper valuation prevailing on the date of sale. Thirdly, the market value of the property on the date of auction was more than the price actually fetched in the auction, and fourthly, no proper publication including beating of drum was made before the date of auction due to which there was less participation of the bidders in the auction sale.17. The executing Court dealt with all the four objections with reference to the record of the proceedings and found as a fact that none of the objections had any merit. The High Court, however, found fault in the same though not in all but essentially in the matter relating to giving of clear 15 days notice and the manner in which it was issued and finding merit in the objection, set aside the sale on imposing certain conditions enumerated above.18. In our considered opinion, as mentioned above, the executing Court was justified in overruling the objections and we concur with the reasoning and the conclusion of the executing Court.19. We also find on facts that firstly, the proper publicity was given for auction sale in papers so also by beat of drums pursuant to which as many as seven bidders including the appellant herein participated in the auction sale. Had there been no publicity, it would not have been possible for seven persons to participate in the auction proceedings.20. Secondly, the details of the valuation of the property were duly mentioned, namely, decree holders valuation at Rs. 2,75,000/- likewise, Amins valuation at Rs. 4 lacs whereas the property was sold in auction for Rs. 7,50,000/-. In this view of the matter, it could not be said that the bidders did not know the valuation or/and that it was not mentioned in the auction papers.21. Thirdly, judgment debtor did not adduce any evidence nor brought any bidder to purchase the property for a higher price than the purchase bid (Rs.7,50,000/-) except to say in the application that value of the property was between Rs. 12 lakhs to Rs. 14 lakhs. In our view, this objection has no substance for want of any evidence.22. Fourthly, there was adequate publicity given with the aid of beat of drums in the locality. It was proved with the record of the executing Court as was rightly held by the executing Court and lastly, in our view, a clear 15 days notice was given for auction sale fixed for 17.11.1999 when counted from 05.10.1999. In other words, 15 days have to be counted from 05.10.1999 because it is on this date the order was issued as contemplated under Order 21 Rule 64 for proclamation of sale fixing the date of sale as 17.11.1999.23. The executing Court, therefore, substantially and in letter and spirit followed the procedure prescribed under Order 21 Rules 64 and 66 of the Code while conducting the sale of the property in question.24. The law on the question involved herein is clear. It is not the material irregularity that alone is sufficient for setting aside of the sale. The judgment debtor has to go further and establish to the satisfaction of the Court that the material irregularity or fraud, as the case may be, has resulted in causing substantial injury to the judgment- debtor in conducting the sale. It is only then the sale so conducted could be set aside under Order 21 Rule 90(2) of the Code. Such is not the case here.
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### Explanation:
v. Gutala Kahna Rao,(2000) 3 SCC 87 )14. A charge of fraud or material irregularity under Order 21 Rule 90 must be specifically made with sufficient particulars. Bald allegations would not do. The facts must be established which could reasonably sustain such a charge. In the case before us, no such particulars have been given by the respondent of the alleged collusion between the other respondents and the auction-purchaser. There is also no material irregularity in publishing or conducting the sale. There was sufficient compliance with Order 21 Rule 67(1) read with Order 21 Rule 54(2). No doubt, the trial court has said that the sale should be given wide publicity but that does not necessarily mean by publication in the newspapers.After examining the facts of this case in the light of the law laid down in the case of Saheb Khan (supra), we are of the considered opinion that the reasoning and the conclusion arrived at by the executing Court deserves to be restored as against that of the High Court in the impugned order. In other words, no case was made out by the judgment debtor for setting aside of the sale of the property in question on the ground of committing any material irregularity or fraud in publishing or in conducting the sale so as to enable the Court to invoke its powers under Order 21 Rule 90 (2) of the Code.16. It is noticed that respondent No. 1, in her application for setting aside the sale, had mainly raised four objections. Firstly, clear 15 days notice was not given for sale of the properties as required under the Rules. Secondly, the valuation of the property was not properly mentioned in the concerned documents so as to enable the parties to know its proper valuation prevailing on the date of sale. Thirdly, the market value of the property on the date of auction was more than the price actually fetched in the auction, and fourthly, no proper publication including beating of drum was made before the date of auction due to which there was less participation of the bidders in the auction sale.17. The executing Court dealt with all the four objections with reference to the record of the proceedings and found as a fact that none of the objections had any merit. The High Court, however, found fault in the same though not in all but essentially in the matter relating to giving of clear 15 days notice and the manner in which it was issued and finding merit in the objection, set aside the sale on imposing certain conditions enumerated above.18. In our considered opinion, as mentioned above, the executing Court was justified in overruling the objections and we concur with the reasoning and the conclusion of the executing Court.19. We also find on facts that firstly, the proper publicity was given for auction sale in papers so also by beat of drums pursuant to which as many as seven bidders including the appellant herein participated in the auction sale. Had there been no publicity, it would not have been possible for seven persons to participate in the auction proceedings.20. Secondly, the details of the valuation of the property were duly mentioned, namely, decree holders valuation at Rs. 2,75,000/- likewise, Amins valuation at Rs. 4 lacs whereas the property was sold in auction for Rs. 7,50,000/-. In this view of the matter, it could not be said that the bidders did not know the valuation or/and that it was not mentioned in the auction papers.21. Thirdly, judgment debtor did not adduce any evidence nor brought any bidder to purchase the property for a higher price than the purchase bid (Rs.7,50,000/-) except to say in the application that value of the property was between Rs. 12 lakhs to Rs. 14 lakhs. In our view, this objection has no substance for want of any evidence.22. Fourthly, there was adequate publicity given with the aid of beat of drums in the locality. It was proved with the record of the executing Court as was rightly held by the executing Court and lastly, in our view, a clear 15 days notice was given for auction sale fixed for 17.11.1999 when counted from 05.10.1999. In other words, 15 days have to be counted from 05.10.1999 because it is on this date the order was issued as contemplated under Order 21 Rule 64 for proclamation of sale fixing the date of sale as 17.11.1999.23. The executing Court, therefore, substantially and in letter and spirit followed the procedure prescribed under Order 21 Rules 64 and 66 of the Code while conducting the sale of the property in question.24. The law on the question involved herein is clear. It is not the material irregularity that alone is sufficient for setting aside of the sale. The judgment debtor has to go further and establish to the satisfaction of the Court that the material irregularity or fraud, as the case may be, has resulted in causing substantial injury to the judgment- debtor in conducting the sale. It is only then the sale so conducted could be set aside under Order 21 Rule 90(2) of the Code. Such is not the case here.Learned Counsel for the respondent has placed reliance on the decisions in Gajadhar Prasad & Ors. v. Babu Bhakta Ratan & Ors., (1973) 2 SCC 629 , Ambati Narasayya v. M. Subba Rao & Anr., 1989 Supl(2) SCC 693, Desh Bandhu Gupta v. N.L. Anand & Rajinder Singh, (1994) 1 SCC 131 and Saheb Khan v. Mohd. Yousufuddin & Ors.,(2006) 4 SCC 476. We have gone through these cases and find that all are distinguishable on facts. When we have held on facts that there are no material irregularities noticed in the case and that there was compliance of the provisions of Order 21 Rules 64 to 68 then, in our view, the law laid down in these decisions are of no help to the respondent-judgment
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Raja Sharda Narain Singh Vs. Commissioner of Income Tax, U. P | to the assessment year 1949-50. It observed on this point:"There can hardly be any doubt that the sum represented the revenue income of the year under consideration. The account year of the assessee started from 28th of September, 1947, and extended up to the 30th of September, 1948. The deposit appears on 3rd of November, 1947. The assessee is a man of great status. He is the Raja of an estate and owns considerable income from zamindari, sayar, money-lending, etc. He has been assessed in the past on considerably large amounts and his potential capacity to earn income is certainly great. The deposit appears in the account books of the assessee during the accounting period. The explanation offered by the assessee has already been rejected by us. The amount is undoubtedly big but the assessee with his potential capacity to earn income could not have found it difficult to earn a sum of Rs. 2 lakhs from sources known to him but undisclosed to the department. On these facts, the only inference that can be drawn is that the sum of Rs. 2 lakhs represents not only the income of the assessee but also the income of the previous year under consideration."The assessee then filed an application under section 66(1) of the Income-tax Act before the Appellate Tribunal. The Appellate Tribunal, however, rejected the application on the ground that the findings recorded by the Tribunal were purely of fact.3. The assessee had suggested the following questions of law to be referred:"(1) Whether, in the circumstances of the case, the department succeeded in proving that the sum of rupees two lakhs was the income of the year commencing from 1st October, 1947, to 20th September, 1948 ?(2) Whether, on the facts of the case, the Tribunal was justified in drawing an inference that the sum of rupees two lakhs represented not only the income of the assessee but also his income for the year in question ?(3) Whether, considering that the previous year commenced on 1st October, 1947, it could be said that the assessee had made an income of rupees two lakhs within a short period of one month and three days ?(4) Whether there was any evidence on the record to justify a finding that rupees two lakhs was the income from nazrana, etc., or from other undisclosed sources ?"4. The assessee then applied to the High Court under section 66(2) of the Income-tax Act, asking the same questions to be referred. The counsel pressed two points in support of the application before the High Court:"(1) Whether an amount of Rupees two lakhs included in the total income of the assessee as income from some undisclosed source was not assessable in the assessment year 1949-50 on the basis of the accounting year of the assessee from 1st October, 1947, to 30th September, 1948, but was assessable only in the assessment year 1948-49 with reference to the financial year 1st April, 1947, to 31st March, 1948 ?(2) Whether there was material for the finding that the said amount of rupees two lakhs was the income of the assessee from some undisclosed source ?"The High Court, as already stated, rejected the application. The assessee having obtained special leave, the appeal is now before us.5. The learned counsel for the assessee, Mr. S.T. Desai, urges that the four questions set out above should have been referred. In our view, the only questions that should have been referred by the Appellate Tribunal are questions Nos. 1 and 2 which are similar to the first question which was pressed before the High Court.6. We may mention that Mr. Desai referred to Commissioner of Income-tax v. P. Darolia & Sons, Commissioner of Income-tax v. Sheolal Ramlal, and Sushil Chandra Ghose v. Income-tax Officer in support of the proposition that if undisclosed income was found to be from some unknown source other than the regular business of the assessee, the financial year had to be taken as the previous year for such income. At this stage we are not called upon to decide whether these cases were correctly decided, but Mr. Desai is certainly entitled to rely on them to show that a serious question of law arose out of the order of the Appellate Tribunal.7. The learned counsel for the respondent says that no such question was argued before the Appellate Tribunal. We have already extracted the relevant paragraph from the order of the Appellate Tribunal. It appears from the order of the Appellate Tribunal that they considered the question whether the income could be held to be the income of the relevant accounting year. This question was a wide question and included the aspect which is now being put in the forefront. It is true that the cases relied upon by Mr. Desai were not mentioned by the Appellate Tribunal but we are unable to agree with the learned counsel for the respondent that an aspect of a question cannot be the subject-matter of a reference, if that aspect is not considered by the Appellate TribunalWe agree with the High Court that the second question pressed before it, namely, whether there was material for the finding that the said amount of rupees two lakhs was income of the assessee from some undisclosed source need not be stated by the Tribunal as there is material on the record in support of the finding of the Appellate Tribunal.8. In the result, the appeal succeeds and we direct the Appellate Tribunal to draw up a statement of the case and refer the following question to the High Court:"Whether the sum of rupees two lakhs included in the total income of the assessee as income from some undisclosed source was not assessable in the assessment year 1949-50 on the basis of the accounting year of the assessee from 1st October, 1947, to 30th September, 1948, but was assessable only in the assessment year 1948-49 with reference to the financial year 1st April, 1947, to 31st March, 1948 ?" | 1[ds]8. In the result, the appeal succeeds and we direct the Appellate Tribunal to draw up a statement of the case and refer the following question to the Highthe sum of rupees two lakhs included in the total income of the assessee as income from some undisclosed source was not assessable in the assessment yearon the basis of the accounting year of the assessee from 1st October, 1947, to 30th September, 1948, but was assessable only in the assessment yearwith reference to the financial year 1st April, 1947, to 31st March, 1948We may mention that Mr. Desai referred to Commissioner ofv. P. Darolia & Sons, Commissioner ofv. Sheolal Ramlal, and Sushil Chandra Ghose v.Officer in support of the proposition that if undisclosed income was found to be from some unknown source other than the regular business of the assessee, the financial year had to be taken as the previous year for such income. At this stage we are not called upon to decide whether these cases were correctly decided, but Mr. Desai is certainly entitled to rely on them to show that a serious question of law arose out of the order of the Appellate Tribunal.7. The learned counsel for the respondent says that no such question was argued before the Appellate Tribunal. We have already extracted the relevant paragraph from the order of the Appellate Tribunal. It appears from the order of the Appellate Tribunal that they considered the question whether the income could be held to be the income of the relevant accounting year. This question was a wide question and included the aspect which is now being put in the forefront. It is true that the cases relied upon by Mr. Desai were not mentioned by the Appellate Tribunal but we are unable to agree with the learned counsel for the respondent that an aspect of a question cannot be theof a reference, if that aspect is not considered by the Appellate TribunalWe agree with the High Court that the second question pressed before it, namely, whether there was material for the finding that the said amount of rupees two lakhs was income of the assessee from some undisclosed source need not be stated by the Tribunal as there is material on the record in support of the finding of the Appellate Tribunal. | 1 | 1,628 | 416 | ### 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:
to the assessment year 1949-50. It observed on this point:"There can hardly be any doubt that the sum represented the revenue income of the year under consideration. The account year of the assessee started from 28th of September, 1947, and extended up to the 30th of September, 1948. The deposit appears on 3rd of November, 1947. The assessee is a man of great status. He is the Raja of an estate and owns considerable income from zamindari, sayar, money-lending, etc. He has been assessed in the past on considerably large amounts and his potential capacity to earn income is certainly great. The deposit appears in the account books of the assessee during the accounting period. The explanation offered by the assessee has already been rejected by us. The amount is undoubtedly big but the assessee with his potential capacity to earn income could not have found it difficult to earn a sum of Rs. 2 lakhs from sources known to him but undisclosed to the department. On these facts, the only inference that can be drawn is that the sum of Rs. 2 lakhs represents not only the income of the assessee but also the income of the previous year under consideration."The assessee then filed an application under section 66(1) of the Income-tax Act before the Appellate Tribunal. The Appellate Tribunal, however, rejected the application on the ground that the findings recorded by the Tribunal were purely of fact.3. The assessee had suggested the following questions of law to be referred:"(1) Whether, in the circumstances of the case, the department succeeded in proving that the sum of rupees two lakhs was the income of the year commencing from 1st October, 1947, to 20th September, 1948 ?(2) Whether, on the facts of the case, the Tribunal was justified in drawing an inference that the sum of rupees two lakhs represented not only the income of the assessee but also his income for the year in question ?(3) Whether, considering that the previous year commenced on 1st October, 1947, it could be said that the assessee had made an income of rupees two lakhs within a short period of one month and three days ?(4) Whether there was any evidence on the record to justify a finding that rupees two lakhs was the income from nazrana, etc., or from other undisclosed sources ?"4. The assessee then applied to the High Court under section 66(2) of the Income-tax Act, asking the same questions to be referred. The counsel pressed two points in support of the application before the High Court:"(1) Whether an amount of Rupees two lakhs included in the total income of the assessee as income from some undisclosed source was not assessable in the assessment year 1949-50 on the basis of the accounting year of the assessee from 1st October, 1947, to 30th September, 1948, but was assessable only in the assessment year 1948-49 with reference to the financial year 1st April, 1947, to 31st March, 1948 ?(2) Whether there was material for the finding that the said amount of rupees two lakhs was the income of the assessee from some undisclosed source ?"The High Court, as already stated, rejected the application. The assessee having obtained special leave, the appeal is now before us.5. The learned counsel for the assessee, Mr. S.T. Desai, urges that the four questions set out above should have been referred. In our view, the only questions that should have been referred by the Appellate Tribunal are questions Nos. 1 and 2 which are similar to the first question which was pressed before the High Court.6. We may mention that Mr. Desai referred to Commissioner of Income-tax v. P. Darolia & Sons, Commissioner of Income-tax v. Sheolal Ramlal, and Sushil Chandra Ghose v. Income-tax Officer in support of the proposition that if undisclosed income was found to be from some unknown source other than the regular business of the assessee, the financial year had to be taken as the previous year for such income. At this stage we are not called upon to decide whether these cases were correctly decided, but Mr. Desai is certainly entitled to rely on them to show that a serious question of law arose out of the order of the Appellate Tribunal.7. The learned counsel for the respondent says that no such question was argued before the Appellate Tribunal. We have already extracted the relevant paragraph from the order of the Appellate Tribunal. It appears from the order of the Appellate Tribunal that they considered the question whether the income could be held to be the income of the relevant accounting year. This question was a wide question and included the aspect which is now being put in the forefront. It is true that the cases relied upon by Mr. Desai were not mentioned by the Appellate Tribunal but we are unable to agree with the learned counsel for the respondent that an aspect of a question cannot be the subject-matter of a reference, if that aspect is not considered by the Appellate TribunalWe agree with the High Court that the second question pressed before it, namely, whether there was material for the finding that the said amount of rupees two lakhs was income of the assessee from some undisclosed source need not be stated by the Tribunal as there is material on the record in support of the finding of the Appellate Tribunal.8. In the result, the appeal succeeds and we direct the Appellate Tribunal to draw up a statement of the case and refer the following question to the High Court:"Whether the sum of rupees two lakhs included in the total income of the assessee as income from some undisclosed source was not assessable in the assessment year 1949-50 on the basis of the accounting year of the assessee from 1st October, 1947, to 30th September, 1948, but was assessable only in the assessment year 1948-49 with reference to the financial year 1st April, 1947, to 31st March, 1948 ?"
### Response:
1
### Explanation:
8. In the result, the appeal succeeds and we direct the Appellate Tribunal to draw up a statement of the case and refer the following question to the Highthe sum of rupees two lakhs included in the total income of the assessee as income from some undisclosed source was not assessable in the assessment yearon the basis of the accounting year of the assessee from 1st October, 1947, to 30th September, 1948, but was assessable only in the assessment yearwith reference to the financial year 1st April, 1947, to 31st March, 1948We may mention that Mr. Desai referred to Commissioner ofv. P. Darolia & Sons, Commissioner ofv. Sheolal Ramlal, and Sushil Chandra Ghose v.Officer in support of the proposition that if undisclosed income was found to be from some unknown source other than the regular business of the assessee, the financial year had to be taken as the previous year for such income. At this stage we are not called upon to decide whether these cases were correctly decided, but Mr. Desai is certainly entitled to rely on them to show that a serious question of law arose out of the order of the Appellate Tribunal.7. The learned counsel for the respondent says that no such question was argued before the Appellate Tribunal. We have already extracted the relevant paragraph from the order of the Appellate Tribunal. It appears from the order of the Appellate Tribunal that they considered the question whether the income could be held to be the income of the relevant accounting year. This question was a wide question and included the aspect which is now being put in the forefront. It is true that the cases relied upon by Mr. Desai were not mentioned by the Appellate Tribunal but we are unable to agree with the learned counsel for the respondent that an aspect of a question cannot be theof a reference, if that aspect is not considered by the Appellate TribunalWe agree with the High Court that the second question pressed before it, namely, whether there was material for the finding that the said amount of rupees two lakhs was income of the assessee from some undisclosed source need not be stated by the Tribunal as there is material on the record in support of the finding of the Appellate Tribunal.
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Mohd. Ameeruddin Vs. United India Insurance Co. Ltd. | Aftab Alam, J. 1. This is the claimants appeal by grant of special leave arising from a motor accident claim case. The appeal is directed against the judgment and order dated July 28, 2004, passed by the Andhra Pradesh High Court in Civil Miscellaneous Appeal No. 2081 of 2004. By the impugned order, the High Court partly allowed the appeal filed by the Insurance Company (the respondent herein) and reduced the amount of compensation awarded by the Tribunal under the head "loss of earnings" from Rs. 5,00,000 to Rs. 2,60,000.2. The appellants son namely, Aslamuddin died in a motor accident on October 22, 1997. He worked as a Cleaner on the lorry tanker that met with the accident. His parents, the present appellants filed a claim application (O.P. No. 954 of 1997) before the Motor Accident Claims Tribunal (Additional District Judge), Nizamabad claiming Rs. 5,00,000 as compensation for his death. Before the Tribunal, the proceedings were held ex parte against the owner of the tanker but the respondent, the insurer of the vehicle appeared and resisted the claim of the appellants. The Tribunal found that the accident took place due to rash and negligent driving by the driver of the tanker. It further found that at the time of death Aslamuddin was aged 20 years. He was getting a salary of Rs. 2,500 per month besides ‘Batta (daily allowance) at the rate of Rs. 50. His monthly earning, thus, came to Rs. 4,000 that is to say Rs. 48,000 per annum. After deducting 1/3rd towards the personal expenses of the deceased, his net contribution to the claimants was held to be Rs. 32,000 per annum.3. The Tribunal further noticed that at the time of death Aslamuddin was unmarried and the age of his mother - claimant No. 2 was 40 years. It, therefore, took the age of the mother of the deceased for the purpose of assessing compensation. Applying the multiplier of 16 on the basis of the age of the mother of the deceased being 40 years, the Tribunal came to the figure (Rs. 32,000 x 16) of Rs. 5,12,000. However, since the claimants had only made a claim of Rs. 5,00,000, it awarded the slightly lesser amount as claimed by the appellants.4. Against the judgment and order passed by the Tribunal, the Insurance Company filed an appeal before the High Court, which, as noticed above, was partly allowed. For assessing the monthly income of the deceased, the High Court took into account only the monthly salary of the deceased and excluded the amount of daily allowance (Rs. 50) from consideration observing as follows: “However, the Tribunal has erred in including batta of Rs. 50 per day, as a part of the salary and assessed the monthly income of the deceased. Batta is not paid as a part of the salary, But it is paid whenever there is work. It is now well settled that batta shall not be calculated in the salary in assessing the income of the deceased." 5. The High Court further observed that the proper multiplier, appropriate to the age of the mother of the deceased in terms of the ratio laid down by this Court in General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas, I (1994) ACC 346 (SC) =(1994) 2 SCC 176 , is 13. Thus, multiplying Rs. 30,000 by 13, the High Court arrived at the figure of Rs,3,90,000 and taking away from it 1/3rd towards the personal expenses of the deceased held that the loss of dependency of the claimants would be not more than Rs. 2,60,000 under the head "loss of future earnings". 6. We are unable to appreciate the view taken by the High Court on both counts. First, there was no evidence that the daily allowance of Rs. 50 was not paid to the deceased every day or even that he was not on work on every day of the month. On the contrary, there is evidence on record that apart from the monthly salary of Rs. 2,500 he was getting Rs. 50 as daily allowance. We, therefore, hold that the Tribunal was right in assessing the monthly income of the deceased at Rs. 4,000.7. Coming now to the question of multiplier, in light of the decision of this Court in Sarla Verma v. Delhi Transport Corporation, VI (2009) SLT 663=162 (2009) DLT 278 (SC)=III (2009) ACC 708 (SC)=(2009) 6 SCC 121 , 18 would be the proper multiplier where the age of the deceased is between 15 and 25 years and 15 where the age is between 36 and 40 years. The Tribunal has taken the age of the mother for determining the amount of compensation, and, therefore, the proper multiplier in this case would be 15 and on applying the said multiplier, the figure would come to Rs. 4,50,000. We, accordingly, fix the amount of compensation receivable by the appellants under the head "loss of earnings" at Rs. 4,50,000. | 1[ds]6. We are unable to appreciate the view taken by the High Court on both counts. First, there was no evidence that the daily allowance of Rs. 50 was not paid to the deceased every day or even that he was not on work on every day of the month. On the contrary, there is evidence on record that apart from the monthly salary of Rs. 2,500 he was getting Rs. 50 as daily allowance. We, therefore, hold that the Tribunal was right in assessing the monthly income of the deceased at Rs. 4,000.7. Coming now to the question of multiplier, in light of the decision of this Court in Sarla Verma v. Delhi Transport Corporation, VI (2009) SLT 663=162 (2009) DLT 278 (SC)=III (2009) ACC 708 (SC)=(2009) 6 SCC 121 , 18 would be the proper multiplier where the age of the deceased is between 15 and 25 years and 15 where the age is between 36 and 40 years. The Tribunal has taken the age of the mother for determining the amount of compensation, and, therefore, the proper multiplier in this case would be 15 and on applying the said multiplier, the figure would come to Rs. 4,50,000. We, accordingly, fix the amount of compensation receivable by the appellants under the head "loss of earnings" at Rs. 4,50,000. | 1 | 972 | 267 | ### 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:
Aftab Alam, J. 1. This is the claimants appeal by grant of special leave arising from a motor accident claim case. The appeal is directed against the judgment and order dated July 28, 2004, passed by the Andhra Pradesh High Court in Civil Miscellaneous Appeal No. 2081 of 2004. By the impugned order, the High Court partly allowed the appeal filed by the Insurance Company (the respondent herein) and reduced the amount of compensation awarded by the Tribunal under the head "loss of earnings" from Rs. 5,00,000 to Rs. 2,60,000.2. The appellants son namely, Aslamuddin died in a motor accident on October 22, 1997. He worked as a Cleaner on the lorry tanker that met with the accident. His parents, the present appellants filed a claim application (O.P. No. 954 of 1997) before the Motor Accident Claims Tribunal (Additional District Judge), Nizamabad claiming Rs. 5,00,000 as compensation for his death. Before the Tribunal, the proceedings were held ex parte against the owner of the tanker but the respondent, the insurer of the vehicle appeared and resisted the claim of the appellants. The Tribunal found that the accident took place due to rash and negligent driving by the driver of the tanker. It further found that at the time of death Aslamuddin was aged 20 years. He was getting a salary of Rs. 2,500 per month besides ‘Batta (daily allowance) at the rate of Rs. 50. His monthly earning, thus, came to Rs. 4,000 that is to say Rs. 48,000 per annum. After deducting 1/3rd towards the personal expenses of the deceased, his net contribution to the claimants was held to be Rs. 32,000 per annum.3. The Tribunal further noticed that at the time of death Aslamuddin was unmarried and the age of his mother - claimant No. 2 was 40 years. It, therefore, took the age of the mother of the deceased for the purpose of assessing compensation. Applying the multiplier of 16 on the basis of the age of the mother of the deceased being 40 years, the Tribunal came to the figure (Rs. 32,000 x 16) of Rs. 5,12,000. However, since the claimants had only made a claim of Rs. 5,00,000, it awarded the slightly lesser amount as claimed by the appellants.4. Against the judgment and order passed by the Tribunal, the Insurance Company filed an appeal before the High Court, which, as noticed above, was partly allowed. For assessing the monthly income of the deceased, the High Court took into account only the monthly salary of the deceased and excluded the amount of daily allowance (Rs. 50) from consideration observing as follows: “However, the Tribunal has erred in including batta of Rs. 50 per day, as a part of the salary and assessed the monthly income of the deceased. Batta is not paid as a part of the salary, But it is paid whenever there is work. It is now well settled that batta shall not be calculated in the salary in assessing the income of the deceased." 5. The High Court further observed that the proper multiplier, appropriate to the age of the mother of the deceased in terms of the ratio laid down by this Court in General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas, I (1994) ACC 346 (SC) =(1994) 2 SCC 176 , is 13. Thus, multiplying Rs. 30,000 by 13, the High Court arrived at the figure of Rs,3,90,000 and taking away from it 1/3rd towards the personal expenses of the deceased held that the loss of dependency of the claimants would be not more than Rs. 2,60,000 under the head "loss of future earnings". 6. We are unable to appreciate the view taken by the High Court on both counts. First, there was no evidence that the daily allowance of Rs. 50 was not paid to the deceased every day or even that he was not on work on every day of the month. On the contrary, there is evidence on record that apart from the monthly salary of Rs. 2,500 he was getting Rs. 50 as daily allowance. We, therefore, hold that the Tribunal was right in assessing the monthly income of the deceased at Rs. 4,000.7. Coming now to the question of multiplier, in light of the decision of this Court in Sarla Verma v. Delhi Transport Corporation, VI (2009) SLT 663=162 (2009) DLT 278 (SC)=III (2009) ACC 708 (SC)=(2009) 6 SCC 121 , 18 would be the proper multiplier where the age of the deceased is between 15 and 25 years and 15 where the age is between 36 and 40 years. The Tribunal has taken the age of the mother for determining the amount of compensation, and, therefore, the proper multiplier in this case would be 15 and on applying the said multiplier, the figure would come to Rs. 4,50,000. We, accordingly, fix the amount of compensation receivable by the appellants under the head "loss of earnings" at Rs. 4,50,000.
### Response:
1
### Explanation:
6. We are unable to appreciate the view taken by the High Court on both counts. First, there was no evidence that the daily allowance of Rs. 50 was not paid to the deceased every day or even that he was not on work on every day of the month. On the contrary, there is evidence on record that apart from the monthly salary of Rs. 2,500 he was getting Rs. 50 as daily allowance. We, therefore, hold that the Tribunal was right in assessing the monthly income of the deceased at Rs. 4,000.7. Coming now to the question of multiplier, in light of the decision of this Court in Sarla Verma v. Delhi Transport Corporation, VI (2009) SLT 663=162 (2009) DLT 278 (SC)=III (2009) ACC 708 (SC)=(2009) 6 SCC 121 , 18 would be the proper multiplier where the age of the deceased is between 15 and 25 years and 15 where the age is between 36 and 40 years. The Tribunal has taken the age of the mother for determining the amount of compensation, and, therefore, the proper multiplier in this case would be 15 and on applying the said multiplier, the figure would come to Rs. 4,50,000. We, accordingly, fix the amount of compensation receivable by the appellants under the head "loss of earnings" at Rs. 4,50,000.
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Kala @ Chandrakala Vs. State Tr.Insp.Of Police | to Susheela, PW.4 does not inspire evidence. She was not having good relationship with accused and is not corroborated by other evidence on record, hence, it would not be safe to act upon it in the facts and circumstances of the case. The extra-judicial confession made to police is admissible only with respect to the recoveries made of the moped as well as a piece of nylon saree, pursuant to the information, which articles are not proved to be connected with offence. 9. Firstly, we deal with the recovery of the Bajaj moped at the instance of the appellant. It is deposed by Soundarrajan, P.W.12 that he was running a cooking gas agency and the absconding accused Prakasam was using Bajaj M-80 motor cycle to deliver gas cylinders. The appellant accused was first brought by the police to his residence and later on to shop, and the vehicle was recovered by the police from his shop along with certificate of the registration. Prakasan had taken one week leave from him and thereafter did not turn up. Though the prosecution has alleged that Bajaj M-80 vehicle was used to carry the body of the deceased by Prakasam and the appellant and they were seen by two witnesses while going towards canal. But the said witnesses had not been examined in the court by the prosecution for the reasons known to it. Thus the prosecution has failed to establish that the vehicle in question was used for carrying the body of the deceased and it was so carried as alleged. The vehicle has been recovered from its owner with no blood stains. It was not in possession of the appellant and was recovered from the gas agency where it was supposed to be. Merely by the fact that the vehicle was used by Prakasan for distribution of the cooking gas cannot be a circumstance so as to fasten the guilt upon the appellant. It was a well known fact that vehicle was used by Prakasam for distribution of cooking gas. Use of the vehicle in the offence in question has not been proved and its recovery which is not from the possession of the appellant, the same cannot be used as a circumstance to fasten the guilt upon the appellant. 10. Now coming to the question of recovery of piece of nylon saree. The statement of Dr. Sivakumar, P.W.20 autopsy surgeon indicates that the body of the deceased was decomposed. As per chemical test report poison was not found. There was no wound caused to larynx before death. As the body of the deceased was highly decomposed the cause of death was not mentioned by the Doctor, P.W.20 in the post-mortem report. On query being made to him by the Inspector of Police regarding cause of death, he answered that that since the body was decomposed he was unable to say so, thus, the cause of death has not been established. No internal and external injury has been mentioned in the autopsy report. Thus, the prosecution has not been able to establish that the death was caused by strangulating the deceased and the piece of nylon saree was used to cause the death. Hence, recovery of the piece of nylon saree is of no value as the prosecution has not been able to link the same with the commission of the offence. 11. The appellant had not kept quiet for 15 days from 16.5.2005 to 31.5.2005. She had clearly stated in the statement under Section 313 that she had gone to the police station on 23.5.2005 along with photograph of the deceased and had also stated that the deceased frequently used to go outside for 2 to 5 days. This explains her conduct, nothing more can be attributed to her exclusive knowledge which she was required to explain within the purview of Section 106 of the Evidence Act. Knowledge of any other fact is not attributable to her in view of the evidence adduced in the case. Thus, the submission based upon the provisions contained in Section 106 is of no avail to the respondent. 12. The prosecution has also not led evidence that the appellant was ever required to identify the articles of the deceased. There is nothing on record indicating that they were shown to her for the purpose of identification and she had refused to identify them. There is contradiction in the version of Susheela P.W.4 as to when she identified the deceased. On one hand, she had stated that she did so on 31.5.2005, on the other hand, she has stated that she went to the police station with the photograph of the deceased after five days thereof. 13. In the instant case, which is based on the circumstantial evidence, particularly when the body has not been recovered at the instance of the accused, the recoveries of moped and piece of nylon saree which were made are not proved to be related to commission of offence, they are not proved to be incriminating materials. The extra-judicial confession made by the appellant to Susheela, P.W.4 is prima facie unusual and doubtful and is not corroborated by other evidence on record. Merely, the fact that the deceased had left the house on 16.5.2005, as per version of appellant, cannot be used as a circumstance against her so as to fasten guilt. The deceased used to drink alcohol and used to spend money recklessly. Due to his bad habits, there may be so many enemies of him. How the deceased spent the amount of Rs.1,30,000/- which he received on execution of agreement is not on record. The prosecution has not been able to complete the chain of circumstances so as to fasten the guilt and to prove the commission of offence by the appellant beyond periphery of doubt. The father of appellant has also been extended benefit of doubt. As such, the appellant is entitled for benefit of doubt in view of the evidence which has been adduced by the prosecution. | 1[ds]13. In the instant case, which is based on the circumstantial evidence, particularly when the body has not been recovered at the instance of the accused, the recoveries of moped and piece of nylon saree which were made are not proved to be related to commission of offence, they are not proved to be incriminating materials. The extra-judicial confession made by the appellant to Susheela, P.W.4 is prima facie unusual and doubtful and is not corroborated by other evidence on record. Merely, the fact that the deceased had left the house on 16.5.2005, as per version of appellant, cannot be used as a circumstance against her so as to fasten guilt. The deceased used to drink alcohol and used to spend money recklessly. Due to his bad habits, there may be so many enemies of him. How the deceased spent the amount of Rs.1,30,000/- which he received on execution of agreement is not on record. The prosecution has not been able to complete the chain of circumstances so as to fasten the guilt and to prove the commission of offence by the appellant beyond periphery of doubt. The father of appellant has also been extended benefit of doubt. As such, the appellant is entitled for benefit of doubt in view of the evidence which has been adduced by the | 1 | 2,533 | 243 | ### Instruction:
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to Susheela, PW.4 does not inspire evidence. She was not having good relationship with accused and is not corroborated by other evidence on record, hence, it would not be safe to act upon it in the facts and circumstances of the case. The extra-judicial confession made to police is admissible only with respect to the recoveries made of the moped as well as a piece of nylon saree, pursuant to the information, which articles are not proved to be connected with offence. 9. Firstly, we deal with the recovery of the Bajaj moped at the instance of the appellant. It is deposed by Soundarrajan, P.W.12 that he was running a cooking gas agency and the absconding accused Prakasam was using Bajaj M-80 motor cycle to deliver gas cylinders. The appellant accused was first brought by the police to his residence and later on to shop, and the vehicle was recovered by the police from his shop along with certificate of the registration. Prakasan had taken one week leave from him and thereafter did not turn up. Though the prosecution has alleged that Bajaj M-80 vehicle was used to carry the body of the deceased by Prakasam and the appellant and they were seen by two witnesses while going towards canal. But the said witnesses had not been examined in the court by the prosecution for the reasons known to it. Thus the prosecution has failed to establish that the vehicle in question was used for carrying the body of the deceased and it was so carried as alleged. The vehicle has been recovered from its owner with no blood stains. It was not in possession of the appellant and was recovered from the gas agency where it was supposed to be. Merely by the fact that the vehicle was used by Prakasan for distribution of the cooking gas cannot be a circumstance so as to fasten the guilt upon the appellant. It was a well known fact that vehicle was used by Prakasam for distribution of cooking gas. Use of the vehicle in the offence in question has not been proved and its recovery which is not from the possession of the appellant, the same cannot be used as a circumstance to fasten the guilt upon the appellant. 10. Now coming to the question of recovery of piece of nylon saree. The statement of Dr. Sivakumar, P.W.20 autopsy surgeon indicates that the body of the deceased was decomposed. As per chemical test report poison was not found. There was no wound caused to larynx before death. As the body of the deceased was highly decomposed the cause of death was not mentioned by the Doctor, P.W.20 in the post-mortem report. On query being made to him by the Inspector of Police regarding cause of death, he answered that that since the body was decomposed he was unable to say so, thus, the cause of death has not been established. No internal and external injury has been mentioned in the autopsy report. Thus, the prosecution has not been able to establish that the death was caused by strangulating the deceased and the piece of nylon saree was used to cause the death. Hence, recovery of the piece of nylon saree is of no value as the prosecution has not been able to link the same with the commission of the offence. 11. The appellant had not kept quiet for 15 days from 16.5.2005 to 31.5.2005. She had clearly stated in the statement under Section 313 that she had gone to the police station on 23.5.2005 along with photograph of the deceased and had also stated that the deceased frequently used to go outside for 2 to 5 days. This explains her conduct, nothing more can be attributed to her exclusive knowledge which she was required to explain within the purview of Section 106 of the Evidence Act. Knowledge of any other fact is not attributable to her in view of the evidence adduced in the case. Thus, the submission based upon the provisions contained in Section 106 is of no avail to the respondent. 12. The prosecution has also not led evidence that the appellant was ever required to identify the articles of the deceased. There is nothing on record indicating that they were shown to her for the purpose of identification and she had refused to identify them. There is contradiction in the version of Susheela P.W.4 as to when she identified the deceased. On one hand, she had stated that she did so on 31.5.2005, on the other hand, she has stated that she went to the police station with the photograph of the deceased after five days thereof. 13. In the instant case, which is based on the circumstantial evidence, particularly when the body has not been recovered at the instance of the accused, the recoveries of moped and piece of nylon saree which were made are not proved to be related to commission of offence, they are not proved to be incriminating materials. The extra-judicial confession made by the appellant to Susheela, P.W.4 is prima facie unusual and doubtful and is not corroborated by other evidence on record. Merely, the fact that the deceased had left the house on 16.5.2005, as per version of appellant, cannot be used as a circumstance against her so as to fasten guilt. The deceased used to drink alcohol and used to spend money recklessly. Due to his bad habits, there may be so many enemies of him. How the deceased spent the amount of Rs.1,30,000/- which he received on execution of agreement is not on record. The prosecution has not been able to complete the chain of circumstances so as to fasten the guilt and to prove the commission of offence by the appellant beyond periphery of doubt. The father of appellant has also been extended benefit of doubt. As such, the appellant is entitled for benefit of doubt in view of the evidence which has been adduced by the prosecution.
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13. In the instant case, which is based on the circumstantial evidence, particularly when the body has not been recovered at the instance of the accused, the recoveries of moped and piece of nylon saree which were made are not proved to be related to commission of offence, they are not proved to be incriminating materials. The extra-judicial confession made by the appellant to Susheela, P.W.4 is prima facie unusual and doubtful and is not corroborated by other evidence on record. Merely, the fact that the deceased had left the house on 16.5.2005, as per version of appellant, cannot be used as a circumstance against her so as to fasten guilt. The deceased used to drink alcohol and used to spend money recklessly. Due to his bad habits, there may be so many enemies of him. How the deceased spent the amount of Rs.1,30,000/- which he received on execution of agreement is not on record. The prosecution has not been able to complete the chain of circumstances so as to fasten the guilt and to prove the commission of offence by the appellant beyond periphery of doubt. The father of appellant has also been extended benefit of doubt. As such, the appellant is entitled for benefit of doubt in view of the evidence which has been adduced by the
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Bijendra Nath Srivastava Vs. Mayank Srivastava | disposes finally of all matters of difference. [See : Smt. Santa Sila Devi & Anr. v. Dhirendra Nath Sen & Ors. supra]. In the award the arbitrator has stated: "I have heared the parties and considered all the points raised by them, the rights and claims of the parties involved, and the accounts and evidence produced by them." The arbitrator has also made the following provision in the share of the movable propeties allotted to each of the parties : "Subject to the terms of the award party No. - will get 1/6 share in all the joint family property which may be recovered or traced or available for partition subsequently and it will be distributed after the award." This would show that in respect of the movable properties which may be recovered or traced or become available for partition subsequently and the arbitrator has directed that each party shall get 1/6 share in the same. This would show that the arbitrator has fully considered all the claims of the parties in respect of all the properties available for partition and it canot be said that any property has been left out by the arbitrator.46. The High Court has also observed that the arbitrator has failed to decide the dispute about advances taken from the joint famil funds by the parties respectively and to make adjustments in respect thereof in the award as required to do by thed arbitration agreement. It is no doubt true that in clause 9 of the arbitration agreement it is provided that if there be any disagreement on any figure of the advance between Bhupendra Nath Srivastava and the party concerned, the same shall be decided by the arbitrator and his decision will be binding and final on the parties concerned. From the proceedings of the arbitrator it does appear that the matter of advances has been considred by thearbitrator. The fact that the arbitrator has not separately indicated in the award the amount of advance in respect of each of the parties does not mean that he did not determine the dispute relating to advances. The arbitrator, after considering the amount of advances, has fixed the shares of each of the parties in the award. In other words, the arbitrator has made a lump-sum award for each of the parties. It was permissible for the arbitrator to deliver a consolidated award on the whole case. [See: Smt. Santa Devi & Anr. v. Dhirendra Nath Sen & Ors.(supra)].47. The High Court also found fault with the award on the ground that the value of the shares allotted to the parties is unequal. But this was bound to happen on accounts of difference in the amounts of advance to each of the parties which had to be adjusted against the shares allotted. It cannot, therefore, be said that the value of the share allotted to each of the parties under the award is unequal. Moreover, the award cannot be set aside on the ground that the shares allotted are unequal. In B. Subbarama Naidu v. Siddamma Naidu & Ors., 1962 (1) SCR 784 , the court has rejected the contention that the arbitrator erred in allotting less than half the share in the properties in suit and has observed : "Plainly this objection would not fall either under clause (a) or under clause (b) nor under the first part of clause (c). The question is whether it could possibly fall within the second part of clause (c), that is, whether the award is "otherwise invalid". In order to bring the objection will in this clause learned counsel contended that the award was bad on its face. It is difficult for us to appreciate how the award could be said to bad on its face. When a dispute is referred to arbitration, the arbitrator has to decide it to the best of his judgment, of course acting honestly." 48. Another infirmity in the impugned award, according to the High Court, was that the worship of the family deity and control over immovables attached thereto have been illegally allotted to the share of one party alone. Under the award Family Devi Ji with that and other articles is to be maintained by party No. 2. The High Court has held that as the arbitration agreement did not make any mention of the family diety, the assets attached to same should have been kept under joint control or been left out the partition scheme altogether. We find it difficult to appreciate as to how the award can be faulted on this score. Since the family diety is kept is one of the immovable properties which had to be allotted to one of the parties, the maintenance of the family deity had to be entrusted to the party who was allotted that particular property. The arbitrator thought it proper to allot the said property to party No. 2 representing the branch of Bhagwati Nath, the eldest son of late Shri B.N. Srivastava, and thereby Smt. Savitri Devi, wife of Bhagwati Nath, the eldest daughter-in-law of late B.N. Srivastava has been entrusted with the maintenance of the family deity. Moreover, as mentioned by the trial court, in the affidavit dated January 5, 1972, Party No. 2 had specifically admitted that right of worship is available to all the parties.49. Before we conclude we may mention that the award has been acted upon by the parties to a considerable extent in the sense that during the pendency of the proceedings in the court of objector (parties Nos. 3 and 6) as well as other parties - have alienated a number of properties which have been allotted to their share under the award. Some of the sale deeds or agreements for sell were executed by respondent No. 14 claiming full ownership on the basis of the impugned award. This is an additional circumstance which persuades us to hold that the award made by the arbitrator should be maintained and should not be upset. | 1[ds]27. Having regard to the aforesaid facts and circumstances we are of the opinion that it would be unsafe to place reliance on the uncorroborated assertion of respondent No. 14, as contained in the affidavits filed by him, the truth of which has not been tested in cross-examination. The High Court, in our view, was not justified in recording a finding against the arbitrator on the basis of such evidence and setting aside the award on this ground.We find it difficult to agree with the said view of the High Court. There is nothing in the award to indicate the process of reasoning adopted by the arbitrator to arrive at the market value of immovable properties. Merely because the arbitrator has mentioned the municipal annual rental value of the property before indicating the market value of the same does not mean that the value is fixed on the basis of the rental value and the award is a reasoned award justifying the court to examine whether the award suffers from an error. It is settled law that it is not open to the court to deduce reasons in the award or in the record accompanying the award and proceed to examine whether those reasons were right or erroneous. This is what appears to have been done by the High Court in the present case. This was impermissible. We are, therefore, of the opinion that the High Court was in error in going into the question of valuation of immovable properties by the arbitrator in the award.35. Though it is not necessary, but since the High Court has dealt with the question of valuation of immovable properties at some length, we have examined the matter. We must express our inability to endorse the view of the High Court that the valuation as fixed by the arbitration cannot be sustained. For this purpose we will proceed on the basis that the valuation in the award has been fixed on the basis of the valuation given in paper No. 104/37-Kha filed by party No. 2 before the arbitrator on July 21, 1966. As notice earlier the trial court has held that the said paper contained the valuation of properties agreed by all the six parties who has appended their signatures to it and that the arbitrator could accept the same as the valuation of the properties. The High Court has, however, disagreed with the said view and has held that the said paper did not contain the valuation of properties as agreed by all the parties and that the said paper was filed by party No.2 and other parties had put their initials only in token of having noted the contents of the said paper. The High Court has also held that the valuation as fixed in the said paper was not correct.In our opinion the question as to whether paper No. 103/37-Kha was filed by party No. 2 at the request of all the parties is not significant. What is material is that the said paper which gives a valuation of all the 17 immovable properties bears the signatures of all the six parties. The signatures on a statement filed during the course of proceedings before the arbitrator have a different significance than signatures below the record of proceedings before the arbitrator. It has not been shown that there were other documents filed before the arbitrator by a party which contained the signatures of other parties in token of their having noted the contents thereof. We, therefore, find it difficult to construe the signatures of the other parties at the bottom of paper No. 104/37-Kha as being appended in token of their having noted the contents thereof. Furthermore none of the parties produced any evidence before the arbitrator to prove the valuation of the properties. In the circumstances the arbitrator could treat the valuation given in the said paper as the agreed valuation given by all the parties. The controversy which arose subsequently before the trial court between party No. 2 and party No. 6 regarding paper No. 104/37-Kha, to which reference has been made by the High Court, can have no bearing on the question whether the arbitrator has committed an error in proceeding on the basis that paper No. 104/37-Kha submitted before him bearing the signatures of all the six parties is an agreed valuation of the properties. The said paper was filed on July 21, 1966 and prior to that on July 16, 1966 the arbitrator had discussed with all the parties the municipal assessment and valuation of all the joint family properties for the purpose of stamp duty. The arbitrator could, therefore, assume that paper No. 104/37-Kha was being filed in pursuance of the said discussion. Moreover, there is nothing on the record to show that any of the parties had raised any objection that the valuation fixed in respect of the properties in the said paper was not correct. The arbitrator could, in the circumstances, proceed on the basis that the valuation of the properties was as indicated in paper No. 104/37-Kha.We are, therefore, unable to hold that in the matter of immovable properties the award suffers from an error on the face of it.Before we conclude we may mention that the award has been acted upon by the parties to a considerable extent in the sense that during the pendency of the proceedings in the court of objector (parties Nos. 3 and 6) as well as other parties - have alienated a number of properties which have been allotted to their share under the award. Some of the sale deeds or agreements for sell were executed by respondent No. 14 claiming full ownership on the basis of the impugned award. This is an additional circumstance which persuades us to hold that the award made by the arbitrator should be maintained and should not be upset.16. In paragraph 52 which has been introduced by way of amendment it has been alleged that the arbitrator had misconducted the proceeding by returning the papers and documents specified in(i) to (iii) to the parties who had submitted the said papers and documents during the course of the proceedings. In paragraphs 53 it has been alleged that the arbitrator had misconducted the proceedings in falsely showing the presence of Birendra Nath Srivastava, respondent No. 14, in the proceedings dated October 18, 20 and 25, 1966 and November 4 and 10, 1966 inspite of the fact that he fully knew that respondent No. 14 was absent from these proceedings from October 10, 1966. We have carefully perused the averments contained in the original objections filed by respondent No. 14 on July 3, 1967. Although in the said objections various acts of misconduct have been imputed to the arbitrator in several paragraphs, we have been unable to find an averment in any of the paragraphs imputing misconducts of the nature mentioned in paragraphs 52 and 53 which were sought to be inserted by way of amendment.The objection in paragraph 41 was to the effect that during the course of the arbitration proceedings the arbitrator had met and heard individual members in the absence of others and the enquiries made by the arbitrator behind the back of others had been kept secret and disclosed. The said objection does not refer to any misconduct arising on account of recording the presence of a party in the proceedings even though the said party was not present on the date to which the proceedings relate. The grievance in paragraph 41 relates to proceedings before the arbitrator dated February 10, 14 & 20, 1966, April 19, 1966, July 27, 28 and 31, 1966, August 10 & 14, 1966, and September 4 & 5, 1966 and has been considered separately by the High Court. The High Court has pointed out that as regards proceeding upto July 25, 1966 all the parties in their application for extension of time dated July 25, 1966 have recorded that the arbitrator had "been extremely fair so far during the conduct of the proceeding." In view of the said statement the High Court felt that it was required to scrutinize the conduct of arbitrator only after July 25, 1966. The High Court has observed that even though on different dates some of the parties were not present before the arbitrator but the said conduct had been waived and acquiesced by the parties and could not be complained of in the proceedings. This would clearly demonstrate that the misconduct which has been alleged in paragraph number 41 of the original objection petition was a misconduct of a different nature and not the misconducts referred to in paragraphs 52 and 53.18. In so far as the objection in paragraph 45 of the original objection petition is concerned we find that it is a general objection regarding failure to follow the principles of natural justice by the arbitrator and denial of equal opportunity to the objector. The misconducts referred to in paragraphs 52 and 53 are of different nature and are not covered by the objection in paragraph 45.19. Another reason given by the High Court for holding that the order dated May 8, 1976 allowing the amendment could not be assailed was that the said order was subject to payment of costs and since cost has already been accepted by the appellants they are estopped from challenging the amendment. As indicated earlier there were two orders whereby amendments were allowed. One was order dated October 9, 1969 whereby the amendments sought by respondent Nos. 2 and 3 in the objection petition filed by them were allowed and the other was order dated May 8, 1976 whereby the amendments in objection petition filed by respondent No. 14 were allowed. The contention based on estoppel arising from acceptance of costs awarded under the order allowing the amendment was raised by Shri Dhasmana, the learned counsel for Bhuwaneshwar Nath, respondent No. 3, with regard to order dated October 9, 1969. No such contention was urged by the learned counsel for respondents Nos. 1 and 14 herein as regards order dated May 8, 1976. The acceptance of the contention urged by Shri Dhasmana, on behalf of respondent No. 2, by the High Court can only mean that the order dated October 9, 1969 has been upheld on that basis. Since no such contention was advanced by the learned counsel for respondents Nos. 1 and 14 in support of the order dated May 8, 1976 the said order cannot be said to have been upheld on that basis.20. That apart the principle of estoppel which precludes a party from assailing an order allowing a petition subject to payment of costs where the other party has accepted the costs in pursuance of the said order applies only in those cases where the order is in the nature of a condition precedent to the petition being allowed. In such a case it is open to the party not to accept the benefit of cost and thus avoid the consequence of being deprived of the right to challenge the order on merits. The said principle would not apply to a case where the direction for payment of costs is not a condition on which the petition is allowed the costs have been awarded independently in exercise of the discretionary power of the court to award costs because in such a case the party who has been awarded costs has no opportunity to waive his right to question the validity or correctness of the order. The decision of the Andhra Pradesh High Court in The Metal Press Works Ltd., Calcutta v. G.M. Cotton Press Co, AIR 1976 Andhra Pradesh 205, on which reliance has been placed by the High Court, proceeds on the basis that awarding of costs was, in fact and substance, a part of the entire order allowing amendment in written statement and the said order was a conditional one. The decision of the Madras High Court in Prayag Dassjee v. Venkat Perumal, AIR 1933 Madras 410, and the decisions of the Patna High Court in Ramcharan v. Custodian of Evacuee Property, AIR 1964 Patna 275, and M. Kepur Kumar v. Narain Singh, AIR 1949 Patna 491, on which reliance has been placed in the said judgment of Andhra Pradesh High Court also emphasises that the orders under challenge were conditional orders and payment of costs was a condition precedent to allowing the petition. In Devaiah v. Nagappa, AIR 1965 Mysore 102, the order allowing amendment of the election petition contained a direction regarding payment of costs. It was held that the application was allowed without any condition and that the order was not conditional order and principle of estoppel was held inapplicable.21. A persual of order dated May 8, 1976 shows that the the said order is not a conditional order. The Civil Judge, after considering the merits has allowed the proposed amendments. The costs were awarded not as a condition precedent to allowing the amendment but by way of exercise of the discretionary power of the Court to award costs to the opposite party. It may also be mentioned that the appellants did not accept the said order dated May 8, 1976. They assailed the validity of the same at the stage of final hearing before the trial court but the said contention was rejected by the Additional District & Sessions Judge on the view that the said order had become final as regards the proceedings before him and the same could not be recalled or reviewed. Thereafter, the appellants assailed the correctness of the order dated May 8, 1976 in the appeal filed by respondent Nos. 1 & 3 in the High Court. The principle of estoppel arising from acceptance of costs so to preclude the appellants from challenging the validity of the order dated May 8, 1976 cannot, therefore, be invoked in the facts and circumstances of the present case. Since the grounds given by the High Court for upholding the order dated May 5, 1976 cannot be affirmed the amendments allowed by the said order in so far as they relate to insertion of paragraphs 52 and 53 in the objection petition filed by respondent No. 14 are set aside.In the present case the High Court has set aside the award of the arbitrator primarily on two grounds, viz., (i) the arbitrator had misconducted the proceedings by incorrectly recording the presence of party No. 6 (respondent No. 14 herein) from October 9, 1966 onwards in the proceedings before him although that party was actually absent on those days; and (ii) the award suffers from several mistakes apparent on its face.24. We would first examine whether the arbitrator can be said to have misconducted the proceedings by incorrectly recording the presence of respondent No. 14 on certain dates even though the said respondent was actually absent on those dates. In this regard it may be mentioned that on behalf of respondent No. 1 it was contended before the trial court as well as the High Court that the arbitrator was partial and the award had been improperly procured from him by the parties who stand favoured thereby.Even though we are of the view that paragraph 53 was wrongly allowed to be included in the objection petition by way of amendment, we propose to deal with the finding recorded by the High Court in respect of this objection. In this context it would be relevant to note that on December 6, 1966 the arbitrator had filed in the court the award as well as the record of proceedings before him. The objection petition was filed by respondent No. 14 after more than six months on July 3, 1967. He had sufficient time to inspect the said record before filing the objection petition. He did not, however, raise any objection in the objection petition to the effect that he had not been taking part in the proceedings before the arbitrator from October 9, 1966 onwards and that even though he was absent the arbitrator had incorrectly recorded his presence in the proceedings since then. This plea was raised for the first time by respondent No. 14 in paragraph 58 of his affidavit dated January 1, 1972, after the arbitrator had died on December 14, 1970. The said plea was repeated in paragraph 15 of the affidavit of respondent No. 14 dated July 4, 1973 filed by way of evidence. Bijendra Nath, appellant No. 1, in his counter affidavit dated January 20, 1975 raised an objection that the contents of paragraph 15 of the said affidavit of respondent No. 14 are beyond the pleading of party No. 6. Thereupon respondent No. 1 filed an application for impleadment and amendment so as to incorporate paragraph No. 53 in the objection petition. It would thus appear that during the life time of the arbitrator respondent No. 14 remained silent about this allegation of misconduct and raised it only in 1972 after the death of the arbitrator. The High Court was conscious of the fact that this plea was taken only through an amendment and it could be criticised as anThe only reason that has weighed with the High Court in accepting the version of respondent No. 14 is that the signatures of respondent No. 14 are not contained in the order sheets of the proceedings for the period subsequent to October, 9, 1966 till the conclusion of the arbitration proceedings although the signatures of other parties are found in the said proceedings and that the practice followed by the arbitrator was to obtain the signatures of all the parties under the proceedings of a particular date irrespective of the fact whether that party was present or not on that date. The charge of misconduct levelled by respondent No. 14 against the arbitrator was a very serious charge. The arbitrator was a retired District Judge who was closely related to the parties and who (as found by the High Court) until sometime before October 9, 1966 enjoyed the respect and confidence of all parties. The High Court has not given any reason why the arbitrator should have falsely recorded the presence of respondent No. 14 at the concluding stages of the arbitral proceedings. In the absence of corroboration by other contemporaneous evidence the High Court, in our opinion, should not have disbelieved the record of the arbitrator merely on the ground that signatures of respondent No. 14 are not found in the record of proceedings. No evidence has been produced to show that when the matter was pending before the arbitrator respondent No. 14 had expressed his desire to withdraw from the proceeding or having raised any objection before the arbitrator about his presence being wrongly recorded in the proceedings subsequent to October 9, 1976. The fact that other parties have appended their signatures to the proceedings which recorded the presence of party No. 6 (respondent No. 14) without raising any objection about the correctness of the said record. As regards the absence of an affidavit by party No. 1 to rebut the assertion in the affidavits filed by respondent No. 14 it may be stated that the affidavits of respondent No. 14 dated January 1, 1972 and July 4, 1973 were filed before the amendment of the objection petition wherein no such objection had been taken and this fact was pointed our by appellant No. 1 in his counter affidavit dated January 20, 1975 filed in reply to the affidavits of respondent No. 14 dated January 1, 1972 and July 4, 1973. No further affidavit was filed by respondent No. 14 or respondent No. 1 after the order dated May 8, 1976 allowing the amendment. There was, therefore, no occasion for filing a rebuttal to any such allegation.26. It is also pertinent to mention that respondent No. 14 had come forward with the case that he had made an offer of Rs. 2,50,000/for Chaulakhi Kothi before the arbitrator and in this regard the trial court has observed that after the death of the arbitrator on December 14, 1970 respondent No. 14 had filed paper No. 137/Ga on August 16, 1971 containing offer of Rs. 2,50,000/for Chaulakhi Kothi and he also took aid of theof Bhupendra Nath, party No. 1, who had filed an affidavit saying such an offer was made. The trial court has found that while in paper No. 137/Ga the date of the alleged offer is mentioned to be April 18, 1966 thein his affidavit (paper No. 241/Kha) has deposed that the offer was typed and handed over to the arbitrator on April 19, 1966.Having regard to the aforesaid facts and circumstances we are of the opinion that it would be unsafe to place reliance on the uncorroborated assertion of respondent No. 14, as contained in the affidavits filed by him, the truth of which has not been tested inThe High Court, in our view, was not justified in recording a finding against the arbitrator on the basis of such evidence and setting aside the award on this ground.We find it difficult to agree with the said view of the High Court. There is nothing in the award to indicate the process of reasoning adopted by the arbitrator to arrive at the market value of immovable properties. Merely because the arbitrator has mentioned the municipal annual rental value of the property before indicating the market value of the same does not mean that the value is fixed on the basis of the rental value and the award is a reasoned award justifying the court to examine whether the award suffers from an error. It is settled law that it is not open to the court to deduce reasons in the award or in the record accompanying the award and proceed to examine whether those reasons were right or erroneous. This is what appears to have been done by the High Court in the present case. This was impermissible. We are, therefore, of the opinion that the High Court was in error in going into the question of valuation of immovable properties by the arbitrator in the award.35. Though it is not necessary, but since the High Court has dealt with the question of valuation of immovable properties at some length, we have examined the matter. We must express our inability to endorse the view of the High Court that the valuation as fixed by the arbitration cannot be sustained. For this purpose we will proceed on the basis that the valuation in the award has been fixed on the basis of the valuation given in paper No.filed by party No. 2 before the arbitrator on July 21, 1966. As notice earlier the trial court has held that the said paper contained the valuation of properties agreed by all the six parties who has appended their signatures to it and that the arbitrator could accept the same as the valuation of the properties. The High Court has, however, disagreed with the said view and has held that the said paper did not contain the valuation of properties as agreed by all the parties and that the said paper was filed by party No.2 and other parties had put their initials only in token of having noted the contents of the said paper. The High Court has also held that the valuation as fixed in the said paper was not correct.n our opinion the question as to whether paper No.was filed by party No. 2 at the request of all the parties is not significant. What is material is that the said paper which gives a valuation of all the 17 immovable properties bears the signatures of all the six parties. The signatures on a statement filed during the course of proceedings before the arbitrator have a different significance than signatures below the record of proceedings before the arbitrator. It has not been shown that there were other documents filed before the arbitrator by a party which contained the signatures of other parties in token of their having noted the contents thereof. We, therefore, find it difficult to construe the signatures of the other parties at the bottom of paper No.as being appended in token of their having noted the contents thereof. Furthermore none of the parties produced any evidence before the arbitrator to prove the valuation of the properties. In the circumstances the arbitrator could treat the valuation given in the said paper as the agreed valuation given by all the parties. The controversy which arose subsequently before the trial court between party No. 2 and party No. 6 regarding paper No.to which reference has been made by the High Court, can have no bearing on the question whether the arbitrator has committed an error in proceeding on the basis that paper No.submitted before him bearing the signatures of all the six parties is an agreed valuation of the properties. The said paper was filed on July 21, 1966 and prior to that on July 16, 1966 the arbitrator had discussed with all the parties the municipal assessment and valuation of all the joint family properties for the purpose of stamp duty. The arbitrator could, therefore, assume that paper No.The High Court has held that the valuation given by paper No.is not correct for the reasons that (i) several immovable properties which were not subject to municipal assessment are shown as having municipal assessment or annual letting value; (ii) the municipal assessment in respect of some of the properties which were subject to municipal assessment was incorrectly specified and the valuation was based on that incorrect specification; and (iii) a uniform principle of valuation has been applied for tenanted buildings subject to rent control as well as self occupied buildings and even open lands.41. In support of the first reasons given by the High Court, Shri Sanghi has pointed out that certain properties, namely, Stable with land & Khandhal situated in Lucknow, Matadin House in Lucknow, and Badri Batika, though not assessable to municipal taxes have been valued by the arbitrator in the award on the basis of Lucknow Corporation rental value. We find that the valuation that has been placed by the arbitrator for the aforementioned properties is the same as is set out in paper No.As regards certain other properties, viz., the Mill Area Property at Lucknow, Singharewali Kothi at Lucknow and Glenroy at Mussoorie it has been pointed out that in paper No. 104/37Kha the valuation has been fixed on the basis of incorrect municipal assessments and to prove the correct assessments for these properties certified copies of the assessment list were filed before the trial court as Exhibits 11, 10 and 12. The High Court has held that these certified copies of the assessment list could be produced before the trial court because the municipal assessment statement which were submitted by party No. 1 before the arbitrator on July 27, 1966 had been taken away by the said party on July 28, 1966 for getting them typed and the same were not filed again before the arbitrator. In adopting this course the High Court has assumed, without any evidence on record, that the certified copies of the assessment list which have been filed as Exhibits 11, 10, and 12 before the trial court are the copies of the documents which had been filed by party No. 1 before the arbitrator on July 27, 1966 and which were taken back by him on 28, 1966. Moreover if any party had any grievance against party No. 1 having taken back the municipal assessment statements which were produced by him on July 27, 1966 before the arbitrator, the said party could have either moved the arbitrator for directing party No. 1 to produce the same or could have filed the said statements itself before the arbitrator. None of the parties chose to adopt such a course. The only evidence that was adduced before the arbitrator regarding the municipal assessment of the properties was that stated in paper No.The award based on the said evidence cannot be assailed on the basis of additional evidence in the form of certified copies of the municipal assessment statements produced before the trial court, which evidence was not produced before the arbitrator.43. As regards the application of the same principle of capitalisation of annual profits to all the properties irrespective of the fact that some are tenanted buildings subject to rent control and others are self occupied buildings and even open land we find that the said principle was adopted in arriving at the valuation of properties in paper No.In applying the said principle the arbitrator appears to have proceeded on the basis that the said principle was acceptable to the parties in respect of all the properties.44.We are, therefore, unable to hold that in the matter of immovable properties the award suffers from an error on the face of it.The High Court has held that the considerable items of movable on the face of the award have been omitted from division and as a result the parties who were respectively in actual possession or enjoyment thereof have been allowed to retain undue advantage inasmuch as no adjustment has been made in respect thereof from their shares while making the allotments. In this regard, it may be stated that the law is well settled that unless so specifically required an ward need not formally express the decision of the arbitrator on each matter of difference and unless the contrary appears the court will presume that the award disposes finally of all matters of difference. [See : Smt. Santa Sila Devi & Anr. v. Dhirendra Nath Sen & Ors. supra]. In the award the arbitrator has stated: "I have heared the parties and considered all the points raised by them, the rights and claims of the parties involved, and the accounts and evidence produced by them." The arbitrator has also made the following provision in the share of the movable propeties allotted to each of the parties : "Subject to the terms of the award party No.will get 1/6 share in all the joint family property which may be recovered or traced or available for partition subsequently and it will be distributed after the award." This would show that in respect of the movable properties which may be recovered or traced or become available for partition subsequently and the arbitrator has directed that each party shall get 1/6 share in the same. This would show that the arbitrator has fully considered all the claims of the parties in respect of all the properties available for partition and it canot be said that any property has been left out by the arbitrator.46. The High Court has also observed that the arbitrator has failed to decide the dispute about advances taken from the joint famil funds by the parties respectively and to make adjustments in respect thereof in the award as required to do by thed arbitration agreement. It is no doubt true that in clause 9 of the arbitration agreement it is provided that if there be any disagreement on any figure of the advance between Bhupendra Nath Srivastava and the party concerned, the same shall be decided by the arbitrator and his decision will be binding and final on the parties concerned. From the proceedings of the arbitrator it does appear that the matter of advances has been considred by thearbitrator. The fact that the arbitrator has not separately indicated in the award the amount of advance in respect of each of the parties does not mean that he did not determine the dispute relating to advances. The arbitrator, after considering the amount of advances, has fixed the shares of each of the parties in the award. In other words, the arbitrator has made aaward for each of the parties. It was permissible for the arbitrator to deliver a consolidated award on the whole case. [See: Smt. Santa Devi & Anr. v. Dhirendra Nath Sen & Ors.(supra)].47. The High Court also found fault with the award on the ground that the value of the shares allotted to the parties is unequal. But this was bound to happen on accounts of difference in the amounts of advance to each of the parties which had to be adjusted against the shares allotted. It cannot, therefore, be said that the value of the share allotted to each of the parties under the award is unequal. Moreover, the award cannot be set aside on the ground that the shares allotted are unequal.Another infirmity in the impugned award, according to the High Court, was that the worship of the family deity and control over immovables attached thereto have been illegally allotted to the share of one party alone. Under the award Family Devi Ji with that and other articles is to be maintained by party No. 2. The High Court has held that as the arbitration agreement did not make any mention of the family diety, the assets attached to same should have been kept under joint control or been left out the partition scheme altogether. We find it difficult to appreciate as to how the award can be faulted on this score. Since the family diety is kept is one of the immovable properties which had to be allotted to one of the parties, the maintenance of the family deity had to be entrusted to the party who was allotted that particular property. The arbitrator thought it proper to allot the said property to party No. 2 representing the branch of Bhagwati Nath, the eldest son of late Shri B.N. Srivastava, and thereby Smt. Savitri Devi, wife of Bhagwati Nath, the eldestof late B.N. Srivastava has been entrusted with the maintenance of the family deity. Moreover, as mentioned by the trial court, in the affidavit dated January 5, 1972, Party No. 2 had specifically admitted that right of worship is available to all the parties.49.Before we conclude we may mention that the award has been acted upon by the parties to a considerable extent in the sense that during the pendency of the proceedings in the court of objector (parties Nos. 3 and 6) as well as other partieshave alienated a number of properties which have been allotted to their share under the award. Some of the sale deeds or agreements for sell were executed by respondent No. 14 claiming full ownership on the basis of the impugned award. This is an additional circumstance which persuades us to hold that the award made by the arbitrator should be maintained and should not be upset. | 1 | 14,168 | 6,225 | ### Instruction:
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disposes finally of all matters of difference. [See : Smt. Santa Sila Devi & Anr. v. Dhirendra Nath Sen & Ors. supra]. In the award the arbitrator has stated: "I have heared the parties and considered all the points raised by them, the rights and claims of the parties involved, and the accounts and evidence produced by them." The arbitrator has also made the following provision in the share of the movable propeties allotted to each of the parties : "Subject to the terms of the award party No. - will get 1/6 share in all the joint family property which may be recovered or traced or available for partition subsequently and it will be distributed after the award." This would show that in respect of the movable properties which may be recovered or traced or become available for partition subsequently and the arbitrator has directed that each party shall get 1/6 share in the same. This would show that the arbitrator has fully considered all the claims of the parties in respect of all the properties available for partition and it canot be said that any property has been left out by the arbitrator.46. The High Court has also observed that the arbitrator has failed to decide the dispute about advances taken from the joint famil funds by the parties respectively and to make adjustments in respect thereof in the award as required to do by thed arbitration agreement. It is no doubt true that in clause 9 of the arbitration agreement it is provided that if there be any disagreement on any figure of the advance between Bhupendra Nath Srivastava and the party concerned, the same shall be decided by the arbitrator and his decision will be binding and final on the parties concerned. From the proceedings of the arbitrator it does appear that the matter of advances has been considred by thearbitrator. The fact that the arbitrator has not separately indicated in the award the amount of advance in respect of each of the parties does not mean that he did not determine the dispute relating to advances. The arbitrator, after considering the amount of advances, has fixed the shares of each of the parties in the award. In other words, the arbitrator has made a lump-sum award for each of the parties. It was permissible for the arbitrator to deliver a consolidated award on the whole case. [See: Smt. Santa Devi & Anr. v. Dhirendra Nath Sen & Ors.(supra)].47. The High Court also found fault with the award on the ground that the value of the shares allotted to the parties is unequal. But this was bound to happen on accounts of difference in the amounts of advance to each of the parties which had to be adjusted against the shares allotted. It cannot, therefore, be said that the value of the share allotted to each of the parties under the award is unequal. Moreover, the award cannot be set aside on the ground that the shares allotted are unequal. In B. Subbarama Naidu v. Siddamma Naidu & Ors., 1962 (1) SCR 784 , the court has rejected the contention that the arbitrator erred in allotting less than half the share in the properties in suit and has observed : "Plainly this objection would not fall either under clause (a) or under clause (b) nor under the first part of clause (c). The question is whether it could possibly fall within the second part of clause (c), that is, whether the award is "otherwise invalid". In order to bring the objection will in this clause learned counsel contended that the award was bad on its face. It is difficult for us to appreciate how the award could be said to bad on its face. When a dispute is referred to arbitration, the arbitrator has to decide it to the best of his judgment, of course acting honestly." 48. Another infirmity in the impugned award, according to the High Court, was that the worship of the family deity and control over immovables attached thereto have been illegally allotted to the share of one party alone. Under the award Family Devi Ji with that and other articles is to be maintained by party No. 2. The High Court has held that as the arbitration agreement did not make any mention of the family diety, the assets attached to same should have been kept under joint control or been left out the partition scheme altogether. We find it difficult to appreciate as to how the award can be faulted on this score. Since the family diety is kept is one of the immovable properties which had to be allotted to one of the parties, the maintenance of the family deity had to be entrusted to the party who was allotted that particular property. The arbitrator thought it proper to allot the said property to party No. 2 representing the branch of Bhagwati Nath, the eldest son of late Shri B.N. Srivastava, and thereby Smt. Savitri Devi, wife of Bhagwati Nath, the eldest daughter-in-law of late B.N. Srivastava has been entrusted with the maintenance of the family deity. Moreover, as mentioned by the trial court, in the affidavit dated January 5, 1972, Party No. 2 had specifically admitted that right of worship is available to all the parties.49. Before we conclude we may mention that the award has been acted upon by the parties to a considerable extent in the sense that during the pendency of the proceedings in the court of objector (parties Nos. 3 and 6) as well as other parties - have alienated a number of properties which have been allotted to their share under the award. Some of the sale deeds or agreements for sell were executed by respondent No. 14 claiming full ownership on the basis of the impugned award. This is an additional circumstance which persuades us to hold that the award made by the arbitrator should be maintained and should not be upset.
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No.In applying the said principle the arbitrator appears to have proceeded on the basis that the said principle was acceptable to the parties in respect of all the properties.44.We are, therefore, unable to hold that in the matter of immovable properties the award suffers from an error on the face of it.The High Court has held that the considerable items of movable on the face of the award have been omitted from division and as a result the parties who were respectively in actual possession or enjoyment thereof have been allowed to retain undue advantage inasmuch as no adjustment has been made in respect thereof from their shares while making the allotments. In this regard, it may be stated that the law is well settled that unless so specifically required an ward need not formally express the decision of the arbitrator on each matter of difference and unless the contrary appears the court will presume that the award disposes finally of all matters of difference. [See : Smt. Santa Sila Devi & Anr. v. Dhirendra Nath Sen & Ors. supra]. In the award the arbitrator has stated: "I have heared the parties and considered all the points raised by them, the rights and claims of the parties involved, and the accounts and evidence produced by them." The arbitrator has also made the following provision in the share of the movable propeties allotted to each of the parties : "Subject to the terms of the award party No.will get 1/6 share in all the joint family property which may be recovered or traced or available for partition subsequently and it will be distributed after the award." This would show that in respect of the movable properties which may be recovered or traced or become available for partition subsequently and the arbitrator has directed that each party shall get 1/6 share in the same. This would show that the arbitrator has fully considered all the claims of the parties in respect of all the properties available for partition and it canot be said that any property has been left out by the arbitrator.46. The High Court has also observed that the arbitrator has failed to decide the dispute about advances taken from the joint famil funds by the parties respectively and to make adjustments in respect thereof in the award as required to do by thed arbitration agreement. It is no doubt true that in clause 9 of the arbitration agreement it is provided that if there be any disagreement on any figure of the advance between Bhupendra Nath Srivastava and the party concerned, the same shall be decided by the arbitrator and his decision will be binding and final on the parties concerned. From the proceedings of the arbitrator it does appear that the matter of advances has been considred by thearbitrator. The fact that the arbitrator has not separately indicated in the award the amount of advance in respect of each of the parties does not mean that he did not determine the dispute relating to advances. The arbitrator, after considering the amount of advances, has fixed the shares of each of the parties in the award. In other words, the arbitrator has made aaward for each of the parties. It was permissible for the arbitrator to deliver a consolidated award on the whole case. [See: Smt. Santa Devi & Anr. v. Dhirendra Nath Sen & Ors.(supra)].47. The High Court also found fault with the award on the ground that the value of the shares allotted to the parties is unequal. But this was bound to happen on accounts of difference in the amounts of advance to each of the parties which had to be adjusted against the shares allotted. It cannot, therefore, be said that the value of the share allotted to each of the parties under the award is unequal. Moreover, the award cannot be set aside on the ground that the shares allotted are unequal.Another infirmity in the impugned award, according to the High Court, was that the worship of the family deity and control over immovables attached thereto have been illegally allotted to the share of one party alone. Under the award Family Devi Ji with that and other articles is to be maintained by party No. 2. The High Court has held that as the arbitration agreement did not make any mention of the family diety, the assets attached to same should have been kept under joint control or been left out the partition scheme altogether. We find it difficult to appreciate as to how the award can be faulted on this score. Since the family diety is kept is one of the immovable properties which had to be allotted to one of the parties, the maintenance of the family deity had to be entrusted to the party who was allotted that particular property. The arbitrator thought it proper to allot the said property to party No. 2 representing the branch of Bhagwati Nath, the eldest son of late Shri B.N. Srivastava, and thereby Smt. Savitri Devi, wife of Bhagwati Nath, the eldestof late B.N. Srivastava has been entrusted with the maintenance of the family deity. Moreover, as mentioned by the trial court, in the affidavit dated January 5, 1972, Party No. 2 had specifically admitted that right of worship is available to all the parties.49.Before we conclude we may mention that the award has been acted upon by the parties to a considerable extent in the sense that during the pendency of the proceedings in the court of objector (parties Nos. 3 and 6) as well as other partieshave alienated a number of properties which have been allotted to their share under the award. Some of the sale deeds or agreements for sell were executed by respondent No. 14 claiming full ownership on the basis of the impugned award. This is an additional circumstance which persuades us to hold that the award made by the arbitrator should be maintained and should not be upset.
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Prashant s/o Achyutrao Lomate & anr Vs. The Union of India & anr | far as judgment of this Court in case of Osmanabad DistrictsCentralCo-operativeBankVs.UnionofIndia (supra) relied by the learned counsel for the insurance company is concerned, the Division Bench of this Court in the said judgment had considered National Agricultural Insurance Scheme. The petition was filed by a village level society engaged in providing loan facility to its members/agriculturists. In our view, the said judgment also would not assist the case of the insurance company. The said judgment would not apply even remotely to the facts of this case. 72. In far as the judgment in case of LimbrajTulshiram TikleVs. StateofMaharashtra(supra) relied upon by the learned counsel for the insurance company is concerned, provisions of the scheme considered by this Court in the said judgment were totally different. There was no case of payment of loss suffered by large number of agriculturists made by the insurance company selectively. The said judgment relied by the learned counsel for the insurance company, thus would not assist the case of the insurance company. 73. In so far as order passed by the Supreme Court in case of AjitsinhMalubhaiGhummadVs.UnionofIndia(supra) is concerned, an order passed by the National Consumer Dispute Redressal Commission was impugned before the Supreme Court. The clause providing for intimation in case of localized risk on individual basis was considered by the Supreme Court. The said clause was totally different. The appellant therein could not refer to any clause in the scheme that if yield is less due to insufficient rains, the deficiency would be covered under the scheme of insurance. In the facts of that case the Supreme Court did not interfere with the order passed by the National Consumer Dispute Redressal Commission. The said judgment would not assist the case of the insurance company and is clearly distinguishable on facts. 74. The said Pradhan Mantri Fasal Bima Yojana was being implemented in the State with an object to provide financial support to agriculturists suffering crop loss/damage arising out of unforeseen events, stabilizing the income of agriculturists to ensure their continuance in farming, ensuring flow of credit to the agricultural sector. The State Government has acknowledged the payment of premium paid by the agriculturists and that total 520175 Hector area had been covered under the said scheme. In para No. 7 of its affidavit it is admitted by the State Government that agriculturists who intimated their loss through agriculture department and even after 72 hours of natural calamity were also honoured and compensated. The insurance company was also instructed to determine the compensation based on the loss intimation received in offline mode through Agriculture Department after 72 hours of the calamity. A total of 72325 agriculturists were compensated by the insurance company by paying aggregate amount of Rs. 87.87 crores. 75. It is case of the State Government that though agriculturists who had suffered loss due to localized disaster due to unawareness of the provisions of the scheme, lack of communication and telecommunication equipment during the season, could not give crop loss intimations to the insurance company and were thus deprived from the benefit of the said insurance policy. The State Government, however, after considering these difficulties faced by the agriculturists, through the Commissioner of Agriculture issued letter dated 05th March, 2021 to the concerned insurance companies directed to take necessary steps to pay claims based on survey of crop damage prepared as per National Disaster Relief Fund norms and followed up the matter rigorously with insurance companies in subsequent meetings and notices. 76. In para No. 9 of the said affidavit it is clearly stated that considering huge amount saved at the insurance companys end, it is the stand of Department of Agriculture, Government of Maharashtra that agriculturists should be compensated by insurance companies based on crop damage survey report prepared as per NDRF norms. The procedure for survey of damage under NDRF survey to decide claims under said scheme is one and the same. The State Government decided that the agriculturists who had participated in the crop insurance scheme and were deprived of benefited of said scheme were treated as special case and shall be benefited of the said scheme on the basis of panchanama conducted by the Department of Revenue, Agriculture and Zilla Parishad for the area affected more than 33%. 77. It is the stand of the State Government that agriculturists should be compensated by the insurance companies based on crop damage survey report prepared as per NDRF norms. We are inclined to accept the stand taken by the State Government in the affidavit in reply. The State Government has already issued specific directions in this regard vide letters dated 29th September, 2020, 14th October, 2020 and 04th March, 2021 to determine compensation for the localized calamity and post harvest loss and to take steps expeditiously to pay the compensation to who had not given crop loss intimation as per the scheme guidelines. 78. The additional affidavit in reply filed by the insurance company clearly indicates that they have implemented the directions issued by the State Government partly and in respect of large number of selective claims and have taken unreasonable stand in respect of balance agriculturists. The insurance company cannot be allowed to discriminate two sets of agriculturists similarly situated. 79. In so far as submission of the learned counsel for the insurance company that these petitions are not maintainable on the ground of alternate remedy not having been availed of by the petitioners is concerned, in our view there is no merit in the submissions of the learned counsel for the insurance company. The insurance company has acted illegally and arbitrarily. The Insurance company has already paid large number of similarly situated agriculturists without those agriculturists availing any alternate remedy pursuant to the directions issued by the State Government or otherwise. Two of the petitioners have filed public interest litigation considering he huge loss and trauma suffered by large number of agriculturists of Osmanabad district. The alternate remedy in this situation would not be an efficatious alternate remedy. | 1[ds]53. It is not in dispute that the Union of India had floated a scheme namely Pradhan Mantri Fasal Bima Yojana 2020 which was applicable for three years. The State of Maharashtra was implementing the said scheme and had issued Government Resolution dated 29th June, 2020 through the department of Agriculture. Clause 7 of the said scheme provided for the protected object of the said scheme. Clause 7.5 provided for post harvest losses. The said scheme was applicable to large number of agriculturists in the district. The State Government had executed memorandum of understanding with the insurance company for implementation of the insurance scheme. The State Government was a nodal agency between the agriculturists and the insurance company.54. The petitioners/agriculturists had paid the insurance premium for such insurance coverage. The State Government had also contributed part of the insurance premium for such insurance coverage. The State Government had also contributed part of the insurance premium on behalf of the agriculturists. During the month of October 2020 there was heavy rain fall in Osmanabad district at the time of harvesting of the crops. The crops were badly damaged. The harvested small hips in the field decayed and decomposed. It is the case of petitioners that, there were germination on the spot. Even after harvesting of the crops stored hips of the crops were putrefied and there was fungus and hips were flown away due to heavy rains and there was huge loss to the Soyabean crop after post harvesting.55. A perusal of the record indicates that the Government had collected total data through Collector and prepared data of different crops and submitted to the Divisional Commissioner. The said report submitted by the Collector would indicate that there was more than 33% loss caused.56. A perusal of the record further indicates that the Commissioner of Agriculture, Maharashtra vide various letters had informed the different insurance companies and requested to consider post harvesting loss of Soyabean crop and to pay loss suffered by the petitioners. The State Government had also conducted the panchanama and had submitted the report to the Commissioner of Agriculture and District Collector.57. There were about 457216 affected agriculturists and the affected area was 208756.5 in all eight talukas of Osmanabad district causing loss of more than 33%. The insurance company did not dispute that there was a post harvesting loss for Soyabean crop in Kharip season 2020 due to heavy rain during the month of October 2020. The insurance company however, has though cleared claims of large number of agriculturists, though made after 72 hours of the incident, did not pay the claims of large number of agriculturists including these petitioners on the ground that there was no intimation or complaint made by the agriculturists within 72 hours and thus they were not entitled for such benefit under the said scheme.58. The insurance company also has not disputed that due to such heavy rain fall during the relevant period, the phone lines of the agriculturists were affected and it was not feasible to intimate the insurance company within a period of 72 hours. The said heavy rain fall continued for number of days.59. Be that as it may, the insurance company has not disputed that loss was suffered by more than 33% and accordingly State Government directed the insurance company to pay the claims of the agriculturists. The agriculturists had approached the State Government collectively in view of the fact that the State Government was nodal agency between the agriculturists and insurance company. All the agriculturists in the Osmanabad district were severely affected and thus there was no question of any individual claim.60. There was wide-spread calamity in the Osmanabad district due to such heavy rain fall and thus no intimation within the period of 72 hours was thus required to be issued by individual agriculturists, nor it was feasible. The agriculturists could not go to their respective farms. We are inclined to accept the statement made by the learned counsel for the petitioners in writ petition and also in the public interest litigation that server of phone company was down. Considering these facts, the State Government had issued Government Resolution dated 09th November, 2020 and 07th January, 2021 for providing assistance to the agriculturists.63. Thus, it is an admitted position that, though in large number of cases intimation was not given by the agriculturists individually within 72 hours of the losses, the insurance company has paid those large number of agriculturists and waived their rights under the said scheme. On one hand, it is the case of the insurance company that the payments were made by the insurance company on the basis of data/material made available through the government agencies or collected during the survey at adjoining lands were considered along with weather report and payment of compensation was made in view of the special instructions from the Government to entertain all the intimations of losses irrespective of breach of timeline under the scheme. On the other hand in respect of these agriculturists who are the petitioners in the writ petition and large number of other agriculturists are denied payment on the ground of these agriculturists not having individually intimated the loss within 72 hours from the date of incident. In our view, the action on the part of the insurance company not to release the payment of compensation is discriminatory, arbitrary and without any reasonable basis. The impugned action on the part of the insurance company is in violation of Article 14 of the Constitution of India.64. Additional affidavit would also indicate that, the insurance company has accepted the data/material intimating such loss to the insurance company and based on such data, the insurance company has acted upon such data and/or instructions of the State Government and had paid large number of agriculturists towards losses suffered by them. Reliance placed on various clauses of the scheme to justify the rejection of claim of the petitioners is misplaced.65. The insurance company has not denied the submissions made by the petitioners in Writ Petition and in the Public Interest Litigation that the insurance premium collected by the insurance company from the State government for insuring claims of the agriculturists was much more than premium amount of Rs. 32.49 crores paid by the agriculturists, the State Government at Rs. 276.17 crores and the Central Government at Rs. 227.43 crores to insure the losses if any suffered by these agriculturists due to various eventualities covered under the insurance policies issued by the insurance companies. The insurance company has not disputed that, though the insurance company has received total premium of Rs. 436.10 crores, has distributed very meager amount of Rs. 84.68 crores to the selected agriculturists.66. Averments made in the affidavit in reply filed by the State Government on 02nd December, 2021 clearly indicates that, according to the Commissionerate of Agriculture, Pune to the Government of Maharashtra relating to the crops damaged as per the National Disaster Relief Fund (for short NDRF) that, due to heavy rains and floods occurred in the months of June to October, 2020 and in view of the area affected due to heavy rains and floods in the Osmanabad district was 259593 hector.67. The learned counsel for the insurance company could not dispute that under the said scheme provision had been made for the assessment of loss of individual farm level to crop losses due to occurrence of localized perils/calamities, hailstorm, landslide, inundation, cloud burst and natural fire due to lightening affecting part of a notified unit or a plots. There was agitation and protest by large number of agriculturists against the insurance company and the State government for not paying their legitimate demand to these petitioners and large number of other agriculturists, though the insurance company has paid selected agriculturists for having made such claim beyond 72 hours from the date of such loss suffered by each of the agriculturists.68. We are inclined to accept the submissions made by the learned counsel for petitioners that, the insurance company is liable to grant claims of eligible agriculturists as per clause11.2E-6 of the G. R. dated 29.06.2020, as the loss caused was more than 25% of the notified area. The individual agriculturist was not required to intimate the insurance company of his loss within 72 hours from the date of such loss suffered by the agriculturist.69. There is no substance in the submissions made by the learned counsel for the insurance company that the petitioners have claimed relief beyond the ambit and scope of Pradhan Mantri Fasal Bima Yojana effective from Kharip season 2020 as well as G. R. dated 29th June, 2020 issued by the State of Maharashtra. It is not case of the insurance company that the claims for losses made by the agriculturists were not covered by any events covered under the insurance policy issued by the insurance company. The provisions of the claim pressed in service by the insurance company for denying the claims of these agriculturists providing for intimation of individual loss within a period of 72 hours and consequences thereof would not apply to the facts of these cases on various grounds referred to aforesaid.70. In so far as judgment of this Court in case of Osmanabad DistrictsCentralCo-operativeBankVs.UnionofIndia (supra) relied upon by the learned counsel for the insurance company is concerned, the said judgment would not apply to the facts of this case. The facts before this Court in the said judgment were totally different. The provisions of the scheme considered by this Court in the said judgment were different.71. In so far as judgment of this Court in case of Osmanabad DistrictsCentralCo-operativeBankVs.UnionofIndia (supra) relied by the learned counsel for the insurance company is concerned, the Division Bench of this Court in the said judgment had considered National Agricultural Insurance Scheme. The petition was filed by a village level society engaged in providing loan facility to its members/agriculturists. In our view, the said judgment also would not assist the case of the insurance company. The said judgment would not apply even remotely to the facts of this case.72. In far as the judgment in case of LimbrajTulshiram TikleVs. StateofMaharashtra(supra) relied upon by the learned counsel for the insurance company is concerned, provisions of the scheme considered by this Court in the said judgment were totally different. There was no case of payment of loss suffered by large number of agriculturists made by the insurance company selectively. The said judgment relied by the learned counsel for the insurance company, thus would not assist the case of the insurance company.73. In so far as order passed by the Supreme Court in case of AjitsinhMalubhaiGhummadVs.UnionofIndia(supra) is concerned, an order passed by the National Consumer Dispute Redressal Commission was impugned before the Supreme Court. The clause providing for intimation in case of localized risk on individual basis was considered by the Supreme Court. The said clause was totally different. The appellant therein could not refer to any clause in the scheme that if yield is less due to insufficient rains, the deficiency would be covered under the scheme of insurance. In the facts of that case the Supreme Court did not interfere with the order passed by the National Consumer Dispute Redressal Commission. The said judgment would not assist the case of the insurance company and is clearly distinguishable on facts.74. The said Pradhan Mantri Fasal Bima Yojana was being implemented in the State with an object to provide financial support to agriculturists suffering crop loss/damage arising out of unforeseen events, stabilizing the income of agriculturists to ensure their continuance in farming, ensuring flow of credit to the agricultural sector. The State Government has acknowledged the payment of premium paid by the agriculturists and that total 520175 Hector area had been covered under the said scheme. In para No. 7 of its affidavit it is admitted by the State Government that agriculturists who intimated their loss through agriculture department and even after 72 hours of natural calamity were also honoured and compensated. The insurance company was also instructed to determine the compensation based on the loss intimation received in offline mode through Agriculture Department after 72 hours of the calamity. A total of 72325 agriculturists were compensated by the insurance company by paying aggregate amount of Rs. 87.87 crores.75. It is case of the State Government that though agriculturists who had suffered loss due to localized disaster due to unawareness of the provisions of the scheme, lack of communication and telecommunication equipment during the season, could not give crop loss intimations to the insurance company and were thus deprived from the benefit of the said insurance policy. The State Government, however, after considering these difficulties faced by the agriculturists, through the Commissioner of Agriculture issued letter dated 05th March, 2021 to the concerned insurance companies directed to take necessary steps to pay claims based on survey of crop damage prepared as per National Disaster Relief Fund norms and followed up the matter rigorously with insurance companies in subsequent meetings and notices.76. In para No. 9 of the said affidavit it is clearly stated that considering huge amount saved at the insurance companys end, it is the stand of Department of Agriculture, Government of Maharashtra that agriculturists should be compensated by insurance companies based on crop damage survey report prepared as per NDRF norms. The procedure for survey of damage under NDRF survey to decide claims under said scheme is one and the same. The State Government decided that the agriculturists who had participated in the crop insurance scheme and were deprived of benefited of said scheme were treated as special case and shall be benefited of the said scheme on the basis of panchanama conducted by the Department of Revenue, Agriculture and Zilla Parishad for the area affected more than 33%.77. It is the stand of the State Government that agriculturists should be compensated by the insurance companies based on crop damage survey report prepared as per NDRF norms. We are inclined to accept the stand taken by the State Government in the affidavit in reply. The State Government has already issued specific directions in this regard vide letters dated 29th September, 2020, 14th October, 2020 and 04th March, 2021 to determine compensation for the localized calamity and post harvest loss and to take steps expeditiously to pay the compensation to who had not given crop loss intimation as per the scheme guidelines.78. The additional affidavit in reply filed by the insurance company clearly indicates that they have implemented the directions issued by the State Government partly and in respect of large number of selective claims and have taken unreasonable stand in respect of balance agriculturists. The insurance company cannot be allowed to discriminate two sets of agriculturists similarly situated.79. In so far as submission of the learned counsel for the insurance company that these petitions are not maintainable on the ground of alternate remedy not having been availed of by the petitioners is concerned, in our view there is no merit in the submissions of the learned counsel for the insurance company. The insurance company has acted illegally and arbitrarily. The Insurance company has already paid large number of similarly situated agriculturists without those agriculturists availing any alternate remedy pursuant to the directions issued by the State Government or otherwise. Two of the petitioners have filed public interest litigation considering he huge loss and trauma suffered by large number of agriculturists of Osmanabad district. The alternate remedy in this situation would not be an efficatious alternate remedy. | 1 | 8,813 | 2,759 | ### 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:
far as judgment of this Court in case of Osmanabad DistrictsCentralCo-operativeBankVs.UnionofIndia (supra) relied by the learned counsel for the insurance company is concerned, the Division Bench of this Court in the said judgment had considered National Agricultural Insurance Scheme. The petition was filed by a village level society engaged in providing loan facility to its members/agriculturists. In our view, the said judgment also would not assist the case of the insurance company. The said judgment would not apply even remotely to the facts of this case. 72. In far as the judgment in case of LimbrajTulshiram TikleVs. StateofMaharashtra(supra) relied upon by the learned counsel for the insurance company is concerned, provisions of the scheme considered by this Court in the said judgment were totally different. There was no case of payment of loss suffered by large number of agriculturists made by the insurance company selectively. The said judgment relied by the learned counsel for the insurance company, thus would not assist the case of the insurance company. 73. In so far as order passed by the Supreme Court in case of AjitsinhMalubhaiGhummadVs.UnionofIndia(supra) is concerned, an order passed by the National Consumer Dispute Redressal Commission was impugned before the Supreme Court. The clause providing for intimation in case of localized risk on individual basis was considered by the Supreme Court. The said clause was totally different. The appellant therein could not refer to any clause in the scheme that if yield is less due to insufficient rains, the deficiency would be covered under the scheme of insurance. In the facts of that case the Supreme Court did not interfere with the order passed by the National Consumer Dispute Redressal Commission. The said judgment would not assist the case of the insurance company and is clearly distinguishable on facts. 74. The said Pradhan Mantri Fasal Bima Yojana was being implemented in the State with an object to provide financial support to agriculturists suffering crop loss/damage arising out of unforeseen events, stabilizing the income of agriculturists to ensure their continuance in farming, ensuring flow of credit to the agricultural sector. The State Government has acknowledged the payment of premium paid by the agriculturists and that total 520175 Hector area had been covered under the said scheme. In para No. 7 of its affidavit it is admitted by the State Government that agriculturists who intimated their loss through agriculture department and even after 72 hours of natural calamity were also honoured and compensated. The insurance company was also instructed to determine the compensation based on the loss intimation received in offline mode through Agriculture Department after 72 hours of the calamity. A total of 72325 agriculturists were compensated by the insurance company by paying aggregate amount of Rs. 87.87 crores. 75. It is case of the State Government that though agriculturists who had suffered loss due to localized disaster due to unawareness of the provisions of the scheme, lack of communication and telecommunication equipment during the season, could not give crop loss intimations to the insurance company and were thus deprived from the benefit of the said insurance policy. The State Government, however, after considering these difficulties faced by the agriculturists, through the Commissioner of Agriculture issued letter dated 05th March, 2021 to the concerned insurance companies directed to take necessary steps to pay claims based on survey of crop damage prepared as per National Disaster Relief Fund norms and followed up the matter rigorously with insurance companies in subsequent meetings and notices. 76. In para No. 9 of the said affidavit it is clearly stated that considering huge amount saved at the insurance companys end, it is the stand of Department of Agriculture, Government of Maharashtra that agriculturists should be compensated by insurance companies based on crop damage survey report prepared as per NDRF norms. The procedure for survey of damage under NDRF survey to decide claims under said scheme is one and the same. The State Government decided that the agriculturists who had participated in the crop insurance scheme and were deprived of benefited of said scheme were treated as special case and shall be benefited of the said scheme on the basis of panchanama conducted by the Department of Revenue, Agriculture and Zilla Parishad for the area affected more than 33%. 77. It is the stand of the State Government that agriculturists should be compensated by the insurance companies based on crop damage survey report prepared as per NDRF norms. We are inclined to accept the stand taken by the State Government in the affidavit in reply. The State Government has already issued specific directions in this regard vide letters dated 29th September, 2020, 14th October, 2020 and 04th March, 2021 to determine compensation for the localized calamity and post harvest loss and to take steps expeditiously to pay the compensation to who had not given crop loss intimation as per the scheme guidelines. 78. The additional affidavit in reply filed by the insurance company clearly indicates that they have implemented the directions issued by the State Government partly and in respect of large number of selective claims and have taken unreasonable stand in respect of balance agriculturists. The insurance company cannot be allowed to discriminate two sets of agriculturists similarly situated. 79. In so far as submission of the learned counsel for the insurance company that these petitions are not maintainable on the ground of alternate remedy not having been availed of by the petitioners is concerned, in our view there is no merit in the submissions of the learned counsel for the insurance company. The insurance company has acted illegally and arbitrarily. The Insurance company has already paid large number of similarly situated agriculturists without those agriculturists availing any alternate remedy pursuant to the directions issued by the State Government or otherwise. Two of the petitioners have filed public interest litigation considering he huge loss and trauma suffered by large number of agriculturists of Osmanabad district. The alternate remedy in this situation would not be an efficatious alternate remedy.
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in the said judgment were different.71. In so far as judgment of this Court in case of Osmanabad DistrictsCentralCo-operativeBankVs.UnionofIndia (supra) relied by the learned counsel for the insurance company is concerned, the Division Bench of this Court in the said judgment had considered National Agricultural Insurance Scheme. The petition was filed by a village level society engaged in providing loan facility to its members/agriculturists. In our view, the said judgment also would not assist the case of the insurance company. The said judgment would not apply even remotely to the facts of this case.72. In far as the judgment in case of LimbrajTulshiram TikleVs. StateofMaharashtra(supra) relied upon by the learned counsel for the insurance company is concerned, provisions of the scheme considered by this Court in the said judgment were totally different. There was no case of payment of loss suffered by large number of agriculturists made by the insurance company selectively. The said judgment relied by the learned counsel for the insurance company, thus would not assist the case of the insurance company.73. In so far as order passed by the Supreme Court in case of AjitsinhMalubhaiGhummadVs.UnionofIndia(supra) is concerned, an order passed by the National Consumer Dispute Redressal Commission was impugned before the Supreme Court. The clause providing for intimation in case of localized risk on individual basis was considered by the Supreme Court. The said clause was totally different. The appellant therein could not refer to any clause in the scheme that if yield is less due to insufficient rains, the deficiency would be covered under the scheme of insurance. In the facts of that case the Supreme Court did not interfere with the order passed by the National Consumer Dispute Redressal Commission. The said judgment would not assist the case of the insurance company and is clearly distinguishable on facts.74. The said Pradhan Mantri Fasal Bima Yojana was being implemented in the State with an object to provide financial support to agriculturists suffering crop loss/damage arising out of unforeseen events, stabilizing the income of agriculturists to ensure their continuance in farming, ensuring flow of credit to the agricultural sector. The State Government has acknowledged the payment of premium paid by the agriculturists and that total 520175 Hector area had been covered under the said scheme. In para No. 7 of its affidavit it is admitted by the State Government that agriculturists who intimated their loss through agriculture department and even after 72 hours of natural calamity were also honoured and compensated. The insurance company was also instructed to determine the compensation based on the loss intimation received in offline mode through Agriculture Department after 72 hours of the calamity. A total of 72325 agriculturists were compensated by the insurance company by paying aggregate amount of Rs. 87.87 crores.75. It is case of the State Government that though agriculturists who had suffered loss due to localized disaster due to unawareness of the provisions of the scheme, lack of communication and telecommunication equipment during the season, could not give crop loss intimations to the insurance company and were thus deprived from the benefit of the said insurance policy. The State Government, however, after considering these difficulties faced by the agriculturists, through the Commissioner of Agriculture issued letter dated 05th March, 2021 to the concerned insurance companies directed to take necessary steps to pay claims based on survey of crop damage prepared as per National Disaster Relief Fund norms and followed up the matter rigorously with insurance companies in subsequent meetings and notices.76. In para No. 9 of the said affidavit it is clearly stated that considering huge amount saved at the insurance companys end, it is the stand of Department of Agriculture, Government of Maharashtra that agriculturists should be compensated by insurance companies based on crop damage survey report prepared as per NDRF norms. The procedure for survey of damage under NDRF survey to decide claims under said scheme is one and the same. The State Government decided that the agriculturists who had participated in the crop insurance scheme and were deprived of benefited of said scheme were treated as special case and shall be benefited of the said scheme on the basis of panchanama conducted by the Department of Revenue, Agriculture and Zilla Parishad for the area affected more than 33%.77. It is the stand of the State Government that agriculturists should be compensated by the insurance companies based on crop damage survey report prepared as per NDRF norms. We are inclined to accept the stand taken by the State Government in the affidavit in reply. The State Government has already issued specific directions in this regard vide letters dated 29th September, 2020, 14th October, 2020 and 04th March, 2021 to determine compensation for the localized calamity and post harvest loss and to take steps expeditiously to pay the compensation to who had not given crop loss intimation as per the scheme guidelines.78. The additional affidavit in reply filed by the insurance company clearly indicates that they have implemented the directions issued by the State Government partly and in respect of large number of selective claims and have taken unreasonable stand in respect of balance agriculturists. The insurance company cannot be allowed to discriminate two sets of agriculturists similarly situated.79. In so far as submission of the learned counsel for the insurance company that these petitions are not maintainable on the ground of alternate remedy not having been availed of by the petitioners is concerned, in our view there is no merit in the submissions of the learned counsel for the insurance company. The insurance company has acted illegally and arbitrarily. The Insurance company has already paid large number of similarly situated agriculturists without those agriculturists availing any alternate remedy pursuant to the directions issued by the State Government or otherwise. Two of the petitioners have filed public interest litigation considering he huge loss and trauma suffered by large number of agriculturists of Osmanabad district. The alternate remedy in this situation would not be an efficatious alternate remedy.
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Mujeeb & Another Vs. State of Kerala | courts below both PWs32 and 33 could not have identified the accused. More over PW32 became hostile witness. The car was taken to PW40 who was the owner of Excel autos in Mananthawady for purchasing diesel. According to the courts below prosecution also could not prove this fact as PW40 turned hostile. 15. Regarding the death by strangulation of the deceased while they were going from Mananthawady towards Thamarassery the trial court did not accept this version of story of the prosecution in view of medical evidence. It is true that at the time of conducting autopsy the dead body was decomposed. PW42 who conducted autopsy clearly stated that during post-mortem he did not find any positive evidence of ligature strangulation. This witness gave the opinion that possibility of death resulting from ligature strangulation as per police history can be ruled out. 16. The High Court held as follows : "It is here the theory of strangulation with MO-14 found the dead-body became relevant and acceptable particularly in the context that the medical evidence did not totally rule it out as the case of death." 17. We are of the opinion that the High Court erred in law in not giving the clear finding inasmuch as medical evidence is clear. The evidence of doctor that possibility of death resulting from ligature strangulation as per police history could not be ruled out, is not a positive medical evidence to come to the conclusion that death was caused by strangulation.18. We find from the impugned judgment that the High Court laid too much stress on the subsequent alleged conduct of the accused. According to prosecution after dropping the dead body accused went to Mysore and Bangalore in the same car and they stayed there till 3.4.91. At Bangalore they stayed at Manjunatha Lodge which fact was sought to be proved by prosecution by examining PW15. The prosecution has led evidence to prove disposal of articles belonging to the deceased by the accused.19. We find from the evidence of the Investigating Officer PW13 that accused were taken to various places for alleged recovery of the above articles. Though according to Investigating Officer the recovery was made on the basis of statement of the accused but we find from the evidence that actual words in verbatim leading to recovery were not recorded by the Investigating Officer. For example in case of one recovery PW49 deposed in the following words : "Thereafter, based on the statement of the same accused that he knows the person who runs a blade company and provisions shop at Ambalavayal with whom he had pledged the gold bangles and that he could show the same place as led by the accused we reached the same place and questioned the witness and recorded his evidence." 20. In our opinion such a statement by the accused can not be treated as statement of the accused leading to recovery. More over witnesses to the recoveries were co-drivers of deceased residing far away at the distance of about 100 k.ms. Therefore, such recoveries are not legally acceptable.21. According to the prosecution on 4.4.91 in the evening accused entrusted the car for service in the automobile workshop informing that they would take car on the next day and while trying to do so they were apprehended by the sub- Inspector of the police Sutlans Battery on 5.4.91. From the evidence PW47 the sub-inspector who apprehended the accused persons we find that this witness did not record the information given by the owner of the workshop and the fact that he apprehended the accused in the general diary of the police station. According to PW47 these facts were recorded in his pocket note book which was not proved. We are unable to accept the above version of the story of the prosecution, and therefore, hold that the High Court erred in law in accepting it.22. On the following material circumstances the prosecution tried to bring home the charges against the accused namely: (i) A1 hired the tourist taxi driven by deceased Balan; (ii) all the accused went in the car driven by deceased Balan to Wyand and spent some time in Pookad Lake and thereafter they visited Thirunelli temple and Mananthavadi; and (iii) while returning to Thamarasserry accused gave soft drink "Fruity" mixed with sleeping pills to deceased Balan and after immobilizing and removing him from drivers seat A1 drove the car and accused strangulated the driver Balan to death and thereafter proceeded to Puthuppadi.23. Both the courts below did not accept the above circumstances except the fact that the High Court did not rule out possibility of death of deceased Balan by strangulation which finding is not tenable in law as stated above.24. The High Court giving considerable importance to the subsequent events of recovery of the vehicle from the service station, taking into custody of the accused by the sub-Inspector of police, Sultan Batterys, recovery of articles belonging tot he deceased and parts of the car, found the appellants guilty. We have already held that the prosecution has failed to prove the above circumstances. We hold that the High Court erred in law in not considering whether the circumstances proved, formed a complete chain. In this chain of circumstances following links are missing namely- hiring of taxi driven by the deceased by A1, visiting lake and temple by the accused in the taxi driven by the deceased, giving soft drink mixed with sleeping tablets, intoxicating liquor and death of the deceased due to strangulation. In view of the above missing links in the chain of circumstances we hold that the prosecution has failed to establish the guilt of the accused cogently and firmly. A reasonable person on the facts of this case cannot come to the conclusion that the accused were guilty. Taking into accoum the cumulative effect of all these circumstances and weighing them as an integrated whole we have no hesitation to come to the finding that the accused were not guilty. | 1[ds]17. We are of the opinion that the High Court erred in law in not giving the clear finding inasmuch as medical evidence is clear. The evidence of doctor that possibility of death resulting from ligature strangulation as per police history could not be ruled out, is not a positive medical evidence to come to the conclusion that death was caused by strangulation.18. We find from the impugned judgment that the High Court laid too much stress on the subsequent alleged conduct of the accused. According to prosecution after dropping the dead body accused went to Mysore and Bangalore in the same car and they stayed there till 3.4.91. At Bangalore they stayed at Manjunatha Lodge which fact was sought to be proved by prosecution by examining PW15. The prosecution has led evidence to prove disposal of articles belonging to the deceased by the accused.19. We find from the evidence of the Investigating Officer PW13 that accused were taken to various places for alleged recovery of the above articles. Though according to Investigating Officer the recovery was made on the basis of statement of the accused but we find from the evidence that actual words in verbatim leading to recovery were not recorded by the Investigating Officer. For example in case of one recovery PW49 deposed in the following wordsbased on the statement of the same accused that he knows the person who runs a blade company and provisions shop at Ambalavayal with whom he had pledged the gold bangles and that he could show the same place as led by the accused we reached the same place and questioned the witness and recorded his evidence.In our opinion such a statement by the accused can not be treated as statement of the accused leading to recovery. More over witnesses to the recoveries wereof deceased residing far away at the distance of about 100 k.ms. Therefore, such recoveries are not legally acceptable.21. According to the prosecution on 4.4.91 in the evening accused entrusted the car for service in the automobile workshop informing that they would take car on the next day and while trying to do so they were apprehended by the subInspector of the police Sutlans Battery on 5.4.91. From the evidence PW47 thewho apprehended the accused persons we find that this witness did not record the information given by the owner of the workshop and the fact that he apprehended the accused in the general diary of the police station. According to PW47 these facts were recorded in his pocket note book which was not proved. We are unable to accept the above version of the story of the prosecution, and therefore, hold that the High Court erred in law in accepting it.22. On the following material circumstances the prosecution tried to bring home the charges against the accused namely: (i) A1 hired the tourist taxi driven by deceased Balan; (ii) all the accused went in the car driven by deceased Balan to Wyand and spent some time in Pookad Lake and thereafter they visited Thirunelli temple and Mananthavadi; and (iii) while returning to Thamarasserry accused gave soft drink "Fruity" mixed with sleeping pills to deceased Balan and after immobilizing and removing him from drivers seat A1 drove the car and accused strangulated the driver Balan to death and thereafter proceeded to Puthuppadi.23. Both the courts below did not accept the above circumstances except the fact that the High Court did not rule out possibility of death of deceased Balan by strangulation which finding is not tenable in law as stated above.24. The High Court giving considerable importance to the subsequent events of recovery of the vehicle from the service station, taking into custody of the accused by theof police, Sultan Batterys, recovery of articles belonging tot he deceased and parts of the car, found the appellants guilty. We have already held that the prosecution has failed to prove the above circumstances. We hold that the High Court erred in law in not considering whether the circumstances proved, formed a complete chain. In this chain of circumstances following links are missing namelyhiring of taxi driven by the deceased by A1, visiting lake and temple by the accused in the taxi driven by the deceased, giving soft drink mixed with sleeping tablets, intoxicating liquor and death of the deceased due to strangulation. In view of the above missing links in the chain of circumstances we hold that the prosecution has failed to establish the guilt of the accused cogently and firmly. A reasonable person on the facts of this case cannot come to the conclusion that the accused were guilty. Taking into accoum the cumulative effect of all these circumstances and weighing them as an integrated whole we have no hesitation to come to the finding that the accused were not guilty. | 1 | 2,377 | 855 | ### Instruction:
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courts below both PWs32 and 33 could not have identified the accused. More over PW32 became hostile witness. The car was taken to PW40 who was the owner of Excel autos in Mananthawady for purchasing diesel. According to the courts below prosecution also could not prove this fact as PW40 turned hostile. 15. Regarding the death by strangulation of the deceased while they were going from Mananthawady towards Thamarassery the trial court did not accept this version of story of the prosecution in view of medical evidence. It is true that at the time of conducting autopsy the dead body was decomposed. PW42 who conducted autopsy clearly stated that during post-mortem he did not find any positive evidence of ligature strangulation. This witness gave the opinion that possibility of death resulting from ligature strangulation as per police history can be ruled out. 16. The High Court held as follows : "It is here the theory of strangulation with MO-14 found the dead-body became relevant and acceptable particularly in the context that the medical evidence did not totally rule it out as the case of death." 17. We are of the opinion that the High Court erred in law in not giving the clear finding inasmuch as medical evidence is clear. The evidence of doctor that possibility of death resulting from ligature strangulation as per police history could not be ruled out, is not a positive medical evidence to come to the conclusion that death was caused by strangulation.18. We find from the impugned judgment that the High Court laid too much stress on the subsequent alleged conduct of the accused. According to prosecution after dropping the dead body accused went to Mysore and Bangalore in the same car and they stayed there till 3.4.91. At Bangalore they stayed at Manjunatha Lodge which fact was sought to be proved by prosecution by examining PW15. The prosecution has led evidence to prove disposal of articles belonging to the deceased by the accused.19. We find from the evidence of the Investigating Officer PW13 that accused were taken to various places for alleged recovery of the above articles. Though according to Investigating Officer the recovery was made on the basis of statement of the accused but we find from the evidence that actual words in verbatim leading to recovery were not recorded by the Investigating Officer. For example in case of one recovery PW49 deposed in the following words : "Thereafter, based on the statement of the same accused that he knows the person who runs a blade company and provisions shop at Ambalavayal with whom he had pledged the gold bangles and that he could show the same place as led by the accused we reached the same place and questioned the witness and recorded his evidence." 20. In our opinion such a statement by the accused can not be treated as statement of the accused leading to recovery. More over witnesses to the recoveries were co-drivers of deceased residing far away at the distance of about 100 k.ms. Therefore, such recoveries are not legally acceptable.21. According to the prosecution on 4.4.91 in the evening accused entrusted the car for service in the automobile workshop informing that they would take car on the next day and while trying to do so they were apprehended by the sub- Inspector of the police Sutlans Battery on 5.4.91. From the evidence PW47 the sub-inspector who apprehended the accused persons we find that this witness did not record the information given by the owner of the workshop and the fact that he apprehended the accused in the general diary of the police station. According to PW47 these facts were recorded in his pocket note book which was not proved. We are unable to accept the above version of the story of the prosecution, and therefore, hold that the High Court erred in law in accepting it.22. On the following material circumstances the prosecution tried to bring home the charges against the accused namely: (i) A1 hired the tourist taxi driven by deceased Balan; (ii) all the accused went in the car driven by deceased Balan to Wyand and spent some time in Pookad Lake and thereafter they visited Thirunelli temple and Mananthavadi; and (iii) while returning to Thamarasserry accused gave soft drink "Fruity" mixed with sleeping pills to deceased Balan and after immobilizing and removing him from drivers seat A1 drove the car and accused strangulated the driver Balan to death and thereafter proceeded to Puthuppadi.23. Both the courts below did not accept the above circumstances except the fact that the High Court did not rule out possibility of death of deceased Balan by strangulation which finding is not tenable in law as stated above.24. The High Court giving considerable importance to the subsequent events of recovery of the vehicle from the service station, taking into custody of the accused by the sub-Inspector of police, Sultan Batterys, recovery of articles belonging tot he deceased and parts of the car, found the appellants guilty. We have already held that the prosecution has failed to prove the above circumstances. We hold that the High Court erred in law in not considering whether the circumstances proved, formed a complete chain. In this chain of circumstances following links are missing namely- hiring of taxi driven by the deceased by A1, visiting lake and temple by the accused in the taxi driven by the deceased, giving soft drink mixed with sleeping tablets, intoxicating liquor and death of the deceased due to strangulation. In view of the above missing links in the chain of circumstances we hold that the prosecution has failed to establish the guilt of the accused cogently and firmly. A reasonable person on the facts of this case cannot come to the conclusion that the accused were guilty. Taking into accoum the cumulative effect of all these circumstances and weighing them as an integrated whole we have no hesitation to come to the finding that the accused were not guilty.
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17. We are of the opinion that the High Court erred in law in not giving the clear finding inasmuch as medical evidence is clear. The evidence of doctor that possibility of death resulting from ligature strangulation as per police history could not be ruled out, is not a positive medical evidence to come to the conclusion that death was caused by strangulation.18. We find from the impugned judgment that the High Court laid too much stress on the subsequent alleged conduct of the accused. According to prosecution after dropping the dead body accused went to Mysore and Bangalore in the same car and they stayed there till 3.4.91. At Bangalore they stayed at Manjunatha Lodge which fact was sought to be proved by prosecution by examining PW15. The prosecution has led evidence to prove disposal of articles belonging to the deceased by the accused.19. We find from the evidence of the Investigating Officer PW13 that accused were taken to various places for alleged recovery of the above articles. Though according to Investigating Officer the recovery was made on the basis of statement of the accused but we find from the evidence that actual words in verbatim leading to recovery were not recorded by the Investigating Officer. For example in case of one recovery PW49 deposed in the following wordsbased on the statement of the same accused that he knows the person who runs a blade company and provisions shop at Ambalavayal with whom he had pledged the gold bangles and that he could show the same place as led by the accused we reached the same place and questioned the witness and recorded his evidence.In our opinion such a statement by the accused can not be treated as statement of the accused leading to recovery. More over witnesses to the recoveries wereof deceased residing far away at the distance of about 100 k.ms. Therefore, such recoveries are not legally acceptable.21. According to the prosecution on 4.4.91 in the evening accused entrusted the car for service in the automobile workshop informing that they would take car on the next day and while trying to do so they were apprehended by the subInspector of the police Sutlans Battery on 5.4.91. From the evidence PW47 thewho apprehended the accused persons we find that this witness did not record the information given by the owner of the workshop and the fact that he apprehended the accused in the general diary of the police station. According to PW47 these facts were recorded in his pocket note book which was not proved. We are unable to accept the above version of the story of the prosecution, and therefore, hold that the High Court erred in law in accepting it.22. On the following material circumstances the prosecution tried to bring home the charges against the accused namely: (i) A1 hired the tourist taxi driven by deceased Balan; (ii) all the accused went in the car driven by deceased Balan to Wyand and spent some time in Pookad Lake and thereafter they visited Thirunelli temple and Mananthavadi; and (iii) while returning to Thamarasserry accused gave soft drink "Fruity" mixed with sleeping pills to deceased Balan and after immobilizing and removing him from drivers seat A1 drove the car and accused strangulated the driver Balan to death and thereafter proceeded to Puthuppadi.23. Both the courts below did not accept the above circumstances except the fact that the High Court did not rule out possibility of death of deceased Balan by strangulation which finding is not tenable in law as stated above.24. The High Court giving considerable importance to the subsequent events of recovery of the vehicle from the service station, taking into custody of the accused by theof police, Sultan Batterys, recovery of articles belonging tot he deceased and parts of the car, found the appellants guilty. We have already held that the prosecution has failed to prove the above circumstances. We hold that the High Court erred in law in not considering whether the circumstances proved, formed a complete chain. In this chain of circumstances following links are missing namelyhiring of taxi driven by the deceased by A1, visiting lake and temple by the accused in the taxi driven by the deceased, giving soft drink mixed with sleeping tablets, intoxicating liquor and death of the deceased due to strangulation. In view of the above missing links in the chain of circumstances we hold that the prosecution has failed to establish the guilt of the accused cogently and firmly. A reasonable person on the facts of this case cannot come to the conclusion that the accused were guilty. Taking into accoum the cumulative effect of all these circumstances and weighing them as an integrated whole we have no hesitation to come to the finding that the accused were not guilty.
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THE STATE OF HARYANA THROUGH SECRETARY TO GOVERNMENT OF HARYANA Vs. JAI SINGH & ORS | Court that it is the speech, express or necessarily implied, which only is the declaration of law by this Court within the meaning of Article 141 of the Constitution. 79. In S. Shanmugavel Nadar, the Bench had the advantage of considering Kunhayammed and V.M. Salgaocar. A perusal of the aforesaid judgment would show that if leave is granted in a special leave petition, the appellate order becomes operative and executable order. But the nature of jurisdiction exercised by the superior forum and the content of subject matter of challenge laid or which could have been laid had to be kept in view. 80. In a recent judgment reported as Kaikhosrou (Chick) Kavasji Framji v. Union of India and another (2019) 20 SCC 705, this Court held as under: 53. 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 the subordinate court would continue to hold the field (see S. Shanmugavel Nadar v. State of T.N.). 81. In another judgment reported as Commissioner of Income- Tax, Bombay v. M/s. Amritlal Bhogilal and Co. AIR 1958 SC 868 , an appeal was filed before the Appellate Assistant Commissioner against an order passed by the Income-Tax Officer. However, the Income-Tax Officer passed an order refusing to grant registration to the firm to the two assessment years 1947-48 and 1948-49. An argument was raised that since the order of the Assessing Officer has been affirmed in appeal, the non- registration of the firm could also be challenged before the Appellant Assistant Commissioner. This Court noticed the fact, that the department has not been conferred in the right of appeal against the order either refusing to register the firm or cancelling the registration of the firm. This Court considered such an argument and held as under: 13. …….. It is thus clear that wide powers have been conferred on the Appellate Assistant Commissioner under Section 31. It is also clear that, before the Appellate Authority exercises his powers, he is bound to hear the Income Tax Officer or his representative. It has been urged before us by Mr Ayyangar on behalf of the respondent that these provisions indicate that, in exercise of his wide powers the Appellate Assistant Commissioner can, in a proper case, after hearing the Income Tax Officer or his representative, set aside the order of registration passed by the Income Tax Officer. We are not prepared to accept this argument. The powers of the Appellate Assistant Commissioner, however wide, have, we think, to be exercised in respect of the matters which are specifically made appealable under Section 30(1) of the Act. If any order has been deliberately left out from the jurisdiction of the Appellate Assistant Commissioner it would not be open to the Appellate Authority to entertain a plea about the correctness, propriety or validity of such an order. ……It is true that, in dealing with the assessees appeal against the order of assessment, the Appellate Assistant Commissioner may modify the assessment, reverse it or send it back for further enquiry; but any order that the Appellate Assistant Commissioner may make in respect of any of the matters brought before him in appeal will not and cannot affect the order of registration made by the Income Tax Officer. If that be the true position, the order of registration passed by the Income Tax Officer stands outside the jurisdiction of the Appellate Assistant Commissioner and does not strictly form part of the proceedings before the appellate authority. Even after the appeal is decided and in consequence the appellate order is the only order which is valid and enforceable in law, what merges in the appellate order is the Income Tax Officers order under appeal and not his order of registration which was not and could never become the subject-matter of an appeal before the appellate authority. The theory that the order of the tribunal merges in the order of the appellate authority cannot therefore apply to the order of registration passed by the Income Tax Officer in the present case. 82. Thus, the principle of merger would be that the order of the higher court becomes the operative order and not the order which was appealed from and not interfered with. 83. In the appeal against the judgment of Gurjant Singh, only grievance raised before this Court was in respect of a direction of fixing a time limit to re-partition the land. It was the said direction which was deleted from the order. By such exercise of jurisdiction in appeal, the reasoning of the High Court is not deemed to be the reasoning of this Court. Such argument would in fact give rise to strange results as the reasoning of the High Court would have to be accepted as reasoning of the Supreme Court. There cannot be a more absurd argument. As held by this Court in S. Shanmugavel Nadar, there can be only one operative judgment/order. Once this Court has deleted the time limit to complete the re-partition, the operative order remains of the High Court that Bachat land can be partitioned i.e., operative part of the order. The reasoning recorded by the High Court is not however affirmed by this Court. It would be a judgment of the High Court alone which can be cited as a precedent in other cases but not as an order of this Court. Consequently, we do not find any merit in the argument so raised. In fact, by applying the doctrine of merger, the order of this Court becomes operative order but since the order is of deletion of a direction only, the effect would be that the order of the High Court has not been interfered with. | 1[ds]The scope of such expression came up for consideration before the Full Bench of Punjab and Haryana High Court in a judgment reported as Munsha Singh & Ors. v. The State of Punjab & Ors. AIR 1960 P&H 317 (FB). It was held that the individual proprietors of the land were not left with even a single right which may be included among the attributes of ownership and that it was a case of total expropriation of the right-holders. The Full Bench held that neither the language of the preamble, nor that of section 18(c) could be extended so as to include within its ambit wider programme, with a view to bring about social equality by taking away from individual proprietors their lands and giving them to non-proprietors, or handing them over to the Panchayat for purposes of management for any common purpose. The amendment carried out was thus set aside. It was thereafter, the expression common purpose was amended by Punjab Act No. 27 of 1960. Such amendment was upheld by the Full Bench of Punjab High Court in a judgment reported as Kishan Singh & Anr. v. The State of Punjab & Ors. AIR 1961 P&H 1.9. The correctness of the decision of Full Bench in Kishan Singh was doubted in view of the judgment reported as Kavalappara Kottarathil Kochuni v. States of Madras and Kerala AIR 1960 SC 1080 . The matter was considered by a larger Full Bench of five judges in a judgment reported as Jagat Singh & Ors. v. The State of Punjab & Ors. AIR 1962 P&H 221 (FB) The question examined therein was as to whether it was permissible to keep aside land owned by private individuals for providing income to the Gram Panchayat. It was held that the 1948 Act was a measure designed to promote agrarian reforms and therefore, not ultra vires the Constitution. The judgment in Jagat Singh came up for consideration in Ranjit Singh v. State of Punjab AIR 1965 SC 632 wherein the judgment of the High Court was not interfered with.11. At this stage, it may be noted that a Full Bench of Punjab in a judgment reported as Jit Singh v. The State of Punjab & Ors. AIR 1964 P&H 419 (FB), considered the Punjab Act No. 39 of 1963 amending the 1948 Act. It was held that reservation of land for income of the Gram Panchayat under the 1948 Act and for extension of the abadi of the non-proprietors including Harijans, for Panchayat Ghar and for manure pits was valid, as covered by Article 31A(1)(a) of the Constitution. In Bhagat Ram & Ors. v. State of Punjab & Ors. AIR 1967 SC 927 , the Constitution Bench of this Court held that reservation of land for the income of panchayat is not permissible, being hit by second proviso to Article 31A of the Constitution. The question considered in the context of said clause (ii) of Section 2 (bb) was as to whether the reservation of land for income of the Panchayat was an acquisition of land by the State within the second proviso to Article 31A of the Constitution. It was held by the majority judgment that the said provision was hit by the second proviso to Article 31A of the Constitution. The State was accordingly directed to modify the consolidation scheme and bring it into accord with the majority judgment. There is no dispute about the said proposition in the present appeals.12. In Atma Ram v. State of Punjab AIR 1959 SC 519 , the constitutionality of the Punjab Security of Land Tenure Act, 1953 as amended by Punjab Act No. 11 of 1955 was in question. The Constitution Bench examined Article 31A. It was held that in Punjab there are very few estates as defined in Section 3(1) of the Punjab Land Revenue Act, 1887 in the sense that one single landowner is seized and possessed of an entire estate which is equated with a whole village. In Punjab, an estate and a village are inter-changeable terms, and almost all villages are owned in parcels, as holdings by co-sharers, most likely, descendants of the holder of a whole village which came to be divided amongst the co-sharers, as a result of devolution of interest. This Court also noticed that holdings in Punjab are vertical divisions of an estate whereas in Eastern India, they represent a horizontal division. The writ petitions were dismissed holding that the provisions of Article 31A save the Act from any attack based on the provisions of Articles 14,19 and 31 of the Constitution.13. The Five Judges Full Bench in Suraj Bhan & Ors. v. State of Haryana & Anr. MANU/PH/3354/2016; (2017) 2 Punjab Law Reporter 605 has given the historical background of the shamilat deh lands in the State of Punjab, including the present-day State of Haryana. The history of shamilat law as delineated in the said judgment is quoted hereinunder for better understanding of the subject in the present appeals. The words commonly used in this judgment are not common in use, therefore, the Glossary of the words with their meaning is appended at the foot of this judgment.21. The constitutional validity of certain provisions of the Punjab Village Common Lands (Regulation) Act, 1953 (Punjab Act) came up for consideration before the Punjab and Haryana High Court in a judgment reported as Hukam Singh v. State of Punjab AIR 1955 P&H 220. The High Court examined Article 31(2) and Article 31A, keeping in view the fact that the Punjab Act was reserved for consideration of the President and had received his assent, it was held that the term extinguishment appearing in Article 31 of the Constitution does not mean total abolition of rights known to law. Further argument was that the Act does not provide for extinguishment or modification of any right in any estate, therefore, the shamilat deh in a village would not be an estate and the extinguishment or modification of any right in such part of an estate would not be covered by Article 31A of the Constitution. The Court held as under:…The argument is interesting but not in my opinion substantial. According to Mr. Tek Chand a law which provides for the total abolition of the rights of ownership of landed property, for instance, would be constitutional as it would, according to him, fall under Article 31-A, but if the right of ownership of a person or a group of persons is merely extinguished qua those persons and the same right is vested in some other person that would not fall within the Article. I find it impossible to agree that the expression extinguishment has been used in Article 31-A of the Constitution in the special sense suggested by the learned counsel. It is significant that Article 31-A speaks of acquisition by the State of any estate or of any rights in an estate and then speaks of the extinguishment or modification of any rights in an estate and I can find no ground for thinking that if a persons rights in an estate have been taken away from him and given to another person this would not be extinguishing those rights. In my opinion, therefore, the impugned Act does fall within the meaning of Article 31-A of the Constitution as it provides for the extinguishment of certain rights in certain property belonging to the village proprietors and also for the modification of those rights.…Once again, I am unable to agree. There are in an estate several kinds of rights owned by various persons and one of such rights is the right of proprietorship in the village shamilat and when, therefore, the impugned Act provides for the extinguishment of such ownership rights it clearly provides for the extinguishment or modification of certain rights in an estate. Mr. Tek Chands argument that a part of an estate is not an estate appears to have been raised before a Full Bench of this Court in connection with the validity of another statute and it was on that occasion repelled by the Full Bench. Khosla, J. who delivered the main judgment in that case, Bhagirath Ram Chand v. State of Punjab and others [ A.I.R. 1954 Punj. 167] , observed in connection with this argument—It is clear that the whole includes the part and where an Act provides for rights in an estate it provides for rights in part of an estate.We are, in my opinion, bound by the view of the Full Bench so clearly expressed in this respect.23. The nature of shamilat deh lands or village common lands was examined by a Constitution Bench in Gram Panchayat of Village Jamalpur v. Malwinder Singh, (1985) 3 SCC 661 . It was observed that prior to the partition of India, shamilat deh lands in Punjab were owned by proprietors of other lands in the village, Hasab Rasad Khewat, that is to say, in the same proportion in which they owned other lands. Therefore, a person who did not own any land in the village could have no proprietary rights or interest in the shamilat deh lands. But since the interest of the proprietors of other lands in shamilat deh lands was incidental to their proprietary interests in those other lands, such interest in the shamilat was not a mere appendage to their interest in the other lands. A reference was made to Chapter X (Village Common Land) of Rattigans Digest, which is to the effect that within the territorial limits of every village, some portion of the uncultivated wastelands was reserved for purposes of common pasture, assemblies of people, the tethering of the village cattle, and the possible extension of the village dwellings. The lands so reserved were zealously guarded as the common property of the original body of settlers who founded the village or their descendants, and occasionally also those who assisted the settlers in clearing the waste and bringing it under cultivation were recognized as having a share in these reserved plots. It was further noticed, even in villages which have adopted separate ownership as to the cultivated area, some of such plots are usually reserved as village common, and in pattidar villages, it is not unusual to find certain portions of the waste reserved for the common use of the proprietors of each patti, and other portions for common village purposes. The former is designated as Shamlat-patti and the latter Shamlat deh. It was said, as a general rule, only proprietors of the village (malikan-deh) as distinguished from proprietors of their own holdings (malikan makbuza khud) are entitled to share in the shamilat deh. This Court held that Punjab Act was a measure of agrarian reforms protected by Article 31A of the Constitution, holding as under:12. The Punjab Act of 1953 was reserved for consideration of the President and received his assent on December 26, 1953. Prima facie, by reason of the assent of the President the Punjab Act would prevail in the State of Punjab over the Act of the Parliament and the Panchayats would be at liberty to deal with the Shamlat-deh lands according to the relevant Rules or Bye- laws governing the matter, including the evacuee interest therein. But, there is a complication of some nicety arising out of the fact that the Punjab Act was reserved for the assent of the President, though for the specific and limited purpose of Articles 31 and 31A of the Constitution. Article 31, which was deleted by the Constitution (forty-fourth Amendment) Act, 1978 provided for compulsory acquisition of property. Clause (3) of that Article provided that, no law referred to in clause (2), made by the Legislature of a State shall have effect unless such law, having been reserved for the consideration of the President, has received his assent. Article 31-A confers protection upon laws falling within clauses (a) to (e) of that Article, provided that such laws, if made by a State Legislature, have received the assent of the President. Clause (a) of Article 31-A comprehends laws of agrarian reform. Since the Punjab Act of 1953 extinguished all private interests in Shamlat-deh lands and vested those lands in the Village Panchayats and since, the Act was a measure of agrarian reform, it was reserved for the consideration of the President………….43. A reading of the aforementioned judgments and the history of the shamilat deh (common land) in the State of Punjab, including State of Haryana, shows that the common land for the purposes of the present appeals falling in Section 2(g)(1) and (6) of the 1961 Act as amended by the Amending Act can be broadly classified into three categories:(i) shamilet deh recorded in the ownership of the Gram Panchayat prior to consolidation which vests unequivocally with the commencement of the Punjab and PEPSU Act.(ii) land for common purposes reserved during the process of consolidation by applying pro-rata cut from the holdings of the proprietors, not necessarily falling within the permissible ceiling limits under the land ceiling laws.(iii) common purposes land reserved by pro-rata cut within the permissible limits as per the land ceiling laws, the management and control of which vests with the panchayat.44. There is no dispute about the land falling in the first category as held by the High Court in Hukam Singh and subsequently affirmed by this Court in Malwinder Singh as being part of the agrarian reforms.46. The land falling in the second category was held to be a part of the agrarian reforms protected by Article 31A of the Constitution by the Full Bench of the Punjab and Haryana High Court in Kishan Singh and Jagat Singh. A reading of the judgment of the High Court in Jagat Singh shows that the challenge therein was to 20 acres of land for the purpose of income of Gram Panchayat. The High Court upheld the land carved out for income of the Gram Panchayat since the 1948 Act was found to be part of agrarian reforms as per its object. Though the members of the Bench gave different opinions, the conclusion was that the 1948 Act is an Act having object of agrarian reforms, protected by Article 31A(1) of the Constitution. The Civil Appeal No. 743 of 1963 in Ranjit Singh against such judgment was dismissed by the Constitution Bench of this Court. The appeals before this Court were heard and closed for judgment on April 27, 1964 but before the judgment could be delivered, the Constitution (Seventeenth Amendment) Act, 1964, received the assent of the President on June 20, 1964. That amendment inter alia substituted retrospectively from January 26, 1950, a new sub-clause (a) in clause (2) of Article 31A and added a proviso to clause (1). The High Court had decided the issues raised before it considering the Article 31A as it was then existing. The short point examined by this Court was, without referring to the Seventeenth Amendment, whether the transfer of shamilat deh owned by the proprietors to the village Panchayat for the purposes of management in the manner described above and the conferral of proprietary rights on non-proprietors in respect of lands in abadi deh is illegal and if the several provisions of law allowing this to be done are ultra vires Article 31 inasmuch as no compensation is payable or whether the law and the action taken are protected by Article 31A? The appeals were dismissed with an observation that the question examined was the correctness of the decisions under appeal, particularly the Full Bench decision in Jagat Singh, without expressing any opinion on the Seventeenth Amendment.47. As per the facts noticed by this Court, 270 kanals, 13 marlas of land in village Virk Kalan was given to village panchayat for management and realization of income, apart from some land reserved for abadi, manure pits, although the ownership was shown in the revenue record as Shamilet Deh in the name of the proprietors. In village Sewana, 400 kanals and 4 marlas were set apart for the village panchayat for extension of the abadi and to grant 8 marlas of land to each family of non- proprietors and 6 kanals being reserved for a primary school and some more land for a phirni (Village Pathway around village). In village Mehnd, the land was reserved for a school, tanning ground, hospital, cremation ground and for non- proprietors. The proprietors were not paid compensation for the lands. This Court noticed that Punjab Act was upheld by the High Court in Hukam Singh but observed that Article 31(2) of the Constitution would have rendered the Act as void but for the enactment of Article 31A. This Court also made reference to Punjab Security of Land Tenures Act, 1953 providing for fixing the areas for self-cultivation and conferring rights on the tenants to purchase land under their cultivation from the landholders. Before this Court, the challenge was to the correctness of a decision in Jagat Singh as also validity of Punjab Act No. 27 of 1960 which was said to be in breach of Article 19(1)(f) and Article 31 of the Constitution. Before the judgment could be delivered, 17th Amendment to the Constitution came into force and the judgment was delivered without considering the insertion of second proviso in Article 31A(1). This Court held that village panchayat is an authority for the purpose of Part III of the Constitution and it has the protection of Article 31A. Because of this character, even if the taking over of shamilat deh amounts to acquisition, the High Court was right in deciding as it did in this case. A reading of the judgment of Ranjit Singh would show that the land reserved for income of the panchayat in village Virk Kalan was not found to be unconstitutional, and further, the carving of shamilat deh and giving it to Gram Panchayat was found to be an act of agrarian reform, protected by Article 31A of the Constitution, even if it amounts to acquisition. This Court held as under:12. From a review of these authorities it follows that when the Punjab High Court decided these cases on the authority of Jagat Singhs case, the view taken in this Court was in favour of giving a large and liberal meaning to the terms estate rights in an estate and extinguishment and modification of such rights in Article 31-A. No doubt Kochunis case, considered a bare transfer of the rights of the sthanee to the tarwad without alteration of the tenure and without any pretence of agrarian reform, as not one contemplated by Article 31-A however liberally construed. But that was a special case and we cannot apply it to cases where the general scheme of legislation is definitely agrarian reform and under its provisions something ancillary thereto in the interests of rural economy, has to be undertaken to give full effect to the reforms. In our judgment the High Court was right in not applying the strict rule in Kochunis case, to the facts here.13. The High Court was also right in its view that the proposed changes in the shamlat deh and abadi deh were included in the general scheme of planning of rural areas and the productive utilisation of vacant and waste lands. The scheme of rural development today envisages not only equitable distribution of land so that there is no undue imbalance in society resulting in a landless class on the one hand and a concentration of land in the hands of a few, on the other, but envisages also the raising of economic standards and bettering rural health and social conditions. Provisions for the assignment of lands to village Panchayat for the use of the general community, or for hospitals, schools, manure pits, tanning grounds etc. enure for the benefit of rural population and must be considered to be essential part of the redistribution of holdings and open lands to which no objection is apparently taken. If agrarian reforms are to succeed, mere distribution of land to the landless is not enough. There must be a proper planning of rural economy and conditions and a body like the village Panchayat is best designed to promote rural welfare than individual owners of small portions of lands. Further, the village Panchayat is an authority for purposes of Part III as was conceded before us and it has the protection of Article 31-A because of this character even if the taking over of shamlat deh amounts to acquisition. In our opinion, the High Court was right in deciding as it did on this part of the case.14. With respect to abadi deh the same reasoning must apply. The settling of a body of agricultural artisans (such as the village carpenter, the village blacksmith, the village tanner, farrier, wheelwright, barber, washerman etc. etc.) is a part of rural planning and can be comprehended in a scheme of agrarian reforms. It is a trite saying that India lives in villages and a scheme to make villages selfsufficient cannot but be regarded as part of the larger reforms which consolidation of holdings, fixing of ceilings on lands, distribution of surplus lands and utilising of vacant and waste lands contemplate. The four Acts, namely, the Consolidation Act, the Village Panchayat Act, the Common Lands Regulation Act and the Security of Tenure Act are a part of a general scheme of reforms and any modification of rights such as the present has the protection of Article 31-A. The High Court was thus right in its conclusion on this part of the case also.48. Thus, the property was held to be acquired as a part of the agrarian reform under Article 31A and no compensation was payable as provided under Article 31. Therefore, the acquisition was complete in respect of the land reserved for common purposes by applying pro-rata cut on the land holdings of the proprietors. Further, it is pertinent to mention that the question of payment of compensation was specifically negated in Ranjit Singh. Therefore, the land stood vested with the Panchayat under the scheme in view of the said judgment of this Court. In the present appeals, there is no dispute that the land by applying pro-rata cut has not been reserved for the income of the panchayat. Thus, we find that the land falling in second category i.e., land reserved for common purposes, not falling within the ceiling limit of the proprietor would vest with Panchayat. The Amending Act does not acquire land or deprive the proprietors of their ownership as such ownership stood already divested in view of consolidation scheme reserving land for common purposes. The Amending Act is only a clarificatory or a declaratory amendment as the land stood vested in the panchayat on the strength of Ranjit Singh. Hence, Section 2(g)(6) read with Section 4 of the 1961 Act vests the land reserved for common purposes by applying pro-rata cut in the village Panchayat.49. The Amending Act was enacted and published after obtaining assent of the President of India, thus such Act is part of the agrarian reform. In the year 1992, when the Amending Act was enacted, Article 31 stood omitted by virtue of 44th Constitutional Amendment Act, 1978 with effect from 30.04.1979. Therefore, the provision of payment of compensation contemplated under Article 31(2) was not available on the day when the Amending Act was published. Article 300A was inserted by the same amendment i.e., 44th Amendment with effect from 30.04.1979. Such Article contemplated that no person shall be deprived of his property save by the authority of law. Since the land was already vested with Gram Panchayat, therefore, there was no question of payment of compensation in the year 1992.50. As observed above, the land stood acquired and vested with the Panchayat by virtue of Ranjit Singh. This Court held that no compensation was payable in view of the four Acts, namely, the 1948 Act, the Punjab Act and the Pepsu Act, the 1961 Act and also the Punjab Security of Land Tenures Act, 1953 as such Acts were a part of a general scheme of reforms and any modification of rights such as the present had the protection of Article 31A. Such land would vest with the Panchayat.51. The Full Bench of the Punjab and Haryana High Court in a judgment reported as Parkash Singh & Ors. v. Joint Development Commissioner, Punjab & Ors. 2013 SCC OnLine P&H 26809 has found that Jumla Mushtarka Malkan land is not included in the shamilat deh in the State of Punjab, therefore, the 1961 Act will not confer jurisdiction on the Collector to decide the dispute regarding title. The Full Bench held that the only forum available to a person who raises a dispute regarding title in Jumla Mushtarka Malkan is the principal Court of civil jurisdiction. The Court held as under:61. The question that now remains is to identify the forum, a person who raises a plea that the land is not Jumla Mushtarka Malkan or that it was created by applying an illegal pro rata cut or that the land was not reserved for common purposes during consolidation, would be required to approach. After due consideration of the entire matter, we find no provision in the 1961 Act, the 1976 Act or the Consolidation Act that provides a forum to a person who raises such a plea and, therefore, in the absence of any fora for deciding such a dispute a person may have to approach a Civil Court but Section 44 of the Consolidation Act prohibits a Civil Court from entertaining any matter which the State Government or any officers are empowered by the Consolidation Act to determine or dispose of Section 44, however, cannot be read to prohibit Civil Courts from deciding a question of title relating to Jumla Mushtarka Malkan as what is prohibited by Section 44 is matters that fall to the jurisdiction of State Government or to any officer duly empowered by the Consolidation Act to decide. The Consolidation Act does not confer power whether on the State Government or the officers empowered thereunder to decide a question of title. The jurisdiction of a Civil Court to entertain a dispute regarding Jumla Mushtarka Malkan is, therefore, not barred by Section 44 of the Consolidation Act. The only forum available to a person, who raises a dispute regarding title in Jumla Mushtarka Malkan is the principal Court of civil jurisdiction having jurisdiction in the matter, as provided by Section 9 of the Code of Civil Procedure, i.e., a Civil Court.52. In Suraj Bhan, the Full Bench of the High Court held that only the management and control as distinguished from the title and ownership in respect of lands carved out during consolidation operations by imposing a pro rata cut on the land of the proprietors and recorded in the revenue records as Jumla Malkan Wa Digar Haqdaran Arazi Hasab Rasad Raqba, Jumlan Malkan or Mushtarka Malkan etc., vest in the Panchayat. It was held as under:146. However, for the removal of doubts, it is clarified and held that any observations in Jai Singhs case (supra), and in Veer Singhs case (supra) (in which the application for review of the judgment in Jai Singhs case (supra) had been dismissed by making clarifications), if it is to be taken that the ownership or title in respect of lands kept for common purposes of the village by imposing a pro rata cut on the land of the proprietors and recorded in the revenue records as Jumla Malkan Wa Digar Haqdaran Arazi Hasab Rasad Raqba, Jumlan Malkan or Mushtarka Malkan etc. vest with the State or the Gram Panchayat, as the case may be, without payment of compensation is not the correct legal position notwithstanding the provisions of Section 4 of the VCL Act 1961 and that in fact, only the management and control of such lands vests in the State or the Gram Panchayat, as the case may be. Therefore, only the management and control as distinguished from the title and ownership in respect of lands carved out during consolidation operations by imposing a pro rata cut on the land of the proprietors and recorded in the revenue records as Jumla Malkan Wa Digar Haqdaran Arazi Hasab Rasad Raqba, Jumlan Malkan or Mushtarka Malkan etc., vest in the Panchayat. Besides, as already noticed, the provision relating to appropriation of income of the land kept for common purposes in a consolidation scheme has been invalidated by a Five Judge Bench of the Supreme Court in Bhagat Singhs case (supra).53. We find that such conclusion in Parkash Singh or Suraj Bhan that Jumlan Malkan or Mushtarka Malkan land so described in the revenue record would not vest with the Panchayat is not based on the correct reading of judgment of this Court in Ranjit Singh. Once land had been reserved for common purposes, irrespective of description in the revenue record, such land would vest with Panchayat or the State. The only condition is that it should not be within permissible limits of the proprietors.54. Still further, in Parkash Singh, it has been held that the forum available to a person, who raises a dispute regarding title in Jumla Mushtarka Malkan is the principal Court of civil jurisdiction having jurisdiction in the matter, as provided by Section 9 of the Code of Civil Procedure, i.e., a Civil Court. Though the said judgment is in the context of the State of Punjab, but the said finding is not sustainable for the reason that Jumla Mushtarka Malkan is a land reserved for common purposes during consolidation. Though Rule 16(ii) of the 1949 Rules prescribes that the common purposes land after applying pro-rata cut would be described in the revenue record but the expression Jumla Mushtarka Malkan or Mushtarka Malkan is a land of the proprietors for the benefit of the village community for common purposes. Therefore, if the revenue records as Jumla Mushtarka Malkan or Mushtarka Malkan in the ownership column, it is the authority under the 1961 Act and the machinery provided thereunder which would exercise jurisdiction to determine the dispute as to whether it is reserved for common purposes or not.55. We do not find any merit in the arguments raised by learned counsel for the proprietors that the explanation enlarges the scope of the common purposes for which land was reserved under the scheme in terms of 1948 Act. Rule 16(ii) of 1949 Rules specifically mentions that the entry in the column of ownership of records would be Jumla Malkan Wa Digar Haqdaran Arazi Hassab Rasad. The other expression used in the explanation is Jumla Mustarka Malkan or Mustarka Malkan, which means the ownership of all the proprietors. They are commonly used in the revenue record but they are not larger in scope than the entry contemplated in the revenue record as Jumla Malkan Wa Digar Haqdaran Arazi Hassab Rasad. Therefore, neither sub-section 6 nor the explanation is contrary to Article 300-A as the land stood acquired without payment of compensation being part of the agrarian reforms, when pro- rata cut was applied on the land of the proprietors.56. We do not find any merit in the arguments raised that on the basis of insertion of Sections 13C and 13D by virtue of amendment in the year 1981 and insertion of Sections 5A and 5B by virtue of amendments carried out in 2007 or on the strength of Section 11 of the 1961 Act as originally enacted, the legality and validity of the Amending Act is any way affected. The Panchayat was conferred ownership rights over the land when pro-rata cut was applied on the land of the proprietors to reserve land for the common purposes under the 1948 Act. The Panchayat is therefore the absolute owner of such property which came to be vested in the Panchayat with the commencement of shamilat law. The entire right, title or interest in the said land forming part of second category mentioned above vests with the Panchayat in view of the judgment of this Court in Ranjit Singh.57. In a judgment reported as Mahant Sankarshan Ramanuja Das Goswami, etc. v. State of Orissa and another AIR 1967 SC 59 , it has been held that the benefit of Article 31-A is available also to the Amending Act provided the assent of the President is obtained to such Amending Act. It was held as under:12. The first argument is clearly untenable. It assumes that the benefit of Article 31-A is only available to those laws which by themselves provide for compulsory acquisition of property for public purposes and not to laws amending such laws, the assent of the President notwithstanding. This means that the whole of the law, original and amending, must be passed again, and be reserved for the consideration of the President, and must be freshly assented to by him. This is against the legislative practice in this country. It is to be presumed that the President gave his assent to the amending Act in its relation to the Act it sought to amend, and this is more so, when by the amending law the provisions of the earlier law relating to compulsory acquisition of property for public purposes were sought to be extended to new kinds of properties. In assenting to such law, the President assented to new categories of properties being brought within the operation of the existing law, and he, in effect, assented to a law for the compulsory acquisition for public purposes of these new categories of property. The assent of the President to the amending Act thus brought in the protection of Article 31-A as a necessary consequence. The amending Act must be considered in relation to the old law which it sought to extend and the President assented to such an extension or, in other words, to a law for the compulsory acquisition of property for public purposes.59. In respect of the third category, the land within the ceiling limit of the proprietor was pooled for common purposes and was found to be part of the agrarian reforms by Division Bench of the Punjab High Court in Ajit Singh. The argument raised was that the proprietor (land owner) was a small landholder within the meaning of the Punjab Security of Land Tenures Act, 1953, therefore, no part of his holding could be acquired without payment of compensation at the market value. The writ petitioner had pleaded that in pursuance of the Cooperative Societies Act, 100 bighas of land was given to the local panchayat for common purposes, whereas in this scheme prepared under 1948 Act, another 100 bighas of land was being provided for the same purpose. The argument raised was that most of the proprietors including the writ petitioner own land within the first ceiling, therefore, the land falling within the ceiling limit could not be acquired without payment of compensation on account of insertion of second proviso to Article 31A(1) by 17th Amendment. The 17th Amendment reads thus:Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof.60. The Division Bench of the High Court inter alia examined the 17th Amendment and held that it was not retrospective in operation. The petition was dismissed after examining Article 31(2-A) of the Constitution as well as 17th Amendment which deals with acquisition by the State, leaving requisitioning untouched. The High Court found that where land is assigned to a village Panchayat or the State for a common purpose, it does not seem to provide, technically speaking, for the transfer of ownership and the State Government and Panchayat are merely empowered to manage and appropriate the income accruing from the property for the benefit of village community, including the original holder, and for no other purpose. It was held that Article 31(2-A) of the Constitution lays down that where a law does not provide for the transfer of ownership, only the management and control would vest in the village Panchayat. The Court held (page 857-858) as under:This brings me to the question whether the assignment of land for common purposes is acquisition. The controversy on this point seems to centre round Article 31(2-A) of the Constitution which lays down that where a law does not provide for the transfer of the ownership, or right to possession of any property, to the State or to a Corporation owned or controlled by the State, it shall not be deemed to provide for the compulsory acquisition or requisitioning of property, notwithstanding that it deprives any person of his property. The learned Advocate-General has submitted that providing for right to possession of any property means requisitioning of such property, and compulsory acquisition, according to this sub-article, is confined only to the transfer of ownership. In the case in hand, ownership has not been transferred in law and it is only the management and control which vests in the village Panchayat concerned or the State, as the case may be. This may amount to compulsory requisitioning, but the further proviso introduced by the 17th Amendment, with which we are concerned, hits only acquisitions by the State leaving requisitioning untouched. The petitioners learned counsel has, on the other hand, placed his reliance on the observations of Tek Chand, J. in Munsha Singhs case and on the Supreme Court decision in Ranjit Singhs case, the relevant passage from which has been reproduced above. In this connection, it may be remembered that the further proviso introduced in Article 31- A(1) speaks of payment of compensation only in case of acquisition by the State of land within the ceiling limit applicable to the persons mentioned therein. Where such land is assigned to a village Panchayat or the State for the common purpose, it does not seem to me to provide technically speaking for the transfer of ownership, and indeed it is not the petitioners case that title has actually passed to the Panchayat or the State. What is argued is that all the ingredients of ownership are taken away and what is left with the owner is merely the husk or the shadow. As at present advised, I find some difficulty in readily agreeing with this submission because the property, though vesting in the Panchayat, or the State Government, as the case may be, has been reserved for common purposes in which the entire village community including the original holder is interested as equal sharer, and is entitled to secure the benefit thereof in common with all the co-beneficiaries. The State Government or the Panchayat are merely empowered to manage and appropriate the income accruing from the property for the benefit of the village community, including the original holder, and for no other purpose. It is only the right to transfer, or, to the exclusive use or appropriation, of which the original holder has been deprived.The benefits of the use of the land reserved for common purposes are assured to the original holder in common with all the other members of the community. Whether this can be considered to be acquisition as distinguished from requisitioning is a question which does not seem to be capable of an easy answer. However, keeping in view the general scheme and purpose of the Act, the scales do seem to me prima facie to be somewhat inclined in favour of the view that the statutory vesting of the property in the State Government or the Panchayat, as the case may be, under the Act, when it is reserved for common purposes, is perhaps not intended to amount to acquisition within the contemplation of the second proviso added to Article 31-A by the 17th Amendment. But I should not like to express any considered opinion on this somewhat difficult and vexed point on the present occasion, leaving it to be settled if necessary in a more appropriate case.61. In appeal, a Constitution Bench of this Court in Ajit Singh noted that the scheme under the 1948 Act was not part of the record but 89 bighas, 18 biswas and 18 biswanis of pukhta land was owned by Gram Panchayat prior to consolidation which was used for common purposes. Some more area was reserved for common purposes such as for canals, pathways, community center, school etc. after applying cut upon right holders on pro-rata basis and not for income of Panchayat. This Court held that the proprietor is not entitled to compensation as the title of the proprietor is not being divested and that management and control alone vests with the panchayat. It was thus held that it was not a case of acquisition of land.62. This Court considered the questions as to whether in the second proviso to Article 31A(1), the expression acquisition means substantial taking over the benefits of property and conferring it on the State? and that whether the acquisition means the entire process terminating with possession and extinction of the title of the individual?. This Court held that the title vests in the proprietary body, the management of the land is done on behalf of the proprietary body, the land is used for the common needs and the benefits of the estate or estates concerned. The Panchayat would manage such land on behalf of the proprietors and use for common purposes, therefore, the beneficiary of the modification of the rights is not the State. Therefore, there is no acquisition by the State within the meaning of second proviso. This Court examined the Constitution (Seventeenth Amendment) Act, 1964 and negated the argument raised by the proprietor. It was held as under:9. Coming now to the second proviso to Article 31-A, it would be noticed that only one category is mentioned in the proviso, the category being acquisition by the State of an estate. It means that the law must make a provision for the acquisition by the State of an estate. But what is the true meaning of the expression acquisition by the State of an estate. In the context of Article 31-A, the expression acquisition by the State of an estate in the second proviso to Article 31-A(1) must have the same meaning as it has in clause (1)(a) to Article 31-A. It is urged on behalf of the respondents before us that the expression acquisition by the State of any estate in Article 31-A(1)(a) has the same meaning as it has in Article 31(2-A). In other words, it is urged that the expression acquisition by the State of any estate means transfer of the ownership or right to possession of an estate to the State Mr Iyengar on the other hand urges that the expression acquisition by the State has a very wide meaning and it would bear the same meaning as was given by this Court in State of West Bengal v. Subodh Gopal Bose [(1964) SCR 587] , Dwarkadas Shrinivas of Bombay v. Sholapur Spinning & Weaving Co. Ltd. [(1954) SCR 674] Saghir Ahmad v. State of U.P. [(1955) 1 SCR 707] and Bombay Dyeing and Manufacturing Co. Ltd. v. State of Bombay [(1958) SCR 1122] . In these cases this Court had given a wide meaning to the word acquisition. In Dwarkadas Shrinivas of Bombay v. Sholapur Spinning & Weaving Co. Ltd. [(1954) SCR 674] Mahajan, J., observed at p. 704 as follows:The word acquisition has quite a wide concept, meaning the procuring of property or the taking of it permanently or temporarily. It does not necessarily imply the acquisition of legal title by the State in the property taken possession of.10. Let us now see whether the other part of the second proviso throws any light on this question. It would be noticed that it refers to ceiling limits. It is well known that under various laws dealing with land reforms, no person apart from certain exceptions can hold land beyond a ceiling fixed under the law. Secondly, the proviso says that not only the land exempted from acquisition should be within the ceiling limit but it also must be under personal cultivation. The underlying idea of this proviso seems to be that a person who is cultivating land personally, which is his source of livelihood, should not be deprived of that land under any law protected by Article 31-A unless at least compensation at the market rate is given. In various States most of the persons have already been deprived of land beyond the ceiling limit on compensation which was less than the market value. It seems to us that in the light of all the considerations mentioned above the words acquisition by the State in the second proviso do not have a technical meaning, as contended by the learned counsel for the respondent. If the State has in substance acquired all the rights in the land for its own purposes, even if the title remains with the owner, it cannot be said that it is not acquisition within the second proviso to Article 31-A.12. … It will be noticed that the title still vests in the property body, the management of the land is done on behalf of the proprietary body, and the land is used for the common needs and benefits of the estate or estates concerned. In other words a fraction of each proprietors land is taken and formed into a common pool so that the whole may be used for the common needs and benefits of the estate, mentioned above. The proprietors naturally would also share in the benefits along with others.13. …In other words, a proprietor gets advantages which he could never have got apart from the scheme. For example, if he wanted a threshing floor, a manure pit, land for pasture, khal etc. he would not have been able to have them on the fraction of his land reserved for common purposes.14. Does such taking away of property then amount to acquisition by the State of any land? Who is the real beneficiary? Is it the Panchayat? It is clear that the title remains in the proprietary body and in the revenue records the land would be shown as belonging to all the owners and other right holders in proportion to their areas. The Panchayat will manage it on behalf of the proprietors and use it for common purposes; it cannot use it for any other purpose. The proprietors enjoy the benefits derived from the use of land for common purposes. It is true that the non-proprietors also derive benefit but their satisfaction and advancement enures in the end to the advantage of the proprietors in the form of a more efficient agricultural community. The Panchayat as such does not enjoy any benefit. On the facts of this case it seems to us that the beneficiary of the modification of rights is not the State, and therefore there is no acquisition by the State within the second proviso.15. In the context of the 2nd proviso, which is trying to preserve the rights of a person holding land under his personal cultivation, it is impossible to conceive that such adjustment of the rights of persons holding land under their personal cultivation in the interest of village economy was regarded as something to be compensated for in cash.63. Thus, in respect of the land taken from the proprietors from their permissible ceiling limits, it is the management and control alone which would vest with the panchayat. The management and control include leasing of land and use of the land by non-proprietors, Scheduled Castes and Schedules Tribes etc. which is for the benefit of the village community. Therefore, vesting under Section 4 would be limited to management and control. It is pertinent to note here that for the land taken from the proprietors by applying pro-rata cut from the permissible ceiling limits of the proprietors, management and control alone vests with the Panchayat but such vesting of management and control is irreversible and the land would not revert to the proprietors for redistribution as the common purposes for which land has been carved out not only include the present requirements but the future requirements as well. Such land would not be available for sale so as to confer title on the purchaser in view of the fact that the Panchayat is not the full owner of the land but while exercising control and management, it is duty bound to safeguard the land for the benefit of the village community.64. The Panchayat will not have title over the land but as part of management and control, the panchayat is at liberty to put the land for the use for the common purposes. Such common purposes as defined under Section 2(bb) of 1948 Act are interchangeable and also can be used for any other common purposes. It is to be noted that common purposes are ever evolving, they are not fixed in time. With the change in time and expectations of the village community, common purposes have to be given wider meaning in view of the object of such reservation of land. Therefore, though the panchayat has management and control in respect of the land which was carved out from the land falling within the ceiling limits, the panchayat would have complete control over the said part of the land. The word vesting appearing in Section 4 has to be read down to mean that management and control of such land alone would vest in the panchayat.66. Having said so, though the land vests with the Panchayat, but such land should be utilized only for common purposes for the benefit of village community. Such benefits to the village community is not limited to traditional benefits of the village community i.e., land for grazing of cattle, dumping of dead animals, schools and hospitals but also the activities which would be required in future, keeping in view the modernization of the village economy which will ultimately for the benefit of the village community.67. Therefore, we affirm the conclusions No (i) and (ii) arrived at by the Full Bench in Jai Singh II, though for different reasons. The finding in para 218 (k) in Suraj Bhan is set aside for the reasons recorded above. There is no challenge to Conclusion No. (iv) in the order of Jai Singh II, therefore, the same stands affirmed as well.68. With respect to the conclusion no. (iii) by the Full Bench in Jai Singh-II, it was observed that the land which has been cultivated by the proprietors on pro-rata cut and which have not been earmarked for any common purpose, commonly called as Bachat land, shall not vest with the Gram Panchayat. We are unable to agree with such conclusion. The land reserved for common purposes was reserved for the requirement of village community in praesenti and in future. If the land has not been put to use for any common purpose soon after the consolidation and/or thereafter, it cannot be said to be a Bachat land. The land mass is not going to increase but the requirement of the people and the expectations of the village community is ever expanding. Therefore, even if any land reserved for common purposes is not actually being put to any common purpose, it cannot be termed as a Bachat land and thus open for the purpose of repartition amongst the proprietors sought.70. In a judgment reported as Bagga Singh v. The Commissioner, Ferozepur Division, Ferozepur (1984) SCC OnLine P&H 384, Panchayat filed an application for eviction for the ejectment of the writ petitioner. It was asserted that he is in possession as proprietor. 2 kanals out of 50 kanals reserved for common purposes was utilized for passages and remaining 48 kanals was said to be left as Bachat land by the writ petitioner. It was held by the learned Single Bench that though the land in dispute is entered in the name of proprietary body of the village in the revenue record, but this would not be sufficient to draw an inference that it was reserved for common purposes of village. The High Court held that though initially the land was reserved for common purposes but since it was never utilized for any such purpose, therefore it is Bachat land which means the area left unutilized. The Court held as under:4. For any land to be common purposes land under the 1976 Act, two conditions have to be satisfied that it was reserved for common purposes under Section 18 and its management and control vests in the Gram Panchayat under Section 23-A of the Consolidation Act. No doubt, the land in dispute is entered in the name of proprietary body of the village in the revenue record but his fact alone would not be sufficient to draw an inference that it was reserved for common purposes of the village. As discussed above, the list of the land reserved for common purposes of the village as well as the entires in the Jamabandi clearly show that the land in dispute though initially reserved for common purposes of the village but was never utilised for any such purpose and was entered in the name of the proprietary body of the village being Bachat land which means the area left over unutilized. The Panchayat, therefore, was not entitled to manage and control the land in dispute and as such the authorities below had no jurisdiction to order ejectment of the petitioner under the Eviction Act.71. In another judgment reported as Gram Panchayat, Gunia Majri v. Director, Consolidation of Holdings & Ors (1990) SCC OnLine P&H 823., the learned Single Bench held that if the land reserved for common purposes stands satisfied by the utilization of the land required for each such purpose, the remaining land should be redistributed back to the proprietors. The Court held as under:Precisely, this very view has been taken by the Director/Additional Direction, Consolidation of Holdings, in the present writ petitions and the cases have been remitted by issuing the directions to the Consolidation Officers for re-distribution of land to the original proprietors from whom it was taken during consolidation pro rata by defining the shares of the right-holders. These orders are sought to be challenged on the ground that entries like Hasab Rasad Khewat, Jumla Mushtarka Malkan or Jumla Malkar Wa Digar Haqdaran Arazi Hasab Rasad Raqba, do not entitle the right-holders to claim this land once the same was earmarked and reserved for common purposes. The plea taken by the Gram Panchayats and lessees of the Panchayat is wholly without any basis in view of the aforesaid judgments.72. Similar view has been taken by the learned Singh Bench in Baj Singh v. State of Punjab (1992) 1 PLR 10 . In a judgment reported as Gram Panchayat, Village Bhedpura v. Additional Director, Consolidation, Punjab (1997) 1 PLR 391, an argument was again raised before the Division Bench that the land still left which is known as Bachat land should be redistributed after utilizing the land reserved for common purposes.76. We find that the judgment of Kunhayammed referred to by Mr. Swaroop is not helpful to the argument raised. In fact, it was held as under:12. The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When a decree or order passed by an inferior court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior court has disposed of the lis before it either way — whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view.77. In V.M. Salgaocar, the question of law framed was answered in favour of the assessee and against the revenue by the High Court. The Civil Appeal at the instance of revenue was dismissed without any speaking order. It was held that the previous proceedings would operate as binding precedent that once this Court has dismissed the appeal, the High Court in a subsequent assessment year cannot take a different view. It may be noticed that the aforesaid judgment was delivered on 10.04.2000 whereas Kunhayammed was delivered in 19.07.2000 by a larger bench.78. In S. Shanmugavel Nadar, this Court has referred to the judgment of this Court in V.M. Salgaocar while examining the legality of the Madras City Tenants Protection (Amendment) Act, 1994. The constitutional validity was upheld by the High Court in first round. The Special Leave Petition was dismissed on the ground that the State of Tamil Nadu was not made a party. This Court had not examined the constitutional validity of the Amending Act. In a subsequent round before the Full Bench considering the challenge to the Amending Act, the Division Bench of the High Court was cited as a binding precedent affirmed by this Court. This Court held that when an order of the superior forum results in confirmation, reversal or modification the order, what emerges is the operative part alone is binding i.e., the mandate or decree issued by the court which have been expressed in a positive or negative form. This Court also examined that dismissal of Special Leave Petition can either result into res-judicata or a binding precedent under Article 141 of the Constitution. It was held as under:10. Firstly, the doctrine of merger. Though loosely an expression merger of judgment, order or decision of a court or forum into the judgment, order or decision of a superior forum is often employed, as a general rule the judgment or order having been dealt with by a superior forum and having resulted in confirmation, reversal or modification, what merges is the operative part i.e. the mandate or decree issued by the court which may have been expressed in a positive or negative form. For example, take a case where the subordinate forum passes an order and the same, having been dealt with by a superior forum, is confirmed for reasons different from the one assigned by the subordinate forum, what would merge in the order of the superior forum is the operative part of the order and not the reasoning of the subordinate forum; otherwise there would be an apparent contradiction. However, in certain cases, the reasons for decision can also be said to have merged in the order of the superior court if the superior court has, while formulating its own judgment or order, either adopted or reiterated the reasoning, or recorded an express approval of the reasoning, incorporated in the judgment or order of the subordinate forum.12. Thirdly, as we have already indicated, in the present round of litigation, the decision in M. Varadaraja Pillai case [85 LW 760] was cited only as a precedent and not as res judicata. The issue ought to have been examined by the Full Bench in the light of Article 141 of the Constitution and not by applying the doctrine of merger. Article 141 speaks of declaration of law by the Supreme Court. For a declaration of law there should be a speech i.e. a speaking order. In Krishena Kumar v. Union of India [(1990) 4 SCC 207 : 1991 SCC (L&S) 112 : (1990) 14 ATC 846] this Court has held that the doctrine of precedents, that is being bound by a previous decision, is limited to the decision itself and as to what is necessarily involved in it. In State of U.P. v. Synthetics and Chemicals Ltd. [(1991) 4 SCC 139] R.M. Sahai, J. (vide para 41) dealt with the issue in the light of the rule of sub silentio. The question posed was: can the decision of an appellate court be treated as a binding decision of the appellate court on a conclusion of law which was neither raised nor preceded by any consideration or in other words can such conclusions be considered as declaration of law? His Lordship held that the rule of sub silentio is an exception to the rule of precedents. A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. A court is not bound by an earlier decision if it was rendered without any argument, without reference to the crucial words of the rule and without any citation of the authority. A decision which is not express and is not founded on reasons, nor which proceeds on consideration of the issues, cannot be deemed to be a law declared, to have a binding effect as is contemplated by Article 141. His Lordship quoted the observation from B. Shama Rao v. Union Territory of Pondicherry [AIR 1967 SC 1480 : (1967) 2 SCR 650 ] it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles, laid down therein. His Lordship tendered an advice of wisdom — Restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law. (SCC p. 163, para 41)14. It follows from a review of several decisions of this Court that it is the speech, express or necessarily implied, which only is the declaration of law by this Court within the meaning of Article 141 of the Constitution.79. In S. Shanmugavel Nadar, the Bench had the advantage of considering Kunhayammed and V.M. Salgaocar. A perusal of the aforesaid judgment would show that if leave is granted in a special leave petition, the appellate order becomes operative and executable order. But the nature of jurisdiction exercised by the superior forum and the content of subject matter of challenge laid or which could have been laid had to be kept in view.80. In a recent judgment reported as Kaikhosrou (Chick) Kavasji Framji v. Union of India and another (2019) 20 SCC 705, this Court held as under:53. 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 the subordinate court would continue to hold the field (see S. Shanmugavel Nadar v. State of T.N.).81. In another judgment reported as Commissioner of Income- Tax, Bombay v. M/s. Amritlal Bhogilal and Co. AIR 1958 SC 868 , an appeal was filed before the Appellate Assistant Commissioner against an order passed by the Income-Tax Officer. However, the Income-Tax Officer passed an order refusing to grant registration to the firm to the two assessment years 1947-48 and 1948-49. An argument was raised that since the order of the Assessing Officer has been affirmed in appeal, the non- registration of the firm could also be challenged before the Appellant Assistant Commissioner. This Court noticed the fact, that the department has not been conferred in the right of appeal against the order either refusing to register the firm or cancelling the registration of the firm. This Court considered such an argument and held as under:13. …….. It is thus clear that wide powers have been conferred on the Appellate Assistant Commissioner under Section 31. It is also clear that, before the Appellate Authority exercises his powers, he is bound to hear the Income Tax Officer or his representative. It has been urged before us by Mr Ayyangar on behalf of the respondent that these provisions indicate that, in exercise of his wide powers the Appellate Assistant Commissioner can, in a proper case, after hearing the Income Tax Officer or his representative, set aside the order of registration passed by the Income Tax Officer. We are not prepared to accept this argument. The powers of the Appellate Assistant Commissioner, however wide, have, we think, to be exercised in respect of the matters which are specifically made appealable under Section 30(1) of the Act. If any order has been deliberately left out from the jurisdiction of the Appellate Assistant Commissioner it would not be open to the Appellate Authority to entertain a plea about the correctness, propriety or validity of such an order. ……It is true that, in dealing with the assessees appeal against the order of assessment, the Appellate Assistant Commissioner may modify the assessment, reverse it or send it back for further enquiry; but any order that the Appellate Assistant Commissioner may make in respect of any of the matters brought before him in appeal will not and cannot affect the order of registration made by the Income Tax Officer. If that be the true position, the order of registration passed by the Income Tax Officer stands outside the jurisdiction of the Appellate Assistant Commissioner and does not strictly form part of the proceedings before the appellate authority. Even after the appeal is decided and in consequence the appellate order is the only order which is valid and enforceable in law, what merges in the appellate order is the Income Tax Officers order under appeal and not his order of registration which was not and could never become the subject-matter of an appeal before the appellate authority. The theory that the order of the tribunal merges in the order of the appellate authority cannot therefore apply to the order of registration passed by the Income Tax Officer in the present case.82. Thus, the principle of merger would be that the order of the higher court becomes the operative order and not the order which was appealed from and not interfered with.83. In the appeal against the judgment of Gurjant Singh, only grievance raised before this Court was in respect of a direction of fixing a time limit to re-partition the land. It was the said direction which was deleted from the order. By such exercise of jurisdiction in appeal, the reasoning of the High Court is not deemed to be the reasoning of this Court. Such argument would in fact give rise to strange results as the reasoning of the High Court would have to be accepted as reasoning of the Supreme Court. There cannot be a more absurd argument. As held by this Court in S. Shanmugavel Nadar, there can be only one operative judgment/order. Once this Court has deleted the time limit to complete the re-partition, the operative order remains of the High Court that Bachat land can be partitioned i.e., operative part of the order. The reasoning recorded by the High Court is not however affirmed by this Court. It would be a judgment of the High Court alone which can be cited as a precedent in other cases but not as an order of this Court. Consequently, we do not find any merit in the argument so raised. In fact, by applying the doctrine of merger, the order of this Court becomes operative order but since the order is of deletion of a direction only, the effect would be that the order of the High Court has not been interfered with.94. We do not find any merit in the argument that since the State has not challenged the orders in the writ petition filed by the appellant, therefore, the State cannot challenge the judgment of Full Bench in Suraj Bhan. The State is in appeal against the entire judgment rendered by the Full Bench in Suraj Bhan. The provisions amending the 1994 Corporation Act are pari materia with the provisions amending the 1973 Municipal Act. Therefore, the argument that the State has not filed an appeal against the order passed in the writ petition does not merit any consideration since the entire judgment is in appeal.95. The fact is that the Full Bench of the Punjab and Haryana High Court in Rajender Parshad has struck down the Haryana Municipal Common Lands (Regulation) Act, 1974 as unconstitutional inter alia on the ground that such Act is not a measure of agrarian reform. The infirmities pointed out by the High Court in Rajender Parshad are very well applicable to the amending Statutes amending the 1973 Municipal Act and the 1994 Corporation Act. Therefore, we have no hesitation to affirm the findings recorded by the High Court that the amending statutes amending the 1973 Municipal Act and the 1994 Corporation Act are also unconstitutional as they are not part of the agrarian reforms.96. However, we find merit in the argument raised by Mr. Pradeep Kant that if whole or part of the Panchayat area comes within the municipal limits, and the Panchayat ceases to exist, land would vest with the municipality and will not revert back to the proprietors.100. The sub-section (4) of Section 7 of the 1994 Act contemplates that if the whole of the Sabha area is included in a municipality, the Gram Panchayat shall cease to exist, whereas on the other hand, the 1973 Municipal Act contemplates inclusion of part of local area into a municipality. In fact, Section 7(4) is pari materia with Section 4(3) of the Punjab Gram Panchayat Act, 1952, since repleaded by 1973 Municipal Act.101. The Panchayati Raj Act contemplates cessation of Gram Panchayat if whole of the Sabha area is included in the municipality, whereas the 1973 Municipal Act contemplates the local area which may be part of Gram Panchayat area can be included in the municipality. Even an area from the municipal limits can be excluded from the municipal limits as well. In Atma Ram this Court also examined the maxim that Omne Majus continet in se minus (the greater contains the less). This Court held as under:-12. Another branch of the same argument was that if the makers of the Constitution intended to include within the purview of Article 31A, not only entire estates but also portions thereof, nothing would have been easier than to say so in terms, and that in the absence of any specific mention of portions of an estate, we should not read that article as covering portions of an estate also. In our opinion, there is no substance in this contention, because they must be attributed full knowledge of the legal maxim that the greater contains the less – Omne Majus continet in se minus. ........Thus the Full Bench specifically held that Article 31A of the Constitution applied equally to portions of estates also. This decision of the Full Bench AIR 1954 Punjab 167 was followed by a Division Bench of the same High Court, consisting of Bhandari C. J. and Dulat J., in the case of Hukam Singh v. State of Punjab, 57 PLR 359 : ( AIR 1955 Punjab 220). That Bench was concerned with the provisions of another Act -Punjab Village Common Lands (Regulation) Act, 1954. In that case, the Division Bench, naturally, followed the decision of the Full Bench in so far as it had ruled that the whole includes the part, and that where an Act provides for rights in an estate, it provides for rights in a part of an estate also. .............. In our opinion, the view taken by the earlier Full Bench is the correct one. The learned Chief Justice who was a party to both the conflicting views on the same question has not indicated his own reasons for changing his view. The Full Bench has accepted the force of the legal maxim that the greater contains the less, referred to above but has not, it must be said with all respect, given any good reasons for departing from that well-established maxim.102. The reference was made to later Full Bench judgment of Punjab High Court reported as State of Punjab v. S. Kehar Singh AIR 1959 P&H 8; 1958 SCC Online Punj 89 and earlier Full Bench reported as Bhagirath. Even in a later Full Bench of the High Court in a judgment reported as M/s. Hari Ram Paras Ram v. State of Haryana ILR (1982) 1 Punjab and Haryana 317, the expression whole will include part has been accepted. It was held as under:-19. Mr. Mittal was pretty vehement in submitting that under Section 3(2)(c) of the Act the price of the entire essential commodity in contradistinction with a part thereof alone can be fixed. According to him, there is no such thing as a partial control of the price. I see no merit in this submission. If the non-availability of essential commodities, which grows with the passage of time, has to be checked, then the evil must be nipped in the bud. In other words, if the supply position can be improved by taking less drastic action, the State Government should be allowed to take that action instead of allowing the problem to go out of hands. If the interpretation suggested by Mr. Mittal is accepted, then the authorities under the Act, would have to wait till the essential commodities become so costly and scarce as to make absolute control of prices the only imperative. Besides, there is a legal maxim omne majus continet in se minus - the greater contains the less. This maxim has been referred to with approval in Atma Ram v. State of Punjab, AIR 1959 Supreme Court 519 - If the State Government has the volition and the right to travel the whole distance, I see no reason why it should be commanded to go further if it exercises an option of stopping midway..............103. The Section 7(4) of the Panchayati Raj Act, 1994 is to be read with the provisions of the 1973 Municipal Act. However, both the statutes had undergone extensive changes after the insertion of Part IX and IX A in the Constitution empowering the third tier of the democratic set up. The Panchayati Raj Act contemplates vesting of property of Gram Panchayat with the municipality., whereas the Municipal Act takes into its ambit the properties which were vesting with Panchayat. The 1973 Municipal Act contemplates that even if part of the property of Gram Panchayat is included in the Municipal Limits, it would vest with the municipality. Thus, the word whole appearing in Section 7(4) of Panchayati Raj Act does include part of the Gram Panchayat area coming within the municipal limits. It is the same view which was taken by this Court in a Notified Area Committee, Sirhind.104. Thus, if the whole or part of Gram Panchayat area is included in the municipal limits, the land reserved for common purposes as part of agrarian reforms would stand vested with the municipality. Such vesting is not a part of agrarian reforms but shall be on account of extension of municipal limits. When the municipal limits are extended, the residents of the Panchayat also became residents of the municipality. The common purposes of the village community prior to extension of the municipal limits would be deemed to be common purposes for which land can be utilized by the municipality. Therefore, such vesting of land reserved for common purposes is not an acquisition for the first time but transition of the land reserved for common purposes in the changed scenario when the land vest with the municipality.105. The argument of the proprietors that if whole of the Sabha area merges with the municipality, only then there can be vesting of land reserved for common purposes with the municipality is untenable. Such an argument would lead to anomalous results. The title, right and interest of the property cannot be held in abeyance. There has to be continued control and management over the land reserved for common purposes under the 1948 Act. Therefore, even if a part of Sabha area is merged into the municipality, the municipality will have control over the land so reserved for the erstwhile village community which will now form part of the urban area. In view thereof, we do not find any merit in the argument raised on behalf of the proprietors and dismiss the writ petitions filed by them while allowing the appeals of the State.106. The argument of the proprietors that the land which is not capable of being used for common purposes of the inhabitants of a particular village shall be reverted to the proprietors is untenable and unsustainable. The land has been put to common pool by applying pro-rata cut. Once pro-rata cut has been applied, the management and control of such land vest with the Panchayat. There is no question of reverting the land to the proprietors. As discussed above, the land which is not part of the permissible limits under the land ceiling laws stand acquired and vested with the Panchayat in terms of judgment of this Court in Ranjit Singh. However, in respect of the land forming part of permissible limits of the proprietor under the land ceiling laws, the management and control vest with the Panchayat. Neither the 1961 Act nor the 1948 Act contemplates redistribution of land to the proprietors. It is an irrevocable act which cannot be undone. Therefore, once land vest with the Panchayat, it can be used for common purposes of the community and will never revert back to the proprietors.107. We find that the scope of the two provisions under the 1985 Act and 1961 Act are different and distinct. Under the 1985 Act, the Gram Panchayat could seek eviction from unauthorized occupants, the management and control as of the land reserved for common purposes whereof vested in the Gram Panchayat in a summary way where the possession of the occupant was unauthorized. But if there is dispute in respect of the nature of occupation by the occupant or by the panchayat, procedure under the 1961 Act alone can be resorted to as Section 13A of the 1961 Act confers power upon the Collector to decide the question of right, title or interest in any land or immoveable property vested or deemed to have been vested in the panchayat. Therefore, in case of a dispute about the right, title or interest in any land for or on behalf of any person, the remedy under the 1961 Act alone can be exercised. This will include right, title or interest in all the three categories of land i.e., shamilat deh owned by panchayat, shamilat land vested in terms of 1948 Act falling in second category and the land, the management and control whereof is vested with the panchayat, land being within the permissible limits of the proprietor, the management and control of which vest with the panchayat. | 1 | 23,777 | 14,563 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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Court that it is the speech, express or necessarily implied, which only is the declaration of law by this Court within the meaning of Article 141 of the Constitution. 79. In S. Shanmugavel Nadar, the Bench had the advantage of considering Kunhayammed and V.M. Salgaocar. A perusal of the aforesaid judgment would show that if leave is granted in a special leave petition, the appellate order becomes operative and executable order. But the nature of jurisdiction exercised by the superior forum and the content of subject matter of challenge laid or which could have been laid had to be kept in view. 80. In a recent judgment reported as Kaikhosrou (Chick) Kavasji Framji v. Union of India and another (2019) 20 SCC 705, this Court held as under: 53. 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 the subordinate court would continue to hold the field (see S. Shanmugavel Nadar v. State of T.N.). 81. In another judgment reported as Commissioner of Income- Tax, Bombay v. M/s. Amritlal Bhogilal and Co. AIR 1958 SC 868 , an appeal was filed before the Appellate Assistant Commissioner against an order passed by the Income-Tax Officer. However, the Income-Tax Officer passed an order refusing to grant registration to the firm to the two assessment years 1947-48 and 1948-49. An argument was raised that since the order of the Assessing Officer has been affirmed in appeal, the non- registration of the firm could also be challenged before the Appellant Assistant Commissioner. This Court noticed the fact, that the department has not been conferred in the right of appeal against the order either refusing to register the firm or cancelling the registration of the firm. This Court considered such an argument and held as under: 13. …….. It is thus clear that wide powers have been conferred on the Appellate Assistant Commissioner under Section 31. It is also clear that, before the Appellate Authority exercises his powers, he is bound to hear the Income Tax Officer or his representative. It has been urged before us by Mr Ayyangar on behalf of the respondent that these provisions indicate that, in exercise of his wide powers the Appellate Assistant Commissioner can, in a proper case, after hearing the Income Tax Officer or his representative, set aside the order of registration passed by the Income Tax Officer. We are not prepared to accept this argument. The powers of the Appellate Assistant Commissioner, however wide, have, we think, to be exercised in respect of the matters which are specifically made appealable under Section 30(1) of the Act. If any order has been deliberately left out from the jurisdiction of the Appellate Assistant Commissioner it would not be open to the Appellate Authority to entertain a plea about the correctness, propriety or validity of such an order. ……It is true that, in dealing with the assessees appeal against the order of assessment, the Appellate Assistant Commissioner may modify the assessment, reverse it or send it back for further enquiry; but any order that the Appellate Assistant Commissioner may make in respect of any of the matters brought before him in appeal will not and cannot affect the order of registration made by the Income Tax Officer. If that be the true position, the order of registration passed by the Income Tax Officer stands outside the jurisdiction of the Appellate Assistant Commissioner and does not strictly form part of the proceedings before the appellate authority. Even after the appeal is decided and in consequence the appellate order is the only order which is valid and enforceable in law, what merges in the appellate order is the Income Tax Officers order under appeal and not his order of registration which was not and could never become the subject-matter of an appeal before the appellate authority. The theory that the order of the tribunal merges in the order of the appellate authority cannot therefore apply to the order of registration passed by the Income Tax Officer in the present case. 82. Thus, the principle of merger would be that the order of the higher court becomes the operative order and not the order which was appealed from and not interfered with. 83. In the appeal against the judgment of Gurjant Singh, only grievance raised before this Court was in respect of a direction of fixing a time limit to re-partition the land. It was the said direction which was deleted from the order. By such exercise of jurisdiction in appeal, the reasoning of the High Court is not deemed to be the reasoning of this Court. Such argument would in fact give rise to strange results as the reasoning of the High Court would have to be accepted as reasoning of the Supreme Court. There cannot be a more absurd argument. As held by this Court in S. Shanmugavel Nadar, there can be only one operative judgment/order. Once this Court has deleted the time limit to complete the re-partition, the operative order remains of the High Court that Bachat land can be partitioned i.e., operative part of the order. The reasoning recorded by the High Court is not however affirmed by this Court. It would be a judgment of the High Court alone which can be cited as a precedent in other cases but not as an order of this Court. Consequently, we do not find any merit in the argument so raised. In fact, by applying the doctrine of merger, the order of this Court becomes operative order but since the order is of deletion of a direction only, the effect would be that the order of the High Court has not been interfered with.
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of time, has to be checked, then the evil must be nipped in the bud. In other words, if the supply position can be improved by taking less drastic action, the State Government should be allowed to take that action instead of allowing the problem to go out of hands. If the interpretation suggested by Mr. Mittal is accepted, then the authorities under the Act, would have to wait till the essential commodities become so costly and scarce as to make absolute control of prices the only imperative. Besides, there is a legal maxim omne majus continet in se minus - the greater contains the less. This maxim has been referred to with approval in Atma Ram v. State of Punjab, AIR 1959 Supreme Court 519 - If the State Government has the volition and the right to travel the whole distance, I see no reason why it should be commanded to go further if it exercises an option of stopping midway..............103. The Section 7(4) of the Panchayati Raj Act, 1994 is to be read with the provisions of the 1973 Municipal Act. However, both the statutes had undergone extensive changes after the insertion of Part IX and IX A in the Constitution empowering the third tier of the democratic set up. The Panchayati Raj Act contemplates vesting of property of Gram Panchayat with the municipality., whereas the Municipal Act takes into its ambit the properties which were vesting with Panchayat. The 1973 Municipal Act contemplates that even if part of the property of Gram Panchayat is included in the Municipal Limits, it would vest with the municipality. Thus, the word whole appearing in Section 7(4) of Panchayati Raj Act does include part of the Gram Panchayat area coming within the municipal limits. It is the same view which was taken by this Court in a Notified Area Committee, Sirhind.104. Thus, if the whole or part of Gram Panchayat area is included in the municipal limits, the land reserved for common purposes as part of agrarian reforms would stand vested with the municipality. Such vesting is not a part of agrarian reforms but shall be on account of extension of municipal limits. When the municipal limits are extended, the residents of the Panchayat also became residents of the municipality. The common purposes of the village community prior to extension of the municipal limits would be deemed to be common purposes for which land can be utilized by the municipality. Therefore, such vesting of land reserved for common purposes is not an acquisition for the first time but transition of the land reserved for common purposes in the changed scenario when the land vest with the municipality.105. The argument of the proprietors that if whole of the Sabha area merges with the municipality, only then there can be vesting of land reserved for common purposes with the municipality is untenable. Such an argument would lead to anomalous results. The title, right and interest of the property cannot be held in abeyance. There has to be continued control and management over the land reserved for common purposes under the 1948 Act. Therefore, even if a part of Sabha area is merged into the municipality, the municipality will have control over the land so reserved for the erstwhile village community which will now form part of the urban area. In view thereof, we do not find any merit in the argument raised on behalf of the proprietors and dismiss the writ petitions filed by them while allowing the appeals of the State.106. The argument of the proprietors that the land which is not capable of being used for common purposes of the inhabitants of a particular village shall be reverted to the proprietors is untenable and unsustainable. The land has been put to common pool by applying pro-rata cut. Once pro-rata cut has been applied, the management and control of such land vest with the Panchayat. There is no question of reverting the land to the proprietors. As discussed above, the land which is not part of the permissible limits under the land ceiling laws stand acquired and vested with the Panchayat in terms of judgment of this Court in Ranjit Singh. However, in respect of the land forming part of permissible limits of the proprietor under the land ceiling laws, the management and control vest with the Panchayat. Neither the 1961 Act nor the 1948 Act contemplates redistribution of land to the proprietors. It is an irrevocable act which cannot be undone. Therefore, once land vest with the Panchayat, it can be used for common purposes of the community and will never revert back to the proprietors.107. We find that the scope of the two provisions under the 1985 Act and 1961 Act are different and distinct. Under the 1985 Act, the Gram Panchayat could seek eviction from unauthorized occupants, the management and control as of the land reserved for common purposes whereof vested in the Gram Panchayat in a summary way where the possession of the occupant was unauthorized. But if there is dispute in respect of the nature of occupation by the occupant or by the panchayat, procedure under the 1961 Act alone can be resorted to as Section 13A of the 1961 Act confers power upon the Collector to decide the question of right, title or interest in any land or immoveable property vested or deemed to have been vested in the panchayat. Therefore, in case of a dispute about the right, title or interest in any land for or on behalf of any person, the remedy under the 1961 Act alone can be exercised. This will include right, title or interest in all the three categories of land i.e., shamilat deh owned by panchayat, shamilat land vested in terms of 1948 Act falling in second category and the land, the management and control whereof is vested with the panchayat, land being within the permissible limits of the proprietor, the management and control of which vest with the panchayat.
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Techpac Holdings Limited Vs. The Deputy Commissioner of Income Tax (Osd-Ii) & Another | and in Sections 148 to 153 referred to as the relevant assessment year):Provided that where an assessment under sub-section (3) of Section 143 or this section has been made for the relevant assessment year, no action shall be taken under this section after the expiry of four years from the end of the relevant assessment year, unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under Section 139 or in response to a notice issued under sub-section (1) of Section 142 or Section 148 or to disclose fully and truly all material facts necessary for his assessment, for that assessment year:15. Section 147 of the Act stipulates that if the Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of sections 148 to 153, assess or re-assess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under this section, or recompute the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment year concerned. Therefore, before any notice under section 148 of the Act can be issued for initiating assessment / re-assessment proceedings, the Assessing Officer ought to have reason to believe that any income chargeable to tax has escaped assessment for that particular assessment year. This reason to believe is a sine-qua-non for issuance of the notice under section 148.16. The facts of the present case and as more elaborately set out earlier in the judgment, clearly show that the shares of the Petitioner company were transferred by its shareholders to Ingram Micro Asia. The Petitioner itself has not transferred anything. In order to attract capital gains tax there are two requirements that need to be fulfilled – (1) that there is a transfer of a capital asset; and (2) there is a gain by virtue of such transfer. If these conditions are satisfied, then capital gains tax is to be computed as set out in section 48 of the Act. The facts of the present case would clearly show that the Petitioner has not transferred any capital asset in India that would give rise to any capital gains tax in their hands. This is borne out from the share purchase agreement which itself stipulates that the 100% shareholding of the Petitioner company was transferred by its shareholders (described in schedule I thereof) to Ingram Micro Asia for a total consideration of AUD 730 million (Australian dollars) equivalent to Rs.2,501.72 crores (conversion rate being 1 Australian dollar = Rs.34.l27). Even if we were to assume that by virtue of Ingram Micro Asia purchasing the 100% shareholding of the Petitioner, there was a transfer of a capital asset in India, the same could never be taxed as capital gains in the hands of the Petitioner company. This is for the simple reason that the shares of the Petitioner company have been transferred to Ingram Micro Asia by the Petitioners shareholders and therefore the transferor in the aforesaid transaction is the shareholders of the Petitioner and not the Petitioner company. In these circumstances, if there was any liability towards capital gains tax, if at all (we are not called upon to consider this aspect), it was that of the shareholders of the Petitioner and not the Petitioner itself. This being the position in law, the Assessing Officer could never have reason to believe that income of the Petitioner chargeable to tax in India had escaped assessment. If the Assessing Officer could not have had any reason to form the aforesaid belief, then naturally what follows is that no notice under section 148 of the Act could be issued in the facts of the present case. Consequently, the Assessment Order passed under section 144 of the Act was therefore wholly without jurisdiction. On this count also, we find that the Assessment Order passed under section 144 of the Act is unsustainable and has to be set aside.17. Faced with this situation, Mr Malhotra very feebly tried to contend that the share purchase agreement entered into in November, 2004 was one which was actually between the Petitioner company and Ingram Micro Asia and not between the shareholders of the Petitioner and Ingram Micro Asia. We are afraid we are unable to accept this argument for more than one reason. Firstly, the impugned Assessment Order does not proceed to compute the capital gains on the basis that the aforesaid share purchase agreement was ostensibly entered into between the Petitioner company and Ingram Micro Asia. This argument is being canvassed for the first time by the Revenue in this Writ Petition. Secondly, we find this argument without any substance as we fail to see how the Petitioner company can enter into any agreement for sale of its own shares. The shares of the Petitioner company are held by its shareholders who are the owners of the shares and who alone can transfer the same to a third party. Therefore, we are unable to understand the basis of the argument of Mr Malhotra that the share purchase agreement was ostensibly between the Petitioner company and Ingram Micro Asia.18. In view of our earlier findings the Petitioner must succeed. However, it is clarified that we have not examined whether any capital gains have accrued to the shareholders of the Petitioner. If the Revenue Authorities are of the opinion that in fact capital gains have accrued to the shareholders of the Petitioner, they are free to take such action against the shareholders of the Petitioner as are permitted in law. Equally, if such proceedings are adopted by the Revenue against the shareholders of the Petitioner, all contentions to contest the same are left open. Thus all contentions of all the parties concerned are kept open in that regard. | 1[ds]As far as the issue of service of notices under sections 148, 142(1) and 143(2) of the Act are concerned, it is an admitted position that the said notices were never served on the Petitioner. The Revenue seeks to justify service of these notices on the Petitioner by contending that they have served the said notices on the last known address of the Petitioner which was the address of Ingram Micro India [earlier known as Tech Pacific India], thedownstream company of the Petitioner.We fail to see how the notices being served on Ingram Micro India [earlier known as Tech Pacific India] would amount to service on the Petitioner. This is more so in the facts of the present case considering that admittedly on the date when these notices were sought to be served on Ingram Micro India [earlier known as Tech Pacific India], the Revenue was aware of the address of the Petitioner. This is clearly borne out by (i) the share purchase agreement that was in the possession of the revenue authorities on the said dates in which (at Recital A pg 34 of thethe registered office of the Petitioner company is clearly mentioned; and (ii) the letter dated 30th March, 2012page 203 of theaddressed by Respondent No.1 to the Joint Secretary, (FT &Central Board of Direct Taxes, North Block, New Delhi 110 001 in which Respondent No.1 clearly mentions that the registered office of the Petitioner is Charladon House,1, Bermuda. Despite having this address prior to issuance of the notices under section 148, 142(1) and 143(2) of the Act, we fail to understand why these notices were not served on the Petitioner at this address. In these circumstances, we cannot accede to the contention of Mr Malhotra that service of the aforesaid notices on Ingram Micro India [earlier known as Tech Pacific India] (which is a subsidiary of the Petitioner) would be good service on the Petitioner.10. We must also not lose sight of the fact that in the present case Ingram Micro India [earlier known as Tech Pacific India] was not the assessee or even a representative – assessee of the Petitioner. In fact, the Revenue in the earlier round of litigation, sought to treat Ingram Micro India [earlier known as Tech Pacific India] as an agent of the Petitioner under the provisions of section 163 of the Act. Being aggrieved by this action of the Revenue, Ingram Micro India [earlier known as Tech Pacific India] approached this Court in its writ jurisdiction by filing Writ Petition No.285 of 2011. This Court by its order dated 30th November, 2011 quashed the order of the Revenue Authorities passed under section 163 of the Act treating Ingram Micro India [earlier known as Tech Pacific India] as the agent of the Petitioner. Once this Court struck down the action of the Revenue treating Ingram Micro India [earlier known as Tech Pacific India] as an agent of the Petitioner, all the more, service of the notices under sections 148, 142(1) and/or 143(2) of the Act on Ingram Micro India [earlier known as Tech Pacific India] could never be considered as good service on the Petitioner.11. Section 148 of the Act clearly stipulates that before making any assessment,on under section 147 of the Act, the Assessing Officer shall serve on the assessee a notice requiring him to furnish within such period as may be specified in the notice a return of income or the income of any other person in respect of which he is assessable in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed. The section further stipulates that once this is done, the provisions of the Income Tax Act shall, so far as may be, apply as if such return were a return required to be furnished under section 139 of the Act. Therefore, clearly as stipulated in the said section, the notice issued under section 148 of the Act has to be served on the assessee. This is abefore any further action can be taken. If this notice itself is not served, all other proceedings that flow therefrom would have no legs to stand on and would fall to the ground. This is no longeras it stands concluded by the decision of the Supreme Court in the case of Y. Narayana Chetty and another [1959] 35 ITR 388 ). The Supreme Court, whilst considering similar provisions under the Income Tax Act, 1922 held that service of the requisite notice on the assessee is a condition precedent to the validity of anyIf a valid notice is not issued as required, proceedings taken by the Income Tax Officer in pursuance of the invalid notice and the consequent orders on assessment passed by him, would be void and inoperative. The Supreme Court opined that the notice under section 34 of the 1922 Act (similar to section 148 of the 1961 Act) cannot be regarded as a mere procedural requirement. It is only if the said notice is served on the assessee as required, that the Income Tax Officer would have jurisdiction to proceed further against him. If no notice is issued or if the notice issued is invalid, then the proceedings taken by the Income Tax Officer without a notice, or in pursuance of the invalid notice, would be illegal and void. The relevant portion of the Supreme Court decision [at pg 392 of the ITR report] readsfirst point raised by Mr Sastri is that the proceedings taken by Respondent No.1 under Section 34 of the Act are invalid because the notice required to be issued under the said section has not been issued against the assessees contemplated therein. In the present case the Income Tax Officer has purported to act under Section 34(1)(a) against the three firms. The saidprovides inter alia that if the Income Tax Officer has reason to believe that by reason of the omission or failure on the part of the assessee to make a return of his income under Section 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year, income, profits or gains chargeable to income tax has been underassessed, he may, within the time prescribed, serve on the assessee a notice containing all or any of the requirements which may be included in the notice under subsection (2) of Section 22 and may proceed to reassess such income, profits or gains. The argument is that the service of the requisite notice on the assessee is a condition precedent to the validity of any reassessment made under Section 34; and if a valid notice is not issued as required, proceedings taken by the Income Tax Officer in pursuance of an invalid notice and consequent orders of reassessment passed by him would be void and inoperative. In our opinion, this contention isThe notice prescribed by Section 34 cannot be regarded as a mere procedural requirement; it is only if the said notice is served on the assessee as required that the Income Tax Officer would be justified in taking proceedings against him. If no notice is issued or if the notice issued is shown to be invalid then the validity of the proceedings taken by the Income Tax Officer without a notice or in pursuance of an invalid notice would be illegal and void. That is the view taken by the Bombay and Calcutta High Courts in the CIT v.Ramsukh Motilal [ (1955) 27 ITR 54 ] and R.K. Das & Co. v. CIT [ (1956) 30 ITR 439 ] and we think that that view is right.(emphasis supplied)12. Looking to the facts of the present case and since the notice issued under section 148 of the Act was admittedly not served upon the Petitioner (who is the assessee in the present case), the consequent Assessment Order passed under section 144 of the Act is clearly without jurisdiction and ought to be set aside on this ground alone.13. In view of our above finding that in the absence of service of notice issued under section 148 of the Act, the Assessing Officer does not acquire jurisdiction to proceed further, the notices issued under section 142(1) and 143(2) both dated 16th January, 2013 (and which, in the facts of this case, can only be issued post the service of notice issued under section 148), also fall to the ground. Nevertheless, in the present facts we find that both these notices under section 142(1) and 143(2) were not served on the Petitioner. More importantly, we fail to understand how a notice under section 142(1) and under section 143(2) can be issued on the same date. Section 142(1) of the Act stipulates that for the purpose of making an assessment under the Act, the Assessing Officer may serve on any person who has made a return under section 115WD or section 139 or in whose case, the time allowed undersubsection (1) of section139 for furnishing the return has expired, a notice requiring him on a date therein specified (a) where such person has not filed a return within the time allowed undersubsection (1) of section139 of the Act or before the end of the relevant assessment year, inter alia to furnish a return of income. Section 143(2) in turn applies where a return has been furnished either under section 139 or in response to a notice undersubsection (1) of section142 of the Act. Therefore, clearly,subsection (2) ofsection 143 would come into play only when a return is furnished under section 139 or a return is furnished in response to a notice undersubsection (1) of section142. This would clearly establish that a notice under section 142(1) and under section 143(2) can never be issued on the same date. Furthermore in the facts of the present case, section 143(2) could never apply because admittedly no return had ever been filed by the Petitioner. We find that the Assessment Order merely records that notices under sections 148, 142(1) and 143(2) have been served on the Petitioner. Apart from the fact that this is factually incorrect, we find that there is a totalof mind on the part of the Assessing Officer in issuing a notice under section 143(2) of the Act. We therefore have no hesitation in holding that the Assessment Order passed under section 144 of the Act is wholly without jurisdiction as the notices under section 148 as well as under section 142(1) were never served on the Petitioner.14. Having held so, we must state that in the facts of the present case, we find that even otherwise the Assessing Officer could never have reason to believe that income chargeable to tax had escaped assessment warranting the issuance of a notice under section 148 of the Act. Section 147 of the Act (to the extent it is relevant for our purpose) reads asIncome escaping assessment.— If the Assessing Officer, has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of Sections 148 to 153, assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under this section, or recompute the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment year concerned (hereafter in this section and in Sections 148 to 153 referred to as the relevant assessment year):Provided that where an assessment under(3) of Section 143 or this section has been made for the relevant assessment year, no action shall be taken under this section after the expiry of four years from the end of the relevant assessment year, unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under Section 139 or in response to a notice issued undersubsection (1) ofSection 142 or Section 148 or to disclose fully and truly all material facts necessary for his assessment, for that assessment year:15. Section 147 of the Act stipulates that if the Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of sections 148 to 153, assess orreassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under this section, or recompute the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment yearconcerned. Therefore, before any notice under section 148 of the Act can be issued for initiating assessment /proceedings, the Assessing Officer ought to have reason to believe that any income chargeable to tax has escaped assessment for that particular assessment year. This reason to believe is afor issuance of the notice under section 148.16. The facts of the present case and as more elaborately set out earlier in the judgment, clearly show that the shares of the Petitioner company were transferred by its shareholders to Ingram Micro Asia. The Petitioner itself has not transferred anything. In order to attract capital gains tax there are two requirements that need to be fulfilled – (1) that there is a transfer of a capital asset; and (2) there is a gain by virtue of such transfer. If these conditions are satisfied, then capital gains tax is to be computed as set out in section 48 of the Act. The facts of the present case would clearly show that the Petitioner has not transferred any capital asset in India that would give rise to any capital gains tax in their hands. This is borne out from the share purchase agreement which itself stipulates that the 100% shareholding of the Petitioner company was transferred by its shareholders (described in schedule I thereof) to Ingram Micro Asia for a total consideration of AUD 730 million (Australian dollars) equivalent to Rs.2,501.72 crores (conversion rate being 1 Australian dollar = Rs.34.l27). Even if we were to assume that by virtue of Ingram Micro Asia purchasing the 100% shareholding of the Petitioner, there was a transfer of a capital asset in India, the same could never be taxed as capital gains in the hands of the Petitioner company. This is for the simple reason that the shares of the Petitioner company have been transferred to Ingram Micro Asia by the Petitioners shareholders and therefore the transferor in the aforesaid transaction is the shareholders of the Petitioner and not the Petitioner company. In these circumstances, if there was any liability towards capital gains tax, if at all (we are not called upon to consider this aspect), it was that of the shareholders of the Petitioner and not the Petitioner itself. This being the position in law, the Assessing Officer could never have reason to believe that income of the Petitioner chargeable to tax in India had escaped assessment. If the Assessing Officer could not have had any reason to form the aforesaid belief, then naturally what follows is that no notice under section 148 of the Act could be issued in the facts of the present case. Consequently, the Assessment Order passed under section 144 of the Act was therefore wholly without jurisdiction. On this count also, we find that the Assessment Order passed under section 144 of the Act is unsustainable and has to be set aside.17. Faced with this situation, Mr Malhotra very feebly tried to contend that the share purchase agreement entered into in November, 2004 was one which was actually between the Petitioner company and Ingram Micro Asia and not between the shareholders of the Petitioner and Ingram Micro Asia. We are afraid we are unable to accept this argument for more than one reason. Firstly, the impugned Assessment Order does not proceed to compute the capital gains on the basis that the aforesaid share purchase agreement was ostensibly entered into between the Petitioner company and Ingram Micro Asia. This argument is being canvassed for the first time by the Revenue in this Writ Petition. Secondly, we find this argument without any substance as we fail to see how the Petitioner company can enter into any agreement for sale of its own shares. The shares of the Petitioner company are held by its shareholders who are the owners of the shares and who alone can transfer the same to a third party. Therefore, we are unable to understand the basis of the argument of Mr Malhotra that the share purchase agreement was ostensibly between the Petitioner company and Ingram Micro Asia.18. In view of our earlier findings the Petitioner must succeed. However, it is clarified that we have not examined whether any capital gains have accrued to the shareholders of the Petitioner. If the Revenue Authorities are of the opinion that in fact capital gains have accrued to the shareholders of the Petitioner, they are free to take such action against the shareholders of the Petitioner as are permitted in law. Equally, if such proceedings are adopted by the Revenue against the shareholders of the Petitioner, all contentions to contest the same are left open. Thus all contentions of all the parties concerned are kept open in that regard. | 1 | 6,731 | 3,235 | ### 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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and in Sections 148 to 153 referred to as the relevant assessment year):Provided that where an assessment under sub-section (3) of Section 143 or this section has been made for the relevant assessment year, no action shall be taken under this section after the expiry of four years from the end of the relevant assessment year, unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under Section 139 or in response to a notice issued under sub-section (1) of Section 142 or Section 148 or to disclose fully and truly all material facts necessary for his assessment, for that assessment year:15. Section 147 of the Act stipulates that if the Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of sections 148 to 153, assess or re-assess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under this section, or recompute the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment year concerned. Therefore, before any notice under section 148 of the Act can be issued for initiating assessment / re-assessment proceedings, the Assessing Officer ought to have reason to believe that any income chargeable to tax has escaped assessment for that particular assessment year. This reason to believe is a sine-qua-non for issuance of the notice under section 148.16. The facts of the present case and as more elaborately set out earlier in the judgment, clearly show that the shares of the Petitioner company were transferred by its shareholders to Ingram Micro Asia. The Petitioner itself has not transferred anything. In order to attract capital gains tax there are two requirements that need to be fulfilled – (1) that there is a transfer of a capital asset; and (2) there is a gain by virtue of such transfer. If these conditions are satisfied, then capital gains tax is to be computed as set out in section 48 of the Act. The facts of the present case would clearly show that the Petitioner has not transferred any capital asset in India that would give rise to any capital gains tax in their hands. This is borne out from the share purchase agreement which itself stipulates that the 100% shareholding of the Petitioner company was transferred by its shareholders (described in schedule I thereof) to Ingram Micro Asia for a total consideration of AUD 730 million (Australian dollars) equivalent to Rs.2,501.72 crores (conversion rate being 1 Australian dollar = Rs.34.l27). Even if we were to assume that by virtue of Ingram Micro Asia purchasing the 100% shareholding of the Petitioner, there was a transfer of a capital asset in India, the same could never be taxed as capital gains in the hands of the Petitioner company. This is for the simple reason that the shares of the Petitioner company have been transferred to Ingram Micro Asia by the Petitioners shareholders and therefore the transferor in the aforesaid transaction is the shareholders of the Petitioner and not the Petitioner company. In these circumstances, if there was any liability towards capital gains tax, if at all (we are not called upon to consider this aspect), it was that of the shareholders of the Petitioner and not the Petitioner itself. This being the position in law, the Assessing Officer could never have reason to believe that income of the Petitioner chargeable to tax in India had escaped assessment. If the Assessing Officer could not have had any reason to form the aforesaid belief, then naturally what follows is that no notice under section 148 of the Act could be issued in the facts of the present case. Consequently, the Assessment Order passed under section 144 of the Act was therefore wholly without jurisdiction. On this count also, we find that the Assessment Order passed under section 144 of the Act is unsustainable and has to be set aside.17. Faced with this situation, Mr Malhotra very feebly tried to contend that the share purchase agreement entered into in November, 2004 was one which was actually between the Petitioner company and Ingram Micro Asia and not between the shareholders of the Petitioner and Ingram Micro Asia. We are afraid we are unable to accept this argument for more than one reason. Firstly, the impugned Assessment Order does not proceed to compute the capital gains on the basis that the aforesaid share purchase agreement was ostensibly entered into between the Petitioner company and Ingram Micro Asia. This argument is being canvassed for the first time by the Revenue in this Writ Petition. Secondly, we find this argument without any substance as we fail to see how the Petitioner company can enter into any agreement for sale of its own shares. The shares of the Petitioner company are held by its shareholders who are the owners of the shares and who alone can transfer the same to a third party. Therefore, we are unable to understand the basis of the argument of Mr Malhotra that the share purchase agreement was ostensibly between the Petitioner company and Ingram Micro Asia.18. In view of our earlier findings the Petitioner must succeed. However, it is clarified that we have not examined whether any capital gains have accrued to the shareholders of the Petitioner. If the Revenue Authorities are of the opinion that in fact capital gains have accrued to the shareholders of the Petitioner, they are free to take such action against the shareholders of the Petitioner as are permitted in law. Equally, if such proceedings are adopted by the Revenue against the shareholders of the Petitioner, all contentions to contest the same are left open. Thus all contentions of all the parties concerned are kept open in that regard.
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be, for the assessment year concerned (hereafter in this section and in Sections 148 to 153 referred to as the relevant assessment year):Provided that where an assessment under(3) of Section 143 or this section has been made for the relevant assessment year, no action shall be taken under this section after the expiry of four years from the end of the relevant assessment year, unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under Section 139 or in response to a notice issued undersubsection (1) ofSection 142 or Section 148 or to disclose fully and truly all material facts necessary for his assessment, for that assessment year:15. Section 147 of the Act stipulates that if the Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of sections 148 to 153, assess orreassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under this section, or recompute the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment yearconcerned. Therefore, before any notice under section 148 of the Act can be issued for initiating assessment /proceedings, the Assessing Officer ought to have reason to believe that any income chargeable to tax has escaped assessment for that particular assessment year. This reason to believe is afor issuance of the notice under section 148.16. The facts of the present case and as more elaborately set out earlier in the judgment, clearly show that the shares of the Petitioner company were transferred by its shareholders to Ingram Micro Asia. The Petitioner itself has not transferred anything. In order to attract capital gains tax there are two requirements that need to be fulfilled – (1) that there is a transfer of a capital asset; and (2) there is a gain by virtue of such transfer. If these conditions are satisfied, then capital gains tax is to be computed as set out in section 48 of the Act. The facts of the present case would clearly show that the Petitioner has not transferred any capital asset in India that would give rise to any capital gains tax in their hands. This is borne out from the share purchase agreement which itself stipulates that the 100% shareholding of the Petitioner company was transferred by its shareholders (described in schedule I thereof) to Ingram Micro Asia for a total consideration of AUD 730 million (Australian dollars) equivalent to Rs.2,501.72 crores (conversion rate being 1 Australian dollar = Rs.34.l27). Even if we were to assume that by virtue of Ingram Micro Asia purchasing the 100% shareholding of the Petitioner, there was a transfer of a capital asset in India, the same could never be taxed as capital gains in the hands of the Petitioner company. This is for the simple reason that the shares of the Petitioner company have been transferred to Ingram Micro Asia by the Petitioners shareholders and therefore the transferor in the aforesaid transaction is the shareholders of the Petitioner and not the Petitioner company. In these circumstances, if there was any liability towards capital gains tax, if at all (we are not called upon to consider this aspect), it was that of the shareholders of the Petitioner and not the Petitioner itself. This being the position in law, the Assessing Officer could never have reason to believe that income of the Petitioner chargeable to tax in India had escaped assessment. If the Assessing Officer could not have had any reason to form the aforesaid belief, then naturally what follows is that no notice under section 148 of the Act could be issued in the facts of the present case. Consequently, the Assessment Order passed under section 144 of the Act was therefore wholly without jurisdiction. On this count also, we find that the Assessment Order passed under section 144 of the Act is unsustainable and has to be set aside.17. Faced with this situation, Mr Malhotra very feebly tried to contend that the share purchase agreement entered into in November, 2004 was one which was actually between the Petitioner company and Ingram Micro Asia and not between the shareholders of the Petitioner and Ingram Micro Asia. We are afraid we are unable to accept this argument for more than one reason. Firstly, the impugned Assessment Order does not proceed to compute the capital gains on the basis that the aforesaid share purchase agreement was ostensibly entered into between the Petitioner company and Ingram Micro Asia. This argument is being canvassed for the first time by the Revenue in this Writ Petition. Secondly, we find this argument without any substance as we fail to see how the Petitioner company can enter into any agreement for sale of its own shares. The shares of the Petitioner company are held by its shareholders who are the owners of the shares and who alone can transfer the same to a third party. Therefore, we are unable to understand the basis of the argument of Mr Malhotra that the share purchase agreement was ostensibly between the Petitioner company and Ingram Micro Asia.18. In view of our earlier findings the Petitioner must succeed. However, it is clarified that we have not examined whether any capital gains have accrued to the shareholders of the Petitioner. If the Revenue Authorities are of the opinion that in fact capital gains have accrued to the shareholders of the Petitioner, they are free to take such action against the shareholders of the Petitioner as are permitted in law. Equally, if such proceedings are adopted by the Revenue against the shareholders of the Petitioner, all contentions to contest the same are left open. Thus all contentions of all the parties concerned are kept open in that regard.
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C.B.I. Vs. Rajesh Gandhi | case RC. I (S)/95(D) was registered on 3-1-1995 against the first respondent and other accused persons incorporating the offences mentioned in FIR No. 159/93. The first respondent filed a writ petition in the Patna High Court challenging the said notifications of 2-6-1994 and 26-10-1994. The present appeal arises from an order of a learned Single Judge of the Patna High Court quashing the said notifications. 4. This is, however, not the first such proceeding. Earlier respondent No. I herein and other accused persons filed a writ petition on or about 7-2-1995 in the High Court of Calcutta in respect of the same criminal proceedings. The Calcutta High Court by its order dated 9-2-1995 disposed of the writ petition by directing that the venue of the investigation be shifted from Dhanbad to Ranchi and the investigating officers be changed. This order, however, was set aside by this Court in S.L.P. (Cri.) No. 1155 of 1995. 5. Thereafter, M/s. Continental Transport and Construction Corporation Limited and one of the directors, Ramesh Gandhi. the brother of respondent No. I filed a writ petition before the Ranchi Bench of the Patna High Court praying, inter alia. fora writ quashing the FIR dated 3rd of January, 1995 lodged in the Court of the Special Judicial Magistrate, C.B.I. cases, Dhanbad and for quashing the notifications of 2-6-1994 and 26-10-1994. The Ranchi Bench of the Patna High Court, however, dismissed the writ petition by a reasoned judgment and order dated 10-5-1995. 6. The first respondent then filed a writ petition before the Patna High Court for identical reliefs of quashing the said notifications. The Patna High Court allowed the writ-petition holding that the impugned notifications must disclose reasons as to why the investigation was being entrusted to the Delhi Special Police Establishment. This decision is under challenge before us. 7. In the first place, the same two notifications were challenged before the Ranchi Bench of the same High Court, A learned Single Judge of the High Court by a reasoned order declined to qush the two notifications. We fail to appreciate how another learned Single Judge of the same High Court has quashed the same notifications in disregard of the earlier judgment. Secondly, there is a clear attempt of on the part of first respondent as well as the other accused to stall investigation by the C.B.I., looking to the course, of conduct adopted by them starting with the filing of a writ petition in the Calcutta High Court when C.B.I. had registered an FIR before the Special Judicial Magistrate. C.B.I. Cases, at Dhanbad. 8. There is no merit in the pleas raised by the first respondent either. The decision to investigate or the decision on the agency which .should investigate, does not attract principles of natural justice. The accused cannot have a say in who should investigate the offences he is charged with. We also fail to see any provision of law for recording reasons for such a decision. The notification dated 2-6-1994 is issued by the Government of Bihar (Police Department) by which in exercise of powers under Section 6 of the Delhi Special Police Establishment Act. 1946, Governor of Bihar was pleased to consent and extend the power and jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Bihar in connection with investigation of the concerned Police Station case No. 159 of 9-3-1993 in the District of Dhanbad, under Sections 457, 436, 427, 201 and 120-B, Indian Penal Code and conspiracy arising out of the same and any other offence committed in course of the same. The notiFications of 26-10-1994 is issued by the Government of India, Ministry of Personnel in exercise of the powers conferred by sub-section ( I ) of Section 5 read with Section 6 of the Delhi Special Police Establishment Act, 1946 whereby the Central Government with the consent of the State Government of Bihar in their notification dated 2-6-1994 extended the powers and jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Bihar for investigation of offences under Sections 457, 436, 427/120-B and 201, I.P.C. and Section 4 of the Prevention of Damages to Public Property Act, 1984 registered at Dhanbad Police Station, Dhansar, Bihar in their case No. 159 dated 9-3-1993 and any other offences, attempts, abetment and conspiracy in relation to or in connection with the said offence committed in the course of the same transactions or arising out of the same fact or facts in relation to the said case. There is no provision in law under which, while granting consent or extending the powers and jurisdiction of the Delhi Special Police Establishment to the specified State and to any specified case any reasons required to be recorded on the face of the notification. The learned single Judge of the Patna High Court was clearly in error in holding so. If investigation by the local police is not satisfactory, a further investigation is not precluded. In the present case the material on record shows that the investigation by the local police was not satisfactory. In fact the local police had Filed a final report before the Chief Judicial Magistrate, Dhanbad. The report, however, was pending and had not been accepted when the Central Government with the consent of the State Government issued the impugned notification. As a result, the C. B. I. has been directed to further investigate the offences registered under the said FIR with the consent of the State Government and in accordance with law. Under Section 173 (8) of the Cr.P.C. 1973 also, there is an analogous provision for further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate. 9. We fail to see any requirement of law un which the reasons for further investigation by C. B. I. are required to be recorded in the notifi cations of the kind in question. The reasons can shown independently. | 1[ds]8. There is no merit in the pleas raised by the first respondent either. The decision to investigate or the decision on the agency which .should investigate, does not attract principles of natural justice. The accused cannot have a say in who should investigate the offences he is charged with. We also fail to see any provision of law for recording reasons for such a decision. The notification dated4 is issued by the Government of Bihar (Police Department) by which in exercise of powers under Section 6 of the Delhi Special Police Establishment Act. 1946, Governor of Bihar was pleased to consent and extend the power and jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Bihar in connection with investigation of the concerned Police Station case No. 159 of3 in the District of Dhanbad, under Sections 457, 436, 427, 201 and, Indian Penal Code and conspiracy arising out of the same and any other offence committed in course of the same. The notiFications of4 is issued by the Government of India, Ministry of Personnel in exercise of the powers conferred byn ( I ) of Section 5 read with Section 6 of the Delhi Special Police Establishment Act, 1946 whereby the Central Government with the consent of the State Government of Bihar in their notification dated4 extended the powers and jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Bihar for investigation of offences under Sections 457, 436,B and 201, I.P.C. and Section 4 of the Prevention of Damages to Public Property Act, 1984 registered at Dhanbad Police Station, Dhansar, Bihar in their case No. 159 dated3 and any other offences, attempts, abetment and conspiracy in relation to or in connection with the said offence committed in the course of the same transactions or arising out of the same fact or facts in relation to the said case. There is no provision in law under which, while granting consent or extending the powers and jurisdiction of the Delhi Special Police Establishment to the specified State and to any specified case any reasons required to be recorded on the face of the notification. The learned single Judge of the Patna High Court was clearly in error in holding so. If investigation by the local police is not satisfactory, a further investigation is not precluded. In the present case the material on record shows that the investigation by the local police was not satisfactory. In fact the local police had Filed a final report before the Chief Judicial Magistrate, Dhanbad. The report, however, was pending and had not been accepted when the Central Government with the consent of the State Government issued the impugned notification. As a result, the C. B. I. has been directed to further investigate the offences registered under the said FIR with the consent of the State Government and in accordance with law. Under Section 173 (8) of the Cr.P.C. 1973 also, there is an analogous provision for further investigation in respect of an offence after a report undern (2) has been forwarded to the Magistrate9. We fail to see any requirement of law un which the reasons for further investigation by C. B. I. are required to be recorded in the notifi cations of the kind in question. The reasons can shown independently. | 1 | 1,438 | 621 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
case RC. I (S)/95(D) was registered on 3-1-1995 against the first respondent and other accused persons incorporating the offences mentioned in FIR No. 159/93. The first respondent filed a writ petition in the Patna High Court challenging the said notifications of 2-6-1994 and 26-10-1994. The present appeal arises from an order of a learned Single Judge of the Patna High Court quashing the said notifications. 4. This is, however, not the first such proceeding. Earlier respondent No. I herein and other accused persons filed a writ petition on or about 7-2-1995 in the High Court of Calcutta in respect of the same criminal proceedings. The Calcutta High Court by its order dated 9-2-1995 disposed of the writ petition by directing that the venue of the investigation be shifted from Dhanbad to Ranchi and the investigating officers be changed. This order, however, was set aside by this Court in S.L.P. (Cri.) No. 1155 of 1995. 5. Thereafter, M/s. Continental Transport and Construction Corporation Limited and one of the directors, Ramesh Gandhi. the brother of respondent No. I filed a writ petition before the Ranchi Bench of the Patna High Court praying, inter alia. fora writ quashing the FIR dated 3rd of January, 1995 lodged in the Court of the Special Judicial Magistrate, C.B.I. cases, Dhanbad and for quashing the notifications of 2-6-1994 and 26-10-1994. The Ranchi Bench of the Patna High Court, however, dismissed the writ petition by a reasoned judgment and order dated 10-5-1995. 6. The first respondent then filed a writ petition before the Patna High Court for identical reliefs of quashing the said notifications. The Patna High Court allowed the writ-petition holding that the impugned notifications must disclose reasons as to why the investigation was being entrusted to the Delhi Special Police Establishment. This decision is under challenge before us. 7. In the first place, the same two notifications were challenged before the Ranchi Bench of the same High Court, A learned Single Judge of the High Court by a reasoned order declined to qush the two notifications. We fail to appreciate how another learned Single Judge of the same High Court has quashed the same notifications in disregard of the earlier judgment. Secondly, there is a clear attempt of on the part of first respondent as well as the other accused to stall investigation by the C.B.I., looking to the course, of conduct adopted by them starting with the filing of a writ petition in the Calcutta High Court when C.B.I. had registered an FIR before the Special Judicial Magistrate. C.B.I. Cases, at Dhanbad. 8. There is no merit in the pleas raised by the first respondent either. The decision to investigate or the decision on the agency which .should investigate, does not attract principles of natural justice. The accused cannot have a say in who should investigate the offences he is charged with. We also fail to see any provision of law for recording reasons for such a decision. The notification dated 2-6-1994 is issued by the Government of Bihar (Police Department) by which in exercise of powers under Section 6 of the Delhi Special Police Establishment Act. 1946, Governor of Bihar was pleased to consent and extend the power and jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Bihar in connection with investigation of the concerned Police Station case No. 159 of 9-3-1993 in the District of Dhanbad, under Sections 457, 436, 427, 201 and 120-B, Indian Penal Code and conspiracy arising out of the same and any other offence committed in course of the same. The notiFications of 26-10-1994 is issued by the Government of India, Ministry of Personnel in exercise of the powers conferred by sub-section ( I ) of Section 5 read with Section 6 of the Delhi Special Police Establishment Act, 1946 whereby the Central Government with the consent of the State Government of Bihar in their notification dated 2-6-1994 extended the powers and jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Bihar for investigation of offences under Sections 457, 436, 427/120-B and 201, I.P.C. and Section 4 of the Prevention of Damages to Public Property Act, 1984 registered at Dhanbad Police Station, Dhansar, Bihar in their case No. 159 dated 9-3-1993 and any other offences, attempts, abetment and conspiracy in relation to or in connection with the said offence committed in the course of the same transactions or arising out of the same fact or facts in relation to the said case. There is no provision in law under which, while granting consent or extending the powers and jurisdiction of the Delhi Special Police Establishment to the specified State and to any specified case any reasons required to be recorded on the face of the notification. The learned single Judge of the Patna High Court was clearly in error in holding so. If investigation by the local police is not satisfactory, a further investigation is not precluded. In the present case the material on record shows that the investigation by the local police was not satisfactory. In fact the local police had Filed a final report before the Chief Judicial Magistrate, Dhanbad. The report, however, was pending and had not been accepted when the Central Government with the consent of the State Government issued the impugned notification. As a result, the C. B. I. has been directed to further investigate the offences registered under the said FIR with the consent of the State Government and in accordance with law. Under Section 173 (8) of the Cr.P.C. 1973 also, there is an analogous provision for further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate. 9. We fail to see any requirement of law un which the reasons for further investigation by C. B. I. are required to be recorded in the notifi cations of the kind in question. The reasons can shown independently.
### Response:
1
### Explanation:
8. There is no merit in the pleas raised by the first respondent either. The decision to investigate or the decision on the agency which .should investigate, does not attract principles of natural justice. The accused cannot have a say in who should investigate the offences he is charged with. We also fail to see any provision of law for recording reasons for such a decision. The notification dated4 is issued by the Government of Bihar (Police Department) by which in exercise of powers under Section 6 of the Delhi Special Police Establishment Act. 1946, Governor of Bihar was pleased to consent and extend the power and jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Bihar in connection with investigation of the concerned Police Station case No. 159 of3 in the District of Dhanbad, under Sections 457, 436, 427, 201 and, Indian Penal Code and conspiracy arising out of the same and any other offence committed in course of the same. The notiFications of4 is issued by the Government of India, Ministry of Personnel in exercise of the powers conferred byn ( I ) of Section 5 read with Section 6 of the Delhi Special Police Establishment Act, 1946 whereby the Central Government with the consent of the State Government of Bihar in their notification dated4 extended the powers and jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Bihar for investigation of offences under Sections 457, 436,B and 201, I.P.C. and Section 4 of the Prevention of Damages to Public Property Act, 1984 registered at Dhanbad Police Station, Dhansar, Bihar in their case No. 159 dated3 and any other offences, attempts, abetment and conspiracy in relation to or in connection with the said offence committed in the course of the same transactions or arising out of the same fact or facts in relation to the said case. There is no provision in law under which, while granting consent or extending the powers and jurisdiction of the Delhi Special Police Establishment to the specified State and to any specified case any reasons required to be recorded on the face of the notification. The learned single Judge of the Patna High Court was clearly in error in holding so. If investigation by the local police is not satisfactory, a further investigation is not precluded. In the present case the material on record shows that the investigation by the local police was not satisfactory. In fact the local police had Filed a final report before the Chief Judicial Magistrate, Dhanbad. The report, however, was pending and had not been accepted when the Central Government with the consent of the State Government issued the impugned notification. As a result, the C. B. I. has been directed to further investigate the offences registered under the said FIR with the consent of the State Government and in accordance with law. Under Section 173 (8) of the Cr.P.C. 1973 also, there is an analogous provision for further investigation in respect of an offence after a report undern (2) has been forwarded to the Magistrate9. We fail to see any requirement of law un which the reasons for further investigation by C. B. I. are required to be recorded in the notifi cations of the kind in question. The reasons can shown independently.
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Aspi Jal Vs. Khushroo Rustom Dadyburjor | of Section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same matter in issue. The fundamental test to attract Section 10 is, whether on final decision being reached in the previous suit, such decision would operate as res-judicata in the subsequent suit. Section 10 applies only in cases where the whole of the subject-matter in both the suits is identical. The key words in Section 10 are “the matter in issue is directly and substantially in issue” in the previous instituted suit. The words “directly and substantially in issue” are used in contradistinction to the words “incidentally or collaterally in issue”. Therefore, Section 10 would apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the whole of the subject-matter in both the proceedings is identical.” 10. In the present case, the parties in all the three suits are one and the same and the court in which the first two suits have been instituted is competent to grant the relief claimed in the third suit. The only question which invites our adjudication is as to whether “the matter in issue is also directly and substantially in issue in previously instituted suits”. The key words in Section 10 are “the matter in issue is directly and substantially in issue in the previously instituted suit”. The test for applicability of Section 10 of the Code is whether on a final decision being reached in the previously instituted suit, such decision would operate as res-judicata in the subsequent suit. To put it differently one may ask, can the plaintiff get the same relief in the subsequent suit, if the earlier suit has been dismissed? In our opinion, if the answer is in affirmative, the subsequent suit is not fit to be stayed. However, we hasten to add then when the matter in controversy is the same, it is immaterial what further relief is claimed in the subsequent suit. 11. As observed earlier, for application of Section 10 of the Code, the matter in issue in both the suits have to be directly and substantially in issue in the previous suit but the question is what “the matter in issue” exactly means? As in the present case, many of the matters in issue are common, including the issue as to whether the plaintiffs are entitled to recovery of possession of the suit premises, but for application of Section 10 of the Code, the entire subject-matter of the two suits must be the same. This provision will not apply where few of the matters in issue are common and will apply only when the entire subject matter in controversy is same. In other words, the matter in issue is not equivalent to any of the questions in issue. As stated earlier, the eviction in the third suit has been sought on the ground of non-user for six months prior to the institution of that suit. It has also been sought in the earlier two suits on the same ground of non-user but for a different period. Though the ground of eviction in the two suits was similar, the same were based on different causes. The plaintiffs may or may not be able to establish the ground of non-user in the earlier two suits, but if they establish the ground of non-user for a period of six months prior to the institution of the third suit that may entitle them the decree for eviction. Therefore, in our opinion, the provisions of Section 10 of the Code is not attracted in the facts and circumstances of the case. Reference in this connection can be made to a decision of this Court in Dunlop India Limited vrs. A.A.Rahna & Anr. (2011) 5 SCC 778 in which it has been held as follows: “35. The arguments of Shri Nariman that the second set of rent control petitions should have been dismissed as barred by res judicata because the issue raised therein was directly and substantially similar to the one raised in the first set of rent control petitions does not merit acceptance for the simple reason that while in the first set of petitions, the respondents had sought eviction on the ground that the appellant had ceased to occupy the premises from June 1998, in the second set of petitions, the period of non-occupation commenced from September 2001 and continued till the filing of the eviction petitions. That apart, the evidence produced in the first set of petitions was not found acceptable by the appellate authority because till 2-8-1999, the premises were found kept open and alive for operation, The appellate authority also found that in spite of extreme financial crisis, the management had kept the business premises open for operation till 1999. In the second round, the appellant did not adduce any evidence worth the name to show that the premises were kept open or used from September 2001 onwards. The Rent Controller took cognizance of the notice fixed on the front shutter of the building by A.K.Agarwal on 1-10-2001 that the Company is a sick industrial company under the 1985 Act and operation has been suspended with effect from 1-10-2001; that no activity had been done in the premises with effect from 1- 10-2001 and no evidence was produced to show attendance of the staff, payment of salary to the employees, payment of electricity bills from September, 2001 or that any commercial transaction was done from the suit premises. It is, thus, evident that even though the ground of eviction in the two sets of petitions was similar, the same were based on different causes. Therefore, the evidence produced by the parties in the second round was rightly treated as sufficient by the Rent Control Court and the appellate authority for recording a finding that the appellant had ceased to occupy the suit premises continuously for six months without any reasonable cause.”(Underlining ours) 12. | 1[ds]From a plain reading of the aforesaid provision, it is evident that where a suit is instituted in a Court to which provisions of the Code apply, it shall not proceed with the trial of another suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. For application of the provisions of Section 10 of the Code, it is further required that the Court in which the previous suit is pending is competent to grant the relief claimed. The use of negative expression in Section 10, i.e.court shall proceed with the trial of anymakes the provision mandatory and the Court in which the subsequent suit has been filed is prohibited from proceeding with the trial of that suit if the conditions laid down in Section 10 of the Code are satisfied. The basic purpose and the underlying object of Section 10 of the Code is to prevent the Courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same cause of action, same subject matter and the same relief. This is to pin down the plaintiff to one litigation so as to avoid the possibility of contradictory verdicts by two courts in respect of the same relief and is aimed to protect the defendant from multiplicity ofparties in all the three suits are one and the same and the court in which the first two suits have been instituted is competent to grant the relief claimed in the third suit. The only question which invites our adjudication is as to whethermatter in issue is also directly and substantially in issue in previously institutedThe key words in Section 10 arematter in issue is directly and substantially in issue in the previously institutedThe test for applicability of Section 10 of the Code is whether on a final decision being reached in the previously instituted suit, such decision would operate as res-judicata in the subsequent suit. To put it differently one may ask, can the plaintiff get the same relief in the subsequent suit, if the earlier suit has been dismissed? In our opinion, if the answer is in affirmative, the subsequent suit is not fit to be stayed. However, we hasten to add then when the matter in controversy is the same, it is immaterial what further relief is claimed in the subsequent suit. | 1 | 3,003 | 426 | ### 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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of Section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same matter in issue. The fundamental test to attract Section 10 is, whether on final decision being reached in the previous suit, such decision would operate as res-judicata in the subsequent suit. Section 10 applies only in cases where the whole of the subject-matter in both the suits is identical. The key words in Section 10 are “the matter in issue is directly and substantially in issue” in the previous instituted suit. The words “directly and substantially in issue” are used in contradistinction to the words “incidentally or collaterally in issue”. Therefore, Section 10 would apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the whole of the subject-matter in both the proceedings is identical.” 10. In the present case, the parties in all the three suits are one and the same and the court in which the first two suits have been instituted is competent to grant the relief claimed in the third suit. The only question which invites our adjudication is as to whether “the matter in issue is also directly and substantially in issue in previously instituted suits”. The key words in Section 10 are “the matter in issue is directly and substantially in issue in the previously instituted suit”. The test for applicability of Section 10 of the Code is whether on a final decision being reached in the previously instituted suit, such decision would operate as res-judicata in the subsequent suit. To put it differently one may ask, can the plaintiff get the same relief in the subsequent suit, if the earlier suit has been dismissed? In our opinion, if the answer is in affirmative, the subsequent suit is not fit to be stayed. However, we hasten to add then when the matter in controversy is the same, it is immaterial what further relief is claimed in the subsequent suit. 11. As observed earlier, for application of Section 10 of the Code, the matter in issue in both the suits have to be directly and substantially in issue in the previous suit but the question is what “the matter in issue” exactly means? As in the present case, many of the matters in issue are common, including the issue as to whether the plaintiffs are entitled to recovery of possession of the suit premises, but for application of Section 10 of the Code, the entire subject-matter of the two suits must be the same. This provision will not apply where few of the matters in issue are common and will apply only when the entire subject matter in controversy is same. In other words, the matter in issue is not equivalent to any of the questions in issue. As stated earlier, the eviction in the third suit has been sought on the ground of non-user for six months prior to the institution of that suit. It has also been sought in the earlier two suits on the same ground of non-user but for a different period. Though the ground of eviction in the two suits was similar, the same were based on different causes. The plaintiffs may or may not be able to establish the ground of non-user in the earlier two suits, but if they establish the ground of non-user for a period of six months prior to the institution of the third suit that may entitle them the decree for eviction. Therefore, in our opinion, the provisions of Section 10 of the Code is not attracted in the facts and circumstances of the case. Reference in this connection can be made to a decision of this Court in Dunlop India Limited vrs. A.A.Rahna & Anr. (2011) 5 SCC 778 in which it has been held as follows: “35. The arguments of Shri Nariman that the second set of rent control petitions should have been dismissed as barred by res judicata because the issue raised therein was directly and substantially similar to the one raised in the first set of rent control petitions does not merit acceptance for the simple reason that while in the first set of petitions, the respondents had sought eviction on the ground that the appellant had ceased to occupy the premises from June 1998, in the second set of petitions, the period of non-occupation commenced from September 2001 and continued till the filing of the eviction petitions. That apart, the evidence produced in the first set of petitions was not found acceptable by the appellate authority because till 2-8-1999, the premises were found kept open and alive for operation, The appellate authority also found that in spite of extreme financial crisis, the management had kept the business premises open for operation till 1999. In the second round, the appellant did not adduce any evidence worth the name to show that the premises were kept open or used from September 2001 onwards. The Rent Controller took cognizance of the notice fixed on the front shutter of the building by A.K.Agarwal on 1-10-2001 that the Company is a sick industrial company under the 1985 Act and operation has been suspended with effect from 1-10-2001; that no activity had been done in the premises with effect from 1- 10-2001 and no evidence was produced to show attendance of the staff, payment of salary to the employees, payment of electricity bills from September, 2001 or that any commercial transaction was done from the suit premises. It is, thus, evident that even though the ground of eviction in the two sets of petitions was similar, the same were based on different causes. Therefore, the evidence produced by the parties in the second round was rightly treated as sufficient by the Rent Control Court and the appellate authority for recording a finding that the appellant had ceased to occupy the suit premises continuously for six months without any reasonable cause.”(Underlining ours) 12.
### Response:
1
### Explanation:
From a plain reading of the aforesaid provision, it is evident that where a suit is instituted in a Court to which provisions of the Code apply, it shall not proceed with the trial of another suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. For application of the provisions of Section 10 of the Code, it is further required that the Court in which the previous suit is pending is competent to grant the relief claimed. The use of negative expression in Section 10, i.e.court shall proceed with the trial of anymakes the provision mandatory and the Court in which the subsequent suit has been filed is prohibited from proceeding with the trial of that suit if the conditions laid down in Section 10 of the Code are satisfied. The basic purpose and the underlying object of Section 10 of the Code is to prevent the Courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same cause of action, same subject matter and the same relief. This is to pin down the plaintiff to one litigation so as to avoid the possibility of contradictory verdicts by two courts in respect of the same relief and is aimed to protect the defendant from multiplicity ofparties in all the three suits are one and the same and the court in which the first two suits have been instituted is competent to grant the relief claimed in the third suit. The only question which invites our adjudication is as to whethermatter in issue is also directly and substantially in issue in previously institutedThe key words in Section 10 arematter in issue is directly and substantially in issue in the previously institutedThe test for applicability of Section 10 of the Code is whether on a final decision being reached in the previously instituted suit, such decision would operate as res-judicata in the subsequent suit. To put it differently one may ask, can the plaintiff get the same relief in the subsequent suit, if the earlier suit has been dismissed? In our opinion, if the answer is in affirmative, the subsequent suit is not fit to be stayed. However, we hasten to add then when the matter in controversy is the same, it is immaterial what further relief is claimed in the subsequent suit.
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M/S. TVS MOTOR COMPANY LTD Vs. THE STATE OF TAMIL NADU AND OTHERS | It is very clear from the aforesaid discussion that this Court held that ITC is a form of concession which is provided by the Act; it cannot be claimed as a matter of right but only in terms of the provisions of the statute; therefore, the conditions mentioned in the aforesaid Section had to be fulfilled by the dealer; and sub- section (20) of Section 19 was constitutionally valid. It was also noted, in the process, that there were valid and cogent reasons for inserting that provision and the main purpose was to protect the Revenue against clandestine transaction resulting in invasion of tax. 42. The reasoning given in that judgment while upholding sub-section (20) of Section 19 shall equally apply while examining the validity of Section 19(5)(c) thereof. The High Court has noted the specific stand taken by the State Government to the fact that in respect of unregistered dealer in other States, the State of Tamil Nadu has no mechanism to prevent invasion of tax and loss of revenue cost by trade with such unregistered dealers in the State of Tamil Nadu. Therefore, the provision was aimed at achieving a specific and justified purpose and could not be treated as discriminatory. 43. It is stated at the cost of repetition that Section 19 of TNVAT Act deals with ITC. It incorporates provision for grant of ITC under certain circumstances and, at the same time, also lays down the conditions in which such ITC would be admissible. It is in this context sub-section (5) of Section 19 is to be analysed. Sub- section (5) stipulates certain contingencies where such ITC would not be admissible. There is no quarrel about clauses (a) and (b). We are only concerned with clause (c) of this sub-section which provides that ITC would not be allowed on the purchase of goods sold as such or used in the manufacture of other goods and sold in the course of inter-State trade or commerce falling under sub- section (2) of Section 8 of the Central Sales Tax Act. To put it tersely, sale by a dealer who is registered in the State of Tamil Nadu which is effected outside the State of Tamil Nadu will qualify for ITC only when the said sale is made to a registered dealer. If it is to an unregistered dealer, it would not be admissible. This classification is based on intelligible differentia having a proper rationale. Insofar sales to unregistered dealers are concerned, that too situated outside the State of Tamil Nadu, the State would not have any mechanism to find out the genuineness of these sales. In essence, the State is putting the condition that ITC would be admissible when Form ‘C? is given, which can be given only in those cases where sale is to a registered dealer. Prescribing such a condition in order to ensure that there is no evasion, has a rationale purpose and objective. Consideration of this aspect in the context of the very nature of the ITC scheme, which is a concession and not a right, would lead us to the conclusion that it was open to the Legislature to make such a provision. 44. In view of the aforesaid discussion, we do not find any merit in the contentions raised by Mr. Giri. The judgments cited by him would have no application either. 45. One argument of Mr. Bagaria, however, needs little deeper consideration. He has argued that the appellant represented in his case is making sales only to the State of Karnataka. In such a case, there cannot be any apprehension about evasion of tax. 46. Section 2(15) defines the term ‘dealer? and includes State Government as well by means of Explanation II which reads as under:?Explanation II: The Central Government or any State Government which, whether or not in the course of business, buy, sell, supply or distribute goods, directly or otherwise, for cash, or for deferred payment, or for commission, remuneration or other valuable consideration, shall be deemed to be a dealer for the purposes of this Act.?47. Thus, wherever the State Government buys, sells, supplies or distribute goods, it shall be deemed to be the dealer for the purposes of TNVAT Act. At the same time, TNVAT Act does not require registration by the State Government inasmuch as Section 38 which deals with registration of dealers explicitly provides, under sub-section (8) thereof, that this provision shall not apply to any State Government or Central Government. A conjoint reading of the aforesaid two provisions would show that when a sale is made to the State of Karnataka, it is made to a dealer but that dealer is under no obligation to get itself registered under the TNVAT Act. Because of this exemption, no State Government does that and since it is not a registered dealer, it would not be in a position to issue any Form C. But for that, the genuineness of sales made to a State Government cannot be doubted. This situation puts those dealers who are making sales to the State Government in disadvantageous position, even when it is clear that there is no possibility of tax evasion as there cannot be any such apprehension in case of sales to the State Government. We may point out here that benefit of ITC is given whenever sale is made to a dealer outside State of Tamil Nadu and the said dealer is a registered dealer. 48. Having regard to the above, we are of the opinion that the provisions of Section 19(5)(c) are to be read down by construing that those dealers who are making sales exclusively to the other State Governments (i.e. outside the State of Tamil Nadu), the said States would be deemed as registered dealers for the purposes of availing benefits of ITC. Otherwise, in such asituation, it would be difficult to hold that test of reasonable classification is met in this limited context. It becomes unnecessary to deal with other contentions of Mr. Bagaria. | 1[ds]30. While entertaining question no. (2), namely, whether the impugned provisions are violative of Articles 14, 19(1)(g) and 301 of the Constitution, the High Court pointed out that on this aspect, argument of the assessees was that the words ‘rate applicable? employed in Section 8(2) of the CST Act has to necessarily take into account the effective rate after considering the deductions made under Section 3(3) of the TNVAT Act. It was argued that Section 19(5)(c) of the TNVAT Act, which denied ITC on purchase of goods sold or used in the manufacture of other goods and falls within Section 8(2) of the CST is per se discriminatory. The High Court took note of the scheme of TNVAT Act and found that though Section 3(2) stipulated many taxable transactions, only few such transactions are carved out to give benefit of ITC. After discussing certain judgments of this Court and other High Courts, the High Court has observed that the legal position was that right to claim ITC is not a vested right or an indefeasible right. It is a benefit conferred under the Act in certain contingencies and subject to conditions prescribed in the statutory scheme. Therefore, it is open to the State Legislature to provide for conditions and restrictions while extending the concession. Likewise, it was also necessary for any assessee to claim input credit to fulfill those conditions. Thus, the provision made in the statute that unregistered dealers in other States would not be entitled to ITC was justified. The High Court noted that specific stand of the State Government was that in respect of such unregistered dealers in other states, the State of Tamil Nadu had no mechanism to prevent evasion of tax and loss of revenue caused by trade with such unregistered dealers in the State of Tamil Nadu. This kind of evasion, in the opinion of the High Court, was not violative of the constitutional provisions contained in Articles 14, 19(1)(g) and 301.His second submission was that Section 19(5)(c) and Rule 10(9) (c) were violative of Article 14 of the Constitution as there was no rational nexus with the objective sought to be achieved. He reiterated that when the purpose behind such a provision is only to check evasion, and there was no such apprehension in the case of sales to State Government, benefit of ITC could not be denied wherever dealers were making sales to the Government. He further argued that when benefit of ITC is given even when sales are made outside the State but to a registered dealer, then why it should not be accorded on sales that are made to the Government as well as by treating the sales to outside State Government at par with the sales to the registered dealers.It was sought to be justified on the ground that insofar as the State Government is concerned, though it is treated as a dealer, no registration is required since the State Governments are not obliged to get themselves registered under the TNVAT Act. The only problem was that because of this the State Government is not in a position to give ‘C? form. ITC to the appellant was denied only for not furnishing ‘C? form.Insofar as argument of the appellant predicated on Article 14 is concerned, reply of the learned Advocate General was that a reading of Section 8(1) of the CST Act would show that classification is contained in the Central Act itself which treats sale to a registered dealer outside the State in one category and sale to an unregistered dealer outside the State in a different category. This provision contained in Section 8(1) of the CST Act never underwent any change. Therefore, those sales which were made to unregistered dealers outside the State were constituted a different class and, thus, provisions contained in Section 19(5) (c) to deny ITC on such sales was perfectly justified based on reasonable classification.After considering the respective submissions and going through the case law that is presented before this Court, it would be apt to remark at the outset that most of the contentions of the appellants stand answered by the judgment of this Court in Jayam and Company. That case also pertains to the TNVAT Act. The issue was as to whether(20) of Section 19 of the TNVAT Act, which was brought into this statute by Amendment Act 22 of 2013, could be given retrospective effect.It is very clear from the aforesaid discussion that this Court held that ITC is a form of concession which is provided by the Act; it cannot be claimed as a matter of right but only in terms of the provisions of the statute; therefore, the conditions mentioned in the aforesaid Section had to be fulfilled by the dealer; and subsection (20) of Section 19 was constitutionally valid. It was also noted, in the process, that there were valid and cogent reasons for inserting that provision and the main purpose was to protect the Revenue against clandestine transaction resulting in invasion of tax.The reasoning given in that judgment while upholding(20) of Section 19 shall equally apply while examining the validity of Section 19(5)(c) thereof. The High Court has noted the specific stand taken by the State Government to the fact that in respect of unregistered dealer in other States, the State of Tamil Nadu has no mechanism to prevent invasion of tax and loss of revenue cost by trade with such unregistered dealers in the State of Tamil Nadu. Therefore, the provision was aimed at achieving a specific and justified purpose and could not be treated as discriminatory.It is stated at the cost of repetition that Section 19 of TNVAT Act deals with ITC. It incorporates provision for grant of ITC under certain circumstances and, at the same time, also lays down the conditions in which such ITC would be admissible. It is in this context(5) of Section 19 is to be analysed. Subsection (5) stipulates certain contingencies where such ITC would not be admissible. There is no quarrel about clauses (a) and (b). We are only concerned with clause (c) of thiswhich provides that ITC would not be allowed on the purchase of goods sold as such or used in the manufacture of other goods and sold in the course oftrade or commerce falling undersection (2) of Section 8 of the Central Sales Tax Act. To put it tersely, sale by a dealer who is registered in the State of Tamil Nadu which is effected outside the State of Tamil Nadu will qualify for ITC only when the said sale is made to a registered dealer. If it is to an unregistered dealer, it would not be admissible. This classification is based on intelligible differentia having a proper rationale. Insofar sales to unregistered dealers are concerned, that too situated outside the State of Tamil Nadu, the State would not have any mechanism to find out the genuineness of these sales. In essence, the State is putting the condition that ITC would be admissible when Form ‘C? is given, which can be given only in those cases where sale is to a registered dealer. Prescribing such a condition in order to ensure that there is no evasion, has a rationale purpose and objective. Consideration of this aspect in the context of the very nature of the ITC scheme, which is a concession and not a right, would lead us to the conclusion that it was open to the Legislature to make such a provision.In view of the aforesaid discussion, we do not find any merit in the contentions raised by Mr. Giri. The judgments cited by him would have no application either.One argument of Mr. Bagaria, however, needs little deeper consideration. He has argued that the appellant represented in his case is making sales only to the State of Karnataka. In such a case, there cannot be any apprehension about evasion of tax.Thus, wherever the State Government buys, sells, supplies or distribute goods, it shall be deemed to be the dealer for the purposes of TNVAT Act. At the same time, TNVAT Act does not require registration by the State Government inasmuch as Section 38 which deals with registration of dealers explicitly provides, under(8) thereof, that this provision shall not apply to any State Government or Central Government. A conjoint reading of the aforesaid two provisions would show that when a sale is made to the State of Karnataka, it is made to a dealer but that dealer is under no obligation to get itself registered under the TNVAT Act. Because of this exemption, no State Government does that and since it is not a registered dealer, it would not be in a position to issue any Form C. But for that, the genuineness of sales made to a State Government cannot be doubted. This situation puts those dealers who are making sales to the State Government in disadvantageous position, even when it is clear that there is no possibility of tax evasion as there cannot be any such apprehension in case of sales to the State Government. We may point out here that benefit of ITC is given whenever sale is made to a dealer outside State of Tamil Nadu and the said dealer is a registered dealer.Having regard to the above, we are of the opinion that the provisions of Section 19(5)(c) are to be read down by construing that those dealers who are making sales exclusively to the other State Governments (i.e. outside the State of Tamil Nadu), the said States would be deemed as registered dealers for the purposes of availing benefits of ITC. Otherwise, in such asituation, it would be difficult to hold that test of reasonable classification is met in this limited context. It becomes unnecessary to deal with other contentions of Mr. Bagaria. | 1 | 14,781 | 1,854 | ### Instruction:
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It is very clear from the aforesaid discussion that this Court held that ITC is a form of concession which is provided by the Act; it cannot be claimed as a matter of right but only in terms of the provisions of the statute; therefore, the conditions mentioned in the aforesaid Section had to be fulfilled by the dealer; and sub- section (20) of Section 19 was constitutionally valid. It was also noted, in the process, that there were valid and cogent reasons for inserting that provision and the main purpose was to protect the Revenue against clandestine transaction resulting in invasion of tax. 42. The reasoning given in that judgment while upholding sub-section (20) of Section 19 shall equally apply while examining the validity of Section 19(5)(c) thereof. The High Court has noted the specific stand taken by the State Government to the fact that in respect of unregistered dealer in other States, the State of Tamil Nadu has no mechanism to prevent invasion of tax and loss of revenue cost by trade with such unregistered dealers in the State of Tamil Nadu. Therefore, the provision was aimed at achieving a specific and justified purpose and could not be treated as discriminatory. 43. It is stated at the cost of repetition that Section 19 of TNVAT Act deals with ITC. It incorporates provision for grant of ITC under certain circumstances and, at the same time, also lays down the conditions in which such ITC would be admissible. It is in this context sub-section (5) of Section 19 is to be analysed. Sub- section (5) stipulates certain contingencies where such ITC would not be admissible. There is no quarrel about clauses (a) and (b). We are only concerned with clause (c) of this sub-section which provides that ITC would not be allowed on the purchase of goods sold as such or used in the manufacture of other goods and sold in the course of inter-State trade or commerce falling under sub- section (2) of Section 8 of the Central Sales Tax Act. To put it tersely, sale by a dealer who is registered in the State of Tamil Nadu which is effected outside the State of Tamil Nadu will qualify for ITC only when the said sale is made to a registered dealer. If it is to an unregistered dealer, it would not be admissible. This classification is based on intelligible differentia having a proper rationale. Insofar sales to unregistered dealers are concerned, that too situated outside the State of Tamil Nadu, the State would not have any mechanism to find out the genuineness of these sales. In essence, the State is putting the condition that ITC would be admissible when Form ‘C? is given, which can be given only in those cases where sale is to a registered dealer. Prescribing such a condition in order to ensure that there is no evasion, has a rationale purpose and objective. Consideration of this aspect in the context of the very nature of the ITC scheme, which is a concession and not a right, would lead us to the conclusion that it was open to the Legislature to make such a provision. 44. In view of the aforesaid discussion, we do not find any merit in the contentions raised by Mr. Giri. The judgments cited by him would have no application either. 45. One argument of Mr. Bagaria, however, needs little deeper consideration. He has argued that the appellant represented in his case is making sales only to the State of Karnataka. In such a case, there cannot be any apprehension about evasion of tax. 46. Section 2(15) defines the term ‘dealer? and includes State Government as well by means of Explanation II which reads as under:?Explanation II: The Central Government or any State Government which, whether or not in the course of business, buy, sell, supply or distribute goods, directly or otherwise, for cash, or for deferred payment, or for commission, remuneration or other valuable consideration, shall be deemed to be a dealer for the purposes of this Act.?47. Thus, wherever the State Government buys, sells, supplies or distribute goods, it shall be deemed to be the dealer for the purposes of TNVAT Act. At the same time, TNVAT Act does not require registration by the State Government inasmuch as Section 38 which deals with registration of dealers explicitly provides, under sub-section (8) thereof, that this provision shall not apply to any State Government or Central Government. A conjoint reading of the aforesaid two provisions would show that when a sale is made to the State of Karnataka, it is made to a dealer but that dealer is under no obligation to get itself registered under the TNVAT Act. Because of this exemption, no State Government does that and since it is not a registered dealer, it would not be in a position to issue any Form C. But for that, the genuineness of sales made to a State Government cannot be doubted. This situation puts those dealers who are making sales to the State Government in disadvantageous position, even when it is clear that there is no possibility of tax evasion as there cannot be any such apprehension in case of sales to the State Government. We may point out here that benefit of ITC is given whenever sale is made to a dealer outside State of Tamil Nadu and the said dealer is a registered dealer. 48. Having regard to the above, we are of the opinion that the provisions of Section 19(5)(c) are to be read down by construing that those dealers who are making sales exclusively to the other State Governments (i.e. outside the State of Tamil Nadu), the said States would be deemed as registered dealers for the purposes of availing benefits of ITC. Otherwise, in such asituation, it would be difficult to hold that test of reasonable classification is met in this limited context. It becomes unnecessary to deal with other contentions of Mr. Bagaria.
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### Explanation:
contained in Section 19(5) (c) to deny ITC on such sales was perfectly justified based on reasonable classification.After considering the respective submissions and going through the case law that is presented before this Court, it would be apt to remark at the outset that most of the contentions of the appellants stand answered by the judgment of this Court in Jayam and Company. That case also pertains to the TNVAT Act. The issue was as to whether(20) of Section 19 of the TNVAT Act, which was brought into this statute by Amendment Act 22 of 2013, could be given retrospective effect.It is very clear from the aforesaid discussion that this Court held that ITC is a form of concession which is provided by the Act; it cannot be claimed as a matter of right but only in terms of the provisions of the statute; therefore, the conditions mentioned in the aforesaid Section had to be fulfilled by the dealer; and subsection (20) of Section 19 was constitutionally valid. It was also noted, in the process, that there were valid and cogent reasons for inserting that provision and the main purpose was to protect the Revenue against clandestine transaction resulting in invasion of tax.The reasoning given in that judgment while upholding(20) of Section 19 shall equally apply while examining the validity of Section 19(5)(c) thereof. The High Court has noted the specific stand taken by the State Government to the fact that in respect of unregistered dealer in other States, the State of Tamil Nadu has no mechanism to prevent invasion of tax and loss of revenue cost by trade with such unregistered dealers in the State of Tamil Nadu. Therefore, the provision was aimed at achieving a specific and justified purpose and could not be treated as discriminatory.It is stated at the cost of repetition that Section 19 of TNVAT Act deals with ITC. It incorporates provision for grant of ITC under certain circumstances and, at the same time, also lays down the conditions in which such ITC would be admissible. It is in this context(5) of Section 19 is to be analysed. Subsection (5) stipulates certain contingencies where such ITC would not be admissible. There is no quarrel about clauses (a) and (b). We are only concerned with clause (c) of thiswhich provides that ITC would not be allowed on the purchase of goods sold as such or used in the manufacture of other goods and sold in the course oftrade or commerce falling undersection (2) of Section 8 of the Central Sales Tax Act. To put it tersely, sale by a dealer who is registered in the State of Tamil Nadu which is effected outside the State of Tamil Nadu will qualify for ITC only when the said sale is made to a registered dealer. If it is to an unregistered dealer, it would not be admissible. This classification is based on intelligible differentia having a proper rationale. Insofar sales to unregistered dealers are concerned, that too situated outside the State of Tamil Nadu, the State would not have any mechanism to find out the genuineness of these sales. In essence, the State is putting the condition that ITC would be admissible when Form ‘C? is given, which can be given only in those cases where sale is to a registered dealer. Prescribing such a condition in order to ensure that there is no evasion, has a rationale purpose and objective. Consideration of this aspect in the context of the very nature of the ITC scheme, which is a concession and not a right, would lead us to the conclusion that it was open to the Legislature to make such a provision.In view of the aforesaid discussion, we do not find any merit in the contentions raised by Mr. Giri. The judgments cited by him would have no application either.One argument of Mr. Bagaria, however, needs little deeper consideration. He has argued that the appellant represented in his case is making sales only to the State of Karnataka. In such a case, there cannot be any apprehension about evasion of tax.Thus, wherever the State Government buys, sells, supplies or distribute goods, it shall be deemed to be the dealer for the purposes of TNVAT Act. At the same time, TNVAT Act does not require registration by the State Government inasmuch as Section 38 which deals with registration of dealers explicitly provides, under(8) thereof, that this provision shall not apply to any State Government or Central Government. A conjoint reading of the aforesaid two provisions would show that when a sale is made to the State of Karnataka, it is made to a dealer but that dealer is under no obligation to get itself registered under the TNVAT Act. Because of this exemption, no State Government does that and since it is not a registered dealer, it would not be in a position to issue any Form C. But for that, the genuineness of sales made to a State Government cannot be doubted. This situation puts those dealers who are making sales to the State Government in disadvantageous position, even when it is clear that there is no possibility of tax evasion as there cannot be any such apprehension in case of sales to the State Government. We may point out here that benefit of ITC is given whenever sale is made to a dealer outside State of Tamil Nadu and the said dealer is a registered dealer.Having regard to the above, we are of the opinion that the provisions of Section 19(5)(c) are to be read down by construing that those dealers who are making sales exclusively to the other State Governments (i.e. outside the State of Tamil Nadu), the said States would be deemed as registered dealers for the purposes of availing benefits of ITC. Otherwise, in such asituation, it would be difficult to hold that test of reasonable classification is met in this limited context. It becomes unnecessary to deal with other contentions of Mr. Bagaria.
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Mgr Industries Asso. Vs. State Of U P | the 1976 Act in consonance with proviso to Article 243Q(1).Section 12A specifically provides that:“....where an industrial development area or any part thereof is specified to be an industrial township under the proviso to clause (1) of Article 243Q of the Constitution, such industrial development area or part thereof, if included in a Panchayat area, shall, with effect from the date of notification made under the said proviso, stand excluded from such Panchayat area and no Panchayat shall be constituted for such industrial development area or part thereof.......”.Section 12A thus, specifically contemplates issuance of notification under proviso to clause (1) of Article 243Q and exclusion from Panchayat area is consequent and dependent upon such notification. Notification under proviso to clause (1) of Article 243Q has to be subsequent to declaration of an area as industrial development area, which itself indicates that declaration of development area under 1976 Act is not sufficient to treat an area as an industrial township. As noted above, industrial township as contemplated by Article 243Q(1) proviso has to be specifically a public notification after consideration of relevant statutory ingredients referred therein. The exclusion of industrial development area from Panchayat has a serious consequence since persons residing within the industrial development area are immediately deprived of facilities and benefits extended to them by the respective Panchayats. The deprivation of the said benefits has to be thus a conscious decision in accordance with condition as contained in Article 243Q. In the case before us, it has not been pleaded that any notification referable to proviso to Article 243(Q)(1) has yet been issued. The Division Bench of the High Court has also referred to and relied upon an earlier judgment of the Allahabad High Court in Rishipal (supra). In the above case, the appellants who were residents of industrial development area prayed for direction that no election for constituting Panchayat in various villages including the said industrial development area should be allowed since, notification under Section 2(d) of the 1976 Act has already been issued on 11th July, 1989. The State Government categorically stated that no notification under proviso to Article 243Q(1) has been issued. The Division Bench of the High Court referring to Section 12A has rejected the contention and dismissed the writ petition. In paragraphs 6,7 and 8 following was stated:“6. From a plain reading of Section 12A of the Act it is clear that after declaration of any industrial development area u/s. 2 (d) of the Act two things are required for excluding them from existing panchayat area. First is, specification to be an industrial township and secondly a notification under Proviso to Article 243Q of the Constitution of India.7. From Section 12A it further reveals that if the said area is included in panchayat area, such area with effect from the date of notification made under proviso (proviso to Article 243Q) stands excluded from such panchayat. Thus, specification to be an industrial township as well as a notification under proviso to Article 243Q are condition precedent for excluding from any panchayat area. There is nothing on the record to come to conclusion that the area in question has been specified as an industrial township. Further no notification, as stated by Chief Standing Counsel, has been issued under proviso to Article 243Q by the State Government, hence, question of exclusion of the area from panchayat area does not arise.8. Merely because the villages in question are covered u/s. 2 (d) does not ipso fActo exclude them from panchayat area. As noted above neither it has been specified as Industrial Township nor a notification under Article 243Q has been issued. The relief claimed by the writ petitioner in the writ petition cannot be granted.”16. It shall also be relevant to refer the judgment of this Court in Saij Gram Panchayat vs. State of Gujarat and others, 1999 (2) SCC 366 , where this Court had occasion to consider the proviso to Article 243Q subclause (1) in the context of Gujarat Industrial Development Act, 1962. After insertion of Part IXA in the Constitution, the Gujarat Municipalities Act, 1962 was also amended by adding Section 264A. It was provided under Section 264A that notified area means an urban area or part thereof specified to be an industrial township area under the proviso to Article 243Q(1) of the Constitution of India.Paragraphs 10 and 11 of the judgment are extracted below:"10. The Gujarat Municipalities Act, 1962 was amended on 2081993 in view of the insertion of Part IXA in the Constitution. Section 264A was substantially amended. It now provided:“264A. For the purpose of this chapter, notified area means an urban area or part thereof specified to be an industrial township area under the proviso to clause (1) to Article 243Q of the Constitution of India.”Thus, as a result of this amendment in the Gujarat Municipalities Act, as industrial area under the Gujarat Industiral Development Act, which is notified under Section 16 of the Gujarat Industrial Development Act, would become a notified area under the new Section 264A of the Gujarat Municipalities Act and would mean an industrial township area under the proviso to clause(1) of Article 243Q of the Constitution of India.11. On 791993, the Government of Gujarat issued a notification under Section 16 of the Gujarat Industrial Development Act declaring Kalol Industrial Area as a notified area under Section 264A of the Gujarat Municipalities Act. By another notification of the same date 791993, the Government of Gujarat excluded the notified area from Saij Gram Panchayat under Section 9(2) of the Gujarat Panchayats Act, 1961.”Thus, for treating industrial area as industrial township notification under proviso to Article 243Q(1) was contemplated which is also the statutory scheme under the 1976 Act.17. In view of the aforegoing discussion, we are of the view that it was rightly held by the High Court that exemption under Article 12A of the 1976 Act was not available in the facts of the above case. The appellants were not entitled for the reliefs claimed in the writ petition. | 0[ds]7. From Section 12A it further reveals that if the said area is included in panchayat area, such area with effect from the date of notification made under proviso (proviso to Article 243Q) stands excluded from such panchayat. Thus, specification to be an industrial township as well as a notification under proviso to Article 243Q are condition precedent for excluding from any panchayat area. There is nothing on the record to come to conclusion that the area in question has been specified as an industrial township. Further no notification, as stated by Chief Standing Counsel, has been issued under proviso to Article 243Q by the State Government, hence, question of exclusion of the area from panchayat area does not arise.8. Merely because the villages in question are covered u/s. 2 (d) does not ipso fActo exclude them from panchayat area. As noted above neither it has been specified as Industrial Township nor a notification under Article 243Q has been issued. The relief claimed by the writ petitioner in the writ petition cannot be granted.It shall also be relevant to refer the judgment of this Court in Saij Gram Panchayat vs. State of Gujarat and others, 1999 (2) SCC 366 , where this Court had occasion to consider the proviso to Article 243Q subclause (1) in the context of Gujarat Industrial Development Act, 1962. After insertion of Part IXA in the Constitution, the Gujarat Municipalities Act, 1962 was also amended by adding Section 264A. It was provided under Section 264A that notified area means an urban area or part thereof specified to be an industrial township area under the proviso to Article 243Q(1) of the Constitution of India.Paragraphs 10 and 11 of the judgment are extractedThe Gujarat Municipalities Act, 1962 was amended on 2081993 in view of the insertion of Part IXA in the Constitution. Section 264A was substantially amended. It nowFor the purpose of this chapter, notified area means an urban area or part thereof specified to be an industrial township area under the proviso to clause (1) to Article 243Q of the Constitution ofas a result of this amendment in the Gujarat Municipalities Act, as industrial area under the Gujarat Industiral Development Act, which is notified under Section 16 of the Gujarat Industrial Development Act, would become a notified area under the new Section 264A of the Gujarat Municipalities Act and would mean an industrial township area under the proviso to clause(1) of Article 243Q of the Constitution of India.11. On 791993, the Government of Gujarat issued a notification under Section 16 of the Gujarat Industrial Development Act declaring Kalol Industrial Area as a notified area under Section 264A of the Gujarat Municipalities Act. By another notification of the same date 791993, the Government of Gujarat excluded the notified area from Saij Gram Panchayat under Section 9(2) of the Gujarat Panchayats Act,for treating industrial area as industrial township notification under proviso to Article 243Q(1) was contemplated which is also the statutory scheme under the 1976 Act.17. In view of the aforegoing discussion, we are of the view that it was rightly held by the High Court that exemption under Article 12A of the 1976 Act was not available in the facts of the above case. The appellants were not entitled for the reliefs claimed in the writ petition | 0 | 2,889 | 612 | ### Instruction:
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the 1976 Act in consonance with proviso to Article 243Q(1).Section 12A specifically provides that:“....where an industrial development area or any part thereof is specified to be an industrial township under the proviso to clause (1) of Article 243Q of the Constitution, such industrial development area or part thereof, if included in a Panchayat area, shall, with effect from the date of notification made under the said proviso, stand excluded from such Panchayat area and no Panchayat shall be constituted for such industrial development area or part thereof.......”.Section 12A thus, specifically contemplates issuance of notification under proviso to clause (1) of Article 243Q and exclusion from Panchayat area is consequent and dependent upon such notification. Notification under proviso to clause (1) of Article 243Q has to be subsequent to declaration of an area as industrial development area, which itself indicates that declaration of development area under 1976 Act is not sufficient to treat an area as an industrial township. As noted above, industrial township as contemplated by Article 243Q(1) proviso has to be specifically a public notification after consideration of relevant statutory ingredients referred therein. The exclusion of industrial development area from Panchayat has a serious consequence since persons residing within the industrial development area are immediately deprived of facilities and benefits extended to them by the respective Panchayats. The deprivation of the said benefits has to be thus a conscious decision in accordance with condition as contained in Article 243Q. In the case before us, it has not been pleaded that any notification referable to proviso to Article 243(Q)(1) has yet been issued. The Division Bench of the High Court has also referred to and relied upon an earlier judgment of the Allahabad High Court in Rishipal (supra). In the above case, the appellants who were residents of industrial development area prayed for direction that no election for constituting Panchayat in various villages including the said industrial development area should be allowed since, notification under Section 2(d) of the 1976 Act has already been issued on 11th July, 1989. The State Government categorically stated that no notification under proviso to Article 243Q(1) has been issued. The Division Bench of the High Court referring to Section 12A has rejected the contention and dismissed the writ petition. In paragraphs 6,7 and 8 following was stated:“6. From a plain reading of Section 12A of the Act it is clear that after declaration of any industrial development area u/s. 2 (d) of the Act two things are required for excluding them from existing panchayat area. First is, specification to be an industrial township and secondly a notification under Proviso to Article 243Q of the Constitution of India.7. From Section 12A it further reveals that if the said area is included in panchayat area, such area with effect from the date of notification made under proviso (proviso to Article 243Q) stands excluded from such panchayat. Thus, specification to be an industrial township as well as a notification under proviso to Article 243Q are condition precedent for excluding from any panchayat area. There is nothing on the record to come to conclusion that the area in question has been specified as an industrial township. Further no notification, as stated by Chief Standing Counsel, has been issued under proviso to Article 243Q by the State Government, hence, question of exclusion of the area from panchayat area does not arise.8. Merely because the villages in question are covered u/s. 2 (d) does not ipso fActo exclude them from panchayat area. As noted above neither it has been specified as Industrial Township nor a notification under Article 243Q has been issued. The relief claimed by the writ petitioner in the writ petition cannot be granted.”16. It shall also be relevant to refer the judgment of this Court in Saij Gram Panchayat vs. State of Gujarat and others, 1999 (2) SCC 366 , where this Court had occasion to consider the proviso to Article 243Q subclause (1) in the context of Gujarat Industrial Development Act, 1962. After insertion of Part IXA in the Constitution, the Gujarat Municipalities Act, 1962 was also amended by adding Section 264A. It was provided under Section 264A that notified area means an urban area or part thereof specified to be an industrial township area under the proviso to Article 243Q(1) of the Constitution of India.Paragraphs 10 and 11 of the judgment are extracted below:"10. The Gujarat Municipalities Act, 1962 was amended on 2081993 in view of the insertion of Part IXA in the Constitution. Section 264A was substantially amended. It now provided:“264A. For the purpose of this chapter, notified area means an urban area or part thereof specified to be an industrial township area under the proviso to clause (1) to Article 243Q of the Constitution of India.”Thus, as a result of this amendment in the Gujarat Municipalities Act, as industrial area under the Gujarat Industiral Development Act, which is notified under Section 16 of the Gujarat Industrial Development Act, would become a notified area under the new Section 264A of the Gujarat Municipalities Act and would mean an industrial township area under the proviso to clause(1) of Article 243Q of the Constitution of India.11. On 791993, the Government of Gujarat issued a notification under Section 16 of the Gujarat Industrial Development Act declaring Kalol Industrial Area as a notified area under Section 264A of the Gujarat Municipalities Act. By another notification of the same date 791993, the Government of Gujarat excluded the notified area from Saij Gram Panchayat under Section 9(2) of the Gujarat Panchayats Act, 1961.”Thus, for treating industrial area as industrial township notification under proviso to Article 243Q(1) was contemplated which is also the statutory scheme under the 1976 Act.17. In view of the aforegoing discussion, we are of the view that it was rightly held by the High Court that exemption under Article 12A of the 1976 Act was not available in the facts of the above case. The appellants were not entitled for the reliefs claimed in the writ petition.
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### Explanation:
7. From Section 12A it further reveals that if the said area is included in panchayat area, such area with effect from the date of notification made under proviso (proviso to Article 243Q) stands excluded from such panchayat. Thus, specification to be an industrial township as well as a notification under proviso to Article 243Q are condition precedent for excluding from any panchayat area. There is nothing on the record to come to conclusion that the area in question has been specified as an industrial township. Further no notification, as stated by Chief Standing Counsel, has been issued under proviso to Article 243Q by the State Government, hence, question of exclusion of the area from panchayat area does not arise.8. Merely because the villages in question are covered u/s. 2 (d) does not ipso fActo exclude them from panchayat area. As noted above neither it has been specified as Industrial Township nor a notification under Article 243Q has been issued. The relief claimed by the writ petitioner in the writ petition cannot be granted.It shall also be relevant to refer the judgment of this Court in Saij Gram Panchayat vs. State of Gujarat and others, 1999 (2) SCC 366 , where this Court had occasion to consider the proviso to Article 243Q subclause (1) in the context of Gujarat Industrial Development Act, 1962. After insertion of Part IXA in the Constitution, the Gujarat Municipalities Act, 1962 was also amended by adding Section 264A. It was provided under Section 264A that notified area means an urban area or part thereof specified to be an industrial township area under the proviso to Article 243Q(1) of the Constitution of India.Paragraphs 10 and 11 of the judgment are extractedThe Gujarat Municipalities Act, 1962 was amended on 2081993 in view of the insertion of Part IXA in the Constitution. Section 264A was substantially amended. It nowFor the purpose of this chapter, notified area means an urban area or part thereof specified to be an industrial township area under the proviso to clause (1) to Article 243Q of the Constitution ofas a result of this amendment in the Gujarat Municipalities Act, as industrial area under the Gujarat Industiral Development Act, which is notified under Section 16 of the Gujarat Industrial Development Act, would become a notified area under the new Section 264A of the Gujarat Municipalities Act and would mean an industrial township area under the proviso to clause(1) of Article 243Q of the Constitution of India.11. On 791993, the Government of Gujarat issued a notification under Section 16 of the Gujarat Industrial Development Act declaring Kalol Industrial Area as a notified area under Section 264A of the Gujarat Municipalities Act. By another notification of the same date 791993, the Government of Gujarat excluded the notified area from Saij Gram Panchayat under Section 9(2) of the Gujarat Panchayats Act,for treating industrial area as industrial township notification under proviso to Article 243Q(1) was contemplated which is also the statutory scheme under the 1976 Act.17. In view of the aforegoing discussion, we are of the view that it was rightly held by the High Court that exemption under Article 12A of the 1976 Act was not available in the facts of the above case. The appellants were not entitled for the reliefs claimed in the writ petition
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P C Agarwala Vs. Payment Of Wages Insp.,M.P. | from the assets of its members; the liability of the members or shareholders is limited to the capital invested by them; similarly, the creditors of the members have no right to the assets of the corporation. This position has been well-established ever since the decision in the case of Salomon vs. Salomon & Co. (1897) A.C. 22, H.L.) was pronounced in 1897; and indeed, it has always been the well-recognised principle of common law. However, in the course of time, the doctrine that the corporation or a company has a legal and separate entity of its own has been subjected to certain exceptions by the application of the fiction that the veil of the corporation can be lifted and its face examined in substance. The doctrine of the lifting of the veil thus marks a change in the attitude that law had originally adopted towards the concept of the separate entity or personality of the corporation. As a result of the impact of the complexity of economic factors, judicial decisions have sometimes recognised exceptions to the rule about the juristic personality of the corporation. It may be that in course of time these exceptions may grow in number and to meet the requirements of different economic problems, the theory about the personality of the corporation may be confined more and more." 22. The doctrine of lifting of the veil has been applied, in the words of Palmer, in five categories of cases; where companies are in relationship of holding and subsidiary (or sub-subsidiary) companies; where a shareholder has lost the privilege of limited liability and has become directly liable to certain creditors of the company on the ground that, with his knowledge, the company continued to carry on business six months after the number of its members was reduced below the legal minimum; in certain matters pertaining to the law of taxes, death duty and stamps, particularly where the question of the "controlling interest" is in issue; in the law relating to exchange control, and in the law relating to trading with the enemy where the test of control of adopted (Palmers Company Law, 20th Edn., page 136 now page 215, 24th Edn. 1987). In some of these cases judicial decisions have no doubt lifted the veil and consider the substance of the matter. 23. Gower has similarly summarized this position with observation that in a number of important respects, the legislative has rent the veil woven by the Salomon case - Particularly is this so, says Gower, in the sphere of taxation and in the steps which have been taken towards the recognition of the enterprise - entity rather than corporate entity. It is significant, however, that according to Gower the Courts only have construed statutes as cracking open the corporate shell when compelled to do so by the clear words of the statute - indeed they have gone out of their way to avoid this construction whenever possible. Thus, at present the judicial approach in cracking open the corporate shell is somewhat cautious and circumspect. It is only when the legislative provision justifies the adoption of such a course that the veil has been lifted. In exceptional cases where courts have felt "themselves able to ignore the corporate entity and to treat the individual shareholder as liable for its acts" the same course has been adopted. Summarizing his conclusions, Gower has classified seven categories of cases where the veil of corporate body has been lifted. But it would not be possible to evolve a rational consistent and inflexible principle which can be invoked in determining the question as to whether the veil of the corporation should be lifted or not. Broadly, where fraud is intended to be prevented, or trading with enemy is sought to be defeated, the veil of corporation is lifted by judicial decision and the shareholders are held to be "persons who actually work for corporation". 24. According to J.K. Industries case (supra) only a Director can be nominated as occupier and not simply an officer or employees. This Court observed this to be the result of the 1987 amendment of the Factories Act. The discretion of inspector of factories as to occupier can be exercised only where no director is identified or nominated as an occupier. The decision of this Court to the effect that only a director of the Company can be appointed as an occupier of the factory, has been on the facts of the particular case distinguished by this Court in Indian Oil Corpn. Ltd. vs. Chief Inspector of Factories (AIR 1998 SC 2456 ). This Court held that in the case of the appellant-corporation it will have to be held that the ultimate control over the affairs of all the factories of the corporation is really of the Central Government and, therefore, all the factories of the Corporation should be regarded as factories owned and controlled by the Central Government. As there is a special provision governing factories owned and controlled by the Central Government, the general principle applicable to non-Government companies was held to be not applicable. 25. As the High Court has proceeded to hold the Directors liable by introducing the expression "occupier", which expression is used in the Factories Act and not in the Act, the basic premises on which the High Court proceeded are clearly untenable. Therefore, on a plain reading of the language of the governing statute, it cannot be held that the Directors had any personal liability. The judgments of the High Court are therefore not sustainable and are set aside. In view of the aforesaid conclusion, the appeals filed by the functionaries under the Act lack merits. However, it shall be in the interest of employees if the properties of the Company which are stated to be under the control of Official Liquidator are disposed of early so that the employees can be paid whatever is legally payable to them. Similarly the other creditors can be paid and the liability can be discharged. | 1[ds]18. It is trite law that liability of a person is dependent upon the statutory prescriptions governing such liability. Sections 5 and 291 of the Companies Act, 1956 (in short Companies Act) are to be noted in this regard. Section 5 refers to officer who is in default. Section 291 on the other hand relates to general powers of the Board of Directors. In other to attract the liability under the Act, it has to be seen as to on whom the Act fixes the liability. Section 3 speaks of the responsibility for payment of wages. It speaks of the employer which expression is defined in Section 2(ia). Section 15 refers to the claims arising out of deductions from wages or delaying payment of wages and penalty for malicious or vexatious claims. Statutorily no liability has been fixed on the Directors19. Under Section 3 of the Act as amended by the M.P. Amendment, the liability is cast on a person who has been named as Manager of the Factory and the employer jointly. Therefore, in order to find out whether the Director had a responsibility for making payment, two different things have to be established; (i) he was the employer or (ii) he was a person who has been named as Manager of the factory. In the instant case, there is no such allegation or evidence led23. Gower has similarly summarized this position with observation that in a number of important respects, the legislative has rent the veil woven by the Salomon case - Particularly is this so, says Gower, in the sphere of taxation and in the steps which have been taken towards the recognition of the enterprise - entity rather than corporate entity. It is significant, however, that according to Gower the Courts only have construed statutes as cracking open the corporate shell when compelled to do so by the clear words of the statute - indeed they have gone out of their way to avoid this construction whenever possible. Thus, at present the judicial approach in cracking open the corporate shell is somewhat cautious and circumspect. It is only when the legislative provision justifies the adoption of such a course that the veil has been lifted. In exceptional cases where courts have felt "themselves able to ignore the corporate entity and to treat the individual shareholder as liable for its acts" the same course has been adopted. Summarizing his conclusions, Gower has classified seven categories of cases where the veil of corporate body has been lifted. But it would not be possible to evolve a rational consistent and inflexible principle which can be invoked in determining the question as to whether the veil of the corporation should be lifted or not. Broadly, where fraud is intended to be prevented, or trading with enemy is sought to be defeated, the veil of corporation is lifted by judicial decision and the shareholders are held to be "persons who actually work for corporation"24. According to J.K. Industries case (supra) only a Director can be nominated as occupier and not simply an officer or employees. This Court observed this to be the result of the 1987 amendment of the Factories Act. The discretion of inspector of factories as to occupier can be exercised only where no director is identified or nominated as an occupier. The decision of this Court to the effect that only a director of the Company can be appointed as an occupier of the factory, has been on the facts of the particular case distinguished by this Court in Indian Oil Corpn. Ltd. vs. Chief Inspector of Factories (AIR 1998 SC 2456 ). This Court held that in the case of the appellant-corporation it will have to be held that the ultimate control over the affairs of all the factories of the corporation is really of the Central Government and, therefore, all the factories of the Corporation should be regarded as factories owned and controlled by the Central Government. As there is a special provision governing factories owned and controlled by the Central Government, the general principle applicable to non-Government companies was held to be not applicable25. As the High Court has proceeded to hold the Directors liable by introducing the expression "occupier", which expression is used in the Factories Act and not in the Act, the basic premises on which the High Court proceeded are clearly untenable. Therefore, on a plain reading of the language of the governing statute, it cannot be held that the Directors had any personal liability. The judgments of the High Court are therefore not sustainable and are set aside. In view of the aforesaid conclusion, the appeals filed by the functionaries under the Act lack merits. However, it shall be in the interest of employees if the properties of the Company which are stated to be under the control of Official Liquidator are disposed of early so that the employees can be paid whatever is legally payable to them. Similarly the other creditors can be paid and the liability can be discharged | 1 | 8,245 | 925 | ### Instruction:
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from the assets of its members; the liability of the members or shareholders is limited to the capital invested by them; similarly, the creditors of the members have no right to the assets of the corporation. This position has been well-established ever since the decision in the case of Salomon vs. Salomon & Co. (1897) A.C. 22, H.L.) was pronounced in 1897; and indeed, it has always been the well-recognised principle of common law. However, in the course of time, the doctrine that the corporation or a company has a legal and separate entity of its own has been subjected to certain exceptions by the application of the fiction that the veil of the corporation can be lifted and its face examined in substance. The doctrine of the lifting of the veil thus marks a change in the attitude that law had originally adopted towards the concept of the separate entity or personality of the corporation. As a result of the impact of the complexity of economic factors, judicial decisions have sometimes recognised exceptions to the rule about the juristic personality of the corporation. It may be that in course of time these exceptions may grow in number and to meet the requirements of different economic problems, the theory about the personality of the corporation may be confined more and more." 22. The doctrine of lifting of the veil has been applied, in the words of Palmer, in five categories of cases; where companies are in relationship of holding and subsidiary (or sub-subsidiary) companies; where a shareholder has lost the privilege of limited liability and has become directly liable to certain creditors of the company on the ground that, with his knowledge, the company continued to carry on business six months after the number of its members was reduced below the legal minimum; in certain matters pertaining to the law of taxes, death duty and stamps, particularly where the question of the "controlling interest" is in issue; in the law relating to exchange control, and in the law relating to trading with the enemy where the test of control of adopted (Palmers Company Law, 20th Edn., page 136 now page 215, 24th Edn. 1987). In some of these cases judicial decisions have no doubt lifted the veil and consider the substance of the matter. 23. Gower has similarly summarized this position with observation that in a number of important respects, the legislative has rent the veil woven by the Salomon case - Particularly is this so, says Gower, in the sphere of taxation and in the steps which have been taken towards the recognition of the enterprise - entity rather than corporate entity. It is significant, however, that according to Gower the Courts only have construed statutes as cracking open the corporate shell when compelled to do so by the clear words of the statute - indeed they have gone out of their way to avoid this construction whenever possible. Thus, at present the judicial approach in cracking open the corporate shell is somewhat cautious and circumspect. It is only when the legislative provision justifies the adoption of such a course that the veil has been lifted. In exceptional cases where courts have felt "themselves able to ignore the corporate entity and to treat the individual shareholder as liable for its acts" the same course has been adopted. Summarizing his conclusions, Gower has classified seven categories of cases where the veil of corporate body has been lifted. But it would not be possible to evolve a rational consistent and inflexible principle which can be invoked in determining the question as to whether the veil of the corporation should be lifted or not. Broadly, where fraud is intended to be prevented, or trading with enemy is sought to be defeated, the veil of corporation is lifted by judicial decision and the shareholders are held to be "persons who actually work for corporation". 24. According to J.K. Industries case (supra) only a Director can be nominated as occupier and not simply an officer or employees. This Court observed this to be the result of the 1987 amendment of the Factories Act. The discretion of inspector of factories as to occupier can be exercised only where no director is identified or nominated as an occupier. The decision of this Court to the effect that only a director of the Company can be appointed as an occupier of the factory, has been on the facts of the particular case distinguished by this Court in Indian Oil Corpn. Ltd. vs. Chief Inspector of Factories (AIR 1998 SC 2456 ). This Court held that in the case of the appellant-corporation it will have to be held that the ultimate control over the affairs of all the factories of the corporation is really of the Central Government and, therefore, all the factories of the Corporation should be regarded as factories owned and controlled by the Central Government. As there is a special provision governing factories owned and controlled by the Central Government, the general principle applicable to non-Government companies was held to be not applicable. 25. As the High Court has proceeded to hold the Directors liable by introducing the expression "occupier", which expression is used in the Factories Act and not in the Act, the basic premises on which the High Court proceeded are clearly untenable. Therefore, on a plain reading of the language of the governing statute, it cannot be held that the Directors had any personal liability. The judgments of the High Court are therefore not sustainable and are set aside. In view of the aforesaid conclusion, the appeals filed by the functionaries under the Act lack merits. However, it shall be in the interest of employees if the properties of the Company which are stated to be under the control of Official Liquidator are disposed of early so that the employees can be paid whatever is legally payable to them. Similarly the other creditors can be paid and the liability can be discharged.
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18. It is trite law that liability of a person is dependent upon the statutory prescriptions governing such liability. Sections 5 and 291 of the Companies Act, 1956 (in short Companies Act) are to be noted in this regard. Section 5 refers to officer who is in default. Section 291 on the other hand relates to general powers of the Board of Directors. In other to attract the liability under the Act, it has to be seen as to on whom the Act fixes the liability. Section 3 speaks of the responsibility for payment of wages. It speaks of the employer which expression is defined in Section 2(ia). Section 15 refers to the claims arising out of deductions from wages or delaying payment of wages and penalty for malicious or vexatious claims. Statutorily no liability has been fixed on the Directors19. Under Section 3 of the Act as amended by the M.P. Amendment, the liability is cast on a person who has been named as Manager of the Factory and the employer jointly. Therefore, in order to find out whether the Director had a responsibility for making payment, two different things have to be established; (i) he was the employer or (ii) he was a person who has been named as Manager of the factory. In the instant case, there is no such allegation or evidence led23. Gower has similarly summarized this position with observation that in a number of important respects, the legislative has rent the veil woven by the Salomon case - Particularly is this so, says Gower, in the sphere of taxation and in the steps which have been taken towards the recognition of the enterprise - entity rather than corporate entity. It is significant, however, that according to Gower the Courts only have construed statutes as cracking open the corporate shell when compelled to do so by the clear words of the statute - indeed they have gone out of their way to avoid this construction whenever possible. Thus, at present the judicial approach in cracking open the corporate shell is somewhat cautious and circumspect. It is only when the legislative provision justifies the adoption of such a course that the veil has been lifted. In exceptional cases where courts have felt "themselves able to ignore the corporate entity and to treat the individual shareholder as liable for its acts" the same course has been adopted. Summarizing his conclusions, Gower has classified seven categories of cases where the veil of corporate body has been lifted. But it would not be possible to evolve a rational consistent and inflexible principle which can be invoked in determining the question as to whether the veil of the corporation should be lifted or not. Broadly, where fraud is intended to be prevented, or trading with enemy is sought to be defeated, the veil of corporation is lifted by judicial decision and the shareholders are held to be "persons who actually work for corporation"24. According to J.K. Industries case (supra) only a Director can be nominated as occupier and not simply an officer or employees. This Court observed this to be the result of the 1987 amendment of the Factories Act. The discretion of inspector of factories as to occupier can be exercised only where no director is identified or nominated as an occupier. The decision of this Court to the effect that only a director of the Company can be appointed as an occupier of the factory, has been on the facts of the particular case distinguished by this Court in Indian Oil Corpn. Ltd. vs. Chief Inspector of Factories (AIR 1998 SC 2456 ). This Court held that in the case of the appellant-corporation it will have to be held that the ultimate control over the affairs of all the factories of the corporation is really of the Central Government and, therefore, all the factories of the Corporation should be regarded as factories owned and controlled by the Central Government. As there is a special provision governing factories owned and controlled by the Central Government, the general principle applicable to non-Government companies was held to be not applicable25. As the High Court has proceeded to hold the Directors liable by introducing the expression "occupier", which expression is used in the Factories Act and not in the Act, the basic premises on which the High Court proceeded are clearly untenable. Therefore, on a plain reading of the language of the governing statute, it cannot be held that the Directors had any personal liability. The judgments of the High Court are therefore not sustainable and are set aside. In view of the aforesaid conclusion, the appeals filed by the functionaries under the Act lack merits. However, it shall be in the interest of employees if the properties of the Company which are stated to be under the control of Official Liquidator are disposed of early so that the employees can be paid whatever is legally payable to them. Similarly the other creditors can be paid and the liability can be discharged
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Murarilal Mahabir Prasad & Ors Vs. Shri B. R. Vad & Ors | resourcefulness and ingenuity which go into well-timed dissolution of firms ought not to be allowed to be used as convenient instruments of tax evasion. As observed by Lord Dunedin in Whitney v. Commissioners of Inland Revenue [(1925) 10 Tax Cas. 88] : "A statute is designed to be workable, and the interpretation thereof by a court should be to secure that object, unless crucial omission or clear direction makes that end unattainable." Far from there being any crucial omission or a clear direction in the present case which would make the end unattainable, the various provisions to which we have drawn attention leave it in no doubt that a dissolved firm can be assessed on its pre-dissolution turnover.19. The Bombay Sales Tax Act, 1959, presents no difficulty as its provisions are even clearer than those of the 1953 Act. Section 2(11) of the 1959 Act defines a dealer to mean "any person who carries on the business of buying or selling goods ...." Under section 2(19), "person" includes, inter alia, a firm. There is therefore no doubt that a firm is a distinct assessable entity under the 1959 Act also.Section 19(3) of the 1959 Act puts the matter under inquiry beyond all doubt by providing :"Where a dealer, liable to pay tax under this Act, is a firm, and the firm is dissolved, then every person who was a partner shall be jointly and severally liable to pay to the extent to which he is liable under section 18, the tax (including any penalty) due from the firm under this Act or under any earlier law, up to the time of dissolution, whether such tax (including any penalty) has been assessed before such dissolution but has remained unpaid or is assessed after dissolution."20. This provision in terms envisages the assessment of a dissolved firm by providing that erstwhile partners of a dissolved firm shall be liable jointly and severally to pay the tax and penalty due from the firm whether the tax, including any penalty, has been assessed before or after the dissolution. The assessment which the sub-section speaks of is assessment of the firm as such because where the assessment is made on the partners themselves, it was unnecessary to provide that they shall be liable jointly and severally to pay the tax assessed on them. The joint and several liability of the partners in respect of taxes which the firm is liable to pay is provided by section 18. The purpose of section 19(3) is to make the partners jointly and severally liable even if the firm is assessed to sales tax after its dissolution. Section 19(3) would otherwise be otiose. Thus, section 19(3) of the 1959 Act makes explicit what was implicit in the Act of 1953.21. It is relevant, though we did not refer to this aspect while dealing with the provisions of the 1953 Act, that section 19(3) of the 1959 Act contains a clear indication that the legislature intended that a dissolved firm could be assessed under the 1953 Act also. Section 19(3) speaks of the liability of partners for the tax due from a dissolved firm and provides that they shall be jointly and severally liable to pay the tax due from the firm under the Act of 1959 or "under any earlier law", whether such tax has been assessed before or after dissolution. Section 2(12) of the 1959 Act defines "earlier law" to mean, inter alia, the Bombay Sales Tax Act, 1953. Thus, one of the postulates of section 19(3) at any rate is that a dissolved firm could be assessed under the 1953 Act. Such a postulate accords with the principle that if the legislature provided for a charge of sales tax, if could not have intended to render that charge ineffective by permitting the partners to dissolve the firm, an easy enough thing to do. Nothing, in fact, would be easier to evade a tax liability than to declare that the firm, admittedly liable to pay tax, has been dissolved. Section 19(3) of the 1959 Act not only makes clear what was necessarily implied in the 1953 Act, but it throws additional light on the true construction of the earlier law. But we though it advisable to keep section 19(3) of the 1959 Act apart while construing the 1953 Act because it is the courts, not the legislature, who have to construe the laws of the land authoritatively. As said in Craies on Statute Law, "expect as a parliamentary exposition, subsequent Acts are not to be relied on as an aid to the construction of prior unambiguous Acts" (6th Ed., p. 146). The limited use which may be made of the language of section 19(3) of the 1959 Act, though such a course is unnecessary, is for saying that it serves to throw some light on the Act of 1953, in case the argument is that the Act of 1953 is ambiguous.Section 19(3) being quite clear and explicit, it is unnecessary to dwell on the other provisions of the Act of 1959 in order to show that a dissolved firm can be assessed under it. We may only point out that the Act of 1959 contains provisions similar to those in sections 15, 15A and 35 of the Act of 1953 on which we have dwelt at some length. Those provisions can be found in sections 35, 35A and 62 of the Act.22. The view taken by a Full Bench of the Madras High Court in Sales Tax Officer (XIX), Enforcement Branch, Bombay v. K. M. S. Mari Chettiar [[1975] 35 S.T.C. 148] that a dissolved firm can be assessed under the Act of 1959 is, in our opinion, correct though it was wholly unnecessary to say that the words "is assessed after dissolution" occurring in section 19(3) should be read as "is assessed after dissolution as if the firm exists". Such an addition is superfluous and serves to make the meaning of the sub-section no clearer than it is. | 0[ds]11. It is plausible that a distinction ought to be made between the death of an individual and the dissolution of a firm. Human beings, as assessees, are not generally known to court death to evade taxes. Death, normally, is not volitional and it is understandable that on the death of an individual, his liability to be assessed to tax should come to an end unless the statute provides to the contrary. With firms it is different, because a firm which incurs during its existence a liability to pay sales tax may, with a little ingenuity, evade its liability by the voluntary act of dissolution. The dissolution of a firm could therefore be viewed differently from the death of an individual and the partners could be denied the advantage of their own wrong. But we do not want to strike this new path because the Jullundur case [[1966] 17 S.T.C. 326 (S.C.); [1966] 2 S.C.R. 457] and the two cases which follow it have likened the dissolution of a firm to the death of an individual. Let us therefore proceed to examine the other provisions of the 1953 Act.This provision leaves no doubt that the dissolution of a firm cannot operate as a bar to a fresh assessment of the turnover which had escaped assessment, provided that the action contemplated therein is taken within the specified period. In substance, section 15(1) provides that if the Collector is satisfied that any turnover has escaped assessment or has beenor assessed at a lower rate or any deductions have been wrongly made therefrom, he can after serving a notice on the assessee proceed to assess or reassess the amount of the tax due from him. It is a clear and necessary implication of section 15(1) that even a dissolved firm can be assessed or reassessed within the period mentioned therein. The dissolution cannot operate as a bar to the exercise by the Collector of his power to reopen an assessment and indeed it is difficult to conceive that in matters as vital to the administration of sales tax as the assessment of suppressed turnovers, the legislature could have contemplated that the liability to reassessment could be avoided by the erring firm by the simple expedient of winding up its affairs.14. Section 15(1) contains an important clause that action thereunder can be taken by the Collector after giving a notice to the assessee under section 14(3) of the Act within the prescribed period. Once such a notice is given, the Collector gets the jurisdiction to assess or reassess the amount of tax due from the dealer and all the provisions of the Act "shall apply accordingly as if the notice were a notice served under" section 14(3). Section 14(3) speaks of the power of the Collector to assess the amount of tax due from the dealer after giving notice to him, if the Collector is not satisfied that the returns furnished are correct and complete. The jurisdiction to assess or reassess which is conferred by section 15(1) is thus equated with the original jurisdiction to assess the dealer under section 14. By this method, the continuity of the legal personality of the assessee is maintained in order to enable the assessment of turnover which has escaped assessment. It is no answer to a notice under section 15 that the partners having dissolved the firm, the assessment cannot be reopened. It puts a premium on ones credulity to accept that having created a special jurisdiction to assess or reassess an escaped turnover, the legislature permitted that salutary jurisdiction to be defeated by the device of dissolution. The argument of the appellants really comes to this : suppress the turnover, evade the sales tax, dissolve the firm and earn your freedom from taxation.Importantly, the notice dated November 21, 1963, for reopening the assessment for the period April 1, 1957, to March 31, 1958, was served on the firm under section 15. On reassessment, the firm was assessed to a sales tax of Rs. 1, 95, 582.47 on sales suppressed during thatsection contains a compelling implication that evident errors can be corrected no matter whether the firm is in existence or is dissolved. Dissolution is not a panacea for liability to pay sales tax. A difficulty was raised on behalf of the appellants that on the dissolution of the firm the principle of agency would cease to apply as amongst the partners and therefore no partner would have the right to represent either the firm or any of the other partners in the proceeding under section 15, commenced or continued after the dissolution of the firm. This question does not bear on the liability of a dissolved firm to be assessed or the power of the Collector to assess a dissolved firm under section 15. It may perhaps be that in the assessment of a dissolved firm, each of the erstwhile partners may have a right to be heard because each of them would be interested in warding off a liability which may fall on them jointly and severally. But that is more a matter of procedure which the assessing authority must adopt in the assessment proceedings in order to give efficacy to the order which may eventually be passed in the proceedings. Who, in the assessment proceedings against a dissolved firm, has the right to be heard will not determine whether a dissolved firm can be assessed under the Act of(3)(i) and (3)(ii) of section 26 provide that when a firm liable to pay the tax is dissolved, it shall be liable to pay the tax on the goods allotted to any partner "as if" the goods had been sold to such partner, unless he holds a certificate of registration or obtains it within the prescribed period. This provision in terms envisages the assessment of a dissolved firm, though only to the limited extent and for the limited purpose that the goods allotted to a partner at the time of dissolution shall be deemed to have been sold to that partner. By the use of the words "as if", section 26(3)(ii) creates a fiction that the allotment of goods to a partner on dissolution of the firm shall be deemed to be a sale made by the dissolved firm to that partner. The fiction cannot be extended further than thewarrants but there is no fiction in regard to the liability of the dissolved firm to be assessed to sales tax in respect of the goods thus deemed to be sold. The imposition of such a liability is in keeping with the general scheme of the Act, the various provisions of which show that the assessment of a dissolved firm is within the clear intendment of the statute.This provision in terms envisages the assessment of a dissolved firm by providing that erstwhile partners of a dissolved firm shall be liable jointly and severally to pay the tax and penalty due from the firm whether the tax, including any penalty, has been assessed before or after the dissolution. The assessment which thespeaks of is assessment of the firm as such because where the assessment is made on the partners themselves, it was unnecessary to provide that they shall be liable jointly and severally to pay the tax assessed on them. The joint and several liability of the partners in respect of taxes which the firm is liable to pay is provided by section 18. The purpose of section 19(3) is to make the partners jointly and severally liable even if the firm is assessed to sales tax after its dissolution. Section 19(3) would otherwise be otiose. Thus, section 19(3) of the 1959 Act makes explicit what was implicit in the Act of 1953.21. It is relevant, though we did not refer to this aspect while dealing with the provisions of the 1953 Act, that section 19(3) of the 1959 Act contains a clear indication that the legislature intended that a dissolved firm could be assessed under the 1953 Act also. Section 19(3) speaks of the liability of partners for the tax due from a dissolved firm and provides that they shall be jointly and severally liable to pay the tax due from the firm under the Act of 1959 or "under any earlier law", whether such tax has been assessed before or after dissolution. Section 2(12) of the 1959 Act defines "earlier law" to mean, inter alia, the Bombay Sales Tax Act, 1953. Thus, one of the postulates of section 19(3) at any rate is that a dissolved firm could be assessed under the 1953 Act. Such a postulate accords with the principle that if the legislature provided for a charge of sales tax, if could not have intended to render that charge ineffective by permitting the partners to dissolve the firm, an easy enough thing to do. Nothing, in fact, would be easier to evade a tax liability than to declare that the firm, admittedly liable to pay tax, has been dissolved. Section 19(3) of the 1959 Act not only makes clear what was necessarily implied in the 1953 Act, but it throws additional light on the true construction of the earlier law. But we though it advisable to keep section 19(3) of the 1959 Act apart while construing the 1953 Act because it is the courts, not the legislature, who have to construe the laws of the land authoritatively. As said in Craies on Statute Law, "expect as a parliamentary exposition, subsequent Acts are not to be relied on as an aid to the construction of prior unambiguous Acts" (6th Ed., p. 146). The limited use which may be made of the language of section 19(3) of the 1959 Act, though such a course is unnecessary, is for saying that it serves to throw some light on the Act of 1953, in case the argument is that the Act of 1953 is ambiguous.Section 19(3) being quite clear and explicit, it is unnecessary to dwell on the other provisions of the Act of 1959 in order to show that a dissolved firm can be assessed under it. We may only point out that the Act of 1959 contains provisions similar to those in sections 15, 15A and 35 of the Act of 1953 on which we have dwelt at some length. Those provisions can be found in sections 35, 35A and 62 of the Act.22. The view taken by a Full Bench of the Madras High Court in Sales Tax Officer (XIX), Enforcement Branch, Bombay v. K. M. S. Mari Chettiar [[1975] 35 S.T.C. 148] that a dissolved firm can be assessed under the Act of 1959 is, in our opinion, correct though it was wholly unnecessary to say that the words "is assessed after dissolution" occurring in section 19(3) should be read as "is assessed after dissolution as if the firm exists". Such an addition is superfluous and serves to make the meaning of theno clearer than it is. | 0 | 8,846 | 2,062 | ### 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:
resourcefulness and ingenuity which go into well-timed dissolution of firms ought not to be allowed to be used as convenient instruments of tax evasion. As observed by Lord Dunedin in Whitney v. Commissioners of Inland Revenue [(1925) 10 Tax Cas. 88] : "A statute is designed to be workable, and the interpretation thereof by a court should be to secure that object, unless crucial omission or clear direction makes that end unattainable." Far from there being any crucial omission or a clear direction in the present case which would make the end unattainable, the various provisions to which we have drawn attention leave it in no doubt that a dissolved firm can be assessed on its pre-dissolution turnover.19. The Bombay Sales Tax Act, 1959, presents no difficulty as its provisions are even clearer than those of the 1953 Act. Section 2(11) of the 1959 Act defines a dealer to mean "any person who carries on the business of buying or selling goods ...." Under section 2(19), "person" includes, inter alia, a firm. There is therefore no doubt that a firm is a distinct assessable entity under the 1959 Act also.Section 19(3) of the 1959 Act puts the matter under inquiry beyond all doubt by providing :"Where a dealer, liable to pay tax under this Act, is a firm, and the firm is dissolved, then every person who was a partner shall be jointly and severally liable to pay to the extent to which he is liable under section 18, the tax (including any penalty) due from the firm under this Act or under any earlier law, up to the time of dissolution, whether such tax (including any penalty) has been assessed before such dissolution but has remained unpaid or is assessed after dissolution."20. This provision in terms envisages the assessment of a dissolved firm by providing that erstwhile partners of a dissolved firm shall be liable jointly and severally to pay the tax and penalty due from the firm whether the tax, including any penalty, has been assessed before or after the dissolution. The assessment which the sub-section speaks of is assessment of the firm as such because where the assessment is made on the partners themselves, it was unnecessary to provide that they shall be liable jointly and severally to pay the tax assessed on them. The joint and several liability of the partners in respect of taxes which the firm is liable to pay is provided by section 18. The purpose of section 19(3) is to make the partners jointly and severally liable even if the firm is assessed to sales tax after its dissolution. Section 19(3) would otherwise be otiose. Thus, section 19(3) of the 1959 Act makes explicit what was implicit in the Act of 1953.21. It is relevant, though we did not refer to this aspect while dealing with the provisions of the 1953 Act, that section 19(3) of the 1959 Act contains a clear indication that the legislature intended that a dissolved firm could be assessed under the 1953 Act also. Section 19(3) speaks of the liability of partners for the tax due from a dissolved firm and provides that they shall be jointly and severally liable to pay the tax due from the firm under the Act of 1959 or "under any earlier law", whether such tax has been assessed before or after dissolution. Section 2(12) of the 1959 Act defines "earlier law" to mean, inter alia, the Bombay Sales Tax Act, 1953. Thus, one of the postulates of section 19(3) at any rate is that a dissolved firm could be assessed under the 1953 Act. Such a postulate accords with the principle that if the legislature provided for a charge of sales tax, if could not have intended to render that charge ineffective by permitting the partners to dissolve the firm, an easy enough thing to do. Nothing, in fact, would be easier to evade a tax liability than to declare that the firm, admittedly liable to pay tax, has been dissolved. Section 19(3) of the 1959 Act not only makes clear what was necessarily implied in the 1953 Act, but it throws additional light on the true construction of the earlier law. But we though it advisable to keep section 19(3) of the 1959 Act apart while construing the 1953 Act because it is the courts, not the legislature, who have to construe the laws of the land authoritatively. As said in Craies on Statute Law, "expect as a parliamentary exposition, subsequent Acts are not to be relied on as an aid to the construction of prior unambiguous Acts" (6th Ed., p. 146). The limited use which may be made of the language of section 19(3) of the 1959 Act, though such a course is unnecessary, is for saying that it serves to throw some light on the Act of 1953, in case the argument is that the Act of 1953 is ambiguous.Section 19(3) being quite clear and explicit, it is unnecessary to dwell on the other provisions of the Act of 1959 in order to show that a dissolved firm can be assessed under it. We may only point out that the Act of 1959 contains provisions similar to those in sections 15, 15A and 35 of the Act of 1953 on which we have dwelt at some length. Those provisions can be found in sections 35, 35A and 62 of the Act.22. The view taken by a Full Bench of the Madras High Court in Sales Tax Officer (XIX), Enforcement Branch, Bombay v. K. M. S. Mari Chettiar [[1975] 35 S.T.C. 148] that a dissolved firm can be assessed under the Act of 1959 is, in our opinion, correct though it was wholly unnecessary to say that the words "is assessed after dissolution" occurring in section 19(3) should be read as "is assessed after dissolution as if the firm exists". Such an addition is superfluous and serves to make the meaning of the sub-section no clearer than it is.
### Response:
0
### Explanation:
each of them would be interested in warding off a liability which may fall on them jointly and severally. But that is more a matter of procedure which the assessing authority must adopt in the assessment proceedings in order to give efficacy to the order which may eventually be passed in the proceedings. Who, in the assessment proceedings against a dissolved firm, has the right to be heard will not determine whether a dissolved firm can be assessed under the Act of(3)(i) and (3)(ii) of section 26 provide that when a firm liable to pay the tax is dissolved, it shall be liable to pay the tax on the goods allotted to any partner "as if" the goods had been sold to such partner, unless he holds a certificate of registration or obtains it within the prescribed period. This provision in terms envisages the assessment of a dissolved firm, though only to the limited extent and for the limited purpose that the goods allotted to a partner at the time of dissolution shall be deemed to have been sold to that partner. By the use of the words "as if", section 26(3)(ii) creates a fiction that the allotment of goods to a partner on dissolution of the firm shall be deemed to be a sale made by the dissolved firm to that partner. The fiction cannot be extended further than thewarrants but there is no fiction in regard to the liability of the dissolved firm to be assessed to sales tax in respect of the goods thus deemed to be sold. The imposition of such a liability is in keeping with the general scheme of the Act, the various provisions of which show that the assessment of a dissolved firm is within the clear intendment of the statute.This provision in terms envisages the assessment of a dissolved firm by providing that erstwhile partners of a dissolved firm shall be liable jointly and severally to pay the tax and penalty due from the firm whether the tax, including any penalty, has been assessed before or after the dissolution. The assessment which thespeaks of is assessment of the firm as such because where the assessment is made on the partners themselves, it was unnecessary to provide that they shall be liable jointly and severally to pay the tax assessed on them. The joint and several liability of the partners in respect of taxes which the firm is liable to pay is provided by section 18. The purpose of section 19(3) is to make the partners jointly and severally liable even if the firm is assessed to sales tax after its dissolution. Section 19(3) would otherwise be otiose. Thus, section 19(3) of the 1959 Act makes explicit what was implicit in the Act of 1953.21. It is relevant, though we did not refer to this aspect while dealing with the provisions of the 1953 Act, that section 19(3) of the 1959 Act contains a clear indication that the legislature intended that a dissolved firm could be assessed under the 1953 Act also. Section 19(3) speaks of the liability of partners for the tax due from a dissolved firm and provides that they shall be jointly and severally liable to pay the tax due from the firm under the Act of 1959 or "under any earlier law", whether such tax has been assessed before or after dissolution. Section 2(12) of the 1959 Act defines "earlier law" to mean, inter alia, the Bombay Sales Tax Act, 1953. Thus, one of the postulates of section 19(3) at any rate is that a dissolved firm could be assessed under the 1953 Act. Such a postulate accords with the principle that if the legislature provided for a charge of sales tax, if could not have intended to render that charge ineffective by permitting the partners to dissolve the firm, an easy enough thing to do. Nothing, in fact, would be easier to evade a tax liability than to declare that the firm, admittedly liable to pay tax, has been dissolved. Section 19(3) of the 1959 Act not only makes clear what was necessarily implied in the 1953 Act, but it throws additional light on the true construction of the earlier law. But we though it advisable to keep section 19(3) of the 1959 Act apart while construing the 1953 Act because it is the courts, not the legislature, who have to construe the laws of the land authoritatively. As said in Craies on Statute Law, "expect as a parliamentary exposition, subsequent Acts are not to be relied on as an aid to the construction of prior unambiguous Acts" (6th Ed., p. 146). The limited use which may be made of the language of section 19(3) of the 1959 Act, though such a course is unnecessary, is for saying that it serves to throw some light on the Act of 1953, in case the argument is that the Act of 1953 is ambiguous.Section 19(3) being quite clear and explicit, it is unnecessary to dwell on the other provisions of the Act of 1959 in order to show that a dissolved firm can be assessed under it. We may only point out that the Act of 1959 contains provisions similar to those in sections 15, 15A and 35 of the Act of 1953 on which we have dwelt at some length. Those provisions can be found in sections 35, 35A and 62 of the Act.22. The view taken by a Full Bench of the Madras High Court in Sales Tax Officer (XIX), Enforcement Branch, Bombay v. K. M. S. Mari Chettiar [[1975] 35 S.T.C. 148] that a dissolved firm can be assessed under the Act of 1959 is, in our opinion, correct though it was wholly unnecessary to say that the words "is assessed after dissolution" occurring in section 19(3) should be read as "is assessed after dissolution as if the firm exists". Such an addition is superfluous and serves to make the meaning of theno clearer than it is.
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Jagdish Sawhney Vs. Harbans Singh | Jalandhar and thereafter he took prompt steps to obtain certified copies of the judgment and decree and filed the appeal on 9.2.1996 thus explaining the delay in preferring the appeal. In the second application, the applicant alleged that the plaintiffs and defendants in the suit had colluded with each other in getting the decree passed to his detriment and hence the application for permission to prefer appeal is filed. That application is still pending consideration. 4. By consent of the parties the application for condonation of delay was taken up for consideration. The fact that the appellant was not a party to the suit weighed with appellate court very heavily. Indeed, a contention was put forth before the appellate court, as has been done before us, that the appellant was aware of the proceedings of the suit and the decree passed in that case; that he was aware of the suit proceedings; that he was a party to contempt proceedings initiated under Order 39 Rule 2-A CPC; that he was personally attending to the contempt proceedings, and that Shri S.K. Gupta, Advocate had been appearing on his behalf in the contempt application. The attention of the court was drawn to documents Ex. R-3 to Ex. R-15 which would indicate that the appellant had been appearing in contempt proceedings either by himself or through his advocate Shri S.K. Gupta and he had filed a reply to the contempt petition on 15.9.1995 and, therefore, he must have come to know about the passing of the decree passed on 31.8.1995 and thus an inference must be drawn that he was well aware of the passing of the decree but in spite of that he failed to file the appeal in time and, thus, application for condonation of delay was liable to be dismissed by the court. If the statement of the appellant that he came to know of passing of the decree only on 2.2.1996 is true, then certainly the delay in filing the appeal had been duly explained and there was sufficient reasons preventing him to file the appeal before that date. Though evidence had been let in by either side before the appellate court on the application of condonation of delay, there has been no evidence to the fact that the appellant had become aware of the passing of the decree on 31.8.1995 prior to 2.2.1996. The appellate Court felt the mere fact that he appeared in the contempt proceedings does not necessarily lead to the inference that he should be presumed to know about the passing of the decree. It was observed that the decree had been passed on 31.8.1995 and thereafter only two or three adjournments appeared to have been given on 15.9.1995 and 20.12.1995 and probably he might not have known about the passing of the decree. The suit was contested by Hardeep Singh and others and thereafter they absented themselves from the court and the suit proceeded ex parte. Thus the appellate court concluded that the appellant had not become aware of the passing of the decree prior to 2.2.1996 and, therefore, he allowed the application for condonation of delay. On a revision being preferred, the High Court noticed difference in the statement made in the application filed for condonation of delay before the appellate court which was to the effect that the representative of the appellant had gone to the office of the Registrar of Companies at Jalandhar for inspection of the file and then he came to know about the decree and in the statement made before the court wherein he stated that he along with his Chartered Accountant had gone to the office of the Registrar of Companies on 2.2.1996 and on inspection of the file be came to know about the decree having been passed. This inconsistency belied the manner in which he became aware about the decree against which he preferred the appeal. His appearance in the contempt proceedings also weighed with the High Court. Thus, the High Court allowed the revision petition, set aside the order of the appellate Court and dismissed the application for condonation of delay. That order would result in dismissal of his appeal. Hence this appeal by special leave. 5. What had been stated in the application or before the Court as to the manner in which the appellant came to know of the decree of the court is in substantial agreement with each other. Whether he came to know on his own inspection or through the inspection of his representative or by joint inspection or through the Deputy Registrar of the Companies, the fact remains that he came to know of the decree having been passed only on 2.2.1996. That is that essence of the matter. 6. This factor is highlighted by the learned Counsel for the respondents again before us in these proceedings and he strongly contended that a person who makes inconsistent statements should not be encouraged at all, much less in a proceeding arising under Article 136 of the Constitution. We do not think so. The appellate court has given cogent reasons to come to the conclusion that there were justifiable reasons for the appellant not to prefer the appeal prior to 2.2.1996. We agree with the same. The decisions referred by the learned Counsel for the respondent in Binod Bihar Singh v. Union of India, AIR 1993 SC 1245 and P.K. Ramachandran v. State of Kerala and another, JT 1997(8) SCC 189 : 1997(4) RRR 242 (SC), would not be of much materiality in the present case. 7. The High Court ought to have accepted the finding as to sufficiency of cause in explaining the delay to prefer the appeal and should not have interfered with the same that too in a proceeding under Section 115 CPC, the scope of which is very limited, the power of the court to interfere being only in cases of error of jurisdiction resulting in miscarriage of justice. We find no such infirmity in this case. | 1[ds]5. What had been stated in the application or before the Court as to the manner in which the appellant came to know of the decree of the court is in substantial agreement with each other. Whether he came to know on his own inspection or through the inspection of his representative or by joint inspection or through the Deputy Registrar of the Companies, the fact remains that he came to know of the decree having been passed only on 2.2.1996. That is that essence of theappellate court has given cogent reasons to come to the conclusion that there were justifiable reasons for the appellant not to prefer the appeal prior to 2.2.1996. We agree with the same. The decisions referred by the learned Counsel for the respondent in Binod Bihar Singh v. Union of India, AIR 1993 SC 1245 and P.K. Ramachandran v. State of Kerala and another, JT 1997(8) SCC 189 : 1997(4) RRR 242 (SC), would not be of much materiality in the present case.The High Court ought to have accepted the finding as to sufficiency of cause in explaining the delay to prefer the appeal and should not have interfered with the same that too in a proceeding under Section 115 CPC, the scope of which is very limited, the power of the court to interfere being only in cases of error of jurisdiction resulting in miscarriage of justice. We find no such infirmity in this case. | 1 | 1,433 | 267 | ### 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:
Jalandhar and thereafter he took prompt steps to obtain certified copies of the judgment and decree and filed the appeal on 9.2.1996 thus explaining the delay in preferring the appeal. In the second application, the applicant alleged that the plaintiffs and defendants in the suit had colluded with each other in getting the decree passed to his detriment and hence the application for permission to prefer appeal is filed. That application is still pending consideration. 4. By consent of the parties the application for condonation of delay was taken up for consideration. The fact that the appellant was not a party to the suit weighed with appellate court very heavily. Indeed, a contention was put forth before the appellate court, as has been done before us, that the appellant was aware of the proceedings of the suit and the decree passed in that case; that he was aware of the suit proceedings; that he was a party to contempt proceedings initiated under Order 39 Rule 2-A CPC; that he was personally attending to the contempt proceedings, and that Shri S.K. Gupta, Advocate had been appearing on his behalf in the contempt application. The attention of the court was drawn to documents Ex. R-3 to Ex. R-15 which would indicate that the appellant had been appearing in contempt proceedings either by himself or through his advocate Shri S.K. Gupta and he had filed a reply to the contempt petition on 15.9.1995 and, therefore, he must have come to know about the passing of the decree passed on 31.8.1995 and thus an inference must be drawn that he was well aware of the passing of the decree but in spite of that he failed to file the appeal in time and, thus, application for condonation of delay was liable to be dismissed by the court. If the statement of the appellant that he came to know of passing of the decree only on 2.2.1996 is true, then certainly the delay in filing the appeal had been duly explained and there was sufficient reasons preventing him to file the appeal before that date. Though evidence had been let in by either side before the appellate court on the application of condonation of delay, there has been no evidence to the fact that the appellant had become aware of the passing of the decree on 31.8.1995 prior to 2.2.1996. The appellate Court felt the mere fact that he appeared in the contempt proceedings does not necessarily lead to the inference that he should be presumed to know about the passing of the decree. It was observed that the decree had been passed on 31.8.1995 and thereafter only two or three adjournments appeared to have been given on 15.9.1995 and 20.12.1995 and probably he might not have known about the passing of the decree. The suit was contested by Hardeep Singh and others and thereafter they absented themselves from the court and the suit proceeded ex parte. Thus the appellate court concluded that the appellant had not become aware of the passing of the decree prior to 2.2.1996 and, therefore, he allowed the application for condonation of delay. On a revision being preferred, the High Court noticed difference in the statement made in the application filed for condonation of delay before the appellate court which was to the effect that the representative of the appellant had gone to the office of the Registrar of Companies at Jalandhar for inspection of the file and then he came to know about the decree and in the statement made before the court wherein he stated that he along with his Chartered Accountant had gone to the office of the Registrar of Companies on 2.2.1996 and on inspection of the file be came to know about the decree having been passed. This inconsistency belied the manner in which he became aware about the decree against which he preferred the appeal. His appearance in the contempt proceedings also weighed with the High Court. Thus, the High Court allowed the revision petition, set aside the order of the appellate Court and dismissed the application for condonation of delay. That order would result in dismissal of his appeal. Hence this appeal by special leave. 5. What had been stated in the application or before the Court as to the manner in which the appellant came to know of the decree of the court is in substantial agreement with each other. Whether he came to know on his own inspection or through the inspection of his representative or by joint inspection or through the Deputy Registrar of the Companies, the fact remains that he came to know of the decree having been passed only on 2.2.1996. That is that essence of the matter. 6. This factor is highlighted by the learned Counsel for the respondents again before us in these proceedings and he strongly contended that a person who makes inconsistent statements should not be encouraged at all, much less in a proceeding arising under Article 136 of the Constitution. We do not think so. The appellate court has given cogent reasons to come to the conclusion that there were justifiable reasons for the appellant not to prefer the appeal prior to 2.2.1996. We agree with the same. The decisions referred by the learned Counsel for the respondent in Binod Bihar Singh v. Union of India, AIR 1993 SC 1245 and P.K. Ramachandran v. State of Kerala and another, JT 1997(8) SCC 189 : 1997(4) RRR 242 (SC), would not be of much materiality in the present case. 7. The High Court ought to have accepted the finding as to sufficiency of cause in explaining the delay to prefer the appeal and should not have interfered with the same that too in a proceeding under Section 115 CPC, the scope of which is very limited, the power of the court to interfere being only in cases of error of jurisdiction resulting in miscarriage of justice. We find no such infirmity in this case.
### Response:
1
### Explanation:
5. What had been stated in the application or before the Court as to the manner in which the appellant came to know of the decree of the court is in substantial agreement with each other. Whether he came to know on his own inspection or through the inspection of his representative or by joint inspection or through the Deputy Registrar of the Companies, the fact remains that he came to know of the decree having been passed only on 2.2.1996. That is that essence of theappellate court has given cogent reasons to come to the conclusion that there were justifiable reasons for the appellant not to prefer the appeal prior to 2.2.1996. We agree with the same. The decisions referred by the learned Counsel for the respondent in Binod Bihar Singh v. Union of India, AIR 1993 SC 1245 and P.K. Ramachandran v. State of Kerala and another, JT 1997(8) SCC 189 : 1997(4) RRR 242 (SC), would not be of much materiality in the present case.The High Court ought to have accepted the finding as to sufficiency of cause in explaining the delay to prefer the appeal and should not have interfered with the same that too in a proceeding under Section 115 CPC, the scope of which is very limited, the power of the court to interfere being only in cases of error of jurisdiction resulting in miscarriage of justice. We find no such infirmity in this case.
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M. Sham Singh Vs. State of Mysore | suit against the appellant. It was, however, dismissed against the sureties. 6. There is hardly any merit or substance in the present appeal. The appellant appears to seek advantage from the fact that he had informed the Government of Mysore about his arrival on July 18, 1950 after completion of his studies at the Polytechnic Institute of Brooklyn. It has been contended on his behalf that as soon as this intimation was sent the appellant had performed his part of the contract and it was for the Government to offer him employment within six months. He stayed in Mysore till February 27, 1951 and the period of six months expired on January 18, 1951. He was not offered any employment and therefore in terms of Clause 3 of the bond the Government should be deemed to have waived the right to claim his services and he was at liberty thereafter to seek employment elsewhere. It is claimed that the letters which the appellant wrote to the Government asking for permission to go back to the United States for further studies without any financial assistance from the Government did not affect the legal position. The writing of such a letter and the reply sent by the Government agreeing to what had been proposed by the appellant were de hors the contract which stood discharged as soon as there was failure on the part of the Government to offer any employment within the period of six months of the intimation of the appellants return to India. 7. The High Court after considering all the facts and circumstances came to the conclusion that when the appellant returned to Bangalore on July 6, 1950 he had not abandoned the idea of completing the course of training with the General Electric Company. He had come only because of the illness of his mother who died a little before his arrival. Although he had submitted a report to the State Government with regard to his arrived at Bangalore on July 18, 1950 his letter, dated November 27, 1950 was consistent with the original agreement which had already taken place between the parties that he should complete the course of training with the General Electric Company by staying for a period of one year at his own expense. It was observed by the High Court that the State Government having sent a scholar and having incurred an expenditure of about Rs. 35, 000/- for his training could not have refused his request for overstay for a period of one year particularly when such a stay did not entail any financial burden on the State Government. The High Court proceeded to say :"If under these circumstances, the State Government agreed to the request to extend the period of stay for one year and subsequently permitted defendant No. 1 to return to U.S.A. in pursuance of prior commitment under a mutual agreement, to complete his training, we have no doubt in holding that the request made by defendant No. 1 and granted by the plaintiff form one integral part of the contract, the performance of which by defendant No. 1 had been extended by mutual consent. It is regrettable that having secured the benefits of foreign technical education at the cost of the State exchequer, defendant No. 1 has been adopting an attitude in the suit, in utter disregard of his legal and moral obligations under the scholarship bond." 8. We find it difficult to understand and appreciate how the Government should be deemed to have waived the right to claim the services of the appellant in terms of Clause 3 of the bond when by mutual consent it had been agreed that the appellant could stay for one year after he had completed his study at the Polytechnic Institute of Brooklyn for getting practical training with the General Electric Company. The High Court is quite right in saying that when the appellant came to Bangalore in July 1950 he did not do so for the purpose of staying at Bangalore and accepting any employment which might be offered to him. He had to come as he admitted in his own letters, on account of domestic reasons. He wanted to go back and finish that period of training with the General Electric Company. He sought permission in that behalf and was allowed to return to the United States for that purpose. We are unable to see how in these circumstances the Government was bound to offer him any employment within a period of six months from July 18, 1950. By writing the letter, dated November 27, 1950 the appellant had unequivocally indicated his desire to finish the training with the General Electric Company. He had made no suggestion and given no hint that he was waiting for the offer of any employment. The period of six months was to expire on January 18, 1951 whereas the letter, dated November 27, 1950 was written well before that date. The mere fact that he left after the expiry of the period of six months would not show that he had returned to Bangalore and was writing for any employment being offered to him within six months of his arrival in terms of the bond. It is significant that in the letter, dated November 27, 1950 he had reiterated his assurance that he would place his services at the disposal of the Government on his return provided a suitable position was available. This shows that he was fully conscious of what the true legal position was. Instead of returning to India the appellant chose to take up a job at San Francisco. Surely the Mysore Government had not expended all the amount in question on the studies of the appellant to enable him to seek employment on his own without first placing his services at the disposal of the Mysore Government which he was legally bound to do under the terms of the bond and the subsequent mutual agreement between the parties. | 0[ds]6. There is hardly any merit or substance in the present appeal. The appellant appears to seek advantage from the fact that he had informed the Government of Mysore about his arrival on July 18, 1950 after completion of his studies at the Polytechnic Institute of Brooklyn. It has been contended on his behalf that as soon as this intimation was sent the appellant had performed his part of the contract and it was for the Government to offer him employment within six months. He stayed in Mysore till February 27, 1951 and the period of six months expired on January 18, 1951. He was not offered any employment and therefore in terms of Clause 3 of the bond the Government should be deemed to have waived the right to claim his services and he was at liberty thereafter to seek employment elsewhere. It is claimed that the letters which the appellant wrote to the Government asking for permission to go back to the United States for further studies without any financial assistance from the Government did not affect the legal position. The writing of such a letter and the reply sent by the Government agreeing to what had been proposed by the appellant were de hors the contract which stood discharged as soon as there was failure on the part of the Government to offer any employment within the period of six months of the intimation of the appellants return to India8. We find it difficult to understand and appreciate how the Government should be deemed to have waived the right to claim the services of the appellant in terms of Clause 3 of the bond when by mutual consent it had been agreed that the appellant could stay for one year after he had completed his study at the Polytechnic Institute of Brooklyn for getting practical training with the General Electric Company. The High Court is quite right in saying that when the appellant came to Bangalore in July 1950 he did not do so for the purpose of staying at Bangalore and accepting any employment which might be offered to him. He had to come as he admitted in his own letters, on account of domestic reasons. He wanted to go back and finish that period of training with the General Electric Company. He sought permission in that behalf and was allowed to return to the United States for that purpose. We are unable to see how in these circumstances the Government was bound to offer him any employment within a period of six months from July 18, 1950. By writing the letter, dated November 27, 1950 the appellant had unequivocally indicated his desire to finish the training with the General Electric Company. He had made no suggestion and given no hint that he was waiting for the offer of any employment. The period of six months was to expire on January 18, 1951 whereas the letter, dated November 27, 1950 was written well before that date. The mere fact that he left after the expiry of the period of six months would not show that he had returned to Bangalore and was writing for any employment being offered to him within six months of his arrival in terms of the bond. It is significant that in the letter, dated November 27, 1950 he had reiterated his assurance that he would place his services at the disposal of the Government on his return provided a suitable position was available. This shows that he was fully conscious of what the true legal position was. Instead of returning to India the appellant chose to take up a job at San Francisco. Surely the Mysore Government had not expended all the amount in question on the studies of the appellant to enable him to seek employment on his own without first placing his services at the disposal of the Mysore Government which he was legally bound to do under the terms of the bond and the subsequent mutual agreement between the parties. | 0 | 2,404 | 710 | ### Instruction:
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suit against the appellant. It was, however, dismissed against the sureties. 6. There is hardly any merit or substance in the present appeal. The appellant appears to seek advantage from the fact that he had informed the Government of Mysore about his arrival on July 18, 1950 after completion of his studies at the Polytechnic Institute of Brooklyn. It has been contended on his behalf that as soon as this intimation was sent the appellant had performed his part of the contract and it was for the Government to offer him employment within six months. He stayed in Mysore till February 27, 1951 and the period of six months expired on January 18, 1951. He was not offered any employment and therefore in terms of Clause 3 of the bond the Government should be deemed to have waived the right to claim his services and he was at liberty thereafter to seek employment elsewhere. It is claimed that the letters which the appellant wrote to the Government asking for permission to go back to the United States for further studies without any financial assistance from the Government did not affect the legal position. The writing of such a letter and the reply sent by the Government agreeing to what had been proposed by the appellant were de hors the contract which stood discharged as soon as there was failure on the part of the Government to offer any employment within the period of six months of the intimation of the appellants return to India. 7. The High Court after considering all the facts and circumstances came to the conclusion that when the appellant returned to Bangalore on July 6, 1950 he had not abandoned the idea of completing the course of training with the General Electric Company. He had come only because of the illness of his mother who died a little before his arrival. Although he had submitted a report to the State Government with regard to his arrived at Bangalore on July 18, 1950 his letter, dated November 27, 1950 was consistent with the original agreement which had already taken place between the parties that he should complete the course of training with the General Electric Company by staying for a period of one year at his own expense. It was observed by the High Court that the State Government having sent a scholar and having incurred an expenditure of about Rs. 35, 000/- for his training could not have refused his request for overstay for a period of one year particularly when such a stay did not entail any financial burden on the State Government. The High Court proceeded to say :"If under these circumstances, the State Government agreed to the request to extend the period of stay for one year and subsequently permitted defendant No. 1 to return to U.S.A. in pursuance of prior commitment under a mutual agreement, to complete his training, we have no doubt in holding that the request made by defendant No. 1 and granted by the plaintiff form one integral part of the contract, the performance of which by defendant No. 1 had been extended by mutual consent. It is regrettable that having secured the benefits of foreign technical education at the cost of the State exchequer, defendant No. 1 has been adopting an attitude in the suit, in utter disregard of his legal and moral obligations under the scholarship bond." 8. We find it difficult to understand and appreciate how the Government should be deemed to have waived the right to claim the services of the appellant in terms of Clause 3 of the bond when by mutual consent it had been agreed that the appellant could stay for one year after he had completed his study at the Polytechnic Institute of Brooklyn for getting practical training with the General Electric Company. The High Court is quite right in saying that when the appellant came to Bangalore in July 1950 he did not do so for the purpose of staying at Bangalore and accepting any employment which might be offered to him. He had to come as he admitted in his own letters, on account of domestic reasons. He wanted to go back and finish that period of training with the General Electric Company. He sought permission in that behalf and was allowed to return to the United States for that purpose. We are unable to see how in these circumstances the Government was bound to offer him any employment within a period of six months from July 18, 1950. By writing the letter, dated November 27, 1950 the appellant had unequivocally indicated his desire to finish the training with the General Electric Company. He had made no suggestion and given no hint that he was waiting for the offer of any employment. The period of six months was to expire on January 18, 1951 whereas the letter, dated November 27, 1950 was written well before that date. The mere fact that he left after the expiry of the period of six months would not show that he had returned to Bangalore and was writing for any employment being offered to him within six months of his arrival in terms of the bond. It is significant that in the letter, dated November 27, 1950 he had reiterated his assurance that he would place his services at the disposal of the Government on his return provided a suitable position was available. This shows that he was fully conscious of what the true legal position was. Instead of returning to India the appellant chose to take up a job at San Francisco. Surely the Mysore Government had not expended all the amount in question on the studies of the appellant to enable him to seek employment on his own without first placing his services at the disposal of the Mysore Government which he was legally bound to do under the terms of the bond and the subsequent mutual agreement between the parties.
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6. There is hardly any merit or substance in the present appeal. The appellant appears to seek advantage from the fact that he had informed the Government of Mysore about his arrival on July 18, 1950 after completion of his studies at the Polytechnic Institute of Brooklyn. It has been contended on his behalf that as soon as this intimation was sent the appellant had performed his part of the contract and it was for the Government to offer him employment within six months. He stayed in Mysore till February 27, 1951 and the period of six months expired on January 18, 1951. He was not offered any employment and therefore in terms of Clause 3 of the bond the Government should be deemed to have waived the right to claim his services and he was at liberty thereafter to seek employment elsewhere. It is claimed that the letters which the appellant wrote to the Government asking for permission to go back to the United States for further studies without any financial assistance from the Government did not affect the legal position. The writing of such a letter and the reply sent by the Government agreeing to what had been proposed by the appellant were de hors the contract which stood discharged as soon as there was failure on the part of the Government to offer any employment within the period of six months of the intimation of the appellants return to India8. We find it difficult to understand and appreciate how the Government should be deemed to have waived the right to claim the services of the appellant in terms of Clause 3 of the bond when by mutual consent it had been agreed that the appellant could stay for one year after he had completed his study at the Polytechnic Institute of Brooklyn for getting practical training with the General Electric Company. The High Court is quite right in saying that when the appellant came to Bangalore in July 1950 he did not do so for the purpose of staying at Bangalore and accepting any employment which might be offered to him. He had to come as he admitted in his own letters, on account of domestic reasons. He wanted to go back and finish that period of training with the General Electric Company. He sought permission in that behalf and was allowed to return to the United States for that purpose. We are unable to see how in these circumstances the Government was bound to offer him any employment within a period of six months from July 18, 1950. By writing the letter, dated November 27, 1950 the appellant had unequivocally indicated his desire to finish the training with the General Electric Company. He had made no suggestion and given no hint that he was waiting for the offer of any employment. The period of six months was to expire on January 18, 1951 whereas the letter, dated November 27, 1950 was written well before that date. The mere fact that he left after the expiry of the period of six months would not show that he had returned to Bangalore and was writing for any employment being offered to him within six months of his arrival in terms of the bond. It is significant that in the letter, dated November 27, 1950 he had reiterated his assurance that he would place his services at the disposal of the Government on his return provided a suitable position was available. This shows that he was fully conscious of what the true legal position was. Instead of returning to India the appellant chose to take up a job at San Francisco. Surely the Mysore Government had not expended all the amount in question on the studies of the appellant to enable him to seek employment on his own without first placing his services at the disposal of the Mysore Government which he was legally bound to do under the terms of the bond and the subsequent mutual agreement between the parties.
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State of Punjab (Now Haryana) & Others Vs. Amar Singh & Another | it to the first three questions of law set out at the commencement of this judgment, are correct. I would, therefore, uphold the same. 119. Now I turn to question No. 4, which arises in Amar Singhs case only. 120. It is common ground that Field Nos. 265 and 343 on April 15, 1953, were comprised in the tenancy of Sri Chand and Nathu. The total area of these two fields is 67 bighas and 19 biswas equivalent to 42 ordinary acres, approximately. It is apparent from the record that the land in these two fields is entirely Barani and has no irrigation facilities, whatever. According to the scale adopted by the Collector, Surplus Area, for such land, these 42 ordinary acres will make 10.5 standard acres. The total area of Smt. Lachhman which has been found surplus is about 80 standard acres. The land comprised in these two fields is thus only one-eighth of her surplus area. 121. At no stage before the High Court, was it contended that Sri Chand and Nathu held or owned in the State any other land apart from the said fields. In this Court, also, either in the grounds of appeal or otherwise, no such allegation or contention has been made. The permissible area which can be held or retained by a tenant under the Act is 30 standard acres. That is to say, the permissible limit of the area which could be held in common by Sri Chand and Nathu, was 60 standard acres. Since it has been nobodys case that Sri Chand and Nathu held any other area, and the land comprised in these two fields being 10.5 standard acres, was far less than their permissible limit, the High Court presumed - and I think, not wrongly that Field Nos. 265 and 343 were held by the tenants Sri Chand and Nathu within their permissible area. 122. It is well settled that surplus area has to be determined, with reference to the situation as it obtained on April 15, 1953, when the Act came into force. This proposition is clear from Section 19-F, also, which says that the Prescribed Authority shall be competent to determine the surplus area, referred to in Section 10-A, of a landowner out of the lands owned by such land-owner immediately before the commencement of the Act. If there still remained any doubt on this point, the same must be deemed to have been authoritatively dispelled by the decision of this Court in Bhagwan Das v. State of Punjab (1966) 2 SCR 511 = (AIR 1966 SC 1869 ). A plain reading of the definition of surplus area in Section 2(5-a) which has been quoted in a foregoing part of this judgment, shows that land held by a tenant within his permissible area, cannot be included in the surplus area of the land-owner. Since on the determinative date i.e., 15-4-53, Field Nos. 265 and 343, measuring 10.5 standard acres only, were held by the tenants, Sri Chand and Nathu, within their permissible area, these fields could not, in view of the mandate of Section 2(5-a), be included in the surplus area of Smt. Lachhman. At the time, when the Surplus Area Collector took up determination of the surplus area (which as pointed out in Dhaunkals case 72 Pun LR 882 = (AIR 1970 Punj 431) (FB) (supra) implies incidental verification of the permissible areas of the landowner and the tenants, also) these fields were still comprised in a tenancy, though the holder of the tenancy was a different tenant. In these circumstances, the change of the tenants will not make these Fields accrete to the surplus area of the landowner. Such change of the tenant does not amount to a future acquisition of land comprised in that tenancy by the land-owner within the contemplation of Sections 19-A or 19-B of the Act such a situation came up for consideration before a Division Bench (consisting of Sharma and Khosla, JJ.) of the Punjab High Court in Harchand Singh v. Punjab State, (1964) 66 Pun LR 285 = 1963 Pun LJ 144, Sharma J., who spoke for the Bench, made these observations : There can be no doubt that in the instant case the surplus area was to be determined on the date the Act came into force i.e. 15th April 1953, and further that the area in the cultivating possession of a tenant if within the prescribed limit was also to be excluded from consideration. Section 10-A governs the disposition of land which was comprised in a surplus area of the commencement of the Act and not the land which was not surplus on that date or had become surplus after the coming into force of the Act. The latter case was evidently covered by Sections 19-A and 19-B of the Act..... the mere change in tenancies will not attract the provisions of these sections provided the area which the tenant comes to occupy thereby does not exceed the permissible area. By changing a tenancy a landlord also cannot be said to have acquired the land comprising the tenancy because the land (which) belonged to him before-hand continued to belong to him after the change in tenancy. The term acquire has not been defined in the Act and so we have to accept its dictionary meaning as, To make property ones own. To gain permanently, it is regularly applied to permanent acquisition (Bourviers Law Dictionary and Concise Encyclopedia, Eighth Edition, Vol. I, page 114). 123. These observations, in my opinion, contain a correct statement of law on the point. 124. For the foregoing reasons, I would hold that these two fields could not be included in the surplus area of the land-owner, Smt. Lachhman and Section 10-A was not attracted to a disposition of these fields either by an order made under Section 18 or otherwise. 125. In the result, I would dismiss both these appeals, leaving the parties to bear their own costs in this Court. ORDER | 1[ds]Certainly, land reforms are no basic to the national reconstruction of the new order envisaged by the Constitution that the issue raised in this case deserves our anxious attention. We have to bear in mind the activist, though inarticulate, major premise of statutory construction that the rule of law must run close to the rule of life and the court must read into an enactment, language permitting, that meaning which promotes the benignent intent of the legislation in preference to the one which perverts the scheme of the statute on imputed legislative presumptions and assumed social values valid in a prior era. An aware court, informed of this adaptation in the rules of forensic interpretation, hesitates to nullify the plain object of a land reforms law unless compelled by its language, and the crux of this case is just that accent when double possibilities in the chemistry of construction crop upAnyway, the law laid down in this case was affirmed by a Full Bench of that Court. Having regard to all those circumstances a serious analysis and attemp at harmonisation of the various provisions of the Act is necessary now6. The triple objects of the agrarian reform projected by the Act appear to be (a) to impart security of tenure (b) to make the tiller the owner, and (c) to trim large land holdings, setting sober ceilings. To convert these political slogans into legal realities, to combat the evil of mass evictions, to create peasant proprietorships and to ensure even distribution of land ownerships a statutory scheme was fashioned, the cornerstone of which was the building up of a reservoir of land carved out of the larges and made available for utilisation by the State for8. It is obvious that thist for a peaceful transformation of agrarian relations assumes the availability of a large surplus area on which the State can settle tenants form, the reserved areas and small holdings. Thus the key to the success of the scheme is the maximising of the surplus land reservoir and sealing off legal leakages through private alienations, collusive orders and decrees and the like, and so care was taken to interdict alienations and ignore dectrees and orders which diminished the surplus poolPlainly, there is a wide interdict against any transfer or other deposition of land comprised in the surplus area, if it still affect the utilization thereof for the resettlement of tenants ejected or to be ejected under clause (i) ofn (1) of Section 9. Such a strategic provision which takes care of the surplus reservoir of land must receive a benignantly spacious construction. There can, therefore, be no doubt that the expression transfer or other disposition of landmust definitely cover leases which, by very definition, are a species of transfer of land. It looks as if other devices were resorted to by largeto defeat the surplus area scheme of section. Courts and other authorities were approached and, through their processess, decrees and orders were secured whereby lands out of the surplus area could be salvaged by theThe legislature finding this anticeiling phenomenon clamped down a blanket ban on the adverse operation ofany judgment, decree or order of a court or other authority, obtained after the commencement of this Act and having the effect of diminishingthe area of a person which could have been declared as his surplus area. SectionA (c) may be usefully reproduced in this context :(c). For the purposes of determining the surplus area of any person under this section,any judgment, decree or order of a court or other authority, obtained after the commencement of this Act and having the effect of diminishingthe area of such person which could have been declared as his surplus area shall be ignored13. It is extremely important to remember that while this provision was enacted in 1962 and while SectionA (b) prohibiting alienation was passed in 1955, both these provisions were given retrospective effect as from the decisive date, namely, April 15, 1953. The deep concern of the legislature is clear from all thisWe do not wholly agree with this itemisation but it is good enough to focus attention on the relevant area of legal controversyOne further point pressed in both courts may be noticed. viz., that the order of purchase of the concerned officer not having been set aside binds the other authority determining the surplus area and so the question is whether one officer under the Act could ignore an order by another officer under a different provision of the Act, having regard to comity of courts and jurisdictions. As indicated already, the principal discussion in the judgment under appeal has turned on the claim to primacy of Section 18 as against SectionA and so it is a well that we state right now what stand we propose to take in resolving apparent conflicts in the provisions of ag legislation. Every such statute has a soul and an intgrated personalityminor deformities may mar this unity, especially when piecemeal amendments and unskilled drafting occur. The basic judicial approach must be to discover this soul of the law and strive to harmonise the many limbs to subserve the pervasive spirit and advance the social project of the enactment. Seeming confrontations between provisions must be resolved into a. This interpretative activism persuades us in this case to reconcile what the High Court has conceived to be a conflict between Section18. We are afraid there is a fallacy in this reasoning. It is true that a mere change in tenancy by transfer of the lease as such, as distinguished from a landlord inducting a new tenant on land the prior lease over which has been terminated and possession restored to the landlord, may not perhaps offend SectionA although situation may arise even in such cases leading to a different conclusion. We need not investigate this possibility further. In the present case, the exclusion of the two khasras from the surplus area depends on their being part of the permissible area of Chandu and Sri Chand. To salvage the lease in his favour, Amar Singh, the new tenant, must prima facie show that this alienation does not violate Section) which prohibits all transfers and other dispositions which diminish the surplus area of theconcerned. He has, therefore, to make out (a) that the demised lands do not form part of the landlords surplus area of (b) that, as was vehemently argued but may with little legal qualms be rejected, a lease is not a transfer or other disposition of property. The High Court has disposed of this alter submission with the simple but impecable observation that the creation of a lease is a transfer or a demise referred to in Section 105 of the Transfer of Property Act admits of no doubt. The purpose of the prohibitive provision is to strike at every alienatory essay and the natural meaning of transfer or other disposition of land, apart from the contextual compulsion, embraces leases. The contention that even wide words must oblige the landlords plea for a narrow meaning, viz., absolute transfer of, is beyond us to acceptWe think not. For that they must be comprised in the permissible area of the tenant. Here we have no information placed by him who wants to prove it affirmatively that these plots lie within the permissible are of 30 standard acres, by definition, of Chandu and Sri Chand. That they did not continue in possession after the Act is not disputed. If they were in possession of other lands either as owners or tenants, and such holding was 30 acres or more, it was open to them to relinquish those lands being in excess of their permissible area, in which case, not being the permissible area of the tenant and being in excess of the reserved area of the landlord, those lands would be surplus area of the landlord within the definition under Section 2. In the absence of proof that the lands in dispute were comprised in the permissible area of the prior tenants, it is not possible to hold that they do not come within the surplus area of the landlord, Mst. Lachhman. On the contrary, the likely inference flowing from the disappearance from the scene of Chandu and Sri Chand and their failure to claim to remain as tenants or to purchase is that these were not their permissible area. It is not as if every bit of land that is with a tenant on the relevant date is his permissible area. It has to fulfil the requirement of Section 2(3). No such test has been satisfied here. Nor can it be argued that even if a tenant gives up his interest in the holding the statute will haunt him with rights. Permissible area is not a concept in the abstract but, as Section 2(3) mentions, is in relation to atenant. In relation to Chandu and Sri Chand no claim to permissible area or consequential rights has been set up and Amar Singh is not a transferee from them but a de novo tenant. It follows that the two khasras should be computed as part of the surplus area of Mst. Lachhman and SectionA (b) operates to invalidate the alleged lease to Amar Singh as its clear impact is to diminish the surplus area of theHe had, therefore, no right as a tenant to purchase under Section 1821. The High Court has taken the view that SectionA (b) cannot affect involuntary transfers and since a purchase effected under Section 18 affects an involuntary transfer it is not hit by sectionA (b). The further view taken us that the expression other authority in SectionA (c) refers only to authorities other than those under the Act; the Assistant Collector who has ordered the purchase under Section 18 being outside SectionA (c) his order cannot be ignored by the Collector on the strength of SectionA (c). A third point converging to the same conclusion taken by the Court is that when an order under Section 18 has become final, the Collector acting under SectionA (c) cannot but be bound by it until it is set aside in appeal or revision or other appropriate proceedings even though the Assistant Collectors order under Section 18 was passed on a compromise between the parties22. We may now consider the soundness of these three grounds separately. The object of SectionA (c) cannot be fulfilled unless the widest meaning were given to the expression court or other authority. Nor is there any basis for truncating the ambit of other authorities in the manner the High Court has done. Other authority is every other authority within or without the Act. The reason given by Narula, J., to exclude the officer passing orders under Section 18 from other authority is that the result would be that the benefit sought to be conferred by Section 18 on the tenants would be completely nullified and obliterated. In this connection he further observed :In every case, order under Section 18 of the Act, would be passed after the Act came into force. If an order under Section 18 has to be ignored by the operation of clause (c) of Sec., every order under Section 18, must be ignored while declaring the permissible area of theThere is no discretion in the authorities to apply the provisions of clause (c) of SectionA or not to apply them. The provision is mandatory. If, therefore, clause (c) of sectionA could be utilised for abrogating the effect of an order under Section 18 of the Act, the whole scheme of the Act for distribution of land to the tenants and for conferring a right on a tenant to purchase the land within the limits of permissible area would flouted23. Having given serious consideration to the pros and cons we are not satisfied that this argument is valid; on the contrary, if upheld it may stultify SectionA and the scheme of the statute altogether. Obviously, if every order of purchase sanctioned under Section 18 can successfully diminish surplus area of aa spate of such orders would be procured by previous arrangement between thehis nominee tenants or even bona fide alienees. The present case is a capital illustration of the fraud and collusion that may follow on such an interpretation. Indeed, there is no provision in S. 18 to give notice to the Collector who is to declare the surplus area and so the State which is vitally concerned in the resettlement of ejected tenants utilising the surplus area has no opportunity to present its case against the fraudulent character of the proceedings under Section 18 before the Assistant Collector. The state, not being a party to that order, in any case cannot be bound by it, whatever may be the effect as between the parties to those proceedings. We are concerned here with a challenge by the State to the efficacy of the order. Annexure A, and so we cannot muzzle the plea of the State that the order under Section 18 is void if there are good grounds to hold with it24. Nor is there force in the argument that the benefit under Section 18 would be completely nullified and obliterated if Section. (c) were to apply to it. It is wrong for the Court to have said that in every case orders under Section 18 would have to be ignored. That is not the result of Sections of that section read together show that if the landlord by any act or omission of his suffered a diminution in the surplus area by a transfer, voluntary or otherwise, in favour of another, contrary to the right of the State Government to dispose of it, such a transfer only is liable to be set aside. The tenants described in Section 18 in whose favour the authority sanctions the purchase of the land are not transferees whose transfers have to be set aside as being contrary to the right of the State Government. Actually, the bulk of the cases under Section 18 would be by tenants who are eligible to purchase by virtue of six years continuous occupation under Section 18(1). Their purchases would often be from land which is their permissible area. Every tenant with six years standing, be it before or after the commencement of the Act, will be entitled to buy the ownership. Of course, if he is within the reserved area he is liable to be evicted even before the purchase but if he is outside the landlords reserved area he can move for purchase. Such a purchase being from the permissible area of the tenant is outside the surplus area of the landlord and does not diminish the area of such person which could have been declaredas his surplus area.Ex hypothesis surplus area excludes a tenants permissible area. Therefore, even if that land falls outside the reserved area of the landowner, if it is within the tenants permissible area, its purchase by the tenant cannot diminish the25. Another substantial category, who may buy under Section 18 without reducing the surplus area, is thetenants. When the State acting under Section) accommodates an ejected tenant the utilization of the surplus land protanto is fulfilled. Such a rehabilitated tenant of the landlord, after the six years term, can qualify to buy under Section 18. Such a purchase only fulfils the second object of the statute of making the tiller the owner and does not in any way diminish the surplus area of the landlord. For, with thean ejected tenant that land, for all practical purposes, is no longer available for the only purpose for which the surplus pool is meant, viz.,resettlement of ejected tenants.Thus, it is clear that Section 18 is not rendered otiose by the view that orders thereunder which diminish the surplus area are lad for violation of SectionA (c). Indeed, the principal category adversely affected by our view would bey collusive tenants, who are in most cases likely to be brought in by landlords experimentally to rescue those lands from the surplus pool, and even in bona fide cases they do not deserve sympathy since they damage the prospects of displaced tenants from being. It may as well be noted here that the person who is entitled to purchase under Section 18 is a tenant, i.e., a person lawfully inducted on the land as a tenant. Once a land is held to be part of the surplus land of the landlord, it rests with the State Government for being disposed of forand any disposition of the same by the landlord after April 15, 1953, would be invalid against the State Governments claim to dispose of it. That is the effect of Section) and (b).Therefore, in respect of any land to which the State Government makes a claim for resettlement, on the ground of its being surplus land, any person inducted by the landlord after April 15, 1953, would have no title to it as a tenant and, would not be able to avail of Section 18. To sum up, the other authorities in Section) include officers under Section 18. Secondly, the plain meaning of SectionA (c) is that any order by any authority which shrinks the surplus area of the landlord is invalid to the extent laid down in clause. Thirdly, orders S. 18 if they diminish the surplus area suffer the same fate and Annexure B fails to shield Mst. Lachhamans lands against orders26. Shri Dhingra relied on Sahib Ram v. The Financial Commr., Punjab, (1970)3 SCR 796 = (AIR 1971 SC 198 ) but that decision only rules that a tenant, who completes his 6 years qualifying occupation required by S. 18 after April 15, 1953 is not excluded. Vaidilingam, J., took care to refer to the case under appeal now before us (Amar Singhs case) and said that it dealt with the scope of S.A and did not bear upon the point before themHere it serves the discussion to remember that the leases in question have been found by the Collector to have been collusively got up to dwindle the surplus area of theThe Collector in Annexure B finds :and it is crystal clear that Amar Singh and Indraj had not been in continuous cultivating possession of this land for full six years, the other copy of Khasra Girdawari put in this case and which is to be found at page 27 of the file, shows the possession over this land of Indraj and Amar Singh only from the year, and so their possession over it for full six years is not complete as yetHe has also stated that he was convinced :has conspired with herw Amar Singh and his brother Indraj to retain this area in contravention of the lawA third pregnant fact is that the proceedings under Section 18 were prima facie collusive, and to burke an enquiry into the eligibility of the alleged tenants to purchase under S. 18 an expedient was resorted to. Before the proceedings could start says Annexure A, the parties have come to terms and they have actually put in court a compromise deed which they have backed up by their statements. Thus, no finding on the basic facts of entitlement to purchase have been recorded by the authority under S. 18 because he has merely stated in Annexure AAs per statements of the parties, I allow Amar Singh to purchase the land in suit28. These facts have to be assumed since a controversy thereon in the writ court or in this Court cannot be permitted. We are, therefore, concerned to see whether on such a factual basis any legal consequences completing the court to uphold Annexure A, and thus judicially condoning what is a fraud on the statutory scheme, follow29. An order like Annexure A ordinarily binds the parties only and here the State which is the appellant is seriously prejudiced by that order but is not a party to it. Therefore, it cannot bind the State proprio vigore. It was argued by Shri Dhingra that the State could have moved by way of appeal or review and got the order set aside if there was ground and that not having done so it was bound by the order. As a matter of fact, the State, which is not a party to the proceedings, does not have a right of appeal. The ordinary rule is that only a party to a suit adversely affected by the decree or any of hist may file an appeal. Under such circumstances a person who is not a party may prefer an appeal with the leave of the appellate court if he would be prejudically affected by the judgment and if it would be binding on him as res judicata under Explanation 6 to Section 11. (see Mulla Civil Procedure Code 18th edn., vol. 1, p. 421). Section 82 ofthe Punjab Tenancy Act, 1887, which may perhaps be invoked by a party even under the Act, also speaks of applications by any party interested. Thus, no right of review or of appeal under S. 18 can be availed of by the state as of right30. If the State is not precluded from proving the invalidity of Annexure A, it is clear that the said order is unsustainable. S. 18 applies only to tenants, i.e., not anyone who claims to be, but legally is one. Here who has granted the lease? Mst. Lacchman? How could she after gifting away to her daughter? And no lease from daughter Shanti is set up although obscurely both mother and daughter are made respondents. Secondly, S. 18 qualifies for purchase only those tenants who had 6 years continuous occupation. Here, on the Collectors finding. Amar Singh and Indraj came by possession only in8 and, as he points out in Annexure B, the six year period is not complete at the time of application. The reason why even before the proceedings began parties presented a compromise and avoided an enquiry is not far to seek. In short, the State could and did make out the incompetence of the respondents to purchase under S. 18 and Annexure A being also stricken by the vice of SectionThis seeming attractiveness vanishes when we notice that Section 18(i)(ii) and (iii) provide for two classes of hard cases where unjust evictions prior to the Act coming into force had deprived them of their rights. For all practical purposes the Act clothes them with such rights as they would have enjoyed had they not suffered unjust evictions. That is why specific provision was made inSection18 for them. The exception proves the rule. The paramountcy of SectionA cannot be subverted by illegitimate use of the processes under Section 18May be, that as a broad proposition one may assent to it. But where a compromise goes against a public policy prescription of a statute or a mandatory direction to the Court to decide on its own certain foundational facts, a razi cannot operate to defeat the requirement so specified or absolve the court from the duty. The resultant order will be ineffective. After all, by consent or agreement, parties cannot achieve what is contrary to law and a decree merely based on such agreement, on such agreement on such agreement cannot furnish a judicial amulet against statutory violation. For, by private agreement, converted into a decree, parties cannot empower themselves to do that which they could not have done by private agreement alone. (See Mulla, C. P. C., Vol. II, p.1300). The true rule is thatthe contract of the parties is not the less a contract, and subject to the incidents of a contract, because there is superadded the command of the Judge.The learned author, Mulla, in his Commentary on Order XXIII, Rule 3 (Civil Procedure Code, Vol. II, pp.) cites many authorities for this proposition and observes :If a decree is passed under this rule on a compromise which is not lawful, the Court should not enforce the decree in execution proceedings. Thus, a sale of an office attached to a temple is against public policy. Hence, if in a suit against the holder of such an office a compromise is arrived at whereby the holder of the office consents to the office being sold in satisfaction of the debt due to the plaintiff, and a decree is passed on the compromise, the Court should notwithstanding the consent decree refuse to sell the office in execution. It is clear that if the matter had rested in contract only, the Court could not have enforced the sale in a suit brought for that purpose. The mere fact that the contract is embodied in a decree does not alter the incidents of the contract.It may be right to conclude that any authority, like the Collector here, enjoined to apply Section) and (c) may decline to act on a compromise which has ripened into an order if the agreement between the parties disposes of property in violation of a statutory mandate. He can and must fit the veil and look the agreement of the parties in the face. The vice of contravention of Section) is writ large in Annexure A37. In both these cases the decrees based solely on the razi, and without the Court applying their mind, were a nulllity. The order of the Assistant Collector, Annexure A bears resemblance to the situation in these two cases. On the other hand K. K. Charis case (1973) 1 SCC 761 = (AIR 1973 SC 1311 ) is a study in contrast. There was plethora of evidence to prove the ground of eviction and the Court directed eviction based on the terms of the compromise and after making a reference to the provisions for eviction. Vaidialingam, J., has explained this aspect elaborately | 1 | 24,994 | 4,737 | ### Instruction:
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it to the first three questions of law set out at the commencement of this judgment, are correct. I would, therefore, uphold the same. 119. Now I turn to question No. 4, which arises in Amar Singhs case only. 120. It is common ground that Field Nos. 265 and 343 on April 15, 1953, were comprised in the tenancy of Sri Chand and Nathu. The total area of these two fields is 67 bighas and 19 biswas equivalent to 42 ordinary acres, approximately. It is apparent from the record that the land in these two fields is entirely Barani and has no irrigation facilities, whatever. According to the scale adopted by the Collector, Surplus Area, for such land, these 42 ordinary acres will make 10.5 standard acres. The total area of Smt. Lachhman which has been found surplus is about 80 standard acres. The land comprised in these two fields is thus only one-eighth of her surplus area. 121. At no stage before the High Court, was it contended that Sri Chand and Nathu held or owned in the State any other land apart from the said fields. In this Court, also, either in the grounds of appeal or otherwise, no such allegation or contention has been made. The permissible area which can be held or retained by a tenant under the Act is 30 standard acres. That is to say, the permissible limit of the area which could be held in common by Sri Chand and Nathu, was 60 standard acres. Since it has been nobodys case that Sri Chand and Nathu held any other area, and the land comprised in these two fields being 10.5 standard acres, was far less than their permissible limit, the High Court presumed - and I think, not wrongly that Field Nos. 265 and 343 were held by the tenants Sri Chand and Nathu within their permissible area. 122. It is well settled that surplus area has to be determined, with reference to the situation as it obtained on April 15, 1953, when the Act came into force. This proposition is clear from Section 19-F, also, which says that the Prescribed Authority shall be competent to determine the surplus area, referred to in Section 10-A, of a landowner out of the lands owned by such land-owner immediately before the commencement of the Act. If there still remained any doubt on this point, the same must be deemed to have been authoritatively dispelled by the decision of this Court in Bhagwan Das v. State of Punjab (1966) 2 SCR 511 = (AIR 1966 SC 1869 ). A plain reading of the definition of surplus area in Section 2(5-a) which has been quoted in a foregoing part of this judgment, shows that land held by a tenant within his permissible area, cannot be included in the surplus area of the land-owner. Since on the determinative date i.e., 15-4-53, Field Nos. 265 and 343, measuring 10.5 standard acres only, were held by the tenants, Sri Chand and Nathu, within their permissible area, these fields could not, in view of the mandate of Section 2(5-a), be included in the surplus area of Smt. Lachhman. At the time, when the Surplus Area Collector took up determination of the surplus area (which as pointed out in Dhaunkals case 72 Pun LR 882 = (AIR 1970 Punj 431) (FB) (supra) implies incidental verification of the permissible areas of the landowner and the tenants, also) these fields were still comprised in a tenancy, though the holder of the tenancy was a different tenant. In these circumstances, the change of the tenants will not make these Fields accrete to the surplus area of the landowner. Such change of the tenant does not amount to a future acquisition of land comprised in that tenancy by the land-owner within the contemplation of Sections 19-A or 19-B of the Act such a situation came up for consideration before a Division Bench (consisting of Sharma and Khosla, JJ.) of the Punjab High Court in Harchand Singh v. Punjab State, (1964) 66 Pun LR 285 = 1963 Pun LJ 144, Sharma J., who spoke for the Bench, made these observations : There can be no doubt that in the instant case the surplus area was to be determined on the date the Act came into force i.e. 15th April 1953, and further that the area in the cultivating possession of a tenant if within the prescribed limit was also to be excluded from consideration. Section 10-A governs the disposition of land which was comprised in a surplus area of the commencement of the Act and not the land which was not surplus on that date or had become surplus after the coming into force of the Act. The latter case was evidently covered by Sections 19-A and 19-B of the Act..... the mere change in tenancies will not attract the provisions of these sections provided the area which the tenant comes to occupy thereby does not exceed the permissible area. By changing a tenancy a landlord also cannot be said to have acquired the land comprising the tenancy because the land (which) belonged to him before-hand continued to belong to him after the change in tenancy. The term acquire has not been defined in the Act and so we have to accept its dictionary meaning as, To make property ones own. To gain permanently, it is regularly applied to permanent acquisition (Bourviers Law Dictionary and Concise Encyclopedia, Eighth Edition, Vol. I, page 114). 123. These observations, in my opinion, contain a correct statement of law on the point. 124. For the foregoing reasons, I would hold that these two fields could not be included in the surplus area of the land-owner, Smt. Lachhman and Section 10-A was not attracted to a disposition of these fields either by an order made under Section 18 or otherwise. 125. In the result, I would dismiss both these appeals, leaving the parties to bear their own costs in this Court. ORDER
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A ordinarily binds the parties only and here the State which is the appellant is seriously prejudiced by that order but is not a party to it. Therefore, it cannot bind the State proprio vigore. It was argued by Shri Dhingra that the State could have moved by way of appeal or review and got the order set aside if there was ground and that not having done so it was bound by the order. As a matter of fact, the State, which is not a party to the proceedings, does not have a right of appeal. The ordinary rule is that only a party to a suit adversely affected by the decree or any of hist may file an appeal. Under such circumstances a person who is not a party may prefer an appeal with the leave of the appellate court if he would be prejudically affected by the judgment and if it would be binding on him as res judicata under Explanation 6 to Section 11. (see Mulla Civil Procedure Code 18th edn., vol. 1, p. 421). Section 82 ofthe Punjab Tenancy Act, 1887, which may perhaps be invoked by a party even under the Act, also speaks of applications by any party interested. Thus, no right of review or of appeal under S. 18 can be availed of by the state as of right30. If the State is not precluded from proving the invalidity of Annexure A, it is clear that the said order is unsustainable. S. 18 applies only to tenants, i.e., not anyone who claims to be, but legally is one. Here who has granted the lease? Mst. Lacchman? How could she after gifting away to her daughter? And no lease from daughter Shanti is set up although obscurely both mother and daughter are made respondents. Secondly, S. 18 qualifies for purchase only those tenants who had 6 years continuous occupation. Here, on the Collectors finding. Amar Singh and Indraj came by possession only in8 and, as he points out in Annexure B, the six year period is not complete at the time of application. The reason why even before the proceedings began parties presented a compromise and avoided an enquiry is not far to seek. In short, the State could and did make out the incompetence of the respondents to purchase under S. 18 and Annexure A being also stricken by the vice of SectionThis seeming attractiveness vanishes when we notice that Section 18(i)(ii) and (iii) provide for two classes of hard cases where unjust evictions prior to the Act coming into force had deprived them of their rights. For all practical purposes the Act clothes them with such rights as they would have enjoyed had they not suffered unjust evictions. That is why specific provision was made inSection18 for them. The exception proves the rule. The paramountcy of SectionA cannot be subverted by illegitimate use of the processes under Section 18May be, that as a broad proposition one may assent to it. But where a compromise goes against a public policy prescription of a statute or a mandatory direction to the Court to decide on its own certain foundational facts, a razi cannot operate to defeat the requirement so specified or absolve the court from the duty. The resultant order will be ineffective. After all, by consent or agreement, parties cannot achieve what is contrary to law and a decree merely based on such agreement, on such agreement on such agreement cannot furnish a judicial amulet against statutory violation. For, by private agreement, converted into a decree, parties cannot empower themselves to do that which they could not have done by private agreement alone. (See Mulla, C. P. C., Vol. II, p.1300). The true rule is thatthe contract of the parties is not the less a contract, and subject to the incidents of a contract, because there is superadded the command of the Judge.The learned author, Mulla, in his Commentary on Order XXIII, Rule 3 (Civil Procedure Code, Vol. II, pp.) cites many authorities for this proposition and observes :If a decree is passed under this rule on a compromise which is not lawful, the Court should not enforce the decree in execution proceedings. Thus, a sale of an office attached to a temple is against public policy. Hence, if in a suit against the holder of such an office a compromise is arrived at whereby the holder of the office consents to the office being sold in satisfaction of the debt due to the plaintiff, and a decree is passed on the compromise, the Court should notwithstanding the consent decree refuse to sell the office in execution. It is clear that if the matter had rested in contract only, the Court could not have enforced the sale in a suit brought for that purpose. The mere fact that the contract is embodied in a decree does not alter the incidents of the contract.It may be right to conclude that any authority, like the Collector here, enjoined to apply Section) and (c) may decline to act on a compromise which has ripened into an order if the agreement between the parties disposes of property in violation of a statutory mandate. He can and must fit the veil and look the agreement of the parties in the face. The vice of contravention of Section) is writ large in Annexure A37. In both these cases the decrees based solely on the razi, and without the Court applying their mind, were a nulllity. The order of the Assistant Collector, Annexure A bears resemblance to the situation in these two cases. On the other hand K. K. Charis case (1973) 1 SCC 761 = (AIR 1973 SC 1311 ) is a study in contrast. There was plethora of evidence to prove the ground of eviction and the Court directed eviction based on the terms of the compromise and after making a reference to the provisions for eviction. Vaidialingam, J., has explained this aspect elaborately
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RAJASTHAN SMALL INDUSTRIES CORPORTION LIMITED Vs. M/S GANESH CONTAINERS MOVERS SYNDICATE | replacing of the arbitrator by another according to the rules that were applicable to the appointment of the original arbitrator who was being replaced. The term “rules” in Section 15(2) obviously referred to the provision for appointment contained in the arbitration agreement or any rules of any institution under which the disputes were referred to arbitration. There was no failure on the part of the party concerned as per the arbitration agreement, to fulfil his obligation in terms of Section 11 of the Act so as to attract the jurisdiction of the Chief Justice under Section 11(6) of the Act for appointing a substitute arbitrator. Obviously, Section 11(6) of the Act has application only when a party or the person concerned had failed to act in terms of the arbitration agreement. When Section 15(2) says that a substitute arbitrator can be appointed according to the rules that were applicable for the appointment of the arbitrator originally, it is not confined to an appointment under any statutory rule or rule framed under the Act or under the scheme. It only means that the appointment of the substitute arbitrator must be done according to the original agreement or provision applicable to the appointment of the arbitrator at the initial stage…….”[underlining added]As held in Yashwith Constructions, Section 11(6) of the Act would come into play only when there was failure on the part of the party concerned to appoint an arbitrator in terms of the arbitration agreement. In the case in hand, the High Court, in our view, was not right in appointing an independent arbitrator without keeping in view the terms of the agreement between the parties and therefore, the impugned order appointing an independent arbitrator/retired District Judge is not sustainable.35. Remedy to the Respondent-Contractor:- The award passed by the arbitrator dated 21.01.2016, whether sustainable, is the next question falling for consideration. As discussed earlier, after 17.08.2011 the Arbitral Tribunal could not make progress and as per the proceeding of the Arbitral Tribunal dated 17.08.2011, the arbitrator observed that the “…..missing papers are incomplete…..the chronological events need to be ascertained and reconstitution will be required….” . As pointed out earlier, the respondent filed application under Sections 11 and 15 of the Act of 1996 before the High Court on 13.05.2015. As per the proceedings of the Arbitral Tribunal dated 18.12.2015, the arbitration application before the High Court was brought to the notice of the tribunal and the same was recorded. On 05.01.2016, the respondent prayed for keeping the arbitration proceedings in abeyance and the matter was adjourned for 13.01.2016. The Arbitral Tribunal passed a detailed order on 13.01.2016 stating that the matter is pending for quite some time and on the basis of the available facts and materials, the matter will be finalized and adjourned the matter for 21.01.2016. On the basis of available materials, the Arbitral Tribunal passed the final award on 21.01.2016 awarding a sum of Rs.1,38,000/-, Rs.83,000/- and Rs.1,97,110/- in respect of claims at Serial Nos.3, 4 and 9 respectively to the claimant and the respondent’s claim in respect of other claims was rejected. So far as the counter claim of the appellant-Corporation in respect of Serial No.17, the arbitrator awarded a sum of Rs.58,39,018/-.36. Since the High Court was in seisin of the matter, the Arbitral Tribunal could have given further opportunity to the respondent to put forth his case. The proceedings of the Arbitral Tribunal was pending for quite some time from 2009 till 2015 and after the respondent approached the High Court in May, 2015, the arbitrator appears to have hurriedly passed the award. It is pertinent to note that the respondent was repeatedly praying for adjournment on 05.01.2016, 13.01.2016 and was not present on the date of passing of the final award dated 21.01.2016. As pointed out earlier, it was noted in the proceedings dated 17.08.2011 that the chronological events need to be ascertained and reconstruction will be required. It is not known whether the same was ascertained or not and whether reconstruction was done before passing the final award on 21.01.2016. The respondent has made number of claims under various heads. The respondent has to be given an opportunity to substantiate its claim under various heads. In order to do complete justice between the parties and in exercise of power under Article 142 of the Constitution of India, the award dated 21.01.2016 is to be set aside.37. In exercise of power under Article 142 of the Constitution of India, it is open to the court to mould the relief by safeguarding the interest of parties. The paramount consideration in such cases should be to ensure that there is no injustice caused. In Raj Kumar and others v. Union of India and another (2006) 1 SCC 737 , this Court held as under:-“19. …….in exercise of our powers under Article 142 of the Constitution in order to do complete justice to a section of the personnel who would otherwise be placed in an inequitable situation for which the authorities are also partly to blame. It is open to this Court to mould the relief by safeguarding the interest of the parties even while declaring the law. The paramount consideration in such cases should be to ensure that there is no injustice caused…….”38. The phrase “complete justice” engrafted in Article 142(1) is the word of width couched with elasticity to meet myriad situations created by human ingenuity or cause or result of operation of Statute law or law declared under Articles 32, 136 and 141 of the Constitution. (Vide Ashok Kumar Gupta and another v. State of U.P. and others (1997) 5 SCC 201 ) In the case in hand, to relegate the respondent to challenge the award under Section 34 of the Act, it would further prolong the litigation between the parties. Considering the facts of the case and in order to do complete justice between the parties, in exercise of power under Article 142 of the Constitution, the award dated 21.01.2016 is set aside. | 1[ds]20. It is in this backdrop, the respondent has filed the arbitration petition before the High Court under Section 11 and Section 15 of the Arbitration and Conciliation Act, 1996 on 13.05.2015 seeking appointment of an independent arbitrator. As noted earlier, as per Clause 4.20.1 of Schedule-4 (General Conditions), the parties have agreed that all disputes and differences arising out of or in any way concerning the contract, shall be referred to the Managing Director himself or his nominees for the sole arbitration and that there will be no objection to any such appointment on the ground that the person so appointed is an employee of the Corporation and that he has dealt with the matter to which the contract relates. When the parties have consciously agreed that the disputes or differences shall be referred to the Managing Director himself or his nominee for sole arbitration and having participated in the arbitral proceedings before arbitrator for quite some time, the respondent cannot turn round and seek for appointment of an independent arbitrator.21. The respondent having participated in the proceedings before the arbitral tribunal for quite some time and also having expressed faith in the sole arbitrator, is not justified in challenging the appointment of the Managing Director of the appellant-Corporation as the sole arbitrator.The respondent has not placed any material to show that it has reason to believe that the arbitrator had not acted independently or impartially. The respondent has not brought on record any material to entertain an apprehension that the Managing Director of the appellant-Corporation is not likely to act independently or impartially. On the other hand, as noted earlier, as per the proceeding of the arbitral tribunal dated 21.10.2010, the respondent had expressed its full faith in the sole arbitrator and had also given a letter dated 21.10.2010 to that effect. The fact that the sole arbitrator is the Managing Director of the appellant-Corporation is not a ground to raise a presumption of bias or lack of independence on his part. The arbitration Clause 4.20.1 of Schedule-4 (General Conditions) stipulates a high official i.e. - Managing Director of the Corporation not connected with the contract or the work executed by the respondent. Having participated in the entire arbitration proceedings and acquiesced in the proceedings, the respondent is estopped from challenging the competence of the arbitrator. The respondent was not justified in filing the arbitration petition seeking appointment of an independentby virtue of Section 12 of the Amendment Act, the Managing Director has become ineligible toAfter the amendment to the Arbitration and Conciliation Act, 2015, Section 12(5) prohibits the employee of one of the parties from being an arbitrator. In the present case, the agreement between the parties was entered into on 28.01.2000 and the arbitration proceedings commenced way back in 2009 and thus, the respondent cannot invoke Section 12(5) of the Arbitration and Conciliation (Amendment) Act, 2015. As per Section 26 of the Act, the provisions of the amended Act 2015 shall not apply to the arbitral proceedings commenced in accordance with the provisions of Section 21 of the principal Act, before the commencement of this Act unless the parties otherwise agree.24. In Board of Control for Cricket in India v. Kochi Cricket Private Limited and others, (2018) 6 SCC 287 , this Court held that the provisions of Amendment Act, 2015 (with effect from 23.10.2015) cannot have retrospective operation in the arbitral proceedings already commenced unless the parties otherwise agree. In the present case, there is nothing to suggest that the parties have agreed that the provisions of the new Act shall apply in relation to the arbitral proceedings.25. Contending that the sole arbitrator/Chairman-cum-Managing Director, by virtue of 2015 amendment, has become ineligible to act as the arbitrator, the learned counsel for the respondent placed reliance upon TRF Limited v. Energo Engineering Projects Limited (2017) 8 SCC 377. In the said case, though the agreement/purchase order was dated 10.05.2014 (prior to the amendment), notice invoking arbitration was issued on 28.12.2015 (after the Amendment Act 2015) and the letter of the Managing Director nominating the arbitrator is dated 27.01.2016. In such factual matrix of the case, this Court has held that the named arbitrator-Managing Director of the respondent therein had become ineligible by operation of law and therefore, he cannot nominate another person as an arbitrator.The facts of the said case are entirely different from the case in hand. In the said case, when notice invoking arbitration was issued on 28.12.2015, after the Amendment Act, 2015 came into force with effect from 23.10.2015, by virtue of which the person named in the agreement became ineligible to act as the arbitrator. In the case in hand, the arbitration proceedings started way back in 2009 long before 2015 Amendment Act came into force and therefore, 2015 Amendment Act is not applicable to the case in hand. The statutory provisions that would govern the matter are those which were then in force before the Amendment Act.27. To fortify our view, we can usefully refer to the decision of this Court in Aravali Power Company Private Limited v. Era Infra Engineering Limited (2017) 15 SCC 32. In this case, the invocation of arbitration was on 29.07.2015 and the arbitrator was appointed on 19.08.2015 and the parties appeared before the arbitrator on 07.10.2015 well before 23.10.2015 i.e. date on which the Amendment Act was deemed to have come into force. It was held that the statutory provisions that would therefore govern the controversy are those that were in force before the Amendment Act came into effect. This Court has therefore directed that the arbitration, in pursuance of the appointment of the arbitrator on 19.08.2015, shall proceed in accordance withthe High Court was right in terminating the mandate of the arbitrator appointed as per theThe main question falling for consideration is whetherthe High Court was right in terminating the mandate of the arbitrator appointed as per theagreement and appointing a substitute arbitrator in the application filed under Section 11(6) and Section 15 of the Arbitration Act. As pointed out earlier, the proceedings before the Arbitral Tribunal proceeded till 17.08.2011 and thereafter, no progress was made. The respondent issued legal notice on 07.02.2013 calling upon the appellant to pay Rs.3.90,81,602/- alleging that the said amount was settled during the course of proceedings before the Arbitral Tribunal. Reiterating the demand, the respondent has again sent the legal notice on 07.03.2013. However, no award came to be passed. The respondent filed application under Sections 11 and 15 of the Act of 1996 on 13.05.2015 seeking appointment of an independent arbitrator for adjudication of the disputes and differences between the appellant and the respondent.29.In support of his contention, the learned counsel for the respondent relied upon the decision in Union of India and others v. Uttar Pradesh State Bridge Corporation Limited (2015) 2 SCC 52. Learned counsel for the respondent contended that the arbitrator failed to conclude the proceedings even after four years and the High Court rightly appointed the substitute arbitrator departing from the arbitration clause in the agreement between the parties.In the said case, since the Arbitral Tribunal did not pass award in spite of expiry of four years, the respondent thereon filed Request Case No.10/2010 and the High Court passed order dated 09.03.2011 giving the last chance to the Arbitral Tribunal to complete the arbitral proceedings within a period of three months. In para (6) of the judgment, this Court pointed out that the High Court took note of the various dates and hearings that are fixed by the Tribunal between 25.03.2011 and 25.06.2011 and came to the conclusion that the delay caused in the arbitral proceedings was intentional. After referring to Union of India v. Singh Builders Syndicate (2009) 4 SCC 523 and other judgments, this Court observed that the delays and frequent changes in the Arbitral Tribunal defeat the process of arbitration and therefore, the appointment of the arbitrator by the court of its own choice departing from the arbitration clause has become an acceptable proposition of law which can be termed as a legal principle which has come to be established by a series of judgments of this Court.Having regard to the factual matrix of the present case, in our considered view, the ratio of the said decision cannot be applied to the case in hand. Per contra, in the present case, the proceedings of the arbitral tribunal continued till 17.08.2011. From the proceeding of the arbitral tribunal dated 17.08.2011, it is seen that theobserved that the file regarding arbitration appears tampered/missing papers are incomplete and therefore, the chronological events need to be ascertained and reconstitution will beSection 15 deals with termination of the mandate and substitution of an arbitrator. Sub-section (1) of Section 15 states that in addition to the circumstances referred to in Sections 13 and 14 of the Act, the mandate of an arbitrator shall terminate where he withdraws from office for any reason or by pursuant to the agreement of the parties. In terms of sub-section (2), after termination ofmandate, the appointment of the substitute arbitrator shall be in accordance with the rules applicable to the appointment of an arbitrator who is beingheld in Yashwith Constructions, Section 11(6) of the Act would come into play only when there was failure on the part of the party concerned to appoint an arbitrator in terms of the arbitration agreement. In the case in hand, the High Court, in our view, was not right in appointing an independent arbitrator without keeping in view the terms of the agreement between the parties and therefore, the impugned order appointing an independent arbitrator/retired District Judge is not sustainable.Since the High Court was in seisin of the matter, the Arbitral Tribunal could have given further opportunity to the respondent to put forth his case. The proceedings of the Arbitral Tribunal was pending for quite some time from 2009 till 2015 and after the respondent approached the High Court in May, 2015, the arbitrator appears to have hurriedly passed the award. It is pertinent to note that the respondent was repeatedly praying for adjournment on 05.01.2016, 13.01.2016 and was not present on the date of passing of the final award dated 21.01.2016. As pointed out earlier, it was noted in the proceedings dated 17.08.2011 that the chronological events need to be ascertained and reconstruction will be required. It is not known whether the same was ascertained or not and whether reconstruction was done before passing the final award on 21.01.2016. The respondent has made number of claims under various heads. The respondent has to be given an opportunity to substantiate its claim under various heads. In order to do complete justice between the parties and in exercise of power under Article 142 of the Constitution of India, the award dated 21.01.2016 is to be set aside.37. In exercise of power under Article 142 of the Constitution of India, it is open to the court to mould the relief by safeguarding the interest of parties. The paramount consideration in such cases should be to ensure that there is no injustice caused.engrafted in Article 142(1) is the word of width couched with elasticity to meet myriad situations created by human ingenuity or cause or result of operation of Statute law or law declared under Articles 32, 136 and 141 of the Constitution. (Vide Ashok Kumar Gupta and another v. State of U.P. and others (1997) 5 SCC 201 ) In the case in hand, to relegate the respondent to challenge the award under Section 34 of the Act, it would further prolong the litigation between the parties. Considering the facts of the case and in order to do complete justice between the parties, in exercise of power under Article 142 of the Constitution, the award dated 21.01.2016 is set aside. | 1 | 7,612 | 2,145 | ### Instruction:
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replacing of the arbitrator by another according to the rules that were applicable to the appointment of the original arbitrator who was being replaced. The term “rules” in Section 15(2) obviously referred to the provision for appointment contained in the arbitration agreement or any rules of any institution under which the disputes were referred to arbitration. There was no failure on the part of the party concerned as per the arbitration agreement, to fulfil his obligation in terms of Section 11 of the Act so as to attract the jurisdiction of the Chief Justice under Section 11(6) of the Act for appointing a substitute arbitrator. Obviously, Section 11(6) of the Act has application only when a party or the person concerned had failed to act in terms of the arbitration agreement. When Section 15(2) says that a substitute arbitrator can be appointed according to the rules that were applicable for the appointment of the arbitrator originally, it is not confined to an appointment under any statutory rule or rule framed under the Act or under the scheme. It only means that the appointment of the substitute arbitrator must be done according to the original agreement or provision applicable to the appointment of the arbitrator at the initial stage…….”[underlining added]As held in Yashwith Constructions, Section 11(6) of the Act would come into play only when there was failure on the part of the party concerned to appoint an arbitrator in terms of the arbitration agreement. In the case in hand, the High Court, in our view, was not right in appointing an independent arbitrator without keeping in view the terms of the agreement between the parties and therefore, the impugned order appointing an independent arbitrator/retired District Judge is not sustainable.35. Remedy to the Respondent-Contractor:- The award passed by the arbitrator dated 21.01.2016, whether sustainable, is the next question falling for consideration. As discussed earlier, after 17.08.2011 the Arbitral Tribunal could not make progress and as per the proceeding of the Arbitral Tribunal dated 17.08.2011, the arbitrator observed that the “…..missing papers are incomplete…..the chronological events need to be ascertained and reconstitution will be required….” . As pointed out earlier, the respondent filed application under Sections 11 and 15 of the Act of 1996 before the High Court on 13.05.2015. As per the proceedings of the Arbitral Tribunal dated 18.12.2015, the arbitration application before the High Court was brought to the notice of the tribunal and the same was recorded. On 05.01.2016, the respondent prayed for keeping the arbitration proceedings in abeyance and the matter was adjourned for 13.01.2016. The Arbitral Tribunal passed a detailed order on 13.01.2016 stating that the matter is pending for quite some time and on the basis of the available facts and materials, the matter will be finalized and adjourned the matter for 21.01.2016. On the basis of available materials, the Arbitral Tribunal passed the final award on 21.01.2016 awarding a sum of Rs.1,38,000/-, Rs.83,000/- and Rs.1,97,110/- in respect of claims at Serial Nos.3, 4 and 9 respectively to the claimant and the respondent’s claim in respect of other claims was rejected. So far as the counter claim of the appellant-Corporation in respect of Serial No.17, the arbitrator awarded a sum of Rs.58,39,018/-.36. Since the High Court was in seisin of the matter, the Arbitral Tribunal could have given further opportunity to the respondent to put forth his case. The proceedings of the Arbitral Tribunal was pending for quite some time from 2009 till 2015 and after the respondent approached the High Court in May, 2015, the arbitrator appears to have hurriedly passed the award. It is pertinent to note that the respondent was repeatedly praying for adjournment on 05.01.2016, 13.01.2016 and was not present on the date of passing of the final award dated 21.01.2016. As pointed out earlier, it was noted in the proceedings dated 17.08.2011 that the chronological events need to be ascertained and reconstruction will be required. It is not known whether the same was ascertained or not and whether reconstruction was done before passing the final award on 21.01.2016. The respondent has made number of claims under various heads. The respondent has to be given an opportunity to substantiate its claim under various heads. In order to do complete justice between the parties and in exercise of power under Article 142 of the Constitution of India, the award dated 21.01.2016 is to be set aside.37. In exercise of power under Article 142 of the Constitution of India, it is open to the court to mould the relief by safeguarding the interest of parties. The paramount consideration in such cases should be to ensure that there is no injustice caused. In Raj Kumar and others v. Union of India and another (2006) 1 SCC 737 , this Court held as under:-“19. …….in exercise of our powers under Article 142 of the Constitution in order to do complete justice to a section of the personnel who would otherwise be placed in an inequitable situation for which the authorities are also partly to blame. It is open to this Court to mould the relief by safeguarding the interest of the parties even while declaring the law. The paramount consideration in such cases should be to ensure that there is no injustice caused…….”38. The phrase “complete justice” engrafted in Article 142(1) is the word of width couched with elasticity to meet myriad situations created by human ingenuity or cause or result of operation of Statute law or law declared under Articles 32, 136 and 141 of the Constitution. (Vide Ashok Kumar Gupta and another v. State of U.P. and others (1997) 5 SCC 201 ) In the case in hand, to relegate the respondent to challenge the award under Section 34 of the Act, it would further prolong the litigation between the parties. Considering the facts of the case and in order to do complete justice between the parties, in exercise of power under Article 142 of the Constitution, the award dated 21.01.2016 is set aside.
### Response:
1
### Explanation:
Court was right in terminating the mandate of the arbitrator appointed as per theagreement and appointing a substitute arbitrator in the application filed under Section 11(6) and Section 15 of the Arbitration Act. As pointed out earlier, the proceedings before the Arbitral Tribunal proceeded till 17.08.2011 and thereafter, no progress was made. The respondent issued legal notice on 07.02.2013 calling upon the appellant to pay Rs.3.90,81,602/- alleging that the said amount was settled during the course of proceedings before the Arbitral Tribunal. Reiterating the demand, the respondent has again sent the legal notice on 07.03.2013. However, no award came to be passed. The respondent filed application under Sections 11 and 15 of the Act of 1996 on 13.05.2015 seeking appointment of an independent arbitrator for adjudication of the disputes and differences between the appellant and the respondent.29.In support of his contention, the learned counsel for the respondent relied upon the decision in Union of India and others v. Uttar Pradesh State Bridge Corporation Limited (2015) 2 SCC 52. Learned counsel for the respondent contended that the arbitrator failed to conclude the proceedings even after four years and the High Court rightly appointed the substitute arbitrator departing from the arbitration clause in the agreement between the parties.In the said case, since the Arbitral Tribunal did not pass award in spite of expiry of four years, the respondent thereon filed Request Case No.10/2010 and the High Court passed order dated 09.03.2011 giving the last chance to the Arbitral Tribunal to complete the arbitral proceedings within a period of three months. In para (6) of the judgment, this Court pointed out that the High Court took note of the various dates and hearings that are fixed by the Tribunal between 25.03.2011 and 25.06.2011 and came to the conclusion that the delay caused in the arbitral proceedings was intentional. After referring to Union of India v. Singh Builders Syndicate (2009) 4 SCC 523 and other judgments, this Court observed that the delays and frequent changes in the Arbitral Tribunal defeat the process of arbitration and therefore, the appointment of the arbitrator by the court of its own choice departing from the arbitration clause has become an acceptable proposition of law which can be termed as a legal principle which has come to be established by a series of judgments of this Court.Having regard to the factual matrix of the present case, in our considered view, the ratio of the said decision cannot be applied to the case in hand. Per contra, in the present case, the proceedings of the arbitral tribunal continued till 17.08.2011. From the proceeding of the arbitral tribunal dated 17.08.2011, it is seen that theobserved that the file regarding arbitration appears tampered/missing papers are incomplete and therefore, the chronological events need to be ascertained and reconstitution will beSection 15 deals with termination of the mandate and substitution of an arbitrator. Sub-section (1) of Section 15 states that in addition to the circumstances referred to in Sections 13 and 14 of the Act, the mandate of an arbitrator shall terminate where he withdraws from office for any reason or by pursuant to the agreement of the parties. In terms of sub-section (2), after termination ofmandate, the appointment of the substitute arbitrator shall be in accordance with the rules applicable to the appointment of an arbitrator who is beingheld in Yashwith Constructions, Section 11(6) of the Act would come into play only when there was failure on the part of the party concerned to appoint an arbitrator in terms of the arbitration agreement. In the case in hand, the High Court, in our view, was not right in appointing an independent arbitrator without keeping in view the terms of the agreement between the parties and therefore, the impugned order appointing an independent arbitrator/retired District Judge is not sustainable.Since the High Court was in seisin of the matter, the Arbitral Tribunal could have given further opportunity to the respondent to put forth his case. The proceedings of the Arbitral Tribunal was pending for quite some time from 2009 till 2015 and after the respondent approached the High Court in May, 2015, the arbitrator appears to have hurriedly passed the award. It is pertinent to note that the respondent was repeatedly praying for adjournment on 05.01.2016, 13.01.2016 and was not present on the date of passing of the final award dated 21.01.2016. As pointed out earlier, it was noted in the proceedings dated 17.08.2011 that the chronological events need to be ascertained and reconstruction will be required. It is not known whether the same was ascertained or not and whether reconstruction was done before passing the final award on 21.01.2016. The respondent has made number of claims under various heads. The respondent has to be given an opportunity to substantiate its claim under various heads. In order to do complete justice between the parties and in exercise of power under Article 142 of the Constitution of India, the award dated 21.01.2016 is to be set aside.37. In exercise of power under Article 142 of the Constitution of India, it is open to the court to mould the relief by safeguarding the interest of parties. The paramount consideration in such cases should be to ensure that there is no injustice caused.engrafted in Article 142(1) is the word of width couched with elasticity to meet myriad situations created by human ingenuity or cause or result of operation of Statute law or law declared under Articles 32, 136 and 141 of the Constitution. (Vide Ashok Kumar Gupta and another v. State of U.P. and others (1997) 5 SCC 201 ) In the case in hand, to relegate the respondent to challenge the award under Section 34 of the Act, it would further prolong the litigation between the parties. Considering the facts of the case and in order to do complete justice between the parties, in exercise of power under Article 142 of the Constitution, the award dated 21.01.2016 is set aside.
|
Atma Ram Vs. State of Punjab & Others | our opinion, no good reasons have been adduced in support of the view that portions or shares in an estate are not within the sweep of the expression "or any rights therein".A recent decision of this Court in the case of Ram Narain Medhi v. State of Bombay, Petns. Nos. 13 and 38 to 41 of 1957 and 55 of 1958, D/- 18-11-1958 : (A I R 1959 SC 459) , dealt with the constitutionality of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1956, which contains similar provisions with a view to doing away with intermediaries and establishing direct relationship between the State and tillers of the soil. In that case also, the contention had been raised that the expression "estate" had reference to only alienated lands and not to unalienated lands, and this Court was invited to limit the meaning of the expression in the narrower sense. This Court repelled that contention in these words :-"If the definition of the expression estate in the context of the Code is thus clear and unambiguous as comprising both the types of lands, there is no reason why a narrower construction as suggested by the petitioners should be put upon the expression estate...............Even it there was any ambiguity in the expression, the wider significance should be adopted in the context of the objectives of the Act as stated above." These observations apply with full force to the contention raised on behalf of the petitioners in the present cases also. 13. Another branch of the same argument as to why the provisions of Art. 31A do not apply to the Act, is that the Act did not have the effect of either extinguishing or modifying any rights in any estate, assuming that the expression "estate" includes reference also to parts of an estate. In this connection, it is contended that the provisions of the Act impugned in these cases, did not amount to the extinguishment of the interests of the land-owners in estates or portions thereof, and that what the Act did was to transfer some of the rights of the land-owners to their tenants. In this connection, reliance was placed on the observations of this Court in the case of Raghubir Singh v. Court of Wards, Ajmer, 1953 S C R 1049 at pp. 1055, 1056 : (A I R 1953 S C 373 at p. 375), where Mahajan J. (as he then was), speaking for the Court, observed that the expressions "extinguishment" and "modification" used in Art. 31A of the Constitution, meant extinguishment or modification respectively of a proprietary right in an estate, and should not include, within their ambit, a mere suspension of the right of management of an estate for a time definite or indefinite. Those observations must be strictly limited to the facts of that case, and cannot possibly be extended to the provisions of Acts wholly dissimilar to those of the Ajmer Tenancy and Land Records Act, XLII of 1950, which was the subject-matter of the challenge in the case then before this Court. This Court held, on a construction of the provisions of that Act, that they only suspended the right of management but did not amount to any extinguishment or modification of any proprietary rights in an estate. The provisions of the Act then under consideration of this Court, have absolutely no resemblance to those of the Act now before us, and it is impossible to put a similar interpretation on those provisions. In the recent decision of this Court (not yet reported), (since reported in A I R 1959 S C 459), (supra), this Court had been invited to apply the observations of this Court referred to above, to the provisions of the Bombay Act. It was pointed out in that case that those observations of Mahajan, J. (as he then was), must be read as limited to an Act which only brings, about a suspension of the right of management of an estate, and could not be extended to the provisions of an Act which either extinguishes or modifies certain rights of a proprietor in an estate or a portion thereof. 14. In this connection, it was further argued that extinguishment of a right, does not mean substitution of another person in that right, but total annihilation of that right.In our opinion, it is not necessary to discuss this rather metaphysical argument, because, in our opinion, it is enough for the purpose of this case to hold that the provisions of the Act, amount to modification of the landowners rights in the lands comprised in his "estate" or "holding". The Act modifies the land-owners substantive rights, particularly, in three respects, as indicated above, namely, (1) it modifies his right of settling his lands on any terms and to any one he chooses; (2) it modifies, if it does not altogether extinguish, his right to cultivate the "surplus area" as understood under the Act; and (3) it modifies his right of transfer in so far as it obliges him to sell lands not at his own price but at a price fixed under the statute, and not to any one but to specified persons in accordance with the provisions of the Act, set out above. Thus, there cannot be the least doubt that the provisions of the Act, very substantially modify the land-owners rights to hold and dispose of his property in any estate or a portion thereof. It is, therefore, clear that the provisions of Art. 31A save the impugned Act from any attack based on the provisions of Arts. 14, 19 and 31 of the Constitution.That being so, it is not necessary to consider the specific provisions of the Act, which, it was contended, were unreasonable restrictions on the land-owners rights to enjoy his property, or whether he had been unduly discriminated against, or whether the compensation, if any, provided for under the Act, was illusory or, at any rate, inadequate. Those grounds of attack are not available to the petitioners. | 0[ds]But it has been suggested that the several interests indicated in sub-cl. (b), quoted above, have been used with reference to the area of an entire estate, but knowing as we do, that a raiyats or an under-raiyats holding generally is not coextensive with the area of an entire estate but only small portions thereof, it would, in our opinion, be unreasonable to hold that the makers of the Constitution were using the expression "estate" or "rights" in an estate, in such a restricted sense. Keeping in view the fact that Art. 31A was enacted by two successive amendments-one in 1951 (First Amendment), and the second in 1955 (Fourth Amendment)-with retrospective effect, in order to save legislation effecting agrarian reforms, we have every reason to hold that those expressions have been used in their widest amplitude, consistent with the purpose behind those amendments. A piece of validating enactment purposely introduced into the Constitution with a view to saving that kind of legislation from attacks on the ground of constitutional invalidity, based on Arts. 14, 19 and 31, should not be construed in a narrow sense. On the other hand, such a constitutional enactment should be given its fullest and widest effect, consistently with the purpose behind the enactment, provided, however, that such a construction does not involve any violence to the language actually usedIn our opinion, there is no substance in this contention, because they must be attributed full knowledge of the legal maxim that "the greater contains the less" - Omne majus continet in se minus . In this connection, our attention was invited to the decision of a Full Bench of the Punjab High Court in the case of State of Punjab v. Keshar Singh, 60 Pun L R 461: (AIR 1959 Punj 8), to the effect that a holding being a part of an estate, was not within the purview of Art. 31A of the Constitution. In this connection, it is necessary to state the conflict of views in that High Court itself. In the case of Bhagirath Ram Chand v. State of Punjab, A I R 1954 Punj 167 (FB), the validity of the very Act impugned before us, was challenged on grounds based upon Articles 14, 19 and 31 of the Constitution. The learned Judges constituting the Full Bench, unanimously held that the impugned Act did not infringe those provisions of the Constitution, and the restrictions on the right of land-holding, imposed by the Act, were reasonable, and that the classification did not exceed the permissible limit. But they also held that the Act was saved by Art. 31A of the Constitution, which applied equally to an entire estate or to a portion thereof. Besides giving other reasons, which may not bear close scrutiny, they made specific reference to the doctrine that the whole includes the part. Thus the Full Bench specifically held that Art. 31A of the Constitution applied equally to portions of estates also. This decision of the Full Bench was followed by a Division Bench of the same High Court, consisting of Bhandari C. J. and Dulat J., in the case of Hukam Singh v. State of Punjab, 57 Pun L R 359 : ((S) A I R 1955 Punj 220). That Bench was concerned with the provisions of another Act -Punjab Village Common Lands (Regula- tion) Act, 1954. In that case, the Division Bench, naturally, followed the decision of the Full Bench in so far as it had ruled that the whole includes the part, and that where an Act provides for rights in an estate, it provides for rights in a part of an estate also. The later Full Bench case referred to above, was decided by three Judges, including Bhandari C. J., who agreed with the judgment of the Court delivered by Grover J. Perhaps, the better course would have been to constitute a larger Bench, when it was found that a Full Bench of three Judges was inclined to take a view contrary to that of another Full Bench of equal strength.Such a course becomes necessary in view of the fact that otherwise the subordinate courts are placed under the embarrassment of preferring one view to another, both equally binding upon their.In our opinion, the view taken by the earlier Full Bench is the correct one. The learned Chief Justice who was a party to both the conflicting views on the same question has not indicated his own reasons for changing his view. The Full Bench has accepted the force of the legal maxim that the greater contains the less, referred to above but has not, it must be said with all respect, given any good reasons for departing from that well-established maxim. The judgment of the Full Bench on this part of the case is based entirely upon the definition of an estate, as contained in the Punjab Land Revenue Act, set out above. It has not stopped to consider the further question why a holding, which is a share or a portion of an estate, as defined in the Punjab Act, should not partake of the characteristics of an estate. Keeping in view the background of the legislative history and the objective of the legislation, is there any rational reason for holding that the makers of the Constitution thought of abolishing only intermediaries in respect of an area constituting one entire estate but not of a portion thereof ?On the other hand, as indicated above, they have used the expression estate in an all-inclusive sense. They have not stopped at that; they have also added the words "or any rights therein". The expression "rights" in relation to an estate again has been used in a very comprehensive sense of including not only the interests of proprietors or sub-proprietors but also of lower grade tenants, like raiyats or under-raiyats, and then they added, by way of further emphasizing their intention the expression other "intermediary", thus, clearly showing that the enumeration of intermediaries was only illustrative and not exhaustive. If the makers of the Constitution have, thus, shown their intention of saving all laws of agrarian reform, dealing with the rights of intermediaries, whatever their denomination may be, in our opinion, no good reasons have been adduced in support of the view that portions or shares in an estate are not within the sweep of the expression "or any rights therein".A recent decision of this Court in the case of Ram Narain Medhi v. State of Bombay, Petns. Nos. 13 and 38 to 41 of 1957 and 55 of 1958, D/- 18-11-1958 : (A I R 1959 SC 459) , dealt with the constitutionality of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1956, which contains similar provisions with a view to doing away with intermediaries and establishing direct relationship between the State and tillers of the soil. In that case also, the contention had been raised that the expression "estate" had reference to only alienated lands and not to unalienated lands, and this Court was invited to limit the meaning of the expression in the narrower sense14. In this connection, it was further argued that extinguishment of a right, does not mean substitution of another person in that right, but total annihilation of that right.In our opinion, it is not necessary to discuss this rather metaphysical argument, because, in our opinion, it is enough for the purpose of this case to hold that the provisions of the Act, amount to modification of the landowners rights in the lands comprised in his "estate" or "holding". The Act modifies the land-owners substantive rights, particularly, in three respects, as indicated above, namely, (1) it modifies his right of settling his lands on any terms and to any one he chooses; (2) it modifies, if it does not altogether extinguish, his right to cultivate the "surplus area" as understood under the Act; and (3) it modifies his right of transfer in so far as it obliges him to sell lands not at his own price but at a price fixed under the statute, and not to any one but to specified persons in accordance with the provisions of the Act, set out above. Thus, there cannot be the least doubt that the provisions of the Act, very substantially modify the land-owners rights to hold and dispose of his property in any estate or a portion thereof. It is, therefore, clear that the provisions of Art. 31A save the impugned Act from any attack based on the provisions of Arts. 14, 19 and 31 of the Constitution.That being so, it is not necessary to consider the specific provisions of the Act, which, it was contended, were unreasonable restrictions on the land-owners rights to enjoy his property, or whether he had been unduly discriminated against, or whether the compensation, if any, provided for under the Act, was illusory or, at any rate, inadequate. Those grounds of attack are not available to the petitioners. In the result, all these petitions are dismissed with costs, the State of Punjab and its officers being entitled to only one set of hearing fees in all the petitions. | 0 | 8,007 | 1,738 | ### 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:
our opinion, no good reasons have been adduced in support of the view that portions or shares in an estate are not within the sweep of the expression "or any rights therein".A recent decision of this Court in the case of Ram Narain Medhi v. State of Bombay, Petns. Nos. 13 and 38 to 41 of 1957 and 55 of 1958, D/- 18-11-1958 : (A I R 1959 SC 459) , dealt with the constitutionality of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1956, which contains similar provisions with a view to doing away with intermediaries and establishing direct relationship between the State and tillers of the soil. In that case also, the contention had been raised that the expression "estate" had reference to only alienated lands and not to unalienated lands, and this Court was invited to limit the meaning of the expression in the narrower sense. This Court repelled that contention in these words :-"If the definition of the expression estate in the context of the Code is thus clear and unambiguous as comprising both the types of lands, there is no reason why a narrower construction as suggested by the petitioners should be put upon the expression estate...............Even it there was any ambiguity in the expression, the wider significance should be adopted in the context of the objectives of the Act as stated above." These observations apply with full force to the contention raised on behalf of the petitioners in the present cases also. 13. Another branch of the same argument as to why the provisions of Art. 31A do not apply to the Act, is that the Act did not have the effect of either extinguishing or modifying any rights in any estate, assuming that the expression "estate" includes reference also to parts of an estate. In this connection, it is contended that the provisions of the Act impugned in these cases, did not amount to the extinguishment of the interests of the land-owners in estates or portions thereof, and that what the Act did was to transfer some of the rights of the land-owners to their tenants. In this connection, reliance was placed on the observations of this Court in the case of Raghubir Singh v. Court of Wards, Ajmer, 1953 S C R 1049 at pp. 1055, 1056 : (A I R 1953 S C 373 at p. 375), where Mahajan J. (as he then was), speaking for the Court, observed that the expressions "extinguishment" and "modification" used in Art. 31A of the Constitution, meant extinguishment or modification respectively of a proprietary right in an estate, and should not include, within their ambit, a mere suspension of the right of management of an estate for a time definite or indefinite. Those observations must be strictly limited to the facts of that case, and cannot possibly be extended to the provisions of Acts wholly dissimilar to those of the Ajmer Tenancy and Land Records Act, XLII of 1950, which was the subject-matter of the challenge in the case then before this Court. This Court held, on a construction of the provisions of that Act, that they only suspended the right of management but did not amount to any extinguishment or modification of any proprietary rights in an estate. The provisions of the Act then under consideration of this Court, have absolutely no resemblance to those of the Act now before us, and it is impossible to put a similar interpretation on those provisions. In the recent decision of this Court (not yet reported), (since reported in A I R 1959 S C 459), (supra), this Court had been invited to apply the observations of this Court referred to above, to the provisions of the Bombay Act. It was pointed out in that case that those observations of Mahajan, J. (as he then was), must be read as limited to an Act which only brings, about a suspension of the right of management of an estate, and could not be extended to the provisions of an Act which either extinguishes or modifies certain rights of a proprietor in an estate or a portion thereof. 14. In this connection, it was further argued that extinguishment of a right, does not mean substitution of another person in that right, but total annihilation of that right.In our opinion, it is not necessary to discuss this rather metaphysical argument, because, in our opinion, it is enough for the purpose of this case to hold that the provisions of the Act, amount to modification of the landowners rights in the lands comprised in his "estate" or "holding". The Act modifies the land-owners substantive rights, particularly, in three respects, as indicated above, namely, (1) it modifies his right of settling his lands on any terms and to any one he chooses; (2) it modifies, if it does not altogether extinguish, his right to cultivate the "surplus area" as understood under the Act; and (3) it modifies his right of transfer in so far as it obliges him to sell lands not at his own price but at a price fixed under the statute, and not to any one but to specified persons in accordance with the provisions of the Act, set out above. Thus, there cannot be the least doubt that the provisions of the Act, very substantially modify the land-owners rights to hold and dispose of his property in any estate or a portion thereof. It is, therefore, clear that the provisions of Art. 31A save the impugned Act from any attack based on the provisions of Arts. 14, 19 and 31 of the Constitution.That being so, it is not necessary to consider the specific provisions of the Act, which, it was contended, were unreasonable restrictions on the land-owners rights to enjoy his property, or whether he had been unduly discriminated against, or whether the compensation, if any, provided for under the Act, was illusory or, at any rate, inadequate. Those grounds of attack are not available to the petitioners.
### Response:
0
### Explanation:
Singh v. State of Punjab, 57 Pun L R 359 : ((S) A I R 1955 Punj 220). That Bench was concerned with the provisions of another Act -Punjab Village Common Lands (Regula- tion) Act, 1954. In that case, the Division Bench, naturally, followed the decision of the Full Bench in so far as it had ruled that the whole includes the part, and that where an Act provides for rights in an estate, it provides for rights in a part of an estate also. The later Full Bench case referred to above, was decided by three Judges, including Bhandari C. J., who agreed with the judgment of the Court delivered by Grover J. Perhaps, the better course would have been to constitute a larger Bench, when it was found that a Full Bench of three Judges was inclined to take a view contrary to that of another Full Bench of equal strength.Such a course becomes necessary in view of the fact that otherwise the subordinate courts are placed under the embarrassment of preferring one view to another, both equally binding upon their.In our opinion, the view taken by the earlier Full Bench is the correct one. The learned Chief Justice who was a party to both the conflicting views on the same question has not indicated his own reasons for changing his view. The Full Bench has accepted the force of the legal maxim that the greater contains the less, referred to above but has not, it must be said with all respect, given any good reasons for departing from that well-established maxim. The judgment of the Full Bench on this part of the case is based entirely upon the definition of an estate, as contained in the Punjab Land Revenue Act, set out above. It has not stopped to consider the further question why a holding, which is a share or a portion of an estate, as defined in the Punjab Act, should not partake of the characteristics of an estate. Keeping in view the background of the legislative history and the objective of the legislation, is there any rational reason for holding that the makers of the Constitution thought of abolishing only intermediaries in respect of an area constituting one entire estate but not of a portion thereof ?On the other hand, as indicated above, they have used the expression estate in an all-inclusive sense. They have not stopped at that; they have also added the words "or any rights therein". The expression "rights" in relation to an estate again has been used in a very comprehensive sense of including not only the interests of proprietors or sub-proprietors but also of lower grade tenants, like raiyats or under-raiyats, and then they added, by way of further emphasizing their intention the expression other "intermediary", thus, clearly showing that the enumeration of intermediaries was only illustrative and not exhaustive. If the makers of the Constitution have, thus, shown their intention of saving all laws of agrarian reform, dealing with the rights of intermediaries, whatever their denomination may be, in our opinion, no good reasons have been adduced in support of the view that portions or shares in an estate are not within the sweep of the expression "or any rights therein".A recent decision of this Court in the case of Ram Narain Medhi v. State of Bombay, Petns. Nos. 13 and 38 to 41 of 1957 and 55 of 1958, D/- 18-11-1958 : (A I R 1959 SC 459) , dealt with the constitutionality of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1956, which contains similar provisions with a view to doing away with intermediaries and establishing direct relationship between the State and tillers of the soil. In that case also, the contention had been raised that the expression "estate" had reference to only alienated lands and not to unalienated lands, and this Court was invited to limit the meaning of the expression in the narrower sense14. In this connection, it was further argued that extinguishment of a right, does not mean substitution of another person in that right, but total annihilation of that right.In our opinion, it is not necessary to discuss this rather metaphysical argument, because, in our opinion, it is enough for the purpose of this case to hold that the provisions of the Act, amount to modification of the landowners rights in the lands comprised in his "estate" or "holding". The Act modifies the land-owners substantive rights, particularly, in three respects, as indicated above, namely, (1) it modifies his right of settling his lands on any terms and to any one he chooses; (2) it modifies, if it does not altogether extinguish, his right to cultivate the "surplus area" as understood under the Act; and (3) it modifies his right of transfer in so far as it obliges him to sell lands not at his own price but at a price fixed under the statute, and not to any one but to specified persons in accordance with the provisions of the Act, set out above. Thus, there cannot be the least doubt that the provisions of the Act, very substantially modify the land-owners rights to hold and dispose of his property in any estate or a portion thereof. It is, therefore, clear that the provisions of Art. 31A save the impugned Act from any attack based on the provisions of Arts. 14, 19 and 31 of the Constitution.That being so, it is not necessary to consider the specific provisions of the Act, which, it was contended, were unreasonable restrictions on the land-owners rights to enjoy his property, or whether he had been unduly discriminated against, or whether the compensation, if any, provided for under the Act, was illusory or, at any rate, inadequate. Those grounds of attack are not available to the petitioners. In the result, all these petitions are dismissed with costs, the State of Punjab and its officers being entitled to only one set of hearing fees in all the petitions.
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Steel Authority of India Limited Vs. Gouri Dev | M.R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 05.02.2021 passed by the Division Bench of the High Court of Orissa at Cuttack in Writ Petition No.7791 of 2020 by which the Division Bench of the High Court has dismissed the said writ petition preferred by the appellant herein and has confirmed the judgment and order passed by the learned Central Administrative Tribunal passed in T.A. No.14 of 2014 wherein the learned Tribunal directed the appellant to consider the case of the respondent – original applicants second son for appointment on compassionate ground, the Steel Authority of India Limited has preferred the present appeal. 2. Though served nobody appeared on behalf of the respondent. 3. The issue involved in the present appeal is in a very narrow compass. 4. The deceased employee died in the year 1977. The eldest son approached the authority for compassionate appointment. His case was considered as per the scheme applicable at the time of death of the deceased employee, i.e., circular dated 01.09.1975 and his application for appointment on compassionate ground was rejected. 4.1 After a period of more than 18 years of the death of her husband, the widow of the deceased employee filed a Writ Petition being OJC No.783 of 1996 before the High Court with prayer to appoint her second son on compassionate ground. 4.2 At this stage, it is required to be noted that in the writ petition, the order dated 17.10.1977 rejecting the application for appointment of the eldest son on compassionate ground, was not under challenge. By the order of the High Court, the writ petition was transferred to the Central Administrative Tribunal, Cuttack, which was registered as T.A. No.14 of 2014. By the judgment and order dated 28.11.2019, the learned Tribunal disposed of T.A. No.14 of 2014 and directed the appellant to re-consider the case of Ramesh Chandra Khuntia, second son of the deceased in accordance with the scheme of compassionate employment. The writ petition filed by the appellant before the High Court being Writ Petition No. 7791 of 2020 has been dismissed by the Division Bench of the High Court by the impugned judgment and order. 4.3 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, the Steel Authority of India Limited has preferred the present appeal. 5. Having heard the learned counsel appearing on behalf of the appellant and from the facts narrated hereinabove, it emerges that the deceased employee died in the year 1977 and the second application for appointment on compassionate ground by the widow to appoint her second son was filed in the year 1996, i.e., after a period of 18 years of the date of the death of the deceased employee. 5.1 At this stage it is required to be noted that in the year 1977, the eldest son made an application for appointment on compassionate ground, which was rejected in the year 1977 and the same has attained finality. Despite the above fact, second time the application was filed in the year 1996 now to appoint the second son, which was after a period of 18 years. Despite the fact that there was a delay of 18 years in making the second application, unfortunately, the learned Tribunal still directed the appellant to re-consider the case and to appoint the second son on compassionate ground, which has been confirmed by the High Court by the impugned judgment and order. Apart from the fact that in the impugned judgment and order the Division Bench has not at all given any specific independent findings, it can be seen that except narrating the submissions on behalf of the respective parties, there is no further discussion at all on merits and there is no discussion at all on delay and laches. Be that it may, even otherwise, on merits also, the respondent shall not be entitled to appointment on compassionate ground on the ground of delay and laches. 5.2 As held by this Court in the case of Punjab State Power Corporation Limited and Ors. Vs. Nirval Singh, (2019) 6 SCC 774 delay in pursuing claim/approaching court would militate against claim for compassionate appointment as very objective of providing immediate amelioration to family would stand extinguished. Before this Court, there was a delay of 07 years in approaching the Court and this Court observed and held that on the ground of delay itself, the heir/dependent of the deceased employee shall not be entitled to the appointment on compassionate ground. 5.3 In the case of State of J&K and Ors. Vs. Sajad Ahmed Mir (2006) 5 SCC 766, this Court had occasion to consider the delay and laches in case of appointment on compassionate ground. By dismissing the claim for appointment on compassionate ground, which was made after a period of four and a half years of death of the deceased employee, it was held that appointment on compassionate ground is an exception to general rule that appointment to public office should be made on the basis of competitive merits. It is further observed that once it is proved that in spite of the death of the breadwinner, the family survived and substantial period is over, there is no need to make appointment on compassionate ground at the cost of the interests of several others ignoring the mandate of Article 14 of the Constitution. | 1[ds]5. Having heard the learned counsel appearing on behalf of the appellant and from the facts narrated hereinabove, it emerges that the deceased employee died in the year 1977 and the second application for appointment on compassionate ground by the widow to appoint her second son was filed in the year 1996, i.e., after a period of 18 years of the date of the death of the deceased employee.5.1 At this stage it is required to be noted that in the year 1977, the eldest son made an application for appointment on compassionate ground, which was rejected in the year 1977 and the same has attained finality. Despite the above fact, second time the application was filed in the year 1996 now to appoint the second son, which was after a period of 18 years. Despite the fact that there was a delay of 18 years in making the second application, unfortunately, the learned Tribunal still directed the appellant to re-consider the case and to appoint the second son on compassionate ground, which has been confirmed by the High Court by the impugned judgment and order. Apart from the fact that in the impugned judgment and order the Division Bench has not at all given any specific independent findings, it can be seen that except narrating the submissions on behalf of the respective parties, there is no further discussion at all on merits and there is no discussion at all on delay and laches. Be that it may, even otherwise, on merits also, the respondent shall not be entitled to appointment on compassionate ground on the ground of delay and laches.5.2 As held by this Court in the case of Punjab State Power Corporation Limited and Ors. Vs. Nirval Singh, (2019) 6 SCC 774 delay in pursuing claim/approaching court would militate against claim for compassionate appointment as very objective of providing immediate amelioration to family would stand extinguished. Before this Court, there was a delay of 07 years in approaching the Court and this Court observed and held that on the ground of delay itself, the heir/dependent of the deceased employee shall not be entitled to the appointment on compassionate ground.5.3 In the case of State of J&K and Ors. Vs. Sajad Ahmed Mir (2006) 5 SCC 766, this Court had occasion to consider the delay and laches in case of appointment on compassionate ground. By dismissing the claim for appointment on compassionate ground, which was made after a period of four and a half years of death of the deceased employee, it was held that appointment on compassionate ground is an exception to general rule that appointment to public office should be made on the basis of competitive merits. It is further observed that once it is proved that in spite of the death of the breadwinner, the family survived and substantial period is over, there is no need to make appointment on compassionate ground at the cost of the interests of several others ignoring the mandate of Article 14 of the Constitution. | 1 | 978 | 548 | ### Instruction:
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M.R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 05.02.2021 passed by the Division Bench of the High Court of Orissa at Cuttack in Writ Petition No.7791 of 2020 by which the Division Bench of the High Court has dismissed the said writ petition preferred by the appellant herein and has confirmed the judgment and order passed by the learned Central Administrative Tribunal passed in T.A. No.14 of 2014 wherein the learned Tribunal directed the appellant to consider the case of the respondent – original applicants second son for appointment on compassionate ground, the Steel Authority of India Limited has preferred the present appeal. 2. Though served nobody appeared on behalf of the respondent. 3. The issue involved in the present appeal is in a very narrow compass. 4. The deceased employee died in the year 1977. The eldest son approached the authority for compassionate appointment. His case was considered as per the scheme applicable at the time of death of the deceased employee, i.e., circular dated 01.09.1975 and his application for appointment on compassionate ground was rejected. 4.1 After a period of more than 18 years of the death of her husband, the widow of the deceased employee filed a Writ Petition being OJC No.783 of 1996 before the High Court with prayer to appoint her second son on compassionate ground. 4.2 At this stage, it is required to be noted that in the writ petition, the order dated 17.10.1977 rejecting the application for appointment of the eldest son on compassionate ground, was not under challenge. By the order of the High Court, the writ petition was transferred to the Central Administrative Tribunal, Cuttack, which was registered as T.A. No.14 of 2014. By the judgment and order dated 28.11.2019, the learned Tribunal disposed of T.A. No.14 of 2014 and directed the appellant to re-consider the case of Ramesh Chandra Khuntia, second son of the deceased in accordance with the scheme of compassionate employment. The writ petition filed by the appellant before the High Court being Writ Petition No. 7791 of 2020 has been dismissed by the Division Bench of the High Court by the impugned judgment and order. 4.3 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, the Steel Authority of India Limited has preferred the present appeal. 5. Having heard the learned counsel appearing on behalf of the appellant and from the facts narrated hereinabove, it emerges that the deceased employee died in the year 1977 and the second application for appointment on compassionate ground by the widow to appoint her second son was filed in the year 1996, i.e., after a period of 18 years of the date of the death of the deceased employee. 5.1 At this stage it is required to be noted that in the year 1977, the eldest son made an application for appointment on compassionate ground, which was rejected in the year 1977 and the same has attained finality. Despite the above fact, second time the application was filed in the year 1996 now to appoint the second son, which was after a period of 18 years. Despite the fact that there was a delay of 18 years in making the second application, unfortunately, the learned Tribunal still directed the appellant to re-consider the case and to appoint the second son on compassionate ground, which has been confirmed by the High Court by the impugned judgment and order. Apart from the fact that in the impugned judgment and order the Division Bench has not at all given any specific independent findings, it can be seen that except narrating the submissions on behalf of the respective parties, there is no further discussion at all on merits and there is no discussion at all on delay and laches. Be that it may, even otherwise, on merits also, the respondent shall not be entitled to appointment on compassionate ground on the ground of delay and laches. 5.2 As held by this Court in the case of Punjab State Power Corporation Limited and Ors. Vs. Nirval Singh, (2019) 6 SCC 774 delay in pursuing claim/approaching court would militate against claim for compassionate appointment as very objective of providing immediate amelioration to family would stand extinguished. Before this Court, there was a delay of 07 years in approaching the Court and this Court observed and held that on the ground of delay itself, the heir/dependent of the deceased employee shall not be entitled to the appointment on compassionate ground. 5.3 In the case of State of J&K and Ors. Vs. Sajad Ahmed Mir (2006) 5 SCC 766, this Court had occasion to consider the delay and laches in case of appointment on compassionate ground. By dismissing the claim for appointment on compassionate ground, which was made after a period of four and a half years of death of the deceased employee, it was held that appointment on compassionate ground is an exception to general rule that appointment to public office should be made on the basis of competitive merits. It is further observed that once it is proved that in spite of the death of the breadwinner, the family survived and substantial period is over, there is no need to make appointment on compassionate ground at the cost of the interests of several others ignoring the mandate of Article 14 of the Constitution.
### Response:
1
### Explanation:
5. Having heard the learned counsel appearing on behalf of the appellant and from the facts narrated hereinabove, it emerges that the deceased employee died in the year 1977 and the second application for appointment on compassionate ground by the widow to appoint her second son was filed in the year 1996, i.e., after a period of 18 years of the date of the death of the deceased employee.5.1 At this stage it is required to be noted that in the year 1977, the eldest son made an application for appointment on compassionate ground, which was rejected in the year 1977 and the same has attained finality. Despite the above fact, second time the application was filed in the year 1996 now to appoint the second son, which was after a period of 18 years. Despite the fact that there was a delay of 18 years in making the second application, unfortunately, the learned Tribunal still directed the appellant to re-consider the case and to appoint the second son on compassionate ground, which has been confirmed by the High Court by the impugned judgment and order. Apart from the fact that in the impugned judgment and order the Division Bench has not at all given any specific independent findings, it can be seen that except narrating the submissions on behalf of the respective parties, there is no further discussion at all on merits and there is no discussion at all on delay and laches. Be that it may, even otherwise, on merits also, the respondent shall not be entitled to appointment on compassionate ground on the ground of delay and laches.5.2 As held by this Court in the case of Punjab State Power Corporation Limited and Ors. Vs. Nirval Singh, (2019) 6 SCC 774 delay in pursuing claim/approaching court would militate against claim for compassionate appointment as very objective of providing immediate amelioration to family would stand extinguished. Before this Court, there was a delay of 07 years in approaching the Court and this Court observed and held that on the ground of delay itself, the heir/dependent of the deceased employee shall not be entitled to the appointment on compassionate ground.5.3 In the case of State of J&K and Ors. Vs. Sajad Ahmed Mir (2006) 5 SCC 766, this Court had occasion to consider the delay and laches in case of appointment on compassionate ground. By dismissing the claim for appointment on compassionate ground, which was made after a period of four and a half years of death of the deceased employee, it was held that appointment on compassionate ground is an exception to general rule that appointment to public office should be made on the basis of competitive merits. It is further observed that once it is proved that in spite of the death of the breadwinner, the family survived and substantial period is over, there is no need to make appointment on compassionate ground at the cost of the interests of several others ignoring the mandate of Article 14 of the Constitution.
|
Badrilal Vs. Municipal Corporation Of Indore | offer and it was rejected by the only authority competent to accept it i.e. the Corporation on 31-5-1960.The correspondence carried on by the Commissioner with the appellant was wholly beyond his powers. 7. The offer made by the appellant in 1959 cannot have anything to do with the resolution passed by the Municipal Council in 1949. The offer was of a different set of terms and included an offer to pay the costs of the suit and that also had in fact been deposited by the appellant at the instance of the Commissioner.That indicates the new situation that had come into existence and establishes beyond doubt that this was a fresh offer. We therefore hold that no contract came into existence between the parties on 22-9-1959. 8. It was then urged by Mr. Gupte that the appellant having deposited the rent up to 31-3-1954 and the Municipal Commissioner having accepted it he should be deemed to be a tenant holding over. Leaving aside for the moment the contention put forward on behalf of the Corporation that this payment was made behind its back, it has to be noted that the payment was at the rate prevailing before 30-9-1949 and on that date the Corporation having passed a resolution specifying a new rate of rent of Rupees 9/- per Chasma the payment at the old rate by the appellant and its acceptance by the Municipal Commissioner was not an acceptance of rent as such and in clear recognition of the tenancy right of the appellant. It cannot amount to the Corporation consenting to the appellant continuing as a tenant by paying the old rates of rent. There is thus no question of the appellant being a tenant holding over. But a person who was lawfully in occupation does not become a trespasser, even if he does not become a tenant holding over but is a tenant by sufferance. The position at law was explained in Kai Khushroo Bazonjee Capadia v. Bai Jerbai Hirjibhoy Warden, 1949 FCR 262 at p. 270 = (AIR 1949 FC 124) as follows : On the determination of a lease, it is the duty of the lessee to deliver up possession of the dismissed premises to the lessor. If the lessee or a sub-lessee under him continues in possession even after the determination of the lease, the landlord undoubtedly has the right to eject him forthwith; but if he does not and there is neither assent nor dissent on his part to the continuance of occupation of such person, the latter becomes in the language of English law a tenant on sufference who has no lawful title to the land but holds it merely through the laches of the landlord. If now the landlord accepts rent from such person or otherwise expresses assent to the continuance of his possession, a new tenancy comes into existence as is contemplated by Section 116, Transfer of Property Act, and unless there is an agreement to the contrary, such tenancy would be regarded as one from year to year or from month to month in accordance with the provisions of Section 116 of the Act. At page 272 it was pointed out : It can scarcely be disputed that the assent of the landlord which is founded on acceptance of rent must be acceptance of rent as such and in clear recognition of the tenancy right asserted by the person who pays it. The same position was explained in a recent decision of this Court to which one of us was a party in Bhagwanji Lakhamshi v. Himatlal Jamnadas Dani, (1972) 1 SCC 388 = (AIR 1972 SC 819 ). At p. 391 it was observed : The act of holding over after the expiration of the term does not create a tenancy of any kind. If a tenant remains in possession after the determination of the lease, the common law rule is that he is a tenant on sufferance. A distinction should be drawn between a tenant continuing in possession after the determination of the term with the consent of the landlord and a tenant doing so without his consent. The former (sic) (latter?) is a tenant at sufferance in English law and the latter (sic) (former?) a tenant holding over or a tenant at will. In view of the concluding words of Section 116 of the Transfer of Property Act, a lessee holding over is in a better position than a tenant at will. The assent of the landlord to the continuance of possession after the determination of the tenancy will create a new tenancy. What the section contemplates is that on one side there should be an offer of taking a new lease evidenced by the lessee or sub-lessee remaining in possession of the property after his term was over and on the other side there must be a definite consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise. In (AIR 1949 FC 124) the Federal Court had occasion to consider the question of the nature of the tenancy created under Section 116 of the Transfer of Property Act and Mukherjea, J., speaking for the majority said that the tenancy which is created by the holding over of a lessee or under-lessee is a new tenancy in law even though many of the terms of the old lease might continue in it, by implication and that to bring a new tenancy into existence, there must be a bilateral act. It was further held that the assent of the landlord which is founded on acceptance of rent must be acceptance of rent as such and in clear recognition of the tenancy right asserted by the person who pays it. 9. The appellant being merely a tenant by sufference there is no need for any notice before he could be evicted. Thus the judgment of the High Court is correct, in so far as it held the appellant was liable to be evicted. | 0[ds]The same position was explained in a recent decision of this Court to which one of us was a party in Bhagwanji Lakhamshi v. Himatlal Jamnadas Dani, (1972) 1 SCC 388 = (AIR 1972 SC 819 ). At p. 391 it was observed :The act of holding over after the expiration of the term does not create a tenancy of any kind. If a tenant remains in possession after the determination of the lease, the common law rule is that he is a tenant on sufferance. A distinction should be drawn between a tenant continuing in possession after the determination of the term with the consent of the landlord and a tenant doing so without his consent. The former (sic) (latter?) is a tenant at sufferance in English law and the latter (sic) (former?) a tenant holding over or a tenant at will. In view of the concluding words of Section 116 of the Transfer of Property Act, a lessee holding over is in a better position than a tenant at will. The assent of the landlord to the continuance of possession after the determination of the tenancy will create a new tenancy. What the section contemplates is that on one side there should be an offer of taking a new lease evidenced by the lessee or sub-lessee remaining in possession of the property after his term was over and on the other side there must be a definite consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise. In (AIR 1949 FC 124) the Federal Court had occasion to consider the question of the nature of the tenancy created under Section 116 of the Transfer of Property Act and Mukherjea, J., speaking for the majority said that the tenancy which is created by the holding over of a lessee or under-lessee is a new tenancy in law even though many of the terms of the old lease might continue in it, by implication and that to bring a new tenancy into existence, there must be a bilateral act. It was further held that the assent of the landlord which is founded on acceptance of rent must be acceptance of rent as such and in clear recognition of the tenancy right asserted by the person who pays it9. The appellant being merely a tenant by sufference there is no need for any notice before he could be evicted. Thus the judgment of the High Court is correct, in so far as it held the appellant was liable to be evicted. | 0 | 2,702 | 466 | ### Instruction:
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offer and it was rejected by the only authority competent to accept it i.e. the Corporation on 31-5-1960.The correspondence carried on by the Commissioner with the appellant was wholly beyond his powers. 7. The offer made by the appellant in 1959 cannot have anything to do with the resolution passed by the Municipal Council in 1949. The offer was of a different set of terms and included an offer to pay the costs of the suit and that also had in fact been deposited by the appellant at the instance of the Commissioner.That indicates the new situation that had come into existence and establishes beyond doubt that this was a fresh offer. We therefore hold that no contract came into existence between the parties on 22-9-1959. 8. It was then urged by Mr. Gupte that the appellant having deposited the rent up to 31-3-1954 and the Municipal Commissioner having accepted it he should be deemed to be a tenant holding over. Leaving aside for the moment the contention put forward on behalf of the Corporation that this payment was made behind its back, it has to be noted that the payment was at the rate prevailing before 30-9-1949 and on that date the Corporation having passed a resolution specifying a new rate of rent of Rupees 9/- per Chasma the payment at the old rate by the appellant and its acceptance by the Municipal Commissioner was not an acceptance of rent as such and in clear recognition of the tenancy right of the appellant. It cannot amount to the Corporation consenting to the appellant continuing as a tenant by paying the old rates of rent. There is thus no question of the appellant being a tenant holding over. But a person who was lawfully in occupation does not become a trespasser, even if he does not become a tenant holding over but is a tenant by sufferance. The position at law was explained in Kai Khushroo Bazonjee Capadia v. Bai Jerbai Hirjibhoy Warden, 1949 FCR 262 at p. 270 = (AIR 1949 FC 124) as follows : On the determination of a lease, it is the duty of the lessee to deliver up possession of the dismissed premises to the lessor. If the lessee or a sub-lessee under him continues in possession even after the determination of the lease, the landlord undoubtedly has the right to eject him forthwith; but if he does not and there is neither assent nor dissent on his part to the continuance of occupation of such person, the latter becomes in the language of English law a tenant on sufference who has no lawful title to the land but holds it merely through the laches of the landlord. If now the landlord accepts rent from such person or otherwise expresses assent to the continuance of his possession, a new tenancy comes into existence as is contemplated by Section 116, Transfer of Property Act, and unless there is an agreement to the contrary, such tenancy would be regarded as one from year to year or from month to month in accordance with the provisions of Section 116 of the Act. At page 272 it was pointed out : It can scarcely be disputed that the assent of the landlord which is founded on acceptance of rent must be acceptance of rent as such and in clear recognition of the tenancy right asserted by the person who pays it. The same position was explained in a recent decision of this Court to which one of us was a party in Bhagwanji Lakhamshi v. Himatlal Jamnadas Dani, (1972) 1 SCC 388 = (AIR 1972 SC 819 ). At p. 391 it was observed : The act of holding over after the expiration of the term does not create a tenancy of any kind. If a tenant remains in possession after the determination of the lease, the common law rule is that he is a tenant on sufferance. A distinction should be drawn between a tenant continuing in possession after the determination of the term with the consent of the landlord and a tenant doing so without his consent. The former (sic) (latter?) is a tenant at sufferance in English law and the latter (sic) (former?) a tenant holding over or a tenant at will. In view of the concluding words of Section 116 of the Transfer of Property Act, a lessee holding over is in a better position than a tenant at will. The assent of the landlord to the continuance of possession after the determination of the tenancy will create a new tenancy. What the section contemplates is that on one side there should be an offer of taking a new lease evidenced by the lessee or sub-lessee remaining in possession of the property after his term was over and on the other side there must be a definite consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise. In (AIR 1949 FC 124) the Federal Court had occasion to consider the question of the nature of the tenancy created under Section 116 of the Transfer of Property Act and Mukherjea, J., speaking for the majority said that the tenancy which is created by the holding over of a lessee or under-lessee is a new tenancy in law even though many of the terms of the old lease might continue in it, by implication and that to bring a new tenancy into existence, there must be a bilateral act. It was further held that the assent of the landlord which is founded on acceptance of rent must be acceptance of rent as such and in clear recognition of the tenancy right asserted by the person who pays it. 9. The appellant being merely a tenant by sufference there is no need for any notice before he could be evicted. Thus the judgment of the High Court is correct, in so far as it held the appellant was liable to be evicted.
### Response:
0
### Explanation:
The same position was explained in a recent decision of this Court to which one of us was a party in Bhagwanji Lakhamshi v. Himatlal Jamnadas Dani, (1972) 1 SCC 388 = (AIR 1972 SC 819 ). At p. 391 it was observed :The act of holding over after the expiration of the term does not create a tenancy of any kind. If a tenant remains in possession after the determination of the lease, the common law rule is that he is a tenant on sufferance. A distinction should be drawn between a tenant continuing in possession after the determination of the term with the consent of the landlord and a tenant doing so without his consent. The former (sic) (latter?) is a tenant at sufferance in English law and the latter (sic) (former?) a tenant holding over or a tenant at will. In view of the concluding words of Section 116 of the Transfer of Property Act, a lessee holding over is in a better position than a tenant at will. The assent of the landlord to the continuance of possession after the determination of the tenancy will create a new tenancy. What the section contemplates is that on one side there should be an offer of taking a new lease evidenced by the lessee or sub-lessee remaining in possession of the property after his term was over and on the other side there must be a definite consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise. In (AIR 1949 FC 124) the Federal Court had occasion to consider the question of the nature of the tenancy created under Section 116 of the Transfer of Property Act and Mukherjea, J., speaking for the majority said that the tenancy which is created by the holding over of a lessee or under-lessee is a new tenancy in law even though many of the terms of the old lease might continue in it, by implication and that to bring a new tenancy into existence, there must be a bilateral act. It was further held that the assent of the landlord which is founded on acceptance of rent must be acceptance of rent as such and in clear recognition of the tenancy right asserted by the person who pays it9. The appellant being merely a tenant by sufference there is no need for any notice before he could be evicted. Thus the judgment of the High Court is correct, in so far as it held the appellant was liable to be evicted.
|
Erach Boman Khavar Vs. Tukaram Sridhar Bhat | being experienced in the matter – it does not give the right anew to the party to agitate the matter further nor does it confer jurisdiction on the court itself to further probe the correctness of the decision arrived at: review of a judgment cannot be had on the basis of this liberty. The circumstances under which review can be had are provided under Order 47 of the Code of Civil Procedure. In any event, law is well settled on this score that the power to review is not any inherent power and it must be conferred by law either specifically or by necessary implication.” 36. After so stating the Court referred to the decision in State of U.P. v. Brahm Datt Sharma [((1987) 2 SCC 179) ] wherein it has been held that when proceedings stand terminated by final disposal of writ petition it is not open to the court to reopen the proceedings by means of a miscellaneous application in respect of a matter which provided a fresh cause of action, for if the said principle is not followed, there would be confusion and chaos and the finality of the proceedings would cease to have any meaning. 37. Coming to the case at hand, the Division Bench, after reproducing paragraph 19 of the judgment in Kewal Chand Mimani’s case, held that the liberty granted by the learned single Judge to file an application was not maintainable, for the liberty granted by the learned single Judge cannot be used to seek from him orders which are contrary to his principal order rejecting the company application for grant of leave. On a studied scrutiny of the order passed by the learned single Judge on 23.2.2006, we find that the Division Bench has committed three fundamental errors, namely (i) that the learned single Judge had rejected the application; (ii) that liberty granted could only mean the parties to seek further direction pursuant to the said order; and (iii) that the liberty granted by the learned single Judge could not be used to seek from him any relief which is contrary to the main order.38. It is clear to us that the learned single Judge had not dealt with the application for grant of leave on merits; that the application was disposed of on the basis of a submission made by the third respondent that if an application for amendment is filed in the pending suit, he would not oppose the same; that the learned Company Judge on the basis of the statement recorded that it was not necessary to grant the present Judge’s Summons; and that liberty was granted to the applicant to apply if necessary. The Division Bench, we are disposed to think, has erroneously opined that the learned single Judge in the main part of the order having rejected the application could not have granted liberty to apply for filing of another application. As we notice, the Division Bench has not appositely appreciated the ratio laid down in Kewal Chand Mimani (supra) wherein the High Court had pronounced a judgment and, as a matter of practice, has stated “liberty to mention” and in that context, this Court stated that that did not confer jurisdiction on the High Court to dwell upon a different issue in a disposed of case. In fact, in the said case the order passed by this Court on earlier occasion has been reproduced wherein liberty was granted to get the matter adjudicated which, in the context, simply conveyed that as the controversy relating to transposition therein was pending before the High Court and the order indicated that the applicants were at liberty to raise all objections including the transposition and the right to contest in the capacity as appellants. When this Court said “liberty was granted to get the matter adjudicated”, it meant that it was open to the petitioner in the SLP to raise all contentions before the High Court as the High Court itself had granted liberty in the order which was the subject-matter of challenge and the matter was sub-judice. We are only analyzing on this score to highlight that words, namely, “grant of liberty” are to be understood, regard being had to the context in which they are used. Context is really material. Had the learned Company Judge adjudicated the matter on merits, the matter would have been absolutely different. He had, in fact, on the basis of a statement made by the learned counsel for the third respondent, had not dwelled upon the merits and, in that context, had granted liberty to applicant to apply, if necessary. It is eminently so because the learned Judge has also stated “it is not necessary to grant the present Judge’s Summons”. Thus, the application for grant of leave was really not dealt with on merits and on the basis of a statement of respondent No. 3 the learned Company Judge opined that it was not necessary for the present and in that context liberty was granted. The principles stated in Arjun Singh (supra), Satyadhyan Ghosal (supra) and the other authorities clearly spell out that principle of res judicata operates at the successive stages in the same litigation but, the basic foundation of res judicata rests on delineation of merits and it has at least an expression of an opinion for rejection of an application. As is evident, there has been no advertence on merits and further the learned Company Judge has guardedly stated two facets, namely, “not necessary to grant present Judge’s Summons” and “liberty to applicant to apply, if necessary”. On a seemly reading of the order we have no shadow of doubt that the same could not have been treated to have operated as res judicata as has been held by the Division Bench. Therefore, the irresistible conclusion is that the Division Bench has fallen into serious error in dislodging the order granting leave by the learned Company Judge to file a fresh suit. 39. In view of the aforesaid analysis, | 1[ds]37. Coming to the case atDivision Bench, after reproducing paragraph 19 of the judgment in Kewal Chandcase, held that the liberty granted by the learned single Judge to file an application was not maintainable, for the liberty granted by the learned single Judge cannot be used to seek from him orders which are contrary to his principal order rejecting the company application for grant of leave. On a studied scrutiny of the order passed by the learned single Judge on 23.2.2006, we find that the Division Bench has committed three fundamental errors, namely (i) that the learned single Judge had rejected the application; (ii) that liberty granted could only mean the parties to seek further direction pursuant to the said order; and (iii) that the liberty granted by the learned single Judge could not be used to seek from him any relief which is contrary to the main order.38. It is clear to us that the learned single Judge had not dealt with the application for grant of leave on merits; that the application was disposed of on the basis of a submission made by the third respondent that if an application for amendment is filed in the pending suit, he would not oppose the same; that the learned Company Judge on the basis of the statement recorded that it was not necessary to grant the presentSummons; and that liberty was granted to the applicant to apply if necessary. The Division Bench, we are disposed to think, has erroneously opined that the learned single Judge in the main part of the order having rejected the application could not have granted liberty to apply for filing of another application. As we notice, the Division Bench has not appositely appreciated the ratio laid down in Kewal Chand Mimani (supra) wherein the High Court had pronounced a judgment and, as a matter of practice, has statedand in that context, this Court stated that that did not confer jurisdiction on the High Court to dwell upon a different issue in a disposed of case. In fact, in the said case the order passed by this Court on earlier occasion has been reproduced wherein liberty was granted to get the matter adjudicated which, in the context, simply conveyed that as the controversy relating to transposition therein was pending before the High Court and the order indicated that the applicants were at liberty to raise all objections including the transposition and the right to contest in the capacity as appellants. When this Court saidwas granted to get the matterit meant that it was open to the petitioner in the SLP to raise all contentions before the High Court as the High Court itself had granted liberty in the order which was the subject-matter of challenge and the matter was sub-judice. We are only analyzing on this score to highlight that words, namely,are to be understood, regard being had to the context in which they are used. Context is really material. Had the learned Company Judge adjudicated the matter on merits, the matter would have been absolutely different. He had, in fact, on the basis of a statement made by the learned counsel for the third respondent, had not dwelled upon the merits and, in that context, had granted libertyto applicant toapply, if necessary. It is eminently so because the learned Judge has also statedis not necessary to grant the present. Thus, the application for grant of leave was really not dealt with on merits and on the basis of a statement of respondent No. 3 the learned Company Judge opined that it was not necessary for the present and in that context liberty was granted. The principles stated in Arjun Singh (supra), Satyadhyan Ghosal (supra) and the other authorities clearly spell out that principle of res judicata operates at the successive stages in the same litigation but, the basic foundation of res judicata rests on delineation of merits and it has at least an expression of an opinion for rejection of an application. As is evident, there has been no advertence on merits and further the learned Company Judge has guardedly stated two facets, namely,necessary to grant presenty toto apply, ifOn a seemly reading of the order we have no shadow of doubt that the same could not have been treated to have operated as res judicata as has been held by the Division Bench. Therefore, the irresistible conclusion is that the Division Bench has fallen into serious error in dislodging the order granting leave by the learned Company Judge to file a fresh suit. | 1 | 9,565 | 834 | ### Instruction:
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being experienced in the matter – it does not give the right anew to the party to agitate the matter further nor does it confer jurisdiction on the court itself to further probe the correctness of the decision arrived at: review of a judgment cannot be had on the basis of this liberty. The circumstances under which review can be had are provided under Order 47 of the Code of Civil Procedure. In any event, law is well settled on this score that the power to review is not any inherent power and it must be conferred by law either specifically or by necessary implication.” 36. After so stating the Court referred to the decision in State of U.P. v. Brahm Datt Sharma [((1987) 2 SCC 179) ] wherein it has been held that when proceedings stand terminated by final disposal of writ petition it is not open to the court to reopen the proceedings by means of a miscellaneous application in respect of a matter which provided a fresh cause of action, for if the said principle is not followed, there would be confusion and chaos and the finality of the proceedings would cease to have any meaning. 37. Coming to the case at hand, the Division Bench, after reproducing paragraph 19 of the judgment in Kewal Chand Mimani’s case, held that the liberty granted by the learned single Judge to file an application was not maintainable, for the liberty granted by the learned single Judge cannot be used to seek from him orders which are contrary to his principal order rejecting the company application for grant of leave. On a studied scrutiny of the order passed by the learned single Judge on 23.2.2006, we find that the Division Bench has committed three fundamental errors, namely (i) that the learned single Judge had rejected the application; (ii) that liberty granted could only mean the parties to seek further direction pursuant to the said order; and (iii) that the liberty granted by the learned single Judge could not be used to seek from him any relief which is contrary to the main order.38. It is clear to us that the learned single Judge had not dealt with the application for grant of leave on merits; that the application was disposed of on the basis of a submission made by the third respondent that if an application for amendment is filed in the pending suit, he would not oppose the same; that the learned Company Judge on the basis of the statement recorded that it was not necessary to grant the present Judge’s Summons; and that liberty was granted to the applicant to apply if necessary. The Division Bench, we are disposed to think, has erroneously opined that the learned single Judge in the main part of the order having rejected the application could not have granted liberty to apply for filing of another application. As we notice, the Division Bench has not appositely appreciated the ratio laid down in Kewal Chand Mimani (supra) wherein the High Court had pronounced a judgment and, as a matter of practice, has stated “liberty to mention” and in that context, this Court stated that that did not confer jurisdiction on the High Court to dwell upon a different issue in a disposed of case. In fact, in the said case the order passed by this Court on earlier occasion has been reproduced wherein liberty was granted to get the matter adjudicated which, in the context, simply conveyed that as the controversy relating to transposition therein was pending before the High Court and the order indicated that the applicants were at liberty to raise all objections including the transposition and the right to contest in the capacity as appellants. When this Court said “liberty was granted to get the matter adjudicated”, it meant that it was open to the petitioner in the SLP to raise all contentions before the High Court as the High Court itself had granted liberty in the order which was the subject-matter of challenge and the matter was sub-judice. We are only analyzing on this score to highlight that words, namely, “grant of liberty” are to be understood, regard being had to the context in which they are used. Context is really material. Had the learned Company Judge adjudicated the matter on merits, the matter would have been absolutely different. He had, in fact, on the basis of a statement made by the learned counsel for the third respondent, had not dwelled upon the merits and, in that context, had granted liberty to applicant to apply, if necessary. It is eminently so because the learned Judge has also stated “it is not necessary to grant the present Judge’s Summons”. Thus, the application for grant of leave was really not dealt with on merits and on the basis of a statement of respondent No. 3 the learned Company Judge opined that it was not necessary for the present and in that context liberty was granted. The principles stated in Arjun Singh (supra), Satyadhyan Ghosal (supra) and the other authorities clearly spell out that principle of res judicata operates at the successive stages in the same litigation but, the basic foundation of res judicata rests on delineation of merits and it has at least an expression of an opinion for rejection of an application. As is evident, there has been no advertence on merits and further the learned Company Judge has guardedly stated two facets, namely, “not necessary to grant present Judge’s Summons” and “liberty to applicant to apply, if necessary”. On a seemly reading of the order we have no shadow of doubt that the same could not have been treated to have operated as res judicata as has been held by the Division Bench. Therefore, the irresistible conclusion is that the Division Bench has fallen into serious error in dislodging the order granting leave by the learned Company Judge to file a fresh suit. 39. In view of the aforesaid analysis,
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37. Coming to the case atDivision Bench, after reproducing paragraph 19 of the judgment in Kewal Chandcase, held that the liberty granted by the learned single Judge to file an application was not maintainable, for the liberty granted by the learned single Judge cannot be used to seek from him orders which are contrary to his principal order rejecting the company application for grant of leave. On a studied scrutiny of the order passed by the learned single Judge on 23.2.2006, we find that the Division Bench has committed three fundamental errors, namely (i) that the learned single Judge had rejected the application; (ii) that liberty granted could only mean the parties to seek further direction pursuant to the said order; and (iii) that the liberty granted by the learned single Judge could not be used to seek from him any relief which is contrary to the main order.38. It is clear to us that the learned single Judge had not dealt with the application for grant of leave on merits; that the application was disposed of on the basis of a submission made by the third respondent that if an application for amendment is filed in the pending suit, he would not oppose the same; that the learned Company Judge on the basis of the statement recorded that it was not necessary to grant the presentSummons; and that liberty was granted to the applicant to apply if necessary. The Division Bench, we are disposed to think, has erroneously opined that the learned single Judge in the main part of the order having rejected the application could not have granted liberty to apply for filing of another application. As we notice, the Division Bench has not appositely appreciated the ratio laid down in Kewal Chand Mimani (supra) wherein the High Court had pronounced a judgment and, as a matter of practice, has statedand in that context, this Court stated that that did not confer jurisdiction on the High Court to dwell upon a different issue in a disposed of case. In fact, in the said case the order passed by this Court on earlier occasion has been reproduced wherein liberty was granted to get the matter adjudicated which, in the context, simply conveyed that as the controversy relating to transposition therein was pending before the High Court and the order indicated that the applicants were at liberty to raise all objections including the transposition and the right to contest in the capacity as appellants. When this Court saidwas granted to get the matterit meant that it was open to the petitioner in the SLP to raise all contentions before the High Court as the High Court itself had granted liberty in the order which was the subject-matter of challenge and the matter was sub-judice. We are only analyzing on this score to highlight that words, namely,are to be understood, regard being had to the context in which they are used. Context is really material. Had the learned Company Judge adjudicated the matter on merits, the matter would have been absolutely different. He had, in fact, on the basis of a statement made by the learned counsel for the third respondent, had not dwelled upon the merits and, in that context, had granted libertyto applicant toapply, if necessary. It is eminently so because the learned Judge has also statedis not necessary to grant the present. Thus, the application for grant of leave was really not dealt with on merits and on the basis of a statement of respondent No. 3 the learned Company Judge opined that it was not necessary for the present and in that context liberty was granted. The principles stated in Arjun Singh (supra), Satyadhyan Ghosal (supra) and the other authorities clearly spell out that principle of res judicata operates at the successive stages in the same litigation but, the basic foundation of res judicata rests on delineation of merits and it has at least an expression of an opinion for rejection of an application. As is evident, there has been no advertence on merits and further the learned Company Judge has guardedly stated two facets, namely,necessary to grant presenty toto apply, ifOn a seemly reading of the order we have no shadow of doubt that the same could not have been treated to have operated as res judicata as has been held by the Division Bench. Therefore, the irresistible conclusion is that the Division Bench has fallen into serious error in dislodging the order granting leave by the learned Company Judge to file a fresh suit.
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Dr. Mangat Rai Goyal Vs. Moraj Finanz Private Limited | M.S. Sanklecha, J.By this appeal, the appellant challenges the order dated 24.04.2012 of the Learned Single Judge dismissing the appellants petition for winding up of the respondent company under the provision of Companies Act, 1956.2. The appellant had by a notice dated 11.12.2010 under Section 434 of the Companies Act, 1956 issued to the respondent-company calling upon the respondent-company to make a payment of Rs.2 crores allegedly payable to him by the respondent-company. This was on the basis that out of total consideration of Rs.7 crores for sale of his leasehold rights under an agreement dated 10.02.2010 an amount of Rs.2 crores had not yet been paid. The respondent-company responded by letter dated 30.12.2012 disputing that any amount was due and payable by them to the appellant. The case of the respondent was that the amount of Rs.2 crores which had been admittedly withheld by them was utilised to settle claims of the third parties as agreed upon between them in the agreement dated 10.02.2010.3. The Learned Single Judge after examining the agreement dated 10.02.2010, which provided that the amount of Rs.2 crores would be retained by the respondent so as to settle the claims of the third parties made on the appellant in respect of the transfer of the leasehold plot alongwith the plinth of the proposed building. This aforesaid agreement also provided the names of the persons to whom the appellant was required to make payment as they had filed suits in the Vashi-Thane court with regard to the property agreed to be purchased by them from the appellant. The respondent pointed out before the Learned Single Judge that the amount of Rs.2 crores which had been retained had been used by them to settle the claims of various parties in relation to the plot of land sold by the appellant to the respondent under the agreement dated 10.02.2010. The Learned Single Judge was satisfied that the claim of Rs.2 crores being made by the Appellant is a genuinely disputed claim. Therefore, the same would have to be adjudicated before the regular court and the company jurisdiction cannot be exercised to enforce a disputed debt. In the circumstances, the petition was dismissed.4. In appeal, the appellant appearing in person submits that the amount of Rs.2 crores is payable by the respondent to him, as they have fraudulently diverted the amounts by claiming the same were paid to meet the appellants obligation to third parties. The Appellant states that the aforesaid alleged payments ought not to have been made by the Respondent. The Counsel for the respondent points out that the appellant had executed a power of attorney in their favour on 05.03.2010 to interalia deal with all claims in respect of the property transferred by agreement dated 10.02.2010. We further find that not only the Agreement dated 10.02.2010 provides the names of the parties whose claims have to be settled but the respondents have also filed an affidavit with supporting evidence pointing out the persons to whom the payment was made and in support thereof evidence of the reasons for the same. The entire case of the appellant that the documents under which payments were made were fraudulent is a matter which would require investigation /adjudication by way of suit. The appellant may have a very good case on merits and would possibly be able to establish in an appropriate proceeding that the respondent have acted in a fraudulent manner and defrauded him to Rs.2 crores. However, in proceedings for winding up the company, the court cannot adjudicate upon a bonafide disputed debt. It is well settled principle of company law that wherever there is a bonafide disputed debt, the petition for winding up of a company is not appropriate remedy to enforce the debt. In the circumstances, we find no fault with the order of the Learned Single Judge dated 24.04.2012. | 0[ds]We further find that not only the Agreement dated 10.02.2010 provides the names of the parties whose claims have to be settled but the respondents have also filed an affidavit with supporting evidence pointing out the persons to whom the payment was made and in support thereof evidence of the reasons for the same. The entire case of the appellant that the documents under which payments were made were fraudulent is a matter which would require investigation /adjudication by way of suit. The appellant may have a very good case on merits and would possibly be able to establish in an appropriate proceeding that the respondent have acted in a fraudulent manner and defrauded him to Rs.2 crores. However, in proceedings for winding up the company, the court cannot adjudicate upon a bonafide disputed debt. It is well settled principle of company law that wherever there is a bonafide disputed debt, the petition for winding up of a company is not appropriate remedy to enforce the debt. In the circumstances, we find no fault with the order of the Learned Single Judge dated 24.04.2012. | 0 | 680 | 199 | ### Instruction:
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M.S. Sanklecha, J.By this appeal, the appellant challenges the order dated 24.04.2012 of the Learned Single Judge dismissing the appellants petition for winding up of the respondent company under the provision of Companies Act, 1956.2. The appellant had by a notice dated 11.12.2010 under Section 434 of the Companies Act, 1956 issued to the respondent-company calling upon the respondent-company to make a payment of Rs.2 crores allegedly payable to him by the respondent-company. This was on the basis that out of total consideration of Rs.7 crores for sale of his leasehold rights under an agreement dated 10.02.2010 an amount of Rs.2 crores had not yet been paid. The respondent-company responded by letter dated 30.12.2012 disputing that any amount was due and payable by them to the appellant. The case of the respondent was that the amount of Rs.2 crores which had been admittedly withheld by them was utilised to settle claims of the third parties as agreed upon between them in the agreement dated 10.02.2010.3. The Learned Single Judge after examining the agreement dated 10.02.2010, which provided that the amount of Rs.2 crores would be retained by the respondent so as to settle the claims of the third parties made on the appellant in respect of the transfer of the leasehold plot alongwith the plinth of the proposed building. This aforesaid agreement also provided the names of the persons to whom the appellant was required to make payment as they had filed suits in the Vashi-Thane court with regard to the property agreed to be purchased by them from the appellant. The respondent pointed out before the Learned Single Judge that the amount of Rs.2 crores which had been retained had been used by them to settle the claims of various parties in relation to the plot of land sold by the appellant to the respondent under the agreement dated 10.02.2010. The Learned Single Judge was satisfied that the claim of Rs.2 crores being made by the Appellant is a genuinely disputed claim. Therefore, the same would have to be adjudicated before the regular court and the company jurisdiction cannot be exercised to enforce a disputed debt. In the circumstances, the petition was dismissed.4. In appeal, the appellant appearing in person submits that the amount of Rs.2 crores is payable by the respondent to him, as they have fraudulently diverted the amounts by claiming the same were paid to meet the appellants obligation to third parties. The Appellant states that the aforesaid alleged payments ought not to have been made by the Respondent. The Counsel for the respondent points out that the appellant had executed a power of attorney in their favour on 05.03.2010 to interalia deal with all claims in respect of the property transferred by agreement dated 10.02.2010. We further find that not only the Agreement dated 10.02.2010 provides the names of the parties whose claims have to be settled but the respondents have also filed an affidavit with supporting evidence pointing out the persons to whom the payment was made and in support thereof evidence of the reasons for the same. The entire case of the appellant that the documents under which payments were made were fraudulent is a matter which would require investigation /adjudication by way of suit. The appellant may have a very good case on merits and would possibly be able to establish in an appropriate proceeding that the respondent have acted in a fraudulent manner and defrauded him to Rs.2 crores. However, in proceedings for winding up the company, the court cannot adjudicate upon a bonafide disputed debt. It is well settled principle of company law that wherever there is a bonafide disputed debt, the petition for winding up of a company is not appropriate remedy to enforce the debt. In the circumstances, we find no fault with the order of the Learned Single Judge dated 24.04.2012.
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We further find that not only the Agreement dated 10.02.2010 provides the names of the parties whose claims have to be settled but the respondents have also filed an affidavit with supporting evidence pointing out the persons to whom the payment was made and in support thereof evidence of the reasons for the same. The entire case of the appellant that the documents under which payments were made were fraudulent is a matter which would require investigation /adjudication by way of suit. The appellant may have a very good case on merits and would possibly be able to establish in an appropriate proceeding that the respondent have acted in a fraudulent manner and defrauded him to Rs.2 crores. However, in proceedings for winding up the company, the court cannot adjudicate upon a bonafide disputed debt. It is well settled principle of company law that wherever there is a bonafide disputed debt, the petition for winding up of a company is not appropriate remedy to enforce the debt. In the circumstances, we find no fault with the order of the Learned Single Judge dated 24.04.2012.
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O.P. Singla & Anr. Etc Vs. Union Of India & Ors | precedents namely, that a person already rendering service as a promotee ha s to go down below a person who comes into service decades after the promotee enters the service and who may be a schoolian, if not in embryo, when the promotee on being promoted on account of the exigencies of service as required by the Government started rendering service. A time has come to recast service jurisprudence on more just and equitable foundation by examining all precedents on the subject to retrieve this situation." No two cases are alike and. therefore an attempt has been made in this judgment to consider the language and implication of the Rules which govern appointments to the Delhi Higher Judicial Service. But, the observations which we have extracted above are not without relevance to the decision of the case before us. They lend considerable support to the conclusion which has been recorded in this judgment.The decision of this Court in Joginder Nath v. Union of India(1), does not afford any assistance on the question which is in issue before us. That case arose out of a controversy between the promotees inter se and not between promotees and direct recruits. 23. The seniority list which is impugned in this case has been prepared on the basis that the rule of `quota and rota will continue to apply notwithstanding the fact that appointments are made to the Service under Rule 16 and 17. As pointed out earlier, the rule of `quota and rota which is prescribed by the proviso to Rule 7 would cease to apply when appointments are made to the Service under Rules 16 and 17. The seniority list has therefore to be quashed. A new seniority list shall have to be prepared by the authorities on the basis of the view taken in this judgment. The new seniority list will include (i) direct recruits and (ii) promotees appointed under Rules 16 and 17. They will rank for seniority as explained above. The question of the seniority of respondent 4, Shri G.S. Dakha has to be dealt with on a different basis. He was appointed as an Additional District and Sessions Judge in a vacancy reserved for members of the scheduled castes. He will retain his position in the seniority list since that position is due to him as a member of a scheduled caste. The case of Miss Usha Mehra has caused us some anguish. She was appointed as a direct recruit on April 22, 1980. The rule of `quota and rota was in operation since the inception of the Delhi Higher Judicial Ser vice and she must have joined the Service on the basis of certain reasonable expectations flowing out of a senior position. Though comparatively young, she had a fairly large practice at the Bar when she was appointed as an Additional District and Sessions Judge. A strong plea has been made on her behalf that her place in the seniority list should not disturbed. We wish that were possible. It would be incongruous to do so because, if the rule of `quota and rota ceased to apply when appointments were made to the Service under Rules 16 and 17, her present position in the seniority list which has been accorded to her on the basis of that rule cannot be maintained. For this consequence the promotees are not to blame, and cert ainly, not any of the direct recruits. The promotees had made a representation to the High Court as long back as in the year 1977 but, for a reason not easy to understand, the High Court did not dispose of that representation for over three years , Indeed, one of the contentions of the High Court before us is that those writ petitions are premature because the representation of the promotees is still pending before it. Miss Mehra was appointed three years after the promotees had made their representation to the High Court, which was the most appropriate authority for them to approach. A timely disposal of the representation by the High Court would have saved the predicament in which some of the direct recruits like Miss Mehra will now find themselves. It was urged that the promotees ought not to grudge one little exception in favour of Miss Mehra since they have derived quite some benefits from the operation of Rules 16 and 17. It is true that the promotees have derived a substantial benefit by the operation of Rules 16 and 17. They monopolised all the appointments to temporary posts as also temporary appointments to substantive vacancies in the Service. Simultaneously, they also derived benefit from the rule of `quota and rota. For example, though N.L. Kakkar and Shri R.K. Sinha were promoted to the Service in 1972, they were placed in the seniority list above Shri N.C. Kochar who was recruited directly in 1971. That was done in conformity with the quota and rota rule of 1: 2. If, at least some of the temporary posts had been converted into permanent ones as they ought to have been, one out of every three posts would have gone to a direct recruit. But as pointed out by us, the difficulty in the way of maintaining Miss Mehras present position in the seniority list is that doing so would be inconsistent with the view which we have taken in this judgment. We cannot, therefore, make an exception in the case of any particular direct recruit.It is patent that this judgment will upset the balance between direct recruits and promotees in the Delhi Higher Judicial Service. If the authorities desire to restore that balance, appropriate rules shall have to be framed for future application. But, more than merely framing the rules, care shall have to be taken to implement the rules both in letter and in spirit. That will call for greater concern and understanding on the part of the authorities for the future of a system, which one believes, has stood the people well. 24. | 1[ds]The seniority list which is impugned in this case has been prepared on the basis that the rule of `quota and rota will continue to apply notwithstanding the fact that appointments are made to the Service under Rule 16 and 17. As pointed out earlier, the rule of `quota and rota which is prescribed by the proviso to Rule 7 would cease to apply when appointments are made to the Service under Rules 16 and 17. The seniority list has therefore to be quashedA new seniority list shall have to be prepared by the authorities on the basis of the view taken in this judgment. The new seniority list will include (i) direct recruits and (ii) promotees appointed under Rules 16 and 17. They will rank for seniority as explained aboveThe question of the seniority of respondent 4, Shri G.S. Dakha has to be dealt with on a different basis. He was appointed as an Additional District and Sessions Judge in a vacancy reserved for members of the scheduled castes. He will retain his position in the seniority list since that position is due to him as a member of a scheduled casteThe case of Miss Usha Mehra has caused us some anguish. She was appointed as a direct recruit on April 22, 1980. The rule of `quota and rota was in operation since the inception of the Delhi Higher Judicial Ser vice and she must have joined the Service on the basis of certain reasonable expectations flowing out of a senior position. Though comparatively young, she had a fairly large practice at the Bar when she was appointed as an Additional District and Sessions Judge. A strong plea has been made on her behalf that her place in the seniority list should not disturbed. We wish that were possible. It would be incongruous to do so because, if the rule of `quota and rota ceased to apply when appointments were made to the Service under Rules 16 and 17, her present position in the seniority list which has been accorded to her on the basis of that rule cannot be maintained. For this consequence the promotees are not to blame, and cert ainly, not any of the direct recruits. The promotees had made a representation to the High Court as long back as in the year 1977 but, for a reason not easy to understand, the High Court did not dispose of that representation for over three years , Indeed, one of the contentions of the High Court before us is that those writ petitions are premature because the representation of the promotees is still pending before it. Miss Mehra was appointed three years after the promotees had made their representation to the High Court, which was the most appropriate authority for them to approach. A timely disposal of the representation by the High Court would have saved the predicament in which some of the direct recruits like Miss Mehra will now find themselves. It was urged that the promotees ought not to grudge one little exception in favour of Miss Mehra since they have derived quite some benefits from the operation of Rules 16 and 17. It is true that the promotees have derived a substantial benefit by the operation of Rules 16 and 17. They monopolised all the appointments to temporary posts as also temporary appointments to substantive vacancies in the Service. Simultaneously, they also derived benefit from the rule of `quota and rota. For example, though N.L. Kakkar and Shri R.K. Sinha were promoted to the Service in 1972, they were placed in the seniority list above Shri N.C. Kochar who was recruited directly in 1971. That was done in conformity with the quota and rota rule of 1: 2. If, at least some of the temporary posts had been converted into permanent ones as they ought to have been, one out of every three posts would have gone to a direct recruit. But as pointed out by us, the difficulty in the way of maintaining Miss Mehras present position in the seniority list is that doing so would be inconsistent with the view which we have taken in this judgment. We cannot, therefore, make an exception in the case of any particular direct recruit.It is patent that this judgment will upset the balance between direct recruits and promotees in the Delhi Higher Judicial Service. If the authorities desire to restore that balance, appropriate rules shall have to be framed for future application. But, more than merely framing the rules, care shall have to be taken to implement the rules both in letter and in spirit. That will call for greater concern and understanding on the part of the authorities for the future of a system, which one believes, has stood the people well. | 1 | 8,777 | 870 | ### 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:
precedents namely, that a person already rendering service as a promotee ha s to go down below a person who comes into service decades after the promotee enters the service and who may be a schoolian, if not in embryo, when the promotee on being promoted on account of the exigencies of service as required by the Government started rendering service. A time has come to recast service jurisprudence on more just and equitable foundation by examining all precedents on the subject to retrieve this situation." No two cases are alike and. therefore an attempt has been made in this judgment to consider the language and implication of the Rules which govern appointments to the Delhi Higher Judicial Service. But, the observations which we have extracted above are not without relevance to the decision of the case before us. They lend considerable support to the conclusion which has been recorded in this judgment.The decision of this Court in Joginder Nath v. Union of India(1), does not afford any assistance on the question which is in issue before us. That case arose out of a controversy between the promotees inter se and not between promotees and direct recruits. 23. The seniority list which is impugned in this case has been prepared on the basis that the rule of `quota and rota will continue to apply notwithstanding the fact that appointments are made to the Service under Rule 16 and 17. As pointed out earlier, the rule of `quota and rota which is prescribed by the proviso to Rule 7 would cease to apply when appointments are made to the Service under Rules 16 and 17. The seniority list has therefore to be quashed. A new seniority list shall have to be prepared by the authorities on the basis of the view taken in this judgment. The new seniority list will include (i) direct recruits and (ii) promotees appointed under Rules 16 and 17. They will rank for seniority as explained above. The question of the seniority of respondent 4, Shri G.S. Dakha has to be dealt with on a different basis. He was appointed as an Additional District and Sessions Judge in a vacancy reserved for members of the scheduled castes. He will retain his position in the seniority list since that position is due to him as a member of a scheduled caste. The case of Miss Usha Mehra has caused us some anguish. She was appointed as a direct recruit on April 22, 1980. The rule of `quota and rota was in operation since the inception of the Delhi Higher Judicial Ser vice and she must have joined the Service on the basis of certain reasonable expectations flowing out of a senior position. Though comparatively young, she had a fairly large practice at the Bar when she was appointed as an Additional District and Sessions Judge. A strong plea has been made on her behalf that her place in the seniority list should not disturbed. We wish that were possible. It would be incongruous to do so because, if the rule of `quota and rota ceased to apply when appointments were made to the Service under Rules 16 and 17, her present position in the seniority list which has been accorded to her on the basis of that rule cannot be maintained. For this consequence the promotees are not to blame, and cert ainly, not any of the direct recruits. The promotees had made a representation to the High Court as long back as in the year 1977 but, for a reason not easy to understand, the High Court did not dispose of that representation for over three years , Indeed, one of the contentions of the High Court before us is that those writ petitions are premature because the representation of the promotees is still pending before it. Miss Mehra was appointed three years after the promotees had made their representation to the High Court, which was the most appropriate authority for them to approach. A timely disposal of the representation by the High Court would have saved the predicament in which some of the direct recruits like Miss Mehra will now find themselves. It was urged that the promotees ought not to grudge one little exception in favour of Miss Mehra since they have derived quite some benefits from the operation of Rules 16 and 17. It is true that the promotees have derived a substantial benefit by the operation of Rules 16 and 17. They monopolised all the appointments to temporary posts as also temporary appointments to substantive vacancies in the Service. Simultaneously, they also derived benefit from the rule of `quota and rota. For example, though N.L. Kakkar and Shri R.K. Sinha were promoted to the Service in 1972, they were placed in the seniority list above Shri N.C. Kochar who was recruited directly in 1971. That was done in conformity with the quota and rota rule of 1: 2. If, at least some of the temporary posts had been converted into permanent ones as they ought to have been, one out of every three posts would have gone to a direct recruit. But as pointed out by us, the difficulty in the way of maintaining Miss Mehras present position in the seniority list is that doing so would be inconsistent with the view which we have taken in this judgment. We cannot, therefore, make an exception in the case of any particular direct recruit.It is patent that this judgment will upset the balance between direct recruits and promotees in the Delhi Higher Judicial Service. If the authorities desire to restore that balance, appropriate rules shall have to be framed for future application. But, more than merely framing the rules, care shall have to be taken to implement the rules both in letter and in spirit. That will call for greater concern and understanding on the part of the authorities for the future of a system, which one believes, has stood the people well. 24.
### Response:
1
### Explanation:
The seniority list which is impugned in this case has been prepared on the basis that the rule of `quota and rota will continue to apply notwithstanding the fact that appointments are made to the Service under Rule 16 and 17. As pointed out earlier, the rule of `quota and rota which is prescribed by the proviso to Rule 7 would cease to apply when appointments are made to the Service under Rules 16 and 17. The seniority list has therefore to be quashedA new seniority list shall have to be prepared by the authorities on the basis of the view taken in this judgment. The new seniority list will include (i) direct recruits and (ii) promotees appointed under Rules 16 and 17. They will rank for seniority as explained aboveThe question of the seniority of respondent 4, Shri G.S. Dakha has to be dealt with on a different basis. He was appointed as an Additional District and Sessions Judge in a vacancy reserved for members of the scheduled castes. He will retain his position in the seniority list since that position is due to him as a member of a scheduled casteThe case of Miss Usha Mehra has caused us some anguish. She was appointed as a direct recruit on April 22, 1980. The rule of `quota and rota was in operation since the inception of the Delhi Higher Judicial Ser vice and she must have joined the Service on the basis of certain reasonable expectations flowing out of a senior position. Though comparatively young, she had a fairly large practice at the Bar when she was appointed as an Additional District and Sessions Judge. A strong plea has been made on her behalf that her place in the seniority list should not disturbed. We wish that were possible. It would be incongruous to do so because, if the rule of `quota and rota ceased to apply when appointments were made to the Service under Rules 16 and 17, her present position in the seniority list which has been accorded to her on the basis of that rule cannot be maintained. For this consequence the promotees are not to blame, and cert ainly, not any of the direct recruits. The promotees had made a representation to the High Court as long back as in the year 1977 but, for a reason not easy to understand, the High Court did not dispose of that representation for over three years , Indeed, one of the contentions of the High Court before us is that those writ petitions are premature because the representation of the promotees is still pending before it. Miss Mehra was appointed three years after the promotees had made their representation to the High Court, which was the most appropriate authority for them to approach. A timely disposal of the representation by the High Court would have saved the predicament in which some of the direct recruits like Miss Mehra will now find themselves. It was urged that the promotees ought not to grudge one little exception in favour of Miss Mehra since they have derived quite some benefits from the operation of Rules 16 and 17. It is true that the promotees have derived a substantial benefit by the operation of Rules 16 and 17. They monopolised all the appointments to temporary posts as also temporary appointments to substantive vacancies in the Service. Simultaneously, they also derived benefit from the rule of `quota and rota. For example, though N.L. Kakkar and Shri R.K. Sinha were promoted to the Service in 1972, they were placed in the seniority list above Shri N.C. Kochar who was recruited directly in 1971. That was done in conformity with the quota and rota rule of 1: 2. If, at least some of the temporary posts had been converted into permanent ones as they ought to have been, one out of every three posts would have gone to a direct recruit. But as pointed out by us, the difficulty in the way of maintaining Miss Mehras present position in the seniority list is that doing so would be inconsistent with the view which we have taken in this judgment. We cannot, therefore, make an exception in the case of any particular direct recruit.It is patent that this judgment will upset the balance between direct recruits and promotees in the Delhi Higher Judicial Service. If the authorities desire to restore that balance, appropriate rules shall have to be framed for future application. But, more than merely framing the rules, care shall have to be taken to implement the rules both in letter and in spirit. That will call for greater concern and understanding on the part of the authorities for the future of a system, which one believes, has stood the people well.
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Union of India Vs. A. Alagam Perumal Kone & Others | Scheme on the plea of his imprisonment for more than six months for participating in the Quit India Movement. The application, which is made for the second time, is also placed on record as Annexure P-5. In the said application, he has stated that he was imprisoned for more than six months i.e. from 05.01.1944 to 05.07.1944, which is clearly in variance to the period which he has mentioned in the first application. Though, earlier rejection has become final and the particulars mentioned in the claim made by the 1st Respondent are in variance to the particulars mentioned at first instance, without issuing notice and without giving opportunity to the appellant to file counter affidavit, the learned Single Judge has disposed of the petition by granting a positive direction to grant pension. The claim of the 1st Respondent is under the scheme, notified by the appellant-Government. The scheme prescribes to file certain documents to authenticate the imprisonment of a claimant as a freedom fighter. 25. It is the case of the appellant that the documentary evidence filed by the 1st Respondent is not in compliance of the scheme. It is a matter which is to be left to the competent authority to consider. When the application of the 1st Respondent is already rejected in the year 1997, when such rejection order has become final, it is not open for the 1st Respondent to make a claim for second time for pension again by way of fresh application. The 1st Respondent would be entitled to the benefits of this scheme, if he produces the relevant material in support of his claim. As regards the sufficiency of proof, the scheme itself mentions the documents which are required to be produced along with the application. Whether the claimant fulfills the criteria or not, it is for the competent authority to examine it. Even before the application is considered by the competent authority, in exercise of powers of judicial review, the High Court should not have issued any directions for grant of pension. In this case, it is also to be noticed that earlier the claim of the 1st Respondent is already rejected and the said order has become final. After perusal of the order passed by the learned Single Judge and the Division Bench, we are of the view that no valid reasons have been assigned to grant relief to the 1st Respondent for grant of pension. It appears that the 1st Respondent has not disclosed his earlier rejection by producing the earlier orders while making the application for the second time before the appellant and also before the High Court. 26. In any event, when such serious factual disputes emerge for consideration, the High Court ought not to have disposed of the petition filed by the Respondent without even issuing notice and giving opportunity to file counter affidavit to rebut the allegations made by the appellant. The judgments of this Court, relied on by the learned Additional Solicitor General in the case of W.B.Freedom Fighters Organization v. Union of India and Others1 and in the case of Union of India v. Bikash R. Bhowmik and Others2 will support the plea of the appellant. In the case of W.B.Freedom Fighters Organization v. Union of India and Others, this Court has held that when the competent committee has considered and opined that the applications were not supported by required documents and rejected the application, this Court cannot interfere with the same and such findings cannot be said to be perverse or unreasonable. 27. Further, in the case of Union of India vs. Bikash R. Bhowmik and Others2, this Court has held that the pension under Swatantrata Sainik Samman Pension Scheme of 1980 can be sanctioned as per the proof required under the scheme and in no other manner. In the said judgment, this Court has reversed the order passed by the High Court. 28. In the instant case, the appellant stands on a better footing, for the reason that although the application made by the 1st Respondent on 10.04.1997 was rejected and the said order has become final, he again approached the appellant with the same request. Even before the Competent Authority considers the application, the 1st Respondent approached the High Court by filing Writ Petition and the High Court, not only entertained the petition, but disposed of the same without even notice and opportunity of filing counter affidavit to the appellant. 29. We have also perused the order passed by the Division Bench. Even the Division Bench of High Court has not considered various grounds raised by the appellant, while confirming the order of the learned Single Judge. 30. It may be true that the 1st Respondent is getting pension as per the scheme, mooted by the State, but, at the same time, to claim pension under the scheme of 1980, the 1st Respondent has to furnish the required proof as contemplated under the scheme. When the claim is under a particular scheme, unless one fulfills the eligibility criteria for grant of pension, as mentioned in the scheme, no applicant can claim such pensions, as a matter of right. 31. Though, the learned Counsel appearing for the respondent – Writ Petitioner has placed reliance on the order passed by this Court in rejecting the Special Leave Petition in limine and also, further, judgment of this Court in the case of Union of India v. Sitakant S. Dubhashi and Anr.3, we are of the view that the order passed by this Court and also the judgment in the case of Union of India v. Sitakant S. Dubhashi and Anr. would not render any assistance in support of his claim. Whether a particular applicant is entitled for pension under the Swatantrata Sainik Samman Pension Scheme of 1980, is a matter which is required to be considered having regard to facts and documentary evidence produced in each case, as such, the judgment relied on by the learned counsel is of no assistance to support his case. | 1[ds]23. It is not in dispute that at first instance, the 1st Respondent herein, has applied for grant of pension in the year 1997 and the application dated 10.04.1997, submitted by the 1st Respondent is placed on record. In the said application, the 1st Respondent has stated that he was underground during the Quit India Movement of 1942 i.e. during the period from August, 1942 up to a period of more than six months. At that time, along with the first application, the Non - Availability of Records Certificate (NARC) obtained from the Government, was not produced and merely a certificate, certified by the C.J.M., Madurai, was produced.24. The first application, which was forwarded to the appellant, was without any specific recommendation. On receipt of such communication from the 2nd respondent, the claim of the 1st Respondent was considered and rejected. The said order has become final and the same was not questioned. Nearly after 13 years of such rejection, on 29.08.2017, the 1st Respondent has again claimed pension under the Swatantrata Sainik Samman Pension Scheme on the plea of his imprisonment for more than six months for participating in the Quit India Movement. The application, which is made for the second time, is also placed on record as Annexure P-5. In the said application, he has stated that he was imprisoned for more than six months i.e. from 05.01.1944 to 05.07.1944, which is clearly in variance to the period which he has mentioned in the first application. Though, earlier rejection has become final and the particulars mentioned in the claim made by the 1st Respondent are in variance to the particulars mentioned at first instance, without issuing notice and without giving opportunity to the appellant to file counter affidavit, the learned Single Judge has disposed of the petition by granting a positive direction to grant pension. The claim of the 1st Respondent is under the scheme, notified by the appellant-Government. The scheme prescribes to file certain documents to authenticate the imprisonment of a claimant as a freedom fighter.25. It is the case of the appellant that the documentary evidence filed by the 1st Respondent is not in compliance of the scheme. It is a matter which is to be left to the competent authority to consider. When the application of the 1st Respondent is already rejected in the year 1997, when such rejection order has become final, it is not open for the 1st Respondent to make a claim for second time for pension again by way of fresh application. The 1st Respondent would be entitled to the benefits of this scheme, if he produces the relevant material in support of his claim. As regards the sufficiency of proof, the scheme itself mentions the documents which are required to be produced along with the application. Whether the claimant fulfills the criteria or not, it is for the competent authority to examine it. Even before the application is considered by the competent authority, in exercise of powers of judicial review, the High Court should not have issued any directions for grant of pension. In this case, it is also to be noticed that earlier the claim of the 1st Respondent is already rejected and the said order has become final. After perusal of the order passed by the learned Single Judge and the Division Bench, we are of the view that no valid reasons have been assigned to grant relief to the 1st Respondent for grant of pension. It appears that the 1st Respondent has not disclosed his earlier rejection by producing the earlier orders while making the application for the second time before the appellant and also before the High Court.26. In any event, when such serious factual disputes emerge for consideration, the High Court ought not to have disposed of the petition filed by the Respondent without even issuing notice and giving opportunity to file counter affidavit to rebut the allegations made by the appellant. The judgments of this Court, relied on by the learned Additional Solicitor General in the case of W.B.Freedom Fighters Organization v. Union of India and Others1 and in the case of Union of India v. Bikash R. Bhowmik and Others2 will support the plea of the appellant. In the case of W.B.Freedom Fighters Organization v. Union of India and Others, this Court has held that when the competent committee has considered and opined that the applications were not supported by required documents and rejected the application, this Court cannot interfere with the same and such findings cannot be said to be perverse or unreasonable.27. Further, in the case of Union of India vs. Bikash R. Bhowmik and Others2, this Court has held that the pension under Swatantrata Sainik Samman Pension Scheme of 1980 can be sanctioned as per the proof required under the scheme and in no other manner. In the said judgment, this Court has reversed the order passed by the High Court.28. In the instant case, the appellant stands on a better footing, for the reason that although the application made by the 1st Respondent on 10.04.1997 was rejected and the said order has become final, he again approached the appellant with the same request. Even before the Competent Authority considers the application, the 1st Respondent approached the High Court by filing Writ Petition and the High Court, not only entertained the petition, but disposed of the same without even notice and opportunity of filing counter affidavit to the appellant.29. We have also perused the order passed by the Division Bench. Even the Division Bench of High Court has not considered various grounds raised by the appellant, while confirming the order of the learned Single Judge.30. It may be true that the 1st Respondent is getting pension as per the scheme, mooted by the State, but, at the same time, to claim pension under the scheme of 1980, the 1st Respondent has to furnish the required proof as contemplated under the scheme. When the claim is under a particular scheme, unless one fulfills the eligibility criteria for grant of pension, as mentioned in the scheme, no applicant can claim such pensions, as a matter of right.31. Though, the learned Counsel appearing for the respondent – Writ Petitioner has placed reliance on the order passed by this Court in rejecting the Special Leave Petition in limine and also, further, judgment of this Court in the case of Union of India v. Sitakant S. Dubhashi and Anr.3, we are of the view that the order passed by this Court and also the judgment in the case of Union of India v. Sitakant S. Dubhashi and Anr. would not render any assistance in support of his claim. Whether a particular applicant is entitled for pension under the Swatantrata Sainik Samman Pension Scheme of 1980, is a matter which is required to be considered having regard to facts and documentary evidence produced in each case, as such, the judgment relied on by the learned counsel is of no assistance to support his case. | 1 | 2,969 | 1,279 | ### 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:
Scheme on the plea of his imprisonment for more than six months for participating in the Quit India Movement. The application, which is made for the second time, is also placed on record as Annexure P-5. In the said application, he has stated that he was imprisoned for more than six months i.e. from 05.01.1944 to 05.07.1944, which is clearly in variance to the period which he has mentioned in the first application. Though, earlier rejection has become final and the particulars mentioned in the claim made by the 1st Respondent are in variance to the particulars mentioned at first instance, without issuing notice and without giving opportunity to the appellant to file counter affidavit, the learned Single Judge has disposed of the petition by granting a positive direction to grant pension. The claim of the 1st Respondent is under the scheme, notified by the appellant-Government. The scheme prescribes to file certain documents to authenticate the imprisonment of a claimant as a freedom fighter. 25. It is the case of the appellant that the documentary evidence filed by the 1st Respondent is not in compliance of the scheme. It is a matter which is to be left to the competent authority to consider. When the application of the 1st Respondent is already rejected in the year 1997, when such rejection order has become final, it is not open for the 1st Respondent to make a claim for second time for pension again by way of fresh application. The 1st Respondent would be entitled to the benefits of this scheme, if he produces the relevant material in support of his claim. As regards the sufficiency of proof, the scheme itself mentions the documents which are required to be produced along with the application. Whether the claimant fulfills the criteria or not, it is for the competent authority to examine it. Even before the application is considered by the competent authority, in exercise of powers of judicial review, the High Court should not have issued any directions for grant of pension. In this case, it is also to be noticed that earlier the claim of the 1st Respondent is already rejected and the said order has become final. After perusal of the order passed by the learned Single Judge and the Division Bench, we are of the view that no valid reasons have been assigned to grant relief to the 1st Respondent for grant of pension. It appears that the 1st Respondent has not disclosed his earlier rejection by producing the earlier orders while making the application for the second time before the appellant and also before the High Court. 26. In any event, when such serious factual disputes emerge for consideration, the High Court ought not to have disposed of the petition filed by the Respondent without even issuing notice and giving opportunity to file counter affidavit to rebut the allegations made by the appellant. The judgments of this Court, relied on by the learned Additional Solicitor General in the case of W.B.Freedom Fighters Organization v. Union of India and Others1 and in the case of Union of India v. Bikash R. Bhowmik and Others2 will support the plea of the appellant. In the case of W.B.Freedom Fighters Organization v. Union of India and Others, this Court has held that when the competent committee has considered and opined that the applications were not supported by required documents and rejected the application, this Court cannot interfere with the same and such findings cannot be said to be perverse or unreasonable. 27. Further, in the case of Union of India vs. Bikash R. Bhowmik and Others2, this Court has held that the pension under Swatantrata Sainik Samman Pension Scheme of 1980 can be sanctioned as per the proof required under the scheme and in no other manner. In the said judgment, this Court has reversed the order passed by the High Court. 28. In the instant case, the appellant stands on a better footing, for the reason that although the application made by the 1st Respondent on 10.04.1997 was rejected and the said order has become final, he again approached the appellant with the same request. Even before the Competent Authority considers the application, the 1st Respondent approached the High Court by filing Writ Petition and the High Court, not only entertained the petition, but disposed of the same without even notice and opportunity of filing counter affidavit to the appellant. 29. We have also perused the order passed by the Division Bench. Even the Division Bench of High Court has not considered various grounds raised by the appellant, while confirming the order of the learned Single Judge. 30. It may be true that the 1st Respondent is getting pension as per the scheme, mooted by the State, but, at the same time, to claim pension under the scheme of 1980, the 1st Respondent has to furnish the required proof as contemplated under the scheme. When the claim is under a particular scheme, unless one fulfills the eligibility criteria for grant of pension, as mentioned in the scheme, no applicant can claim such pensions, as a matter of right. 31. Though, the learned Counsel appearing for the respondent – Writ Petitioner has placed reliance on the order passed by this Court in rejecting the Special Leave Petition in limine and also, further, judgment of this Court in the case of Union of India v. Sitakant S. Dubhashi and Anr.3, we are of the view that the order passed by this Court and also the judgment in the case of Union of India v. Sitakant S. Dubhashi and Anr. would not render any assistance in support of his claim. Whether a particular applicant is entitled for pension under the Swatantrata Sainik Samman Pension Scheme of 1980, is a matter which is required to be considered having regard to facts and documentary evidence produced in each case, as such, the judgment relied on by the learned counsel is of no assistance to support his case.
### Response:
1
### Explanation:
pension under the Swatantrata Sainik Samman Pension Scheme on the plea of his imprisonment for more than six months for participating in the Quit India Movement. The application, which is made for the second time, is also placed on record as Annexure P-5. In the said application, he has stated that he was imprisoned for more than six months i.e. from 05.01.1944 to 05.07.1944, which is clearly in variance to the period which he has mentioned in the first application. Though, earlier rejection has become final and the particulars mentioned in the claim made by the 1st Respondent are in variance to the particulars mentioned at first instance, without issuing notice and without giving opportunity to the appellant to file counter affidavit, the learned Single Judge has disposed of the petition by granting a positive direction to grant pension. The claim of the 1st Respondent is under the scheme, notified by the appellant-Government. The scheme prescribes to file certain documents to authenticate the imprisonment of a claimant as a freedom fighter.25. It is the case of the appellant that the documentary evidence filed by the 1st Respondent is not in compliance of the scheme. It is a matter which is to be left to the competent authority to consider. When the application of the 1st Respondent is already rejected in the year 1997, when such rejection order has become final, it is not open for the 1st Respondent to make a claim for second time for pension again by way of fresh application. The 1st Respondent would be entitled to the benefits of this scheme, if he produces the relevant material in support of his claim. As regards the sufficiency of proof, the scheme itself mentions the documents which are required to be produced along with the application. Whether the claimant fulfills the criteria or not, it is for the competent authority to examine it. Even before the application is considered by the competent authority, in exercise of powers of judicial review, the High Court should not have issued any directions for grant of pension. In this case, it is also to be noticed that earlier the claim of the 1st Respondent is already rejected and the said order has become final. After perusal of the order passed by the learned Single Judge and the Division Bench, we are of the view that no valid reasons have been assigned to grant relief to the 1st Respondent for grant of pension. It appears that the 1st Respondent has not disclosed his earlier rejection by producing the earlier orders while making the application for the second time before the appellant and also before the High Court.26. In any event, when such serious factual disputes emerge for consideration, the High Court ought not to have disposed of the petition filed by the Respondent without even issuing notice and giving opportunity to file counter affidavit to rebut the allegations made by the appellant. The judgments of this Court, relied on by the learned Additional Solicitor General in the case of W.B.Freedom Fighters Organization v. Union of India and Others1 and in the case of Union of India v. Bikash R. Bhowmik and Others2 will support the plea of the appellant. In the case of W.B.Freedom Fighters Organization v. Union of India and Others, this Court has held that when the competent committee has considered and opined that the applications were not supported by required documents and rejected the application, this Court cannot interfere with the same and such findings cannot be said to be perverse or unreasonable.27. Further, in the case of Union of India vs. Bikash R. Bhowmik and Others2, this Court has held that the pension under Swatantrata Sainik Samman Pension Scheme of 1980 can be sanctioned as per the proof required under the scheme and in no other manner. In the said judgment, this Court has reversed the order passed by the High Court.28. In the instant case, the appellant stands on a better footing, for the reason that although the application made by the 1st Respondent on 10.04.1997 was rejected and the said order has become final, he again approached the appellant with the same request. Even before the Competent Authority considers the application, the 1st Respondent approached the High Court by filing Writ Petition and the High Court, not only entertained the petition, but disposed of the same without even notice and opportunity of filing counter affidavit to the appellant.29. We have also perused the order passed by the Division Bench. Even the Division Bench of High Court has not considered various grounds raised by the appellant, while confirming the order of the learned Single Judge.30. It may be true that the 1st Respondent is getting pension as per the scheme, mooted by the State, but, at the same time, to claim pension under the scheme of 1980, the 1st Respondent has to furnish the required proof as contemplated under the scheme. When the claim is under a particular scheme, unless one fulfills the eligibility criteria for grant of pension, as mentioned in the scheme, no applicant can claim such pensions, as a matter of right.31. Though, the learned Counsel appearing for the respondent – Writ Petitioner has placed reliance on the order passed by this Court in rejecting the Special Leave Petition in limine and also, further, judgment of this Court in the case of Union of India v. Sitakant S. Dubhashi and Anr.3, we are of the view that the order passed by this Court and also the judgment in the case of Union of India v. Sitakant S. Dubhashi and Anr. would not render any assistance in support of his claim. Whether a particular applicant is entitled for pension under the Swatantrata Sainik Samman Pension Scheme of 1980, is a matter which is required to be considered having regard to facts and documentary evidence produced in each case, as such, the judgment relied on by the learned counsel is of no assistance to support his case.
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Hindustan Antibiotics Limited Vs. Special Land Acquisition Officer (14) & Others | no question of proceedings under the Act in acquiring lands belonging to company are proceedings as contemplated by section 22. There is therefore no question of prior consent of the Board being taken for that purpose. 16. Reliance was placed by the learned counsel for the petitioner on a judgment reported in the case of Maharshtra Tubes Ltd. V/s State Industrial & Investment Corporation of Maharashtra Ltd. & Another, (1993) 2 SCC 144 in support of its contention that consent of the Board is necessary even for proceedings under the Land Acquisition Act. In that case the Supreme Court of India was dealing with the question as to whether financial corporation established under the State Financial Corporation Act could exercise the powers under section 29 of that Act while proceedings under section 15 to 19 of the SICA are pending. After considering provisions of SICA the Supreme Court of India came too the conclusion that commencement of such proceedings by Financial Corporation would in all necessity render the entire process contemplated by sections 15 to 19 nugatory. The Supreme Court then held that in such a situation the law (SICA) merely expect the Corporation (Financial Corporation) or for that matter any other creditor to obtain consent of the Board or the Appellate Authority as the case may be. The Supreme Court then observed that the law viz. SICA has not left such Corporation or any other creditor without a remedy. It then proceeds to observe that the express proceedings occurring in section 22 must be widely construed. The observations of the Supreme court of India in this case made in para 6 of its judgment are liable to be noted verbatim: 6. On the other hand, the 1985 Act was enacted as its preamble manifests, with a view to timely detection of sick or potentially sick companies owning industrial undertakings, the identification of the nature of sickness through experts in relevant fields with a view to devising suitable remedial measurers through appropriate schemes and their expeditious implementation. Here the emphasis is to prevent sickness and in cases of sick undertakings to prepare schemes for their rehabilitation by providing financial assistance by way of loans, advances or guarantees or by providing reliefs, concessions or sacrifices from Central or State Governments, scheduled banks, etc. The basic idea is to revive sick units, if necessary, by extending further financial assistance after a through examination of the units by exerts and only when the unit is found too be no more capable of rehabilitation, that the option of winding up may be resorted to. It is for that reason that section 22(1) provides that during the pendency of (i) an inquiry under section 16 or (ii) preparation or consideration of a scheme under section 17 or (iii) an appeal under section 25, no proceedings for winding up of the concerned industrial company or for execution, distress or the like shall lie or be proceeded with in relation to the properties of that concern unless BIFR/appellate authority has consented thereto. The underlying idea is that every such action should be frozen unless expressly permitted by the specified authority until the investigation for the revival of the industrial undertaking is finally determined. It is thus crystal clear that the main thrust of this special legislation is a revival or rehabilitation of the sick industrial undertaking and it is only when it is realised that the same is not feasible that the option of winding up of the unit can be resorted to. It will be seen from the above that the main thrust of this special legislation (SICA) is revival or rehabilitation of sick industrial undertaking. The provisions of section 22 in our opinion, therefore be interpreted or read in the light of this object of the Act. 17. The Supreme Court then proceeds to note certain judgments of the High Court and Supreme Court in this connection under the provisions of State Financial Corporations Act, 1951 and observed that these cases therefore support the view that expression proceedings under section 22(1) need not be limited to legal proceedings as understood in the narrow sense notwithstanding the marginal notes. Because the provisions have to be interpreted according to the Supreme Court of India to consider the proper aspects sought to be taken up and solved by provisions of SICA. In our opinion, the observations of the Supreme Court of India in the above referred case over all support the view that we have taken that proceedings contemplated by section 22 whether legal or otherwise must be such as are connected with financing or restructuring of the Company. 18. Reliance was placed on reported decision of the Supreme court of India in the case Maharashtra Tubes Ltd. V/s State Industrial & Investment Corporation of Maharashtra Ltd. & Another, (1993) 2 SCC 144. A careful consideration of the observations by the Supreme Court of India as a whole would in our opinion, reiterate concrete support to our opinion that proceedings contemplated by provisions of section 22 of SICA must be such as are analogous to proceedings mentioned therein and proceedings for acquisition of land are not such proceedings analogous to those mentioned in section 22. There is therefore no substance in the submission made by the learned counsel. 19. There is yet another aspect which we would like to note. Proceedings for acquisition of land commenced with the publication of section 6 notification. That was done in 1998. No preventive action like filing of petition of the kind we are dealing with was taken till award was made under section 12 and communicated to the Company under section 12(2). This delay on the part of company to avoid acquisition of a part of its property by reference to section 22 is unexplained. However nothing much turns on this as on merits we have held above that legal proceedings as contemplated by section 22 do not encompass proceedings under Land Acquisition Act of the kind impugned in this petition. | 0[ds]12. In our opinion, proceedings analogous to those enumerated above, but not specifically covered by provisions of section 22 also may not be taken up without previous consent of the Board. But it is only such proceedings which are connected with the financial existence and proprietary rights of the Company which are prohibited. Such proceedings directly deal with the existence of the Company itself and where restructuring on reconstruction or financing is pending contemplation. All these proceedings as contemplated by section 22 therefore must relate to the sickness of the Company and no proceedings of the kind mentioned above and similar proceedings be taken without consent of the Board so that activities undertaken by the Board under the provisions of SICA are not hampered by such proceedings. In our opinion, proceedings contemplated by section 22 are obviously legal proceedings. Proceedings taken up by any authorities which are judicial or quasi judicial. What is contemplated in section 22 is therefore no proceedings of the kind referred to above be taken up except with the previous sanction of the Board. There is no prohibition. All that as stipulated by section 22 is taking up of these legal proceedings without prior consent of the Board. The Board may on being moved for grant of such consent take into consideration the nature of legal proceedings and grant or refusal of sanction. We must therefore keep in mind that initiation of any legal proceedings is not barred by the provisions of section 22. What is provided for by it is prior consent of the Board13. In our opinion, proceedings contemplated under section 22 which can be taken up with prior consent of the Board are therefore proceedings in financial nature or proceedings having financial implications and are connected with the sickness of the industry concerned. They must in all cases be legal proceedings before a judicial authority or quasi judicial authority. That in our opinion would necessarily take us to consider question as to whether proceedings commenced under the Act are legal proceedings as understood in common parlance and whether such proceedings under the Act can be said to have been covered by the provisions of section 22 requiring prior consent of the Board15. In our opinion, no such consent is necessary because these proceedings under the Act are not such legal proceedings as are contemplated under section 22. We have enumerated above kind of proceedings contemplated by section 22. We repeat what in our opinion constitute legal proceedings as contemplated by section 22. By no stretch of imagination proceedings for acquisition of land can therefore be called legal proceedings as contemplated by section 22. Section 22 contemplates legal proceedings which have some bearing on the existence of the industrial company or its sickness or its refinancing or its restructuring or reconstruction. The entire lands which were earlier acquired for they are not being acquired again by the State for another purpose. It must be kept in mind that all lands belonging to they were acquired for the petitionercompany as power provisions of part 7 of the Act. It was acquired for the purposes of running of the Company or conducting its business. All that land acquired for the petitioners after its establishment is not sought to be acquired for the purposes of road widening or any other purposes as stated in section 6 notification. Only part of it is being acquired. The acquisition has nothing to do with any of things relating to sick industry. Even if it is assumed that land belonging to the Company can be sold for the purposes of revenue or for reconstruction of the Company this acquisition cannot affect the profits of the company in relation to its operation as a Company. There is therefore no question of proceedings under the Act in acquiring lands belonging to company are proceedings as contemplated by section 22. There is therefore no question of prior consent of the Board being taken for that purpose18. Reliance was placed on reported decision of the Supreme court of India in the case Maharashtra Tubes Ltd. V/s State Industrial & Investment Corporation of Maharashtra Ltd. & Another, (1993) 2 SCC 144. A careful consideration of the observations by the Supreme Court of India as a whole would in our opinion, reiterate concrete support to our opinion that proceedings contemplated by provisions of section 22 of SICA must be such as are analogous to proceedings mentioned therein and proceedings for acquisition of land are not such proceedings analogous to those mentioned in section 22. There is therefore no substance in the submission made by the learned counsel19. There is yet another aspect which we would like to note. Proceedings for acquisition of land commenced with the publication of section 6 notification. That was done in 1998. No preventive action like filing of petition of the kind we are dealing with was taken till award was made under section 12 and communicated to the Company under section 12(2). This delay on the part of company to avoid acquisition of a part of its property by reference to section 22 is unexplained. However nothing much turns on this as on merits we have held above that legal proceedings as contemplated by section 22 do not encompass proceedings under Land Acquisition Act of the kind impugned in this petition. | 0 | 3,966 | 945 | ### Instruction:
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no question of proceedings under the Act in acquiring lands belonging to company are proceedings as contemplated by section 22. There is therefore no question of prior consent of the Board being taken for that purpose. 16. Reliance was placed by the learned counsel for the petitioner on a judgment reported in the case of Maharshtra Tubes Ltd. V/s State Industrial & Investment Corporation of Maharashtra Ltd. & Another, (1993) 2 SCC 144 in support of its contention that consent of the Board is necessary even for proceedings under the Land Acquisition Act. In that case the Supreme Court of India was dealing with the question as to whether financial corporation established under the State Financial Corporation Act could exercise the powers under section 29 of that Act while proceedings under section 15 to 19 of the SICA are pending. After considering provisions of SICA the Supreme Court of India came too the conclusion that commencement of such proceedings by Financial Corporation would in all necessity render the entire process contemplated by sections 15 to 19 nugatory. The Supreme Court then held that in such a situation the law (SICA) merely expect the Corporation (Financial Corporation) or for that matter any other creditor to obtain consent of the Board or the Appellate Authority as the case may be. The Supreme Court then observed that the law viz. SICA has not left such Corporation or any other creditor without a remedy. It then proceeds to observe that the express proceedings occurring in section 22 must be widely construed. The observations of the Supreme court of India in this case made in para 6 of its judgment are liable to be noted verbatim: 6. On the other hand, the 1985 Act was enacted as its preamble manifests, with a view to timely detection of sick or potentially sick companies owning industrial undertakings, the identification of the nature of sickness through experts in relevant fields with a view to devising suitable remedial measurers through appropriate schemes and their expeditious implementation. Here the emphasis is to prevent sickness and in cases of sick undertakings to prepare schemes for their rehabilitation by providing financial assistance by way of loans, advances or guarantees or by providing reliefs, concessions or sacrifices from Central or State Governments, scheduled banks, etc. The basic idea is to revive sick units, if necessary, by extending further financial assistance after a through examination of the units by exerts and only when the unit is found too be no more capable of rehabilitation, that the option of winding up may be resorted to. It is for that reason that section 22(1) provides that during the pendency of (i) an inquiry under section 16 or (ii) preparation or consideration of a scheme under section 17 or (iii) an appeal under section 25, no proceedings for winding up of the concerned industrial company or for execution, distress or the like shall lie or be proceeded with in relation to the properties of that concern unless BIFR/appellate authority has consented thereto. The underlying idea is that every such action should be frozen unless expressly permitted by the specified authority until the investigation for the revival of the industrial undertaking is finally determined. It is thus crystal clear that the main thrust of this special legislation is a revival or rehabilitation of the sick industrial undertaking and it is only when it is realised that the same is not feasible that the option of winding up of the unit can be resorted to. It will be seen from the above that the main thrust of this special legislation (SICA) is revival or rehabilitation of sick industrial undertaking. The provisions of section 22 in our opinion, therefore be interpreted or read in the light of this object of the Act. 17. The Supreme Court then proceeds to note certain judgments of the High Court and Supreme Court in this connection under the provisions of State Financial Corporations Act, 1951 and observed that these cases therefore support the view that expression proceedings under section 22(1) need not be limited to legal proceedings as understood in the narrow sense notwithstanding the marginal notes. Because the provisions have to be interpreted according to the Supreme Court of India to consider the proper aspects sought to be taken up and solved by provisions of SICA. In our opinion, the observations of the Supreme Court of India in the above referred case over all support the view that we have taken that proceedings contemplated by section 22 whether legal or otherwise must be such as are connected with financing or restructuring of the Company. 18. Reliance was placed on reported decision of the Supreme court of India in the case Maharashtra Tubes Ltd. V/s State Industrial & Investment Corporation of Maharashtra Ltd. & Another, (1993) 2 SCC 144. A careful consideration of the observations by the Supreme Court of India as a whole would in our opinion, reiterate concrete support to our opinion that proceedings contemplated by provisions of section 22 of SICA must be such as are analogous to proceedings mentioned therein and proceedings for acquisition of land are not such proceedings analogous to those mentioned in section 22. There is therefore no substance in the submission made by the learned counsel. 19. There is yet another aspect which we would like to note. Proceedings for acquisition of land commenced with the publication of section 6 notification. That was done in 1998. No preventive action like filing of petition of the kind we are dealing with was taken till award was made under section 12 and communicated to the Company under section 12(2). This delay on the part of company to avoid acquisition of a part of its property by reference to section 22 is unexplained. However nothing much turns on this as on merits we have held above that legal proceedings as contemplated by section 22 do not encompass proceedings under Land Acquisition Act of the kind impugned in this petition.
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12. In our opinion, proceedings analogous to those enumerated above, but not specifically covered by provisions of section 22 also may not be taken up without previous consent of the Board. But it is only such proceedings which are connected with the financial existence and proprietary rights of the Company which are prohibited. Such proceedings directly deal with the existence of the Company itself and where restructuring on reconstruction or financing is pending contemplation. All these proceedings as contemplated by section 22 therefore must relate to the sickness of the Company and no proceedings of the kind mentioned above and similar proceedings be taken without consent of the Board so that activities undertaken by the Board under the provisions of SICA are not hampered by such proceedings. In our opinion, proceedings contemplated by section 22 are obviously legal proceedings. Proceedings taken up by any authorities which are judicial or quasi judicial. What is contemplated in section 22 is therefore no proceedings of the kind referred to above be taken up except with the previous sanction of the Board. There is no prohibition. All that as stipulated by section 22 is taking up of these legal proceedings without prior consent of the Board. The Board may on being moved for grant of such consent take into consideration the nature of legal proceedings and grant or refusal of sanction. We must therefore keep in mind that initiation of any legal proceedings is not barred by the provisions of section 22. What is provided for by it is prior consent of the Board13. In our opinion, proceedings contemplated under section 22 which can be taken up with prior consent of the Board are therefore proceedings in financial nature or proceedings having financial implications and are connected with the sickness of the industry concerned. They must in all cases be legal proceedings before a judicial authority or quasi judicial authority. That in our opinion would necessarily take us to consider question as to whether proceedings commenced under the Act are legal proceedings as understood in common parlance and whether such proceedings under the Act can be said to have been covered by the provisions of section 22 requiring prior consent of the Board15. In our opinion, no such consent is necessary because these proceedings under the Act are not such legal proceedings as are contemplated under section 22. We have enumerated above kind of proceedings contemplated by section 22. We repeat what in our opinion constitute legal proceedings as contemplated by section 22. By no stretch of imagination proceedings for acquisition of land can therefore be called legal proceedings as contemplated by section 22. Section 22 contemplates legal proceedings which have some bearing on the existence of the industrial company or its sickness or its refinancing or its restructuring or reconstruction. The entire lands which were earlier acquired for they are not being acquired again by the State for another purpose. It must be kept in mind that all lands belonging to they were acquired for the petitionercompany as power provisions of part 7 of the Act. It was acquired for the purposes of running of the Company or conducting its business. All that land acquired for the petitioners after its establishment is not sought to be acquired for the purposes of road widening or any other purposes as stated in section 6 notification. Only part of it is being acquired. The acquisition has nothing to do with any of things relating to sick industry. Even if it is assumed that land belonging to the Company can be sold for the purposes of revenue or for reconstruction of the Company this acquisition cannot affect the profits of the company in relation to its operation as a Company. There is therefore no question of proceedings under the Act in acquiring lands belonging to company are proceedings as contemplated by section 22. There is therefore no question of prior consent of the Board being taken for that purpose18. Reliance was placed on reported decision of the Supreme court of India in the case Maharashtra Tubes Ltd. V/s State Industrial & Investment Corporation of Maharashtra Ltd. & Another, (1993) 2 SCC 144. A careful consideration of the observations by the Supreme Court of India as a whole would in our opinion, reiterate concrete support to our opinion that proceedings contemplated by provisions of section 22 of SICA must be such as are analogous to proceedings mentioned therein and proceedings for acquisition of land are not such proceedings analogous to those mentioned in section 22. There is therefore no substance in the submission made by the learned counsel19. There is yet another aspect which we would like to note. Proceedings for acquisition of land commenced with the publication of section 6 notification. That was done in 1998. No preventive action like filing of petition of the kind we are dealing with was taken till award was made under section 12 and communicated to the Company under section 12(2). This delay on the part of company to avoid acquisition of a part of its property by reference to section 22 is unexplained. However nothing much turns on this as on merits we have held above that legal proceedings as contemplated by section 22 do not encompass proceedings under Land Acquisition Act of the kind impugned in this petition.
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Tulsipur Sugar Company Ltd Vs. State of U.P. and Ors | cannot be used as a ground for inferring a time limit for the correctional jurisdiction under Section 6 (6).8. Acceptance of the High Courts reasoning becomes still more difficult when we examine the premises of that reasoning. The High Court does not appear to be sure whether the limit as to time is to be the date of finality of the award or its enforceability for, it states that the correctional jurisdiction can be exercised until the award has become final and enforceable. As already stated, the concepts of finality and enforceability of an award are distinct and have been dealt with by the Legislature separately in Sections 6 and 8A. If it is to be reasoned that the correctional jurisdiction can be exercised till the date when the award is published and becomes final, such a reasoning would be contrary to the provisions of Section 6 (6) themselves which envisage correction of an award even after it is published and has become final. Sub-section (6) expressly provides that when so corrected, the order correcting it has to be published in the manner prescribed under and within the time provided in Section 6 (3). It is, therefore, manifest that the date when an award becomes final cannot be the date within which the power under Section 6 (6) has to be exercised. If, it is to be held, on the other hand, that the power to correct is to be exercised until the award has become enforceable, the difficulty would be that there is nothing either in Section 6 or Section 6A or Section 6D which warrants such a limitation by implication. Is it that an award is really final when it becomes enforceable? Such a conclusion would, firstly, be contrary to the clear language of Sec. 6 and, secondly, would lead to a curious result that though it has become final on publication, it is not really so, as that finality is subject to the provisions of Section 6A. In that case, an award can be challenged in a Court during the interval between its publication and the date when it becomes enforceable. That would be so, despite the clear language of Section 6 (5) that an award becoming final on publication cannot thence be challenged in any Court whatsoever. Laying down by implication the time limit during which the correctional jurisdiction under Section 6 (6) can be exercised upon the time of the award becoming final under Section 6 (5) or becoming enforceable under Sec. 6A creates difficulties, besides, it would appear, being contrary to the provisions of these two sections and is therefore not commendable.The correctional jurisdiction conferred on the adjudicating authority under Section 6 (6) is in terms identical with the one conferred under sec. 152 of the Code of Civil Procedure and R. 28 of the Industrial Disputes (Central) Rules 1957 and is in consonance with the first and foremost principal that no party should suffer any detriment on account of a mistake or an error committed by an adjudicating authority. The circumstance that the proceedings before a Labour Court and a tribunal are deemed to be concluded under Section 6D when their award becomes enforceable or that thereupon they become functus officio would also be no ground for inferring any limitation of time in Section 6 (6), for that would also be the case in the case of a Civil Court or an adjudicating authority under the Industrial Disputes Act. 1947 even without a provision like Section 6D and yet the legislature has not chosen in the case of either of them to lay down any limitation of time for exercising its correctional jurisdiction. In our view, there are no compelling reasons to read into Section 6 (6) any such limitation by implication.9. We are also not impressed with the difficulty which the High Court supposed would result in case Section 6 (6) is interpreted as not having by implication any time limit within which the correctional power can be exercised by any of the three adjudicating authorities. The High Court felt that if there is no such time limit an award, even after it has become enforceable and in some cases even implemented, would be rendered unsettled. But as already stated, the power is a limited one which can be exercised only in cases where a mistake clerical or arithmetical or an error arising from an accidental slip or omission has occurred. The award thus would have to be corrected only within this circumscribed field. It may be that the correction of an award might to a certain extent have an unsettling effect to what has already become settled, but the correction is made not due to any fault of the parties but of the adjudicating authority whose accidental slip or omission cannot be allowed to prejudice the interests of the parties. We do not visualise any substantial hardship resulting from the exercise of this power which the High Court though might arise if an award is allowed to be amended even after it has become enforceable or even if it has been enforced. A similar difficulty can also be imagined when a Civil Court exercises a similar power under Section 152 of the Code of Civil Procedure. But no one has so far suggested that because of that difficulty a limitation must be inferred in that section. A similar difficulty would also arise under Rule 28 of the Industrial Disputes (Central) Rules, 1957. But so far no one has read a similar limitation in the correctional power provided by that rule.10. In our view the error which the Labour Court corrected clearly fell within Section 6 (6) and could be corrected even after the award had become final as a result of its having been published and had become enforceable under Sec. 6A.In this view it is not necessary to consider Section 11B or its effect especially as it is nobodys case that it was at any stage invoked or resorted to. | 0[ds]5. The next question is whether there is under the Act any time limit within which the correction of the award can be made. The impugned correction, no doubt, was made by the Labour Court after its award had become final and enforceable. The principal premise in the High Courts reasoning as also in that of counsel for the company was that the jurisdiction of the Labour Court to correct the award ceased when the award became final and enforceable. It may be observed at the very outset that no time limit within which such correction can be made has been laid down in any express terms in Section 6 (6).The scheme of Sections 6 and 6A is to retain a certain amount of control over award, including an arbitration award, with the State Government. An award, therefore, does not become final as it ordinarily would be when the adjudicating authority signs it but becomes final when it is published in the manner prescribed by the State Government. Before such publication the Government is given the power to remit it to the adjudicating authority for reconsideration and the State Government has to publish it. We are also not impressed with the difficulty which the High Court supposed would result in case Section 6 (6) is interpreted as not having by implication any time limit within which the correctional power can be exercised by any of the three adjudicating authorities. The High Court felt that if there is no such time limit an award, even after it has become enforceable and in some cases even implemented, would be rendered unsettled. But as already stated, the power is a limited one which can be exercised only in cases where a mistake clerical or arithmetical or an error arising from an accidental slip or omission has occurred. The award thus would have to be corrected only within this circumscribed field. It may be that the correction of an award might to a certain extent have an unsettling effect to what has already become settled, but the correction is made not due to any fault of the parties but of the adjudicating authority whose accidental slip or omission cannot be allowed to prejudice the interests of the parties. We do not visualise any substantial hardship resulting from the exercise of this power which the High Court though might arise if an award is allowed to be amended even after it has become enforceable or even if it has been enforced. A similar difficulty can also be imagined when a Civil Court exercises a similar power under Section 152 of the Code of Civil Procedure. But no one has so far suggested that because of that difficulty a limitation must be inferred in that section. A similar difficulty would also arise under Rule 28 of the Industrial Disputes (Central) Rules, 1957. But so far no one has read a similar limitation in the correctional power provided by that rule.10. In our view the error which the Labour Court corrected clearly fell within Section 6 (6) and could be corrected even after the award had become final as a result of its having been published and had become enforceable under Sec. 6A.In this view it is not necessary to consider Section 11B or its effect especially as it is nobodys case that it was at any stage invoked or resorted to. In the view that we have taken it was Section 6 (6) and not Section 11 B which could on the facts of this case be resorted to.As already stated, the Wage Board had recommended revised wage scales, revised categories and fitment of workmen in their respective categories on the revised wage scales as from November 1, 1960. The State Government had accepted those recommendations fully including the date of their implementation and the consequent fitment of workmen in appropriate categories and revised wage scales. Its notification made it clear that such fitment on the revised wage scales should be as recommended by the Wage Board as from November 1, 1960. In the belief, perhaps, that the said recommendations and their acceptance by the Government were not binding on it, the company did not implement them and hence the union raised the dispute which was ultimately referred to the Labour Court. The terms of that reference leave no doubt that it comprised of two question, (1) of fitment and (2) the date from which it was to have effect. The award of the Labour Court that the company was liable to fit the two workmen in grades II and IV respectively and pay them at the revised scales in respect of these grades was binding and therefore the company was liable to carry out the fitment and pay the revised scales in accordance with such fitment. But the award did not decide or fix the date from which the said fitment, when made, was to have effect. As rightly held by the High Court, the Labour Court thus omitted to answer the second question as it was bound to do and the reference remained partly unadjudicated. The Labour Court, no doubt, did direct that the award should be implemented within one month after it became enforceable under the Act, i.e., on or before February 7, 1964. But that direction meant only that the company should fit the two workmen in the two grades it had ordered and still left the question, as to the date from which such fitment was to have effect, unanswered. Thus, the fact that the Labour Court failed to answer the second question admits of no doubt. There can also be no doubt that since the first question was answered by it in accordance with the Wage Boards recommendations and the Governments notification accepting them fully, if its attention had been drawn it would in all probability have answered the second question also in consonance with those recommendations and the said notification. There is, therefore, no question that there was an error in the award due to an accidental omission on the part of the Labour Court, which error it undoubtedly had the jurisdiction to correct under Section 6 (6). The error was that there was no direction in the award as to the date from which the fitment of the two workmen in the said grades and the revised scales should take effect, arising from an accidental omission to answer that part of the reference.Having seen the effect of the provisions of Sections 6 and 6A, we have next to consider the scope of the correctional jurisdiction conferred on the adjudicating authority under(6) of Section 6.As already observed thedoes not lay down in any express terms any time limit within which such jurisdiction is to be exercised. It contemplates a correction both before and after the publication of the award, i.e., after it has become final. If it is corrected before its publication the correction would be carried out without anything further having to be done. But if it is corrected after its publication and after it has become final a copy of the order of correction has to be sent to the State Government and the provisions as to publication of an award under Section 6 (3) are mutatis mutandis applicable. The correctional jurisdiction is limited only to cases where clerical or arithmetical mistakes or errors arising from an accidental slip or omission have occurred.Though Section 6 (6) does not expressly provide for any time limit, the High Court appears to have been much impressed by Section 6D which lays down the two points as to the commencement and the completion of proceedings before a labour Court and a tribunal. From these two limits it came to the conclusion that though no time limit is expressly provided in Section 6 (6) it must be inferred that the correctional jurisdiction under Section 6 (6) can only be exercised upto the time that the award becomes final and enforceable. It will be observed that though Sec. 6 (6) empowers all the three adjudicating authorities, namely, a Labour Court, a tribunal and an arbitrator, to correct the award, Section 6D lays down the two points of commencement and completion of proceedings only in the case of a Labour Court and a tribunal. Section 6D, therefore, does not furnish an indication or a ground for inferring a time limit in Section 6 (6) in the case of an award by an arbitrator. Would that mean that though, according to the High Court, there is a period within which a Labour Court and a tribunal can exercise the correctional jurisdiction, there would be no such limit in the case of an award by an arbitrator? In our view no such result could have been contemplated.It would thus, appear that the two extremities of time provided in Section 6D cannot be used as a ground for inferring a time limit for the correctional jurisdiction under Section 6 (6).8. Acceptance of the High Courts reasoning becomes still more difficult when we examine the premises of that reasoning. The High Court does not appear to be sure whether the limit as to time is to be the date of finality of the award or its enforceability for, it states that the correctional jurisdiction can be exercised until the award has become final and enforceable. As already stated, the concepts of finality and enforceability of an award are distinct and have been dealt with by the Legislature separately in Sections 6 and 8A. If it is to be reasoned that the correctional jurisdiction can be exercised till the date when the award is published and becomes final, such a reasoning would be contrary to the provisions of Section 6 (6) themselves which envisage correction of an award even after it is published and has become final.(6) expressly provides that when so corrected, the order correcting it has to be published in the manner prescribed under and within the time provided in Section 6 (3). It is, therefore, manifest that the date when an award becomes final cannot be the date within which the power under Section 6 (6) has to be exercised. If, it is to be held, on the other hand, that the power to correct is to be exercised until the award has become enforceable, the difficulty would be that there is nothing either in Section 6 or Section 6A or Section 6D which warrants such a limitation by implication. Is it that an award is really final when it becomes enforceable? Such a conclusion would, firstly, be contrary to the clear language of Sec. 6 and, secondly, would lead to a curious result that though it has become final on publication, it is not really so, as that finality is subject to the provisions of Section 6A. In that case, an award can be challenged in a Court during the interval between its publication and the date when it becomes enforceable. That would be so, despite the clear language of Section 6 (5) that an award becoming final on publication cannot thence be challenged in any Court whatsoever. Laying down by implication the time limit during which the correctional jurisdiction under Section 6 (6) can be exercised upon the time of the award becoming final under Section 6 (5) or becoming enforceable under Sec. 6A creates difficulties, besides, it would appear, being contrary to the provisions of these two sections and is therefore not commendable.The correctional jurisdiction conferred on the adjudicating authority under Section 6 (6) is in terms identical with the one conferred under sec. 152 of the Code of Civil Procedure and R. 28 of the Industrial Disputes (Central) Rules 1957 and is in consonance with the first and foremost principal that no party should suffer any detriment on account of a mistake or an error committed by an adjudicating authority. The circumstance that the proceedings before a Labour Court and a tribunal are deemed to be concluded under Section 6D when their award becomes enforceable or that thereupon they become functus officio would also be no ground for inferring any limitation of time in Section 6 (6), for that would also be the case in the case of a Civil Court or an adjudicating authority under the Industrial Disputes Act. 1947 even without a provision like Section 6D and yet the legislature has not chosen in the case of either of them to lay down any limitation of time for exercising its correctional jurisdiction. In our view, there are no compelling reasons to read into Section 6 (6) any such limitation by implication.We are also not impressed with the difficulty which the High Court supposed would result in case Section 6 (6) is interpreted as not having by implication any time limit within which the correctional power can be exercised by any of the three adjudicating authorities. The High Court felt that if there is no such time limit an award, even after it has become enforceable and in some cases even implemented, would be rendered unsettled. But as already stated, the power is a limited one which can be exercised only in cases where a mistake clerical or arithmetical or an error arising from an accidental slip or omission has occurred. The award thus would have to be corrected only within this circumscribed field. It may be that the correction of an award might to a certain extent have an unsettling effect to what has already become settled, but the correction is made not due to any fault of the parties but of the adjudicating authority whose accidental slip or omission cannot be allowed to prejudice the interests of the parties. We do not visualise any substantial hardship resulting from the exercise of this power which the High Court though might arise if an award is allowed to be amended even after it has become enforceable or even if it has been enforced. A similar difficulty can also be imagined when a Civil Court exercises a similar power under Section 152 of the Code of Civil Procedure. But no one has so far suggested that because of that difficulty a limitation must be inferred in that section. A similar difficulty would also arise under Rule 28 of the Industrial Disputes (Central) Rules, 1957. But so far no one has read a similar limitation in the correctional power provided by that rule.In our view the error which the Labour Court corrected clearly fell within Section 6 (6) and could be corrected even after the award had become final as a result of its having been published and had become enforceable under Sec. 6A.In this view it is not necessary to consider Section 11B or its effect especially as it is nobodys case that it was at any stage invoked or resorted to. | 0 | 4,712 | 2,692 | ### 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:
cannot be used as a ground for inferring a time limit for the correctional jurisdiction under Section 6 (6).8. Acceptance of the High Courts reasoning becomes still more difficult when we examine the premises of that reasoning. The High Court does not appear to be sure whether the limit as to time is to be the date of finality of the award or its enforceability for, it states that the correctional jurisdiction can be exercised until the award has become final and enforceable. As already stated, the concepts of finality and enforceability of an award are distinct and have been dealt with by the Legislature separately in Sections 6 and 8A. If it is to be reasoned that the correctional jurisdiction can be exercised till the date when the award is published and becomes final, such a reasoning would be contrary to the provisions of Section 6 (6) themselves which envisage correction of an award even after it is published and has become final. Sub-section (6) expressly provides that when so corrected, the order correcting it has to be published in the manner prescribed under and within the time provided in Section 6 (3). It is, therefore, manifest that the date when an award becomes final cannot be the date within which the power under Section 6 (6) has to be exercised. If, it is to be held, on the other hand, that the power to correct is to be exercised until the award has become enforceable, the difficulty would be that there is nothing either in Section 6 or Section 6A or Section 6D which warrants such a limitation by implication. Is it that an award is really final when it becomes enforceable? Such a conclusion would, firstly, be contrary to the clear language of Sec. 6 and, secondly, would lead to a curious result that though it has become final on publication, it is not really so, as that finality is subject to the provisions of Section 6A. In that case, an award can be challenged in a Court during the interval between its publication and the date when it becomes enforceable. That would be so, despite the clear language of Section 6 (5) that an award becoming final on publication cannot thence be challenged in any Court whatsoever. Laying down by implication the time limit during which the correctional jurisdiction under Section 6 (6) can be exercised upon the time of the award becoming final under Section 6 (5) or becoming enforceable under Sec. 6A creates difficulties, besides, it would appear, being contrary to the provisions of these two sections and is therefore not commendable.The correctional jurisdiction conferred on the adjudicating authority under Section 6 (6) is in terms identical with the one conferred under sec. 152 of the Code of Civil Procedure and R. 28 of the Industrial Disputes (Central) Rules 1957 and is in consonance with the first and foremost principal that no party should suffer any detriment on account of a mistake or an error committed by an adjudicating authority. The circumstance that the proceedings before a Labour Court and a tribunal are deemed to be concluded under Section 6D when their award becomes enforceable or that thereupon they become functus officio would also be no ground for inferring any limitation of time in Section 6 (6), for that would also be the case in the case of a Civil Court or an adjudicating authority under the Industrial Disputes Act. 1947 even without a provision like Section 6D and yet the legislature has not chosen in the case of either of them to lay down any limitation of time for exercising its correctional jurisdiction. In our view, there are no compelling reasons to read into Section 6 (6) any such limitation by implication.9. We are also not impressed with the difficulty which the High Court supposed would result in case Section 6 (6) is interpreted as not having by implication any time limit within which the correctional power can be exercised by any of the three adjudicating authorities. The High Court felt that if there is no such time limit an award, even after it has become enforceable and in some cases even implemented, would be rendered unsettled. But as already stated, the power is a limited one which can be exercised only in cases where a mistake clerical or arithmetical or an error arising from an accidental slip or omission has occurred. The award thus would have to be corrected only within this circumscribed field. It may be that the correction of an award might to a certain extent have an unsettling effect to what has already become settled, but the correction is made not due to any fault of the parties but of the adjudicating authority whose accidental slip or omission cannot be allowed to prejudice the interests of the parties. We do not visualise any substantial hardship resulting from the exercise of this power which the High Court though might arise if an award is allowed to be amended even after it has become enforceable or even if it has been enforced. A similar difficulty can also be imagined when a Civil Court exercises a similar power under Section 152 of the Code of Civil Procedure. But no one has so far suggested that because of that difficulty a limitation must be inferred in that section. A similar difficulty would also arise under Rule 28 of the Industrial Disputes (Central) Rules, 1957. But so far no one has read a similar limitation in the correctional power provided by that rule.10. In our view the error which the Labour Court corrected clearly fell within Section 6 (6) and could be corrected even after the award had become final as a result of its having been published and had become enforceable under Sec. 6A.In this view it is not necessary to consider Section 11B or its effect especially as it is nobodys case that it was at any stage invoked or resorted to.
### Response:
0
### Explanation:
provided in Section 6D cannot be used as a ground for inferring a time limit for the correctional jurisdiction under Section 6 (6).8. Acceptance of the High Courts reasoning becomes still more difficult when we examine the premises of that reasoning. The High Court does not appear to be sure whether the limit as to time is to be the date of finality of the award or its enforceability for, it states that the correctional jurisdiction can be exercised until the award has become final and enforceable. As already stated, the concepts of finality and enforceability of an award are distinct and have been dealt with by the Legislature separately in Sections 6 and 8A. If it is to be reasoned that the correctional jurisdiction can be exercised till the date when the award is published and becomes final, such a reasoning would be contrary to the provisions of Section 6 (6) themselves which envisage correction of an award even after it is published and has become final.(6) expressly provides that when so corrected, the order correcting it has to be published in the manner prescribed under and within the time provided in Section 6 (3). It is, therefore, manifest that the date when an award becomes final cannot be the date within which the power under Section 6 (6) has to be exercised. If, it is to be held, on the other hand, that the power to correct is to be exercised until the award has become enforceable, the difficulty would be that there is nothing either in Section 6 or Section 6A or Section 6D which warrants such a limitation by implication. Is it that an award is really final when it becomes enforceable? Such a conclusion would, firstly, be contrary to the clear language of Sec. 6 and, secondly, would lead to a curious result that though it has become final on publication, it is not really so, as that finality is subject to the provisions of Section 6A. In that case, an award can be challenged in a Court during the interval between its publication and the date when it becomes enforceable. That would be so, despite the clear language of Section 6 (5) that an award becoming final on publication cannot thence be challenged in any Court whatsoever. Laying down by implication the time limit during which the correctional jurisdiction under Section 6 (6) can be exercised upon the time of the award becoming final under Section 6 (5) or becoming enforceable under Sec. 6A creates difficulties, besides, it would appear, being contrary to the provisions of these two sections and is therefore not commendable.The correctional jurisdiction conferred on the adjudicating authority under Section 6 (6) is in terms identical with the one conferred under sec. 152 of the Code of Civil Procedure and R. 28 of the Industrial Disputes (Central) Rules 1957 and is in consonance with the first and foremost principal that no party should suffer any detriment on account of a mistake or an error committed by an adjudicating authority. The circumstance that the proceedings before a Labour Court and a tribunal are deemed to be concluded under Section 6D when their award becomes enforceable or that thereupon they become functus officio would also be no ground for inferring any limitation of time in Section 6 (6), for that would also be the case in the case of a Civil Court or an adjudicating authority under the Industrial Disputes Act. 1947 even without a provision like Section 6D and yet the legislature has not chosen in the case of either of them to lay down any limitation of time for exercising its correctional jurisdiction. In our view, there are no compelling reasons to read into Section 6 (6) any such limitation by implication.We are also not impressed with the difficulty which the High Court supposed would result in case Section 6 (6) is interpreted as not having by implication any time limit within which the correctional power can be exercised by any of the three adjudicating authorities. The High Court felt that if there is no such time limit an award, even after it has become enforceable and in some cases even implemented, would be rendered unsettled. But as already stated, the power is a limited one which can be exercised only in cases where a mistake clerical or arithmetical or an error arising from an accidental slip or omission has occurred. The award thus would have to be corrected only within this circumscribed field. It may be that the correction of an award might to a certain extent have an unsettling effect to what has already become settled, but the correction is made not due to any fault of the parties but of the adjudicating authority whose accidental slip or omission cannot be allowed to prejudice the interests of the parties. We do not visualise any substantial hardship resulting from the exercise of this power which the High Court though might arise if an award is allowed to be amended even after it has become enforceable or even if it has been enforced. A similar difficulty can also be imagined when a Civil Court exercises a similar power under Section 152 of the Code of Civil Procedure. But no one has so far suggested that because of that difficulty a limitation must be inferred in that section. A similar difficulty would also arise under Rule 28 of the Industrial Disputes (Central) Rules, 1957. But so far no one has read a similar limitation in the correctional power provided by that rule.In our view the error which the Labour Court corrected clearly fell within Section 6 (6) and could be corrected even after the award had become final as a result of its having been published and had become enforceable under Sec. 6A.In this view it is not necessary to consider Section 11B or its effect especially as it is nobodys case that it was at any stage invoked or resorted to.
|
State of Maharashtra Vs. Ratan | by any stretch of imagination, it cannot be believed that when P.W.2-Pravin told her that respondent-Ratan took deceased Sachin with him and when he did not return to house during said night; she did not do anything. The natural conduct of P.W.1-Laxmibai would have been to lodge F.I.R. or at least to inform police about missing of deceased Sachin or that the respondent kidnapped deceased Sachin and taken with him, and more particularly on the backdrop of motive stated by P.W.1-Laxmibai of previous enmity between accused and her family. There are no reasons forthcoming or placed on record for five days delay in lodging F.I.R. by P.W.1-Laxmibai.8. Coming to the evidence of P.W.2-Pravin, his evidence is mainly on deceased Sachin was last seen in the company of respondent-Ratan on 22.05.1999 at 07.30 p.m. Thereafter, deceased Sachin was not seen by anybody. Upon careful perusal of the cross-examination of P.W.2-Pravin, it is seen that he stated before the police in his statement that respondent-Ratan told him to go home and accused Ratan took Sachin with him. However, he stated that he is not aware why such statement is not recorded by the concerned Investigating Officer.9. P.W.7-Budhwant who conducted investigation as Investigating Officer in his cross-examination stated that P.W.2-Pravin has not stated him that respondent-Ratan told him to go to house and taken away Sachin (deceased) with him. It is further stated by him in his cross-examination that he recorded statement of witness P.W.3-Waman Hazare and he did not state in his statement that accused No.3-Baburao threatened him to kill any member of his family. Insofar as evidence of P.W.4-Kaka on last seen together is concerned, we find considerable force in the arguments of learned Counsel appearing for the respondent that, the conduct of P.W.4-Kaka not to disclose for four days that he had seen deceased Sachin on 22.05.1999 in the company of the accused and they went to Dayanand College, appears to be unnatural. We have noticed that statement of P.W.4-Kaka was recorded by police, after the gap of four days from 22.05.1999, when deceased Sachin was last seen in the company of the respondent.10. Upon careful perusal of evidence of P.W.6-Dr. Chandakant, he stated that time of death was within six hours from last meal. Even if we believe the evidence of P.W.2-Pravin, that deceased Sachin was last seen in the company of respondent-Ratan at about 07.30 p.m. on 22.05.1999, it has come on record that dead body of deceased Sachin was recovered from the well situated in Dayanand College area on 23.05.1999 at 01.05 p.m. Upon careful perusal of evidence brought on record by the prosecution, the prosecution has not explained/brought on record the circumstances/evidence which would explain the time gap from 07.30 p.m. on 22.05.1999 till the dead body was recovered from the well situated in the area of Dayanand College. The time gap between deceased Sachin last seen in the company of the respondent as stated by the prosecution witnesses and the dead body was recovered is not so small that in absence of any explanation offered by the prosecution, said can be ignored. The Supreme Court in the case of Shyamal Ghosh v. State of W.B.,(2012) 7 S.C.C. 646, on the basis of the evidence in that case, in Para 74 of the Judgment, observed that reasonableness of the time gap is of some significance. If the time gap is very large, then it is not only difficult but may not even be proper for the Court to infer that the accused had been last seen alive with the deceased and the former, thus, was responsible for commission of the offence.The Supreme Court in the case Rambraksh alias Jalim v. State of Chhatisgarh, A.I.R. 2016 S.C. 2381 held that, it is trite law that a conviction cannot be recorded against the accused merely on the ground that the accused was last seen with the deceased. In other words, a conviction cannot be based on the only circumstance of last seen together. Normally, last seen theory comes into play where the time gap, between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead, is so small that possibility of any person other than the accuse being the perpetrator of the crime becomes impossible. To record a conviction, the last seen together itself would not be sufficient and the prosecution has to complete the chain of circumstances to bring home the guilt of the accused.11. While considering the case based upon circumstantial evidence, the Supreme Court in the case of Hanuman Govind Nargundkar and another v. State of M.P., AIR 1952 SC 343 observed as under :"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."12. Upon considering the evidence in its entirety, we are of the view that in the first place there are no incriminating circumstances brought on record by the prosecution which would form complete chain, and would unequivocally lead to the only hypothesis of guilt of the accused. In that view of the matter, the view taken by the Trial Court is possible, and therefore we are not able to persuade ourselves to cause any interference in the impugned judgment and order of acquittal of the respondent. | 0[ds]The Supreme Court in the case Rambraksh alias Jalim v. State of Chhatisgarh, A.I.R. 2016 S.C. 2381 held that, it is trite law that a conviction cannot be recorded against the accused merely on the ground that the accused was last seen with the deceased. In other words, a conviction cannot be based on the only circumstance of last seen together. Normally, last seen theory comes into play where the time gap, between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead, is so small that possibility of any person other than the accuse being the perpetrator of the crime becomes impossible. To record a conviction, the last seen together itself would not be sufficient and the prosecution has to complete the chain of circumstances to bring home the guilt of the accused.11. While considering the case based upon circumstantial evidence, the Supreme Court in the case of Hanuman Govind Nargundkar and another v. State of M.P., AIR 1952 SC 343 observed as under :"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."12. Upon considering the evidence in its entirety, we are of the view that in the first place there are no incriminating circumstances brought on record by the prosecution which would form complete chain, and would unequivocally lead to the only hypothesis of guilt of the accused. In that view of the matter, the view taken by the Trial Court is possible, and therefore we are not able to persuade ourselves to cause any interference in the impugned judgment and order of acquittal of the respondent. | 0 | 2,816 | 433 | ### 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:
by any stretch of imagination, it cannot be believed that when P.W.2-Pravin told her that respondent-Ratan took deceased Sachin with him and when he did not return to house during said night; she did not do anything. The natural conduct of P.W.1-Laxmibai would have been to lodge F.I.R. or at least to inform police about missing of deceased Sachin or that the respondent kidnapped deceased Sachin and taken with him, and more particularly on the backdrop of motive stated by P.W.1-Laxmibai of previous enmity between accused and her family. There are no reasons forthcoming or placed on record for five days delay in lodging F.I.R. by P.W.1-Laxmibai.8. Coming to the evidence of P.W.2-Pravin, his evidence is mainly on deceased Sachin was last seen in the company of respondent-Ratan on 22.05.1999 at 07.30 p.m. Thereafter, deceased Sachin was not seen by anybody. Upon careful perusal of the cross-examination of P.W.2-Pravin, it is seen that he stated before the police in his statement that respondent-Ratan told him to go home and accused Ratan took Sachin with him. However, he stated that he is not aware why such statement is not recorded by the concerned Investigating Officer.9. P.W.7-Budhwant who conducted investigation as Investigating Officer in his cross-examination stated that P.W.2-Pravin has not stated him that respondent-Ratan told him to go to house and taken away Sachin (deceased) with him. It is further stated by him in his cross-examination that he recorded statement of witness P.W.3-Waman Hazare and he did not state in his statement that accused No.3-Baburao threatened him to kill any member of his family. Insofar as evidence of P.W.4-Kaka on last seen together is concerned, we find considerable force in the arguments of learned Counsel appearing for the respondent that, the conduct of P.W.4-Kaka not to disclose for four days that he had seen deceased Sachin on 22.05.1999 in the company of the accused and they went to Dayanand College, appears to be unnatural. We have noticed that statement of P.W.4-Kaka was recorded by police, after the gap of four days from 22.05.1999, when deceased Sachin was last seen in the company of the respondent.10. Upon careful perusal of evidence of P.W.6-Dr. Chandakant, he stated that time of death was within six hours from last meal. Even if we believe the evidence of P.W.2-Pravin, that deceased Sachin was last seen in the company of respondent-Ratan at about 07.30 p.m. on 22.05.1999, it has come on record that dead body of deceased Sachin was recovered from the well situated in Dayanand College area on 23.05.1999 at 01.05 p.m. Upon careful perusal of evidence brought on record by the prosecution, the prosecution has not explained/brought on record the circumstances/evidence which would explain the time gap from 07.30 p.m. on 22.05.1999 till the dead body was recovered from the well situated in the area of Dayanand College. The time gap between deceased Sachin last seen in the company of the respondent as stated by the prosecution witnesses and the dead body was recovered is not so small that in absence of any explanation offered by the prosecution, said can be ignored. The Supreme Court in the case of Shyamal Ghosh v. State of W.B.,(2012) 7 S.C.C. 646, on the basis of the evidence in that case, in Para 74 of the Judgment, observed that reasonableness of the time gap is of some significance. If the time gap is very large, then it is not only difficult but may not even be proper for the Court to infer that the accused had been last seen alive with the deceased and the former, thus, was responsible for commission of the offence.The Supreme Court in the case Rambraksh alias Jalim v. State of Chhatisgarh, A.I.R. 2016 S.C. 2381 held that, it is trite law that a conviction cannot be recorded against the accused merely on the ground that the accused was last seen with the deceased. In other words, a conviction cannot be based on the only circumstance of last seen together. Normally, last seen theory comes into play where the time gap, between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead, is so small that possibility of any person other than the accuse being the perpetrator of the crime becomes impossible. To record a conviction, the last seen together itself would not be sufficient and the prosecution has to complete the chain of circumstances to bring home the guilt of the accused.11. While considering the case based upon circumstantial evidence, the Supreme Court in the case of Hanuman Govind Nargundkar and another v. State of M.P., AIR 1952 SC 343 observed as under :"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."12. Upon considering the evidence in its entirety, we are of the view that in the first place there are no incriminating circumstances brought on record by the prosecution which would form complete chain, and would unequivocally lead to the only hypothesis of guilt of the accused. In that view of the matter, the view taken by the Trial Court is possible, and therefore we are not able to persuade ourselves to cause any interference in the impugned judgment and order of acquittal of the respondent.
### Response:
0
### Explanation:
The Supreme Court in the case Rambraksh alias Jalim v. State of Chhatisgarh, A.I.R. 2016 S.C. 2381 held that, it is trite law that a conviction cannot be recorded against the accused merely on the ground that the accused was last seen with the deceased. In other words, a conviction cannot be based on the only circumstance of last seen together. Normally, last seen theory comes into play where the time gap, between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead, is so small that possibility of any person other than the accuse being the perpetrator of the crime becomes impossible. To record a conviction, the last seen together itself would not be sufficient and the prosecution has to complete the chain of circumstances to bring home the guilt of the accused.11. While considering the case based upon circumstantial evidence, the Supreme Court in the case of Hanuman Govind Nargundkar and another v. State of M.P., AIR 1952 SC 343 observed as under :"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."12. Upon considering the evidence in its entirety, we are of the view that in the first place there are no incriminating circumstances brought on record by the prosecution which would form complete chain, and would unequivocally lead to the only hypothesis of guilt of the accused. In that view of the matter, the view taken by the Trial Court is possible, and therefore we are not able to persuade ourselves to cause any interference in the impugned judgment and order of acquittal of the respondent.
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B. Rajagopala Naidu Vs. State Transport Appellate Tribunal & Ors | that S. 43A itself provides that effect shall be given to the orders issued under it, and so, if an order issued under S. 43A itself were to prescribe that it shall be followed it will have to be followed by the Tribunal and no exception can be made in that behalf. Therefore, we cannot accept the argument strongly pressed before us by Mr. Ganapathy Iyer on behalf of Respondent No. 1 that the validity of the order cannot be challenged on the ground that the principles laid down by it are sound and healthy. We have therefore, come to the conclusion that the impugned order is outside the purview of S. 43A inasmuch as it purports to give directions in respect of matters which have been entrusted to the Tribunals constituted under the Act and which have to be dealt with by these Tribunals in a quasi-judicial manner. We cannot overlook the fact that the validity of the Act particularly in reference to its provisions prescribing the grant and refusal of permits, has been sustained substantially because this important function has been left to the decision of the Tribunals constituted by the Act and these Tribunals are required to function fairly and objectively with a view to exercise their powers quasi-judicially, and so, any attempt to trespass on the jurisdiction of these Tribunals must be held to be outside the purview of S. 43A.24. We are conscious of the fact that the impugned order was issued after and presumably in response to the decision of the Madras High Court in the case of C. S. S. Motor Service, ILR (1953) Mad 304 : (AIR 1953 Mad 279 ) though it would appear that what the High Court had suggested was presumably the making of the rules under S. 68 of the Act. It cannot also be disputed that the main object of the State Government in issuing this order was to avoid vagaries, and introduce an element of certainly and objectivity, in the decision of rival claims made by applicants in respect of their applications for permits. It may have been though by the State Government that if the Tribunals are allowed to exercise their discretion without any guidance, it may lead to inconsistent decisions in different areas and that may create dissatisfaction in the public mind. It does appear, however, that in some other States the problem of granting permits has been resolved without recourse to the marking system. But apart from that, even if it assumed that the marking system, if properly applied, may make the decisions in regard to the grant of permits more objective, fair and consistent, we do not see how that consideration can assist the decision of the problem raised before us. If the State Government thinks that the application of some kind of marking system is essential for a fair administration of the Act, it may adopt such course as may be permissible under the law. Section 47(1)(a) requires inter alia that the interest of the public generally have to be borne in mind by the Regional Transport Authority in considering applications for stage carriage permits. The said Section refers to other matters which have to be borne in mind; it is unnecessary to indicate them for our present purposes. The Legislature may amend S. 47 by indicating additional considerations which the Transport Authority may have to bear in mind; or the Legislature may amend S. 47 by conferring on the State Government expressly and specifically a power to make rules in that behalf or the State Government may proceed to make rules under S. 68 without amending S. 47. These are all possible steps which may be taken if it is thought that some directions in the nature of the provisions made by the impugned order must be issued. That however, is a matter with which we are not concerned and on which we wish to express no opinion. As this Court has often emphasised, in constitutional matters it is of utmost importance that the court should not make any obiter observations on points not directly raised before it for its decision. Therefore, in indicating the possible alternatives which may be adopted if the State Government thinks that the marking system helps the administration of the Act, we should not be taken to have expressed any opinion on the validity of any of the courses specified.25. That leaves only one point to be considered. Mr. Ganapathy Iyer urged that even though the impugned order may be valid, (invalid?) that is no reason why the order passed by the Appellate Tribunal which has been confirmed by the High Court in the present writ proceedings should be reversed. He argues that what the Appellate Tribunal has done is to act upon the principles which are sound and the fact that these principles have been enunciated by an invalid order should nor nullify the decision of the Appellate Tribunal itself. Thus presented, the argument is no doubt plausible; but a closer examination of the argument reveals the fallacy underlying it. If the Appellate Transport Authority had considered these matters on its own without the compulsive force of the impugned order, it would have been another matter; but the order pronounced by the Appellate Authority clearly and unambiguously indicates that it held and in a sense rightly, that it was bound to follow the impugned order unless in the exercise of its option it decided to depart from it and was prepared to record its reasons for adopting that course. It would, we think, be idle, to suggest that any Transport Authority functioning in the State would normally return to comply with the order issued by the State Government itself. Therefore, we have no hesitation in holding that the decision of the Appellate Tribunal is based solely on the provisions of the impugned order and since the said order is invalid the decision itself must be corrected by the issue of a writ of certiorari.26. | 1[ds]Therefore, it seems to us that on a fair and reasonable construction of S. 43A, it ought to be held that the said section authorises the State Government to issue orders and directions of a general character only in respect of administrative matters which fall to be dealt with by the State Transport Authority or Regional Transport Authority under the relevant provisions of the Act in their administrative capacity.In reaching this conclusion, we have been influenced by certain other considerations which are both relevant and material. In interpreting S. 43A, we think, it would be legitimate to assume that the legislature intended to respect the basic and elementary postulate of the rule of law, that in exercising their authority and in discharging their quasi-judicial function the Tribunals constituted under the Act must be left absolutely free to deal with the matter according to their best judgment. It is of the essence of fair and objective administration of law that the decision of the Judge or the Tribunal must be absolutely unfettered by any extraneous guidance by the executive or administrative wing of the State. If the exercise of discretion conferred on a quasi-judicial tribunal is controlled by any such direction, that forges fetters on the exercise of quasi-judicial authority and the presence of such letters would make the exercise of such authority completely inconsistent with the well-accepted notion of judicial process. It is true that law can regulate the exercise of judicial powers. It may indicate by specific provisions on what matters the tribunals constituted by it should adjudicate. It may by specific provisions lay down the principles which have to be followed by the Tribunals in dealing with the said matters. The scope of the jurisdiction of the Tribunals constituted by statute can well regulated by the statute and principles for guidance of the said tribunals may also be prescribed subject of course to the inevitable requirement that these provisions do not contravene the fundamental rights guaranteed by the Constitution. But what law and the provisions of law may legitimately do cannot be permitted to be done by administrative or executive orders. This position is so well established that we are reluctant to hold that in enacting S. 43A the Madras Legislature intended to confer power on the State Government to invade the domain of the exercise of judicial power. In fact, such had been the intention of the Madras Legislature and had been the true effect of the provisions of S. 43A. S. 43A itself would amount to an unreasonable contravention of fundamental rights of citizens and may have to be struck down as unconstitutional. That is why the Madras High Court in dealing with the validity of S. 43A had expressly observed that what S. 43A purported to do was to clothe the Government with authority to issue directions of an administrative character and nothing more. It is somewhat unfortunate that though judicial decisions have always emphasised this aspect of the matter, occasion did not arise so long to consider the validity of the Government order which on the construction suggested by the Respondent would clearly invade the domain of quasi-judicialare not impressed by the argument. It is not the function of the executive to assist quasi-judicial Tribunals by issuing directions in the exercise of its powers conferred under S. 43A. Besides, if S. 48A is valid and an order which is issued under it does not fall outside it purview, it would be open to the State Government to issue a direction and require the Tribunal to follow that direction unquestionably, in every case. It is true that in regard to the marking system evolved by the impugned rule, liberty is left to the Tribunal not to adopt that system for reasons to be recorded by it. This liberty in practice may not mean much, but even theoretically; if the impugned order is valid, nothing can prevent the State Government from issuing another order requiring that the marking system prescribed by it shall always be followed. We have already seen that S. 43A itself provides that effect shall be given to the orders issued under it, and so, if an order issued under S. 43A itself were to prescribe that it shall be followed it will have to be followed by the Tribunal and no exception can be made in that behalf. Therefore, we cannot accept the argument strongly pressed before us by Mr. Ganapathy Iyer on behalf of Respondent No. 1 that the validity of the order cannot be challenged on the ground that the principles laid down by it are sound and healthy. We have therefore, come to the conclusion that the impugned order is outside the purview of S. 43A inasmuch as it purports to give directions in respect of matters which have been entrusted to the Tribunals constituted under the Act and which have to be dealt with by these Tribunals in a quasi-judicial manner. We cannot overlook the fact that the validity of the Act particularly in reference to its provisions prescribing the grant and refusal of permits, has been sustained substantially because this important function has been left to the decision of the Tribunals constituted by the Act and these Tribunals are required to function fairly and objectively with a view to exercise their powers quasi-judicially, and so, any attempt to trespass on the jurisdiction of these Tribunals must be held to be outside the purview of S. 43A.We are conscious of the fact that the impugned order was issued after and presumably in response to the decision of the Madras High Court in the case of C. S. S. Motor Service, ILR (1953) Mad 304 : (AIR 1953 Mad 279 ) though it would appear that what the High Court had suggested was presumably the making of the rules under S. 68 of the Act. It cannot also be disputed that the main object of the State Government in issuing this order was to avoid vagaries, and introduce an element of certainly and objectivity, in the decision of rival claims made by applicants in respect of their applications for permits. It may have been though by the State Government that if the Tribunals are allowed to exercise their discretion without any guidance, it may lead to inconsistent decisions in different areas and that may create dissatisfaction in the public mind. It does appear, however, that in some other States the problem of granting permits has been resolved without recourse to the marking system. But apart from that, even if it assumed that the marking system, if properly applied, may make the decisions in regard to the grant of permits more objective, fair and consistent, we do not see how that consideration can assist the decision of the problem raised before us. If the State Government thinks that the application of some kind of marking system is essential for a fair administration of the Act, it may adopt such course as may be permissible under the law. Section 47(1)(a) requires inter alia that the interest of the public generally have to be borne in mind by the Regional Transport Authority in considering applications for stage carriage permits. The said Section refers to other matters which have to be borne in mind; it is unnecessary to indicate them for our present purposes. The Legislature may amend S. 47 by indicating additional considerations which the Transport Authority may have to bear in mind; or the Legislature may amend S. 47 by conferring on the State Government expressly and specifically a power to make rules in that behalf or the State Government may proceed to make rules under S. 68 without amending S. 47. These are all possible steps which may be taken if it is thought that some directions in the nature of the provisions made by the impugned order must be issued. That however, is a matter with which we are not concerned and on which we wish to express no opinion. As this Court has often emphasised, in constitutional matters it is of utmost importance that the court should not make any obiter observations on points not directly raised before it for its decision. Therefore, in indicating the possible alternatives which may be adopted if the State Government thinks that the marking system helps the administration of the Act, we should not be taken to have expressed any opinion on the validity of any of the coursespresented, the argument is no doubt plausible; but a closer examination of the argument reveals the fallacy underlying it. If the Appellate Transport Authority had considered these matters on its own without the compulsive force of the impugned order, it would have been another matter; but the order pronounced by the Appellate Authority clearly and unambiguously indicates that it held and in a sense rightly, that it was bound to follow the impugned order unless in the exercise of its option it decided to depart from it and was prepared to record its reasons for adopting that course. It would, we think, be idle, to suggest that any Transport Authority functioning in the State would normally return to comply with the order issued by the State Government itself. Therefore, we have no hesitation in holding that the decision of the Appellate Tribunal is based solely on the provisions of the impugned order and since the said order is invalid the decision itself must be corrected by the issue of a writ of certiorari. | 1 | 6,910 | 1,685 | ### Instruction:
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that S. 43A itself provides that effect shall be given to the orders issued under it, and so, if an order issued under S. 43A itself were to prescribe that it shall be followed it will have to be followed by the Tribunal and no exception can be made in that behalf. Therefore, we cannot accept the argument strongly pressed before us by Mr. Ganapathy Iyer on behalf of Respondent No. 1 that the validity of the order cannot be challenged on the ground that the principles laid down by it are sound and healthy. We have therefore, come to the conclusion that the impugned order is outside the purview of S. 43A inasmuch as it purports to give directions in respect of matters which have been entrusted to the Tribunals constituted under the Act and which have to be dealt with by these Tribunals in a quasi-judicial manner. We cannot overlook the fact that the validity of the Act particularly in reference to its provisions prescribing the grant and refusal of permits, has been sustained substantially because this important function has been left to the decision of the Tribunals constituted by the Act and these Tribunals are required to function fairly and objectively with a view to exercise their powers quasi-judicially, and so, any attempt to trespass on the jurisdiction of these Tribunals must be held to be outside the purview of S. 43A.24. We are conscious of the fact that the impugned order was issued after and presumably in response to the decision of the Madras High Court in the case of C. S. S. Motor Service, ILR (1953) Mad 304 : (AIR 1953 Mad 279 ) though it would appear that what the High Court had suggested was presumably the making of the rules under S. 68 of the Act. It cannot also be disputed that the main object of the State Government in issuing this order was to avoid vagaries, and introduce an element of certainly and objectivity, in the decision of rival claims made by applicants in respect of their applications for permits. It may have been though by the State Government that if the Tribunals are allowed to exercise their discretion without any guidance, it may lead to inconsistent decisions in different areas and that may create dissatisfaction in the public mind. It does appear, however, that in some other States the problem of granting permits has been resolved without recourse to the marking system. But apart from that, even if it assumed that the marking system, if properly applied, may make the decisions in regard to the grant of permits more objective, fair and consistent, we do not see how that consideration can assist the decision of the problem raised before us. If the State Government thinks that the application of some kind of marking system is essential for a fair administration of the Act, it may adopt such course as may be permissible under the law. Section 47(1)(a) requires inter alia that the interest of the public generally have to be borne in mind by the Regional Transport Authority in considering applications for stage carriage permits. The said Section refers to other matters which have to be borne in mind; it is unnecessary to indicate them for our present purposes. The Legislature may amend S. 47 by indicating additional considerations which the Transport Authority may have to bear in mind; or the Legislature may amend S. 47 by conferring on the State Government expressly and specifically a power to make rules in that behalf or the State Government may proceed to make rules under S. 68 without amending S. 47. These are all possible steps which may be taken if it is thought that some directions in the nature of the provisions made by the impugned order must be issued. That however, is a matter with which we are not concerned and on which we wish to express no opinion. As this Court has often emphasised, in constitutional matters it is of utmost importance that the court should not make any obiter observations on points not directly raised before it for its decision. Therefore, in indicating the possible alternatives which may be adopted if the State Government thinks that the marking system helps the administration of the Act, we should not be taken to have expressed any opinion on the validity of any of the courses specified.25. That leaves only one point to be considered. Mr. Ganapathy Iyer urged that even though the impugned order may be valid, (invalid?) that is no reason why the order passed by the Appellate Tribunal which has been confirmed by the High Court in the present writ proceedings should be reversed. He argues that what the Appellate Tribunal has done is to act upon the principles which are sound and the fact that these principles have been enunciated by an invalid order should nor nullify the decision of the Appellate Tribunal itself. Thus presented, the argument is no doubt plausible; but a closer examination of the argument reveals the fallacy underlying it. If the Appellate Transport Authority had considered these matters on its own without the compulsive force of the impugned order, it would have been another matter; but the order pronounced by the Appellate Authority clearly and unambiguously indicates that it held and in a sense rightly, that it was bound to follow the impugned order unless in the exercise of its option it decided to depart from it and was prepared to record its reasons for adopting that course. It would, we think, be idle, to suggest that any Transport Authority functioning in the State would normally return to comply with the order issued by the State Government itself. Therefore, we have no hesitation in holding that the decision of the Appellate Tribunal is based solely on the provisions of the impugned order and since the said order is invalid the decision itself must be corrected by the issue of a writ of certiorari.26.
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State Government to issue a direction and require the Tribunal to follow that direction unquestionably, in every case. It is true that in regard to the marking system evolved by the impugned rule, liberty is left to the Tribunal not to adopt that system for reasons to be recorded by it. This liberty in practice may not mean much, but even theoretically; if the impugned order is valid, nothing can prevent the State Government from issuing another order requiring that the marking system prescribed by it shall always be followed. We have already seen that S. 43A itself provides that effect shall be given to the orders issued under it, and so, if an order issued under S. 43A itself were to prescribe that it shall be followed it will have to be followed by the Tribunal and no exception can be made in that behalf. Therefore, we cannot accept the argument strongly pressed before us by Mr. Ganapathy Iyer on behalf of Respondent No. 1 that the validity of the order cannot be challenged on the ground that the principles laid down by it are sound and healthy. We have therefore, come to the conclusion that the impugned order is outside the purview of S. 43A inasmuch as it purports to give directions in respect of matters which have been entrusted to the Tribunals constituted under the Act and which have to be dealt with by these Tribunals in a quasi-judicial manner. We cannot overlook the fact that the validity of the Act particularly in reference to its provisions prescribing the grant and refusal of permits, has been sustained substantially because this important function has been left to the decision of the Tribunals constituted by the Act and these Tribunals are required to function fairly and objectively with a view to exercise their powers quasi-judicially, and so, any attempt to trespass on the jurisdiction of these Tribunals must be held to be outside the purview of S. 43A.We are conscious of the fact that the impugned order was issued after and presumably in response to the decision of the Madras High Court in the case of C. S. S. Motor Service, ILR (1953) Mad 304 : (AIR 1953 Mad 279 ) though it would appear that what the High Court had suggested was presumably the making of the rules under S. 68 of the Act. It cannot also be disputed that the main object of the State Government in issuing this order was to avoid vagaries, and introduce an element of certainly and objectivity, in the decision of rival claims made by applicants in respect of their applications for permits. It may have been though by the State Government that if the Tribunals are allowed to exercise their discretion without any guidance, it may lead to inconsistent decisions in different areas and that may create dissatisfaction in the public mind. It does appear, however, that in some other States the problem of granting permits has been resolved without recourse to the marking system. But apart from that, even if it assumed that the marking system, if properly applied, may make the decisions in regard to the grant of permits more objective, fair and consistent, we do not see how that consideration can assist the decision of the problem raised before us. If the State Government thinks that the application of some kind of marking system is essential for a fair administration of the Act, it may adopt such course as may be permissible under the law. Section 47(1)(a) requires inter alia that the interest of the public generally have to be borne in mind by the Regional Transport Authority in considering applications for stage carriage permits. The said Section refers to other matters which have to be borne in mind; it is unnecessary to indicate them for our present purposes. The Legislature may amend S. 47 by indicating additional considerations which the Transport Authority may have to bear in mind; or the Legislature may amend S. 47 by conferring on the State Government expressly and specifically a power to make rules in that behalf or the State Government may proceed to make rules under S. 68 without amending S. 47. These are all possible steps which may be taken if it is thought that some directions in the nature of the provisions made by the impugned order must be issued. That however, is a matter with which we are not concerned and on which we wish to express no opinion. As this Court has often emphasised, in constitutional matters it is of utmost importance that the court should not make any obiter observations on points not directly raised before it for its decision. Therefore, in indicating the possible alternatives which may be adopted if the State Government thinks that the marking system helps the administration of the Act, we should not be taken to have expressed any opinion on the validity of any of the coursespresented, the argument is no doubt plausible; but a closer examination of the argument reveals the fallacy underlying it. If the Appellate Transport Authority had considered these matters on its own without the compulsive force of the impugned order, it would have been another matter; but the order pronounced by the Appellate Authority clearly and unambiguously indicates that it held and in a sense rightly, that it was bound to follow the impugned order unless in the exercise of its option it decided to depart from it and was prepared to record its reasons for adopting that course. It would, we think, be idle, to suggest that any Transport Authority functioning in the State would normally return to comply with the order issued by the State Government itself. Therefore, we have no hesitation in holding that the decision of the Appellate Tribunal is based solely on the provisions of the impugned order and since the said order is invalid the decision itself must be corrected by the issue of a writ of certiorari.
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Mohd. Haroon & Others Vs. Union of India & Another | in exceptional situations where it becomes necessary to provide credibility or instill confidence in investigation or where such an order may be necessary for doing complete justice in enforcing the fundamental rights. Apart from this, immediately after the occurrence, Writ Petition (Crl.) No. 155 of 2013 came to be filed in this Court even in the first week of September, 2013. Pursuant to the same, this Court, after taking note of the importance of the issues, viz., many people lost their lives and properties, sufferings of both communities and children, issued various directions to the State and the Central Government. We have already extracted those orders in the earlier part of our judgment. 124) It is relevant to note that based on various orders of this Court, even after the incident, the State itself has constituted a Special Investigation Cell (SIC). It is also brought to our notice that a total of 566 cases are being investigated by the SIC and after noting that many cases were false and many persons were wrongly named in the FIRs, 549 names have been removed. A total of 48 registered cases have been found false and have been removed from the records. It is also brought to our notice that names of 69 persons in murder cases have been found false and those names have also been removed from the array of parties. The details furnished by the State also show that after constitution of the SIC in September, it inquired about all those persons who had fled from their villages and had taken refuge in various relief camps and noted their problems by taking list of such persons staying in camps and getting their mobile numbers. The SIC also recorded the statements of the complainants and witnesses. We have already referred to the total number of arrested persons in communal violence in Muzaffarnagar and adjoining areas, list of total surrendered accused in the investigated cases, number of persons against whom action was taken due to communal violence, details regarding political persons, difficulties faced by the District Police in making arrests, details regarding recovery of AK-47 and 9 MM cartridges in village Kirthal P.S. Ramola, District Baghpat. They also placed the details about the steps taken in respect of case Crime No. 148 of 2013 (Fagana, Muzaffarnagar) and 403/2013 (Janath, Muzaffarnagar). In the list of persons, SIC also noted community-wise affiliation of their political parties etc. 125) In respect of cases of rape, the State has assured this Court that they are taking effective steps to apprehend all the accused and in providing security cover to the rape victims. 50 teams of police personnel have been constituted in order to arrest the accused persons in rape and other cases. The State has also filed details and progress of rape and molestation cases, statement of rape victims under Section 164 of the Code etc. 126) We have already noted that action had been taken against 11 persons under the provisions of the National Security Act as well as persons belonging to various political parties. The State has also furnished the details regarding 24 missing persons out of which 3 have been traced and is taking effective steps for tracing the remaining missing persons. 127) In respect of murder cases, the State has filed a separate chart showing the list of accused persons, verification of persons concerned who were involved, list of surrendered accused in murder cases as well as various other steps for apprehending the remaining accused. The State has also highlighted that through their public prosecutors/ counsel, it is taking effective steps for cancellation of bail in those heinous crimes in which persons involved have secured bail. 128) In the light of various steps taken by the State, facts and figures, statistics supported by materials coupled with the various principles enunciated in the decisions referred above, we are of the view that there is no need to either constitute SIT or entrust the investigation to the CBI at this juncture. However, we are conscious of the fact that more effective and stringent measures are to be taken by the State administration for which we are issuing several directions hereunder. Victim Compensation in Rape Cases: 129) As a long term measure to curb such crimes, a large societal change is required via education and awareness. The Government will have to formulate and implement policies in order to uplift the socio-economic conditions of women, sensitization of police and other concerned parties towards the need for gender equality and it must be done with focus in areas where statistically there is higher percentage of crimes against women. 130) No compensation can be adequate nor can it be of any respite for the victims but as the State has failed in protecting such serious violation of fundamental rights, the State is duty bound to provide compensation, which may help in victims rehabilitation. The humiliation or the reputation that is snuffed out cannot be recompensed but then monetary compensation will at least provide some solace. 131) In 2009, a new Section 357A was introduced in the Code which casts a responsibility on the State Governments to formulate Schemes for compensation to the victims of crime in coordination with the Central Government whereas, previously, Section 357 ruled the field which was not mandatory in nature and only the offender can be directed to pay compensation to the victim under this Section. Under the new Section 357A, the onus is put on the District Legal Service Authority or State Legal Service Authority to determine the quantum of compensation in each case. However, no rigid formula can be evolved as to have a uniform amount, it should vary in facts and circumstances of each case. Nevertheless, the obligation of the State does not extinguish on payment of compensation, rehabilitation of victim is also of paramount importance. The mental trauma that the victim suffers due to the commission of such heinous crime, rehabilitation becomes a must in each and every case. 132) | 1[ds]It is seen from the above particulars that a total number of six cases of rape were registered at the police station Fugana of District Muzaffarnagar. The cases were registered after more than 20 days from the date of incident. According to the State, investigation in all the six cases is almost complete. After taking the statement of victims under Section 161 of the Code, scene of crime has been visited by the investigating officer along with other officers. Medical examination of all the victims has been done and statements of all the victims have been recorded under Section 164 of the Code. It is further seen that although 41 persons were named in all the six cases, investigation and the statement of victims under Section 164 of the Code refers only to 22 persons. Only one accused had been arrested in the case of C.C. No. 179 of 2013 and proclamation under Section 82 of the Code has been issued against rest of the 21 accused persons. It is also seen that raids are being conducted by local police to arrest the remaining accusedThe particulars furnished further show that a total seven cases of molestation were registered during the communal violence. After investigation and recording the statement of complainant and thed victims, it was found that there was no case of molestation. Charges of molestation in all the seven cases were found false. Out of seven cases, in five cases, other charges of dacoity and injury were also found false as the complainants denied occurrence of any such incident. In rest of the three cases, act of dacoity was claimed by the complainant. Orders of arrest in Crl. No. 299 of 2013 have been given against five persons. In Crl. No. 254 of 2013, complainant stated involvement of 19 out of 22 named persons of committing dacoity and arson. Four fresh names were also given. Investigation is going on to find out the authenticity of involvement of accused person in this case. Similarly, in Crl. No. 312 of 2013, complainant had named 14 persons but in statement under Section 161 of the Code, denied the charges of molestation. The scene of crime showed arson in the house. Though the complainant has not mentioned any act of arson in the house, the investigating officer has added the relevant Section in his investigation. Investigation is going on to find the involvement of four named personsIn addition to the same, the State has also filed details of molestation cases, such as number of persons involved, offences, police station, summary of FIRs, progress of the case, etcRegarding the allegation that in the relief camp rape has been committed, based on the information, Case No. 537 of 2013 under Sections 376(g) and 506 IPC has been registered against Sachin and Sushil and the investigation of the same has been initiated by Kawarpal Singh Inspector in charge. During the investigation, both alleged accused Sachin and Sushil have been arrested and sent to the jail on 03.11.2013. Both the accused are in jail. In the investigation, proper and sufficient evidence have been found against both the accused andt No. 73 of 2013 dated 08.12.2013 has been presented to the court concernedApart from the above particulars, the State has also placed the actual statement of rape victims made under Section 164 of the Code before the court concerned. We have also perused the sameWith regard to various allegations raised in Writ Petition (Criminal) No.11 of 2014 relating to the rape victims, a request for recording fresh statement under Section 164 of the Code was made. Responding to this, the State has informed that the statement made by Petitioner No. 4 under Section 164 of the Code had not supported her version in FIR No. 141 of 2013 and Case Crime No. 296 of 2013. During the course of arguments, learned senior counsel for the State agreed to record the statement of Petitioner No.4 before a lady Magistrate if the petitioner is willing to appear. It is clarified by the State that pursuant to the above statement, the I.O. concerned got in touch with Petitioner No.4 on 17.02.2014 and explained the circumstances to her for making a fresh statement under Section 164 of the Code to a lady Magistrate. However, according to the, Petitioner No.4 declined to make a fresh statement under Section 164 of the Code before the lady Magistrate as requested. In addition to the same, counsel for the State has also brought to our notice the statement of Petitioner No.4 and video proceedings which are available with the State for perusal as and when desired by this CourtRegarding the lack of security cover to the rape victims, on behalf of the State, it is brought to our notice that the State of U.P. has provided security cover to all the rape victims, except Petitioner No.4 in whose case Final Report has been filed. It is also brought to our notice that Petitioner No.1 and her husband had been provided security earlier. It is also stated that all the rape victims refused security cover being provided by a lady constable and on seeing the sensitivity of the matter, the State has provided them with one male and one female security personnelon of FIR on the complaint sent by Petitioner No.7, the State has informed this Court that FIR No. 18 of 2014 being Case Crime No. 37 of 2014 under Sections 376D and 506 of the IPC at Police Station Fugana stands registered even on 18.02.2014. It is also brought to our notice that the following accused persons, viz., Kuldeep, Maheshveer and Sikandar have been made accused in the said case crime and investigation had already been commenced. As on date, Petitioner No. 7 has also been provided with one male and one female security personnelIn respect of arrest of accused persons in cases related to the offence of rape, the State has highlighted that so far 50 teams of police personnel have been constituted. Each team is led by ar and has23constables. Each team has been allotted34accused and has been given a specific time frame to affect these arrests since during the raids, it has been found that the accused persons are not staying intheirnative villages. These teams will track the location and have a focussed strategy of arresting targetted persons. In addition to the same, it is highlighted that two companies of the State Paramilitary Force have been earmarked for assisting these arresting squads. Additional SP, Crime, Muzaffarnagar has been madee of arrest operations. It is also assured to this Court that despite resistance to arrests, police has successfully conducted raids on the houses and probable places of hiding in villages on regular basisAction taken in murder and other offences:Regarding murders which occasioned during the violence, the State has filed a compilation containing list of named accused who were found false in murder cases. The particulars furnished by them show that about 70 persons (54 Hindus and 16 Muslims) were shown as accused and after investigation it was found that they were falsely implicated. In the Action Taken Report dated 08.02.2014, under the caption, the State has furnished information that in Muzaffarnagar, Shamli, Bagpat, Saharanpur, Meerut, 857 persons were implicated and after investigation they identified the total true accused as 337, out of which 94 persons were arrested, 14 surrendered, 6 reported dead ande warrants are pending against 198, Section 82 proceedings pending against 119, Section 83 proceedings pending against 3 and 6 persons were detained under the National Security Act. The details furnished further show that a total of 59 cases are being investigated by SIC. In these cases, 741 persons were named and 116 persons were brought to light. Of these, evidence has been found against 337 persons. Requisition of arrest has been sent against 289 accused. 94 accused have been arrested and 14 have surrendered before the Court. 6 accused died during investigation.e warrants against 193 accused have been issued and action under Section 82 of the Code has been taken against 116 accused. Action under Section 83 of the Code has been taken against 3 accused.Chargesheetwas filed against 55 accused. 70 persons were found false. Cases against 450 persons named/brought to light are under investigationIn addition to the same, the State has also furnished details showing the names of the accused found true in murder cases. It shows that a total number of 322 accused were found true, which consists of 286 from Hindu community and 36 from Muslim community. The chart also shows the names and residential particulars, crime number, police station, other details about action against those accused. The State also filed list of surrendered accused in murder cases which comes to total 13 persons (4 from Hindu community and 9 from Muslim community), all from Muzaffarnagar district. The chart also shows the names and residential particulars, case number, police station, offences under various enactments, date of surrender, etcCancellation of Bail:Regarding cancellation of bail orders, on hearing the counsel for the petitioners, this Court sought details of cancellation of bail and action undertaken by the State with regard to those accused who have been granted bail either by the Court of Magistrate or Sessions Court. In response to the same, the State has furnished that against 26 accused persons, the State has moved for cancellation of bail before the Court of Sessions. In addition to the same, the State has also placed a chart showing the details of cases in which the State has moved before the Court of Sessions. The details furnished show that in 26 cases in which the accused persons were charged with various offences under IPC read with Criminal Amendment Act, though court concerned has granted bail, the State has moved an application for cancellation of the same. The State Authorities are directed to pursue the same effectively. It is also brought to our notice that in another set ofpetitionswhere the accused persons have been granted bail by the competent court, the State has already given approval to file application for cancellation of bail before the High Court and the Government counsel has been instructed that necessary action may be taken for moving such applications. The details of moving applications for cancellation of bail against 57 accused persons to be filed before the High Court are furnished before this Court for our perusal. The Government counsel has also brought to our notice such government orders instructing for moving such applications for cancellation. During the course of hearing, the counsel for the State has also brought to our notice Government Order dated 09.01.2014 for cancellation of the bail of Azad and others in Case Crime No. 415 of 2013During the course of hearing, various counsel appearing for the petitioners submitted that bail has been granted to some accused persons as the State had not strongly opposedtheirbail applications. By drawing our attention to certain documents placed before us, the counsel for the State has pointed out that the Additional Public Prosecutor had opposed the grant of bail then and there69) Regardingaction taken against persons belonging to various political parties, it is highlighted that the State Government has taken strict action against all the accused persons irrespective oftheirpolitical affiliation. Learned counsel for the State has pointed out that even the State Government invoked the provisions of National Security Act wherever required. It is pointed out that the provisions of National Security Act were invoked against 11 persons. Mr. Sangeet Som, MLA, BJP and Mr. Suresh Rana, MLA, BJP were amongst those 11 persons. The chart produced by the State for our consideration shows that against 11 persons hailing from Districts Muzaffarnagar, Shamli and Baghpat detention under National Security Act was claimed and the appropriate Board approved five detention orders and disapproved 6In addition to the same, the State of U.P. has moved application for cancellation of bail in relation to Mr. Kadir Rana, M.P. BSP, Mr. Suresh Rana, MLA, BJP, Mr. Kunwar Bhartendu, MLA, BJP and Mr. Shyam Lal. The State has also assured that against Mr. Sangeet Som, MLA BJP an application for cancellation of bail will be moved by the State of UP before the Allahabad High Court. It is also brought to our notice that against Mr. Sangeet Som, a case Crime No. 888/13 under Sections 153A, 420, 120B and 66AE of the IT Act read with 7th Criminal Law Amendment Act was lodged in which it was alleged that the accused had uploaded a false and inflammatory video clipping intended to incite communal violence in the State. In this regard, it is submitted that the said clipping was uploaded on the socialk which has its server in the US. It is submitted that the request for providing the details of the IP address of the computer which has been used to upload the said video is being made to the said company following the provisions of Section 166A of the Code. Letter dated 26.11.2013, written by the Under Secretary, Government of India to the Home Department, State of U.P. is also placed before usaction initiated for Missing Persons:With regard to the allegations regarding missing persons, the State has placed materials to show that there were total 24 reported missing persons, out of which 3 have been traced and have returned totheirhouses and 2 dead bodies have been found. Remaining 19 persons are still missing and the State administration has assured that necessary steps have been taken for the same. If any person is declared dead in terms of Registration of Births and Deaths Act, 1969 and the Indian Evidence Act, the State will consider for paying compensation to the kith and kin ofAlmost all the petitioners, either victims, NGOs, persons hailing from that region, prayed for an independent investigation of the entire incident relating to communal violence and the subsequent action either by the Special Investigation Team (SIT) consisting of officers from outside U.P. or by the independent Agency like CBI. We have already referred and adverted to the grievance of various group of persons, organizations as well as the stand taken by the Union of India and specific stand taken by the State of Uttar Pradesh including having taken appropriate action against the culprits, rehabilitation measures for the victims, compensation for the loss of properties, both movable and immovable, for injuries, both simple and grievous, and fatal cases. The State has also highlighted the steps taken in respect of rape victims due to the communal violence and rehabilitation measures for those victims. In addition to the same, the State has also highlighted the cases filed against the persons concerned irrespective oftheirpolitical affiliations, cases filed against political persons, either MLA/MPs and the status as on dateIt is not in dispute that subsequent to the incident that took place on 07.09.2013 and afterwards, in and around Muzaffarnagar, a large number of persons, particularly, villagers from within and neighbouring districts, fled fromtheirhomes out of fear and took shelter in relief camps in various villages of two districts of Muzaffarnagar and Shamli. It is also seen that total 58 camps were made functional of which 41 camps were established in the district Muzaffarnagar and 17 in the district ShamliThe incidents of communal disturbance flared up sometimes on flimsy grounds blaming one community to other. Whatever may be, after the Mahapanchayat that took place on 07.09.2013, certain incidents such as eve teasing of other community girls followed by murders had taken place. Further, inasmuch as thousands of people gathered at a particular place in order to take revenge or retaliate, it is expected by the State intelligence agencies to apprise the State Government and the District Administration in particular, to prevent such communal violence. Though the Central Government even on day one informed this Court through the Attorney General for India that all necessary help, both financially and for maintaining law and order, had been provided to the State, there is no authoritative information to this Court whether there was any advance intimation to the State about the communal violence. Likewise, though the State has enumerated several aspects in the form of eleven compliance reports, there is no information to this Court whether the District Administration was sounded about the proposed action between the two communities. Had the Central and State intelligence agencies smelt these problems in advance and alerted the District Administration, the unfortunate incidents could have been prevented. Thus, we prima facie hold the State government responsible for being negligent at the initial stage in not anticipating the communal violence and for taking necessary steps for its preventionAt this juncture, viz., after a period of six months, whether an agency other than the State is to be directed to investigate and take appropriate steps. We have already noted various circumstances under which the court can entrust investigation to agency other than the State such as SIT or CBI. We have to keep in mind, as observed by the Constitution Bench referred to supra, that no inflexible guidelines can be laid down to decide whether or not such power should be exercised. However, this Court reiterated that such order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the State police. In other words, this extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility or instill confidence in investigation or where such an order may be necessary for doing complete justice in enforcing the fundamental rights. Apart from this, immediately after the occurrence, Writ Petition (Crl.) No. 155 of 2013 came to be filed in this Court even in the first week of September, 2013. Pursuant to the same, this Court, after taking note of the importance of the issues, viz., many people losttheirlives and properties, sufferings of both communities and children, issued various directions to the State and the Central Government. We have already extracted those orders in the earlier part of our judgmentIt is relevant to note that based on various orders of this Court, even after the incident, the State itself has constituted a Special Investigation Cell (SIC). It is also brought to our notice that a total of 566 cases are being investigated by the SIC and after noting that many cases were false and many persons were wrongly named in the FIRs, 549 names have been removed. A total of 48 registered cases have been found false and have been removed from the records. It is also brought to our notice that names of 69 persons in murder cases have been found false and those names have also been removed from the array of parties. The details furnished by the State also show that after constitution of the SIC in September, it inquired about all those persons who had fled fromtheirvillages and had taken refuge in various relief camps and notedtheirproblems by taking list of such persons staying in camps and gettingtheirmobile numbers. The SIC also recorded the statements of the complainants and witnesses. We have already referred to the total number of arrested persons in communal violence in Muzaffarnagar and adjoining areas, list of total surrendered accused in the investigated cases, number of persons against whom action was taken due to communal violence, details regarding political persons, difficulties faced by the District Police in making arrests, details regarding recovery ofAK47and 9 MM cartridges in village Kirthal P.S. Ramola, District Baghpat. They also placed the details about the steps taken in respect of case Crime No. 148 of 2013 (Fagana, Muzaffarnagar) and 403/2013 (Janath, Muzaffarnagar). In the list of persons, SIC also notede affiliation oftheirpolitical parties etcIn respect of cases of rape, the State has assured this Court that they are taking effective steps to apprehend all the accused and in providing security cover to the rape victims. 50 teams of police personnel have been constituted in order to arrest the accused persons in rape and other cases. The State has also filed details and progress of rape and molestation cases, statement of rape victims under Section 164 of the Code etcWe have already noted that action had been taken against 11 persons under the provisions of the National Security Act as well as persons belonging to various political parties. The State has also furnished the details regarding 24 missing persons out of which 3 have been traced and is taking effective steps for tracing the remaining missing persons84) Inrespect of murder cases, the State has filed a separate chart showing the list of accused persons, verification of persons concerned who were involved, list of surrendered accused in murder cases as well as various other steps for apprehending the remaining accused. The State has also highlighted that throughtheirpublic prosecutors/ counsel, it is taking effective steps for cancellation of bail in those heinous crimes in which persons involved have secured bailIn the light of various steps taken by the State, facts and figures, statistics supported by materials coupled with the various principles enunciated in the decisions referred above, we are of the view that there is no need to either constitute SIT or entrust the investigation to the CBI at this juncture. However, we are conscious of the fact that more effective and stringent measures are to be taken by the State administration for which we are issuing several directions hereunderVictim Compensation in Rape Cases:As a long term measure to curb such crimes, a large societal change is required via education and awareness. The Government will have to formulate and implement policies in order to uplift thec conditions of women, sensitization of police and other concerned parties towards the need for gender equality and it must be done with focus in areas where statistically there is higher percentage of crimes against womenNo compensation can be adequate nor can it be of any respite for the victims but as the State has failed in protecting such serious violation of fundamental rights, the State is duty bound to provide compensation, which may help inrehabilitation. The humiliation or the reputation that is snuffed out cannot be recompensed but then monetary compensation will at least provide some solace88) In2009, a new Section 357A was introduced in the Code which casts a responsibility on the State Governments to formulate Schemes for compensation to the victims of crime in coordination with the Central Government whereas, previously, Section 357 ruled the field which was not mandatory in nature and only the offender can be directed to pay compensation to the victim under this Section. Under the new Section 357A, the onus is put on the District Legal Service Authority or State Legal Service Authority to determine the quantum of compensation in each case. However, no rigid formula can be evolved as to have a uniform amount, it should vary in facts and circumstances of each case. Nevertheless, the obligation of the State does not extinguish on payment of compensation, rehabilitation of victim is also of paramount importance. The mental trauma that the victim suffers due to the commission of such heinous crime, rehabilitation becomes a must in each and every case. | 1 | 19,572 | 4,218 | ### 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:
in exceptional situations where it becomes necessary to provide credibility or instill confidence in investigation or where such an order may be necessary for doing complete justice in enforcing the fundamental rights. Apart from this, immediately after the occurrence, Writ Petition (Crl.) No. 155 of 2013 came to be filed in this Court even in the first week of September, 2013. Pursuant to the same, this Court, after taking note of the importance of the issues, viz., many people lost their lives and properties, sufferings of both communities and children, issued various directions to the State and the Central Government. We have already extracted those orders in the earlier part of our judgment. 124) It is relevant to note that based on various orders of this Court, even after the incident, the State itself has constituted a Special Investigation Cell (SIC). It is also brought to our notice that a total of 566 cases are being investigated by the SIC and after noting that many cases were false and many persons were wrongly named in the FIRs, 549 names have been removed. A total of 48 registered cases have been found false and have been removed from the records. It is also brought to our notice that names of 69 persons in murder cases have been found false and those names have also been removed from the array of parties. The details furnished by the State also show that after constitution of the SIC in September, it inquired about all those persons who had fled from their villages and had taken refuge in various relief camps and noted their problems by taking list of such persons staying in camps and getting their mobile numbers. The SIC also recorded the statements of the complainants and witnesses. We have already referred to the total number of arrested persons in communal violence in Muzaffarnagar and adjoining areas, list of total surrendered accused in the investigated cases, number of persons against whom action was taken due to communal violence, details regarding political persons, difficulties faced by the District Police in making arrests, details regarding recovery of AK-47 and 9 MM cartridges in village Kirthal P.S. Ramola, District Baghpat. They also placed the details about the steps taken in respect of case Crime No. 148 of 2013 (Fagana, Muzaffarnagar) and 403/2013 (Janath, Muzaffarnagar). In the list of persons, SIC also noted community-wise affiliation of their political parties etc. 125) In respect of cases of rape, the State has assured this Court that they are taking effective steps to apprehend all the accused and in providing security cover to the rape victims. 50 teams of police personnel have been constituted in order to arrest the accused persons in rape and other cases. The State has also filed details and progress of rape and molestation cases, statement of rape victims under Section 164 of the Code etc. 126) We have already noted that action had been taken against 11 persons under the provisions of the National Security Act as well as persons belonging to various political parties. The State has also furnished the details regarding 24 missing persons out of which 3 have been traced and is taking effective steps for tracing the remaining missing persons. 127) In respect of murder cases, the State has filed a separate chart showing the list of accused persons, verification of persons concerned who were involved, list of surrendered accused in murder cases as well as various other steps for apprehending the remaining accused. The State has also highlighted that through their public prosecutors/ counsel, it is taking effective steps for cancellation of bail in those heinous crimes in which persons involved have secured bail. 128) In the light of various steps taken by the State, facts and figures, statistics supported by materials coupled with the various principles enunciated in the decisions referred above, we are of the view that there is no need to either constitute SIT or entrust the investigation to the CBI at this juncture. However, we are conscious of the fact that more effective and stringent measures are to be taken by the State administration for which we are issuing several directions hereunder. Victim Compensation in Rape Cases: 129) As a long term measure to curb such crimes, a large societal change is required via education and awareness. The Government will have to formulate and implement policies in order to uplift the socio-economic conditions of women, sensitization of police and other concerned parties towards the need for gender equality and it must be done with focus in areas where statistically there is higher percentage of crimes against women. 130) No compensation can be adequate nor can it be of any respite for the victims but as the State has failed in protecting such serious violation of fundamental rights, the State is duty bound to provide compensation, which may help in victims rehabilitation. The humiliation or the reputation that is snuffed out cannot be recompensed but then monetary compensation will at least provide some solace. 131) In 2009, a new Section 357A was introduced in the Code which casts a responsibility on the State Governments to formulate Schemes for compensation to the victims of crime in coordination with the Central Government whereas, previously, Section 357 ruled the field which was not mandatory in nature and only the offender can be directed to pay compensation to the victim under this Section. Under the new Section 357A, the onus is put on the District Legal Service Authority or State Legal Service Authority to determine the quantum of compensation in each case. However, no rigid formula can be evolved as to have a uniform amount, it should vary in facts and circumstances of each case. Nevertheless, the obligation of the State does not extinguish on payment of compensation, rehabilitation of victim is also of paramount importance. The mental trauma that the victim suffers due to the commission of such heinous crime, rehabilitation becomes a must in each and every case. 132)
### Response:
1
### Explanation:
order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the State police. In other words, this extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility or instill confidence in investigation or where such an order may be necessary for doing complete justice in enforcing the fundamental rights. Apart from this, immediately after the occurrence, Writ Petition (Crl.) No. 155 of 2013 came to be filed in this Court even in the first week of September, 2013. Pursuant to the same, this Court, after taking note of the importance of the issues, viz., many people losttheirlives and properties, sufferings of both communities and children, issued various directions to the State and the Central Government. We have already extracted those orders in the earlier part of our judgmentIt is relevant to note that based on various orders of this Court, even after the incident, the State itself has constituted a Special Investigation Cell (SIC). It is also brought to our notice that a total of 566 cases are being investigated by the SIC and after noting that many cases were false and many persons were wrongly named in the FIRs, 549 names have been removed. A total of 48 registered cases have been found false and have been removed from the records. It is also brought to our notice that names of 69 persons in murder cases have been found false and those names have also been removed from the array of parties. The details furnished by the State also show that after constitution of the SIC in September, it inquired about all those persons who had fled fromtheirvillages and had taken refuge in various relief camps and notedtheirproblems by taking list of such persons staying in camps and gettingtheirmobile numbers. The SIC also recorded the statements of the complainants and witnesses. We have already referred to the total number of arrested persons in communal violence in Muzaffarnagar and adjoining areas, list of total surrendered accused in the investigated cases, number of persons against whom action was taken due to communal violence, details regarding political persons, difficulties faced by the District Police in making arrests, details regarding recovery ofAK47and 9 MM cartridges in village Kirthal P.S. Ramola, District Baghpat. They also placed the details about the steps taken in respect of case Crime No. 148 of 2013 (Fagana, Muzaffarnagar) and 403/2013 (Janath, Muzaffarnagar). In the list of persons, SIC also notede affiliation oftheirpolitical parties etcIn respect of cases of rape, the State has assured this Court that they are taking effective steps to apprehend all the accused and in providing security cover to the rape victims. 50 teams of police personnel have been constituted in order to arrest the accused persons in rape and other cases. The State has also filed details and progress of rape and molestation cases, statement of rape victims under Section 164 of the Code etcWe have already noted that action had been taken against 11 persons under the provisions of the National Security Act as well as persons belonging to various political parties. The State has also furnished the details regarding 24 missing persons out of which 3 have been traced and is taking effective steps for tracing the remaining missing persons84) Inrespect of murder cases, the State has filed a separate chart showing the list of accused persons, verification of persons concerned who were involved, list of surrendered accused in murder cases as well as various other steps for apprehending the remaining accused. The State has also highlighted that throughtheirpublic prosecutors/ counsel, it is taking effective steps for cancellation of bail in those heinous crimes in which persons involved have secured bailIn the light of various steps taken by the State, facts and figures, statistics supported by materials coupled with the various principles enunciated in the decisions referred above, we are of the view that there is no need to either constitute SIT or entrust the investigation to the CBI at this juncture. However, we are conscious of the fact that more effective and stringent measures are to be taken by the State administration for which we are issuing several directions hereunderVictim Compensation in Rape Cases:As a long term measure to curb such crimes, a large societal change is required via education and awareness. The Government will have to formulate and implement policies in order to uplift thec conditions of women, sensitization of police and other concerned parties towards the need for gender equality and it must be done with focus in areas where statistically there is higher percentage of crimes against womenNo compensation can be adequate nor can it be of any respite for the victims but as the State has failed in protecting such serious violation of fundamental rights, the State is duty bound to provide compensation, which may help inrehabilitation. The humiliation or the reputation that is snuffed out cannot be recompensed but then monetary compensation will at least provide some solace88) In2009, a new Section 357A was introduced in the Code which casts a responsibility on the State Governments to formulate Schemes for compensation to the victims of crime in coordination with the Central Government whereas, previously, Section 357 ruled the field which was not mandatory in nature and only the offender can be directed to pay compensation to the victim under this Section. Under the new Section 357A, the onus is put on the District Legal Service Authority or State Legal Service Authority to determine the quantum of compensation in each case. However, no rigid formula can be evolved as to have a uniform amount, it should vary in facts and circumstances of each case. Nevertheless, the obligation of the State does not extinguish on payment of compensation, rehabilitation of victim is also of paramount importance. The mental trauma that the victim suffers due to the commission of such heinous crime, rehabilitation becomes a must in each and every case.
|
Tata Iron And Steel Co.Ltd Vs. Union Of India | it cannot complain. His complaint is that when afterwards the other party makes a diffenet state of affaris, the basisof an ascertian of right against him then, if it is allowed, his own original change of position will operate as a detriment (vide Grundts: High Court of Austriala (supra)). 21. Phipson on Evidence (Fourteenth Edn.) has the followng to state as regards estoppels by conduct. "Estoppels by conduct, or, as they are still sometiems called, estoppels by matter in pais, were anciently acts of notoriety not less solemn and formal than the execution of a deed, such as livery of seisin, entry, accepteance of an estate and the like, and whether a party had or had not concurred in an act of this sort was deemed a matter which there could be no difficulty in ascertainging, and then the legal consequences followed. Lyon v. Reed, 1844(13) M&W. 285, 309. The doctrine has, however, in modern tiems, been extended so as to embrace practically any act or stateemnt by a party which it would be unconscionable to permit which it would be unconscionable to permit him to deny. The rule has been auhtoritatively stated as follows : "Where one by his words of conduct willfully causes another to believe the existence of a certian state of things and induces him to act on that beleif so as to alter his own previous position, the former is concluded from averring against the latter a differnet state of things as existing at the same time." Pickard v. Sears, 1837(6) A.&E. 469, 474 And whatever a mans real intention my be, he is deemed to act willfully "if he so conducts himself that a reasonable man would take the representation to be true and beleive that it was meant that he should act upon it. Freeman v. Cooke, 1848(2) Exch. 654, 663.Where the conduct is negligent or consits wholly of omission, there must be a duty to the person misled. Mercantile Bank v. Central Bank, 1938 AC 287, 304 and National Westminster Bank v. Barclays Bank International, 1975 Q.B. 654. This principle sits oddly with the rest of the law of estoppel, but it appears to have been reaffirmed, at least by implication, by the House of Lords comparately recently. Moorgate Mercantile Co. Ltd. v. Twitchings, (1977) AC 890 (H.L.). The explanation is no doubt that this aspect of estoppel is properly to be considered a part of the law relating to negligent representations rather than estoppel properly so-called. If two people with the same source of information assert the same truth or agree to assert the same falsehoold at the same time, neither can be estopped as against the other from asserting differently at another time. Square v. Square, 1935 p. 120". 22. A bare perusal of the same would go to show that the issue of an estoppel by conduct can only be said to be available in the event of there being a precise and unambiguous representation and on that score a further question arises as to whether there was any unequivocal assurance prompting the assured to alter his position or status. The contextual facts however, depict otherwise. Annexure 2 to the application form for benefit of price protection contains and undertaking to the following effect :- "We hereby undertake to refund to EEPC Rs. ---- the amount paid to us in full or part thereof against out application for price protection. In terms of our application dated against exports made during. In case any particular declaration/certificate furnished by us against our above referred to claims are found to be incorrect or any excess payment is determine to have been made due to oversight/wrong calculations etc. at any time. We also undertake to refund the amount within 10 days of receipt of the notice asking for the refund, failing which the amount erroneously paid or paid in excess shall be recovered from or adjusted against any other claim for export benefits by EEPC or by the licensing authorities at CCI & C." and it is on this score it may be noted that in the event of there being a specific undertaking to refund for any amount erroneously paid or paid in excess (emphasis supplied), question of there being any estoppel in our view would not arise. In this context correspondence exchanged between the parties are rather significant. In particular letter dated 30th November, 1990 from the Assistant Development Commissioner fro Iron & Steel and the reply thereto dated March 8, 1991 which unmistakably record the factum of non-payment of JPC price. Opinion of the Court :23. The contextual facts therefore is no unambiguous language depict that the four JPC price elements have not been paid by the appellant herein. Further factual score depicts recording of an undertaking to reply in the event of excess payments and on the wake of the findings as noticed hereinbefore, it would neither be fair nor reasonable or in consonance with the concept of justice, equity and good conscience directing entitlement of the appellant as is being claimed. Doctrine of fairness and the duty to act fairly is a doctrine developed in the administrative law filed to ensure the rule of law and to prevent failure of justice. It is a principle of good conscience and equity since the law courts are to act fairly and reasonably in accordance with the law. The correspondence unmistakably divulge an obligation to pay certain compensation in the event there is a payment of certain levy by the appellant herein : The appellant admittedly has not made the payment : Doctrine of unreasonabless is opposed to doctrine of fairness and reasonableness will have its play, if allowed. The happening of an event has not aken place, can it be said respective of such an event reimbursement is to be allowed ? The answer, however, cannot but in the negative.d 24. In that view of the matter, we record our concurrent with the judgment of the Calcutta High Court. 25. | 0[ds]23. The contextual facts therefore is no unambiguous language depict that the four JPC price elements have not been paid by the appellant herein. Further factual score depicts recording of an undertaking to reply in the event of excess payments and on the wake of the findings as noticed hereinbefore, it would neither be fair nor reasonable or in consonance with the concept of justice, equity and good conscience directing entitlement of the appellant as is being claimed. Doctrine of fairness and the duty to act fairly is a doctrine developed in the administrative law filed to ensure the rule of law and to prevent failure of justice. It is a principle of good conscience and equity since the law courts are to act fairly and reasonably in accordance with the law. The correspondence unmistakably divulge an obligation to pay certain compensation in the event there is a payment of certain levy by the appellant herein : The appellant admittedly has not made the payment : Doctrine of unreasonabless is opposed to doctrine of fairness and reasonableness will have its play, if allowed. The happening of an event has not aken place, can it be said respective of such an event reimbursement is to be allowed ? The answer, however, cannot but in the negative. | 0 | 5,262 | 233 | ### 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:
it cannot complain. His complaint is that when afterwards the other party makes a diffenet state of affaris, the basisof an ascertian of right against him then, if it is allowed, his own original change of position will operate as a detriment (vide Grundts: High Court of Austriala (supra)). 21. Phipson on Evidence (Fourteenth Edn.) has the followng to state as regards estoppels by conduct. "Estoppels by conduct, or, as they are still sometiems called, estoppels by matter in pais, were anciently acts of notoriety not less solemn and formal than the execution of a deed, such as livery of seisin, entry, accepteance of an estate and the like, and whether a party had or had not concurred in an act of this sort was deemed a matter which there could be no difficulty in ascertainging, and then the legal consequences followed. Lyon v. Reed, 1844(13) M&W. 285, 309. The doctrine has, however, in modern tiems, been extended so as to embrace practically any act or stateemnt by a party which it would be unconscionable to permit which it would be unconscionable to permit him to deny. The rule has been auhtoritatively stated as follows : "Where one by his words of conduct willfully causes another to believe the existence of a certian state of things and induces him to act on that beleif so as to alter his own previous position, the former is concluded from averring against the latter a differnet state of things as existing at the same time." Pickard v. Sears, 1837(6) A.&E. 469, 474 And whatever a mans real intention my be, he is deemed to act willfully "if he so conducts himself that a reasonable man would take the representation to be true and beleive that it was meant that he should act upon it. Freeman v. Cooke, 1848(2) Exch. 654, 663.Where the conduct is negligent or consits wholly of omission, there must be a duty to the person misled. Mercantile Bank v. Central Bank, 1938 AC 287, 304 and National Westminster Bank v. Barclays Bank International, 1975 Q.B. 654. This principle sits oddly with the rest of the law of estoppel, but it appears to have been reaffirmed, at least by implication, by the House of Lords comparately recently. Moorgate Mercantile Co. Ltd. v. Twitchings, (1977) AC 890 (H.L.). The explanation is no doubt that this aspect of estoppel is properly to be considered a part of the law relating to negligent representations rather than estoppel properly so-called. If two people with the same source of information assert the same truth or agree to assert the same falsehoold at the same time, neither can be estopped as against the other from asserting differently at another time. Square v. Square, 1935 p. 120". 22. A bare perusal of the same would go to show that the issue of an estoppel by conduct can only be said to be available in the event of there being a precise and unambiguous representation and on that score a further question arises as to whether there was any unequivocal assurance prompting the assured to alter his position or status. The contextual facts however, depict otherwise. Annexure 2 to the application form for benefit of price protection contains and undertaking to the following effect :- "We hereby undertake to refund to EEPC Rs. ---- the amount paid to us in full or part thereof against out application for price protection. In terms of our application dated against exports made during. In case any particular declaration/certificate furnished by us against our above referred to claims are found to be incorrect or any excess payment is determine to have been made due to oversight/wrong calculations etc. at any time. We also undertake to refund the amount within 10 days of receipt of the notice asking for the refund, failing which the amount erroneously paid or paid in excess shall be recovered from or adjusted against any other claim for export benefits by EEPC or by the licensing authorities at CCI & C." and it is on this score it may be noted that in the event of there being a specific undertaking to refund for any amount erroneously paid or paid in excess (emphasis supplied), question of there being any estoppel in our view would not arise. In this context correspondence exchanged between the parties are rather significant. In particular letter dated 30th November, 1990 from the Assistant Development Commissioner fro Iron & Steel and the reply thereto dated March 8, 1991 which unmistakably record the factum of non-payment of JPC price. Opinion of the Court :23. The contextual facts therefore is no unambiguous language depict that the four JPC price elements have not been paid by the appellant herein. Further factual score depicts recording of an undertaking to reply in the event of excess payments and on the wake of the findings as noticed hereinbefore, it would neither be fair nor reasonable or in consonance with the concept of justice, equity and good conscience directing entitlement of the appellant as is being claimed. Doctrine of fairness and the duty to act fairly is a doctrine developed in the administrative law filed to ensure the rule of law and to prevent failure of justice. It is a principle of good conscience and equity since the law courts are to act fairly and reasonably in accordance with the law. The correspondence unmistakably divulge an obligation to pay certain compensation in the event there is a payment of certain levy by the appellant herein : The appellant admittedly has not made the payment : Doctrine of unreasonabless is opposed to doctrine of fairness and reasonableness will have its play, if allowed. The happening of an event has not aken place, can it be said respective of such an event reimbursement is to be allowed ? The answer, however, cannot but in the negative.d 24. In that view of the matter, we record our concurrent with the judgment of the Calcutta High Court. 25.
### Response:
0
### Explanation:
23. The contextual facts therefore is no unambiguous language depict that the four JPC price elements have not been paid by the appellant herein. Further factual score depicts recording of an undertaking to reply in the event of excess payments and on the wake of the findings as noticed hereinbefore, it would neither be fair nor reasonable or in consonance with the concept of justice, equity and good conscience directing entitlement of the appellant as is being claimed. Doctrine of fairness and the duty to act fairly is a doctrine developed in the administrative law filed to ensure the rule of law and to prevent failure of justice. It is a principle of good conscience and equity since the law courts are to act fairly and reasonably in accordance with the law. The correspondence unmistakably divulge an obligation to pay certain compensation in the event there is a payment of certain levy by the appellant herein : The appellant admittedly has not made the payment : Doctrine of unreasonabless is opposed to doctrine of fairness and reasonableness will have its play, if allowed. The happening of an event has not aken place, can it be said respective of such an event reimbursement is to be allowed ? The answer, however, cannot but in the negative.
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UNITED INDIA INSURANCE CO.LTD Vs. HYUNDAI ENGINEERING AND CONSTRUCTION CO. LTD | in India will be in the nature of a suit, has got to be commenced within three months from the date of such rejection; otherwise, all benefits under the policy stand forfeited. The rejection of the claim may be for the reasons indicated in the first part of clause 13, such as, false declaration, fraud or wilful neglect of the claimant or on any other ground disclosed or undisclosed. But as soon as there is a rejection of the claim and not the raising of a dispute as to the amount of any loss or damage, the only remedy open to the claimant is to commence a legal proceeding, namely, a suit, for establishment of the company?s liability. It may well be that after the liability of the company is established in such a suit, for determination of the quantum of the loss or damage reference to arbitration will have to be resorted to in accordance with clause 18. But the arbitration clause, restricted as it is by the use of the words ‘if any difference arises as to the amount of any loss or damage?, cannot take within its sweep a dispute as to the liability of the company when it refuses to pay any damage at all.?(emphasis supplied)Again in paragraph 22, after analysing the relevant judicial precedents, the Court concluded as follows:?22. The two lines of cases clearly bear out the two distinct situations in law. A clause like the one in Scott v. Avery bars any action or suit if commenced for determination of a dispute covered by the arbitration clause. But if on the other hand a dispute cropped up at the very outset which cannot be referred to arbitration as being not covered by the clause, then Scott v. Avery clause is rendered inoperative and cannot be pleaded as a bar to the maintainability of the legal action or suit for determination of the dispute which was outside the arbitration clause.?(Emphasis supplied)12. From the line of authorities, it is clear that the arbitration clause has to be interpreted strictly. The subject clause 7 which is in pari materia to clause 13 of the policy considered by a three-Judge Bench in Oriental Insurance Company Limited (supra), is a conditional expression of intent. Such an arbitration clause will get activated or kindled only if the dispute between the parties is limited to the quantum to be paid under the policy. The liability should be unequivocally admitted by the insurer. That is the pre- condition and sine qua non for triggering the arbitration clause. To put it differently, an arbitration clause would enliven or invigorate only if the insurer admits or accepts its liability under or in respect of the concerned policy. That has been expressly predicated in the opening part of clause 7 as well as the second paragraph of the same clause. In the opening part, it is stated that the ?(liability being otherwise admitted)?. This is reinforced and re-stated in the second paragraph in the following words:?It is clearly agreed and understood that no difference or dispute shall be referable to arbitration as herein before provided, if the Company has disputed or not accepted liability under or in respect of this Policy.?Thus understood, there can be no arbitration in cases where the insurance company disputes or does not accept the liability under or in respect of the policy.13. The core issue is whether the communication sent on 21 st April, 2011 falls in the excepted category of repudiation and denial of liability in toto or has the effect of acceptance of liability by the insurer under or in respect of the policy and limited to disputation of quantum. The High Court has made no effort to examine this aspect at all. It only reproduced clause 7 of the policy and in reference to the dictum in Duro Felguera (supra) held that no other enquiry can be made by the Court in that regard. This is misreading of the said decision and the amended provision and, in particular, mis- application of the three-Judge Bench decisions of this Court in Vulcan Insurance Co. Ltd. (supra) and in Oriental Insurance Company Ltd. (supra).14. Reverting to the communication dated 21 st April, 2011, we have no hesitation in taking the view that the appellants completely denied their liability and repudiated the claim of the JV (respondent Nos.1 & 2) for the reasons mentioned in the communication. The reasons are specific. No plea was raised by the respondents that the policy or the said clause 7 was void. The appellants repudiated the claim of the JV and denied their liability in toto under or in respect of the subject policy. It was not a plea to dispute the quantum to be paid under the policy, which alone could be referred to arbitration in terms of clause 7. Thus, the plea taken by the appellants is of denial of its liability to indemnify the loss as claimed by the JV, which falls in the excepted category, thereby making the arbitration clause ineffective and incapable of being enforced, if not non-existent. It is not actuated so as to make a reference to arbitration. In other words, the plea of the appellants is about falling in an excepted category and non-arbitrable matter within the meaning of the opening part of clause 7 and as re-stated in the second paragraph of the same clause.15. In view of the above, it must be held that the dispute in question is non-arbitrable and respondent Nos.1 & 2 ought to have resorted to the remedy of a suit. The plea of respondent Nos.1 & 2 about the final repudiation expressed by the appellants vide communication dated 17 th April, 2017 will be of no avail. However, whether that factum can be taken as the cause of action for institution of the suit is a matter which can be debated in those proceedings. We may not be understood to have expressed any opinion either way in that regard. | 1[ds]11. The other decision heavily relied upon by the High Court and also by the respondents in Duro Felguera (supra), will be of no avail. Firstly, because it is aBench decision and also because the Court was not called upon to consider the question which arises in the present case, in reference to clause 7 of the subject Insurance Policy. The exposition in this decision is a general observation about the effect of the amended provision and not specific to the issue under consideration. The issue under consideration has been directly dealt with by aBench of this Court in Oriental Insurance Company Limited (supra), following the exposition in Vulcan Insurance Co. Ltd. Vs. Maharaj Singh and Anr., which, again, is aBench decision having construed clause similar to the subject clause 7 of the InsuranceFrom the line of authorities, it is clear that the arbitration clause has to be interpreted strictly. The subject clause 7 which is in pari materia to clause 13 of the policy considered by aBench in Oriental Insurance Company Limited (supra), is a conditional expression of intent. Such an arbitration clause will get activated or kindled only if the dispute between the parties is limited to the quantum to be paid under the policy. The liability should be unequivocally admitted by the insurer. That is the precondition and sine qua non for triggering the arbitration clause. To put it differently, an arbitration clause would enliven or invigorate only if the insurer admits or accepts its liability under or in respect of the concerned policy. That has been expressly predicated in the opening part of clause 7 as well as the second paragraph of the same clause. In the opening part, it is stated that the ?(liability being otherwise admitted)?. This is reinforced andin the second paragraph in the followingis clearly agreed and understood that no difference or dispute shall be referable to arbitration as herein before provided, if the Company has disputed or not accepted liability under or in respect of thisunderstood, there can be no arbitration in cases where the insurance company disputes or does not accept the liability under or in respect of theHigh Court has made no effort to examine this aspect at all. It only reproduced clause 7 of the policy and in reference to the dictum in Duro Felguera (supra) held that no other enquiry can be made by the Court in that regard. This is misreading of the said decision and the amended provision and, in particular, misapplication of theBench decisions of this Court in Vulcan Insurance Co. Ltd. (supra) and in Oriental Insurance Company Ltd. (supra).14. Reverting to the communication dated 21 st April, 2011, we have no hesitation in taking the view that the appellants completely denied their liability and repudiated the claim of the JV (respondent Nos.1 & 2) for the reasons mentioned in the communication. The reasons are specific. No plea was raised by the respondents that the policy or the said clause 7 was void. The appellants repudiated the claim of the JV and denied their liability in toto under or in respect of the subject policy. It was not a plea to dispute the quantum to be paid under the policy, which alone could be referred to arbitration in terms of clause 7. Thus, the plea taken by the appellants is of denial of its liability to indemnify the loss as claimed by the JV, which falls in the excepted category, thereby making the arbitration clause ineffective and incapable of being enforced, if notIt is not actuated so as to make a reference to arbitration. In other words, the plea of the appellants is about falling in an excepted category andmatter within the meaning of the opening part of clause 7 and asin the second paragraph of the same clause.15. In view of the above, it must be held that the dispute in question isand respondent Nos.1 & 2 ought to have resorted to the remedy of a suit. The plea of respondent Nos.1 & 2 about the final repudiation expressed by the appellants vide communication dated 17 th April, 2017 will be of no avail. However, whether that factum can be taken as the cause of action for institution of the suit is a matter which can be debated in those proceedings. We may not be understood to have expressed any opinion either way in that regard. | 1 | 4,626 | 809 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
in India will be in the nature of a suit, has got to be commenced within three months from the date of such rejection; otherwise, all benefits under the policy stand forfeited. The rejection of the claim may be for the reasons indicated in the first part of clause 13, such as, false declaration, fraud or wilful neglect of the claimant or on any other ground disclosed or undisclosed. But as soon as there is a rejection of the claim and not the raising of a dispute as to the amount of any loss or damage, the only remedy open to the claimant is to commence a legal proceeding, namely, a suit, for establishment of the company?s liability. It may well be that after the liability of the company is established in such a suit, for determination of the quantum of the loss or damage reference to arbitration will have to be resorted to in accordance with clause 18. But the arbitration clause, restricted as it is by the use of the words ‘if any difference arises as to the amount of any loss or damage?, cannot take within its sweep a dispute as to the liability of the company when it refuses to pay any damage at all.?(emphasis supplied)Again in paragraph 22, after analysing the relevant judicial precedents, the Court concluded as follows:?22. The two lines of cases clearly bear out the two distinct situations in law. A clause like the one in Scott v. Avery bars any action or suit if commenced for determination of a dispute covered by the arbitration clause. But if on the other hand a dispute cropped up at the very outset which cannot be referred to arbitration as being not covered by the clause, then Scott v. Avery clause is rendered inoperative and cannot be pleaded as a bar to the maintainability of the legal action or suit for determination of the dispute which was outside the arbitration clause.?(Emphasis supplied)12. From the line of authorities, it is clear that the arbitration clause has to be interpreted strictly. The subject clause 7 which is in pari materia to clause 13 of the policy considered by a three-Judge Bench in Oriental Insurance Company Limited (supra), is a conditional expression of intent. Such an arbitration clause will get activated or kindled only if the dispute between the parties is limited to the quantum to be paid under the policy. The liability should be unequivocally admitted by the insurer. That is the pre- condition and sine qua non for triggering the arbitration clause. To put it differently, an arbitration clause would enliven or invigorate only if the insurer admits or accepts its liability under or in respect of the concerned policy. That has been expressly predicated in the opening part of clause 7 as well as the second paragraph of the same clause. In the opening part, it is stated that the ?(liability being otherwise admitted)?. This is reinforced and re-stated in the second paragraph in the following words:?It is clearly agreed and understood that no difference or dispute shall be referable to arbitration as herein before provided, if the Company has disputed or not accepted liability under or in respect of this Policy.?Thus understood, there can be no arbitration in cases where the insurance company disputes or does not accept the liability under or in respect of the policy.13. The core issue is whether the communication sent on 21 st April, 2011 falls in the excepted category of repudiation and denial of liability in toto or has the effect of acceptance of liability by the insurer under or in respect of the policy and limited to disputation of quantum. The High Court has made no effort to examine this aspect at all. It only reproduced clause 7 of the policy and in reference to the dictum in Duro Felguera (supra) held that no other enquiry can be made by the Court in that regard. This is misreading of the said decision and the amended provision and, in particular, mis- application of the three-Judge Bench decisions of this Court in Vulcan Insurance Co. Ltd. (supra) and in Oriental Insurance Company Ltd. (supra).14. Reverting to the communication dated 21 st April, 2011, we have no hesitation in taking the view that the appellants completely denied their liability and repudiated the claim of the JV (respondent Nos.1 & 2) for the reasons mentioned in the communication. The reasons are specific. No plea was raised by the respondents that the policy or the said clause 7 was void. The appellants repudiated the claim of the JV and denied their liability in toto under or in respect of the subject policy. It was not a plea to dispute the quantum to be paid under the policy, which alone could be referred to arbitration in terms of clause 7. Thus, the plea taken by the appellants is of denial of its liability to indemnify the loss as claimed by the JV, which falls in the excepted category, thereby making the arbitration clause ineffective and incapable of being enforced, if not non-existent. It is not actuated so as to make a reference to arbitration. In other words, the plea of the appellants is about falling in an excepted category and non-arbitrable matter within the meaning of the opening part of clause 7 and as re-stated in the second paragraph of the same clause.15. In view of the above, it must be held that the dispute in question is non-arbitrable and respondent Nos.1 & 2 ought to have resorted to the remedy of a suit. The plea of respondent Nos.1 & 2 about the final repudiation expressed by the appellants vide communication dated 17 th April, 2017 will be of no avail. However, whether that factum can be taken as the cause of action for institution of the suit is a matter which can be debated in those proceedings. We may not be understood to have expressed any opinion either way in that regard.
### Response:
1
### Explanation:
11. The other decision heavily relied upon by the High Court and also by the respondents in Duro Felguera (supra), will be of no avail. Firstly, because it is aBench decision and also because the Court was not called upon to consider the question which arises in the present case, in reference to clause 7 of the subject Insurance Policy. The exposition in this decision is a general observation about the effect of the amended provision and not specific to the issue under consideration. The issue under consideration has been directly dealt with by aBench of this Court in Oriental Insurance Company Limited (supra), following the exposition in Vulcan Insurance Co. Ltd. Vs. Maharaj Singh and Anr., which, again, is aBench decision having construed clause similar to the subject clause 7 of the InsuranceFrom the line of authorities, it is clear that the arbitration clause has to be interpreted strictly. The subject clause 7 which is in pari materia to clause 13 of the policy considered by aBench in Oriental Insurance Company Limited (supra), is a conditional expression of intent. Such an arbitration clause will get activated or kindled only if the dispute between the parties is limited to the quantum to be paid under the policy. The liability should be unequivocally admitted by the insurer. That is the precondition and sine qua non for triggering the arbitration clause. To put it differently, an arbitration clause would enliven or invigorate only if the insurer admits or accepts its liability under or in respect of the concerned policy. That has been expressly predicated in the opening part of clause 7 as well as the second paragraph of the same clause. In the opening part, it is stated that the ?(liability being otherwise admitted)?. This is reinforced andin the second paragraph in the followingis clearly agreed and understood that no difference or dispute shall be referable to arbitration as herein before provided, if the Company has disputed or not accepted liability under or in respect of thisunderstood, there can be no arbitration in cases where the insurance company disputes or does not accept the liability under or in respect of theHigh Court has made no effort to examine this aspect at all. It only reproduced clause 7 of the policy and in reference to the dictum in Duro Felguera (supra) held that no other enquiry can be made by the Court in that regard. This is misreading of the said decision and the amended provision and, in particular, misapplication of theBench decisions of this Court in Vulcan Insurance Co. Ltd. (supra) and in Oriental Insurance Company Ltd. (supra).14. Reverting to the communication dated 21 st April, 2011, we have no hesitation in taking the view that the appellants completely denied their liability and repudiated the claim of the JV (respondent Nos.1 & 2) for the reasons mentioned in the communication. The reasons are specific. No plea was raised by the respondents that the policy or the said clause 7 was void. The appellants repudiated the claim of the JV and denied their liability in toto under or in respect of the subject policy. It was not a plea to dispute the quantum to be paid under the policy, which alone could be referred to arbitration in terms of clause 7. Thus, the plea taken by the appellants is of denial of its liability to indemnify the loss as claimed by the JV, which falls in the excepted category, thereby making the arbitration clause ineffective and incapable of being enforced, if notIt is not actuated so as to make a reference to arbitration. In other words, the plea of the appellants is about falling in an excepted category andmatter within the meaning of the opening part of clause 7 and asin the second paragraph of the same clause.15. In view of the above, it must be held that the dispute in question isand respondent Nos.1 & 2 ought to have resorted to the remedy of a suit. The plea of respondent Nos.1 & 2 about the final repudiation expressed by the appellants vide communication dated 17 th April, 2017 will be of no avail. However, whether that factum can be taken as the cause of action for institution of the suit is a matter which can be debated in those proceedings. We may not be understood to have expressed any opinion either way in that regard.
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BHARAT BROADBAND NETWORK LIMITED Vs. UNITED TELECOMS LIMITED | a challenge is made to an arbitrator, inter alia, by the same party who has appointed such arbitrator. This then refers to the challenge procedure set out in Section 13 of the Act. Section 12(4) has no applicability to an application made to the Court under Section 14(2) to determine whether the mandate of an arbitrator has terminated as he has, in law, become unable to perform his functions because he is ineligible to be appointed as such under Section 12(5) of the Act.20. This then brings us to the applicability of the proviso to Section 12(5) on the facts of this case. Unlike Section 4 of the Act which deals with deemed waiver of the right to object by conduct, the proviso to Section 12(5) will only apply if subsequent to disputes having arisen between the parties, the parties waive the applicability of sub-section (5) of Section 12 by an express agreement in writing. For this reason, the argument based on the analogy of Section 7 of the Act must also be rejected. Section 7 deals with arbitration agreements that must be in writing, and then explains that such agreements may be contained in documents which provide a record of such agreements. On the other hand, Section 12(5) refers to an “express agreement in writing”. The expression “express agreement in writing” refers to an agreement made in words as opposed to an agreement which is to be inferred by conduct. Here, Section 9 of the Indian Contract Act, 1872 becomes important. It states:“9. Promises, express and implied.—In so far as a proposal or acceptance of any promise is made in words, the promise is said to be express. In so far as such proposal or acceptance is made otherwise than in words, the promise is said to be implied.”It is thus necessary that there be an “express” agreement in writing. This agreement must be an agreement by which both parties, with full knowledge of the fact that Shri Khan is ineligible to be appointed as an arbitrator, still go ahead and say that they have full faith and confidence in him to continue as such. The facts of the present case disclose no such express agreement. The appointment letter which is relied upon by the High Court as indicating an express agreement on the facts of the case is dated 17.01.2017. On this date, the Managing Director of the appellant was certainly not aware that Shri Khan could not be appointed by him as Section 12(5) read with the Seventh Schedule only went to the invalidity of the appointment of the Managing Director himself as an arbitrator. Shri Khan’s invalid appointment only became clear after the declaration of the law by the Supreme Court in TRF Ltd. (supra) which, as we have seen hereinabove, was only on 03.07.2017. After this date, far from there being an express agreement between the parties as to the validity of Shri Khan’s appointment, the appellant filed an application on 07.10.2017 before the sole arbitrator, bringing the arbitrator’s attention to the judgment in TRF Ltd. (supra) and asking him to declare that he has become de jure incapable of acting as an arbitrator. Equally, the fact that a statement of claim may have been filed before the arbitrator, would not mean that there is an express agreement in words which would make it clear that both parties wish Shri Khan to continue as arbitrator despite being ineligible to act as such. This being the case, the impugned judgment is not correct when it applies Section 4, Section 7, Section 12(4), Section 13(2), and Section 16(2) of the Act to the facts of the present case, and goes on to state that the appellant cannot be allowed to raise the issue of eligibility of an arbitrator, having itself appointed the arbitrator. The judgment under appeal is also incorrect in stating that there is an express waiver in writing from the fact that an appointment letter has been issued by the appellant, and a statement of claim has been filed by the respondent before the arbitrator. The moment the appellant came to know that Shri Khan’s appointment itself would be invalid, it filed an application before the sole arbitrator for termination of his mandate.21. The learned Additional Solicitor General appearing on behalf of the appellant has relied upon All India Power Engineer Federation v. Sasan Power Ltd., (2017) 1 SCC 487 , and referred to paragraph 21 thereof, which reads as follows:“21. Regard being had to the aforesaid decisions, it is clear that when waiver is spoken of in the realm of contract, Section 63 of the Contract Act, 1872 governs. But it is important to note that waiver is an intentional relinquishment of a known right, and that, therefore, unless there is a clear intention to relinquish a right that is fully known to a party, a party cannot be said to waive it. But the matter does not end here. It is also clear that if any element of public interest is involved and a waiver takes place by one of the parties to an agreement, such waiver will not be given effect to if it is contrary to such public interest. This is clear from a reading of the following authorities.”This judgment cannot possibly apply as the present case is governed by the express language of the proviso to Section 12(5) of the Act. Similarly, the judgments relied upon by the learned Senior Advocate appearing on behalf of the respondent, namely, Vasu P. Shetty v. Hotel Vandana Palace, (2014) 5 SCC 660 , and BSNL v. Motorola India (P) Ltd., (2009) 2 SCC 337 [ “BSNL”], for the same reason, cannot be said to have any application to the express language of the proviso to Section 12(5). It may be noted that BSNL (supra) deals with Section 4 of the Act which, as has been stated hereinabove, has no application, and must be contrasted with the language of the proviso to Section 12(5). | 1[ds]14. From a conspectus of the above decisions, it is clear that Section 12(1), as substituted by the Arbitration and Conciliation (Amendment) Act, 2015 [], makes it clear that when a person is approached in connection with his possible appointment as an arbitrator, it is his duty to disclose in writing any circumstances which are likely to give rise to justifiable doubts as to his independence or impartiality. The disclosure is to be made in the form specified in the Sixth Schedule, and the grounds stated in the Fifth Schedule are to serve as a guide in determining whether circumstances exist which give rise to justifiable doubts as to the independence or impartiality of an arbitrator. Once this is done, the appointment of the arbitrator may be challenged on the ground that justifiable doubts have arisen under sub-section (3) of Section 12 subject to the caveat entered by sub- section (4) of Section 12. The challenge procedure is then set out in Section 13, together with the time limit laid down in Section 13(2). What is important to note is that the arbitral tribunal must first decide on the said challenge, and if it is not successful, the tribunal shall continue the proceedings and make an award. It is only post award that the party challenging the appointment of an arbitrator may make an application for setting aside such an award in accordance with Section 34 of the Act.15. Section 12(5), on the other hand, is a new provision which relates to the de jure inability of an arbitrator to act as such. Under this provision, any prior agreement to the contrary is wiped out by the non- obstante clause in Section 12(5) the moment any person whose relationship with the parties or the counsel or the subject matter of the dispute falls under the Seventh Schedule. The sub-section then declares that such person shall beto be appointed as arbitrator. The only way in which this ineligibility can be removed is by the proviso, which again is a special provision which states that parties may, subsequent to disputes having arisen between them, waive the applicability of Section 12(5) by an express agreement in writing. What is clear, therefore, is that where, under any agreement between the parties, a person falls within any of the categories set out in the Seventh Schedule, he is, as a matter of law, ineligible to be appointed as an arbitrator. The only way in which this ineligibility can be removed, again, in law, is that parties may after disputes have arisen between them, waive the applicability of this sub-section by anObviously, thehas reference to a person who is interdicted by the Seventh Schedule, but who is stated by parties (after the disputes have arisen between them) to be a person in whom they have faith notwithstanding the fact that such person is interdicted by the Seventh Schedule.16. The Law Commission Report, which has been extensively referred to in some of our judgments, makes it clear that there are certain minimum levels of independence and impartiality that should be required of the arbitral process, regardless of theagreement. This being the case, the Law Commission thenThe Commission has proposed the requirement of having specific disclosures by the arbitrator, at the stage of his possible appointment, regarding existence of any relationship or interest of any kind which is likely to give rise to justifiable doubts. The Commission has proposed the incorporation of the Fourth Schedule, which has drawn from the Red and Orange lists of the IBA Guidelines on Conflicts of Interest in International Arbitration, and which would be treated as ato determine whether circumstances exist which give rise to such justifiable doubts. On the other hand, in terms of the proposed section 12 (5) of the Act and the Fifth Schedule which incorporates the categories from the Red list of the IBA Guidelines (as above), the person proposed to be appointed as an arbitrator shall be ineligible to be so appointed, notwithstanding any prior agreement to the contrary. In the event such an ineligible person is purported to be appointed as an arbitrator, he shall be de jure deemed to be unable to perform his functions, in terms of the proposed explanation to section 14. Therefore, while the disclosure is required with respect to a broader list of categories (as set out in the Fourth Schedule, and as based on the Red and Orange lists of the IBA Guidelines), the ineligibility to be appointed as an arbitrator (and the consequent de jure inability to so act) follows from a smaller and more serious sub-set of situations (as set out in the Fifth Schedule, and as based on the Red list of the IBA Guidelines).The Commission, however, feels that real and genuine party autonomy must be respected, and, in certain situations, parties should be allowed to waive even the categories of ineligibility as set in the proposed Fifth Schedule. This could be in situations of family arbitrations or other arbitrations where a person commands the blind faith and trust of the parties to the dispute, despite the existence of objectiveng his independence and impartiality. To deal with such situations, the Commission has proposed the proviso to section 12 (5), where parties may, subsequent to disputes having arisen between them, waive the applicability of the proposed section 12 (5) by an express agreement in writing. In all other cases, the general rule in the proposed section 12 (5) must be followed. In the event the High Court is approached in connection with appointment of an arbitrator, the Commission has proposed seeking the disclosure in terms of section 12 (1), and in which context the High Court or the designate is to haveto the contents of such disclosure in appointing thes, it will be seen that party autonomy is to be respected only in certain exceptional situations which could be situations which arise in family arbitrations or other arbitrations where a person subjectively commands blind faith and trust of the parties to the dispute, despite the existence of objective justifiable doubts regarding his independence and impartiality.17. The scheme of Sections 12, 13, and 14, therefore, is that where an arbitrator makes a disclosure in writing which is likely to give justifiable doubts as to his independence or impartiality, the appointment of such arbitrator may be challenged under Sections 12(1) to 12(4) read with Section 13. However, where such person becomesto be appointed as an arbitrator, there is no question of challenge to such arbitrator, before such arbitrator. In such a case, i.e., a case which falls under Section 12(5), Section 14(1)(a) of the Act gets attracted inasmuch as the arbitrator becomes, as a matter of law (i.e., de jure), unable to perform his functions under Section 12(5), being ineligible to be appointed as an arbitrator. This being so, his mandate automatically terminates, and he shall then be substituted by another arbitrator under Section 14(1) itself. It is only if a controversy occurs concerning whether he has become de jure unable to perform his functions as such, that a party has to apply to the Court to decide on the termination of the mandate, unless otherwise agreed by the parties. Thus, in all Section 12(5) cases, there is no challenge procedure to be availed of. If an arbitrator continues as such, being de jure unable to perform his functions, as he falls within any of the categories mentioned in Section 12(5), read with the Seventh Schedule, a party may apply to the Court, which will then decide on whether his mandate has terminated. Questions which may typically arise under Section 14 may be as to whether such person falls within any of the categories mentioned in the Seventh Schedule, or whether there is a waiver as provided in the proviso to Section 12(5) of the Act. As a matter of law, it is important to note that the proviso to Section 12(5) must be contrasted with Section 4 of the Act. Section 4 deals with cases of deemed waiver by conduct; whereas the proviso to Section 12(5) deals with waiver by express agreement in writing between the parties only if made subsequent to disputes having arisen between them.18. On the facts of the present case, it is clear that the Managing Director of the appellant could not have acted as an arbitrator himself, being rendered ineligible to act as arbitrator under Item 5 of the Seventh Schedule, which reads asrelationship with the parties or counselxxx xxx xxx5. The arbitrator is a manager, director or part of the management, or has a similar controlling influence, in an affiliate of one of the parties if the affiliate is directly involved in the matters in dispute in thesuch ineligible person could himself appoint another arbitrator was only made clear by thisjudgment in TRF Ltd. (supra) on 03.07.2017, this Court holding that an appointment made by an ineligible person is itself void ab initio. Thus, it was only on 03.07.2017, that it became clear beyond doubt that the appointment of Shri Khan would be void ab initio. Since such appointment goes toi.e., to the root of the matter, it is obvious that Shriappointment would be void. There is no doubt in this case that disputes arose only after the introduction of Section 12(5) into the statute book, and Shri Khan was appointed long after 23.10.2015. The judgment in TRF Ltd. (supra) nowhere states that it will apply only prospectively, i.e., the appointments that have been made of persons such as Shri Khan would be valid if made before the date of the judgment. Section 26 of the Amendment Act, 2015 makes it clear that the Amendment Act, 2015 shall apply in relation to arbitral proceedings commenced on or after 23.10.2015. Indeed, the judgment itself set aside the order appointing the arbitrator, which was an order dated 27.01.2016, by which the Managing Director of the respondent nominated a former Judge of this Court as sole arbitrator in terms of clause 33(d) of the Purchase Order dated 10.05.2014. It will be noticed that the facts in the present case are somewhat similar. The APO itself is of the year 2014, whereas the appointment by the Managing Director is after the Amendment Act, 2015, just as in the case of TRF Ltd. (supra). Considering that the appointment in the case of TRF Ltd. (supra) of a retired Judge of this Court was set aside as being non-est in law, the appointment of Shri Khan in the present case must follow suit.19. However, the learned Senior Advocate appearing on behalf of the respondent has argued that Section 12(4) would bar theapplication before the Court. Section 12(4) will only apply when a challenge is made to an arbitrator, inter alia, by the same party who has appointed such arbitrator. This then refers to the challenge procedure set out in Section 13 of the Act. Section 12(4) has no applicability to an application made to the Court under Section 14(2) to determine whether the mandate of an arbitrator has terminated as he has, in law, become unable to perform his functions because he is ineligible to be appointed as such under Section 12(5) of the Act.20. This then brings us to the applicability of the proviso to Section 12(5) on the facts of this case. Unlike Section 4 of the Act which deals with deemed waiver of the right to object by conduct, the proviso to Section 12(5) will only apply if subsequent to disputes having arisen between the parties, the parties waive the applicability of sub-section (5) of Section 12 by an express agreement in writing. For this reason, the argument based on the analogy of Section 7 of the Act must also be rejected. Section 7 deals with arbitration agreements that must be in writing, and then explains that such agreements may be contained in documents which provide a record of such agreements. On the other hand, Section 12(5) refers to anThe expressionrefers to an agreement made in words as opposed to an agreement which is to be inferred by conduct. Here, Section 9 of the Indian Contract Act, 1872 becomes important. ItPromises, express and implied.—In so far as a proposal or acceptance of any promise is made in words, the promise is said to be express. In so far as such proposal or acceptance is made otherwise than in words, the promise is said to beis thus necessary that there be anagreement in writing. This agreement must be an agreement by which both parties, with full knowledge of the fact that Shri Khan is ineligible to be appointed as an arbitrator, still go ahead and say that they have full faith and confidence in him to continue as such. The facts of the present case disclose no such express agreement. The appointment letter which is relied upon by the High Court as indicating an express agreement on the facts of the case is dated 17.01.2017. On this date, the Managing Director of the appellant was certainly not aware that Shri Khan could not be appointed by him as Section 12(5) read with the Seventh Schedule only went to the invalidity of the appointment of the Managing Director himself as an arbitrator. Shriinvalid appointment only became clear after the declaration of the law by the Supreme Court in TRF Ltd. (supra) which, as we have seen hereinabove, was only on 03.07.2017. After this date, far from there being an express agreement between the parties as to the validity of Shriappointment, the appellant filed an application on 07.10.2017 before the sole arbitrator, bringing theattention to the judgment in TRF Ltd. (supra) and asking him to declare that he has become de jure incapable of acting as an arbitrator. Equally, the fact that a statement of claim may have been filed before the arbitrator, would not mean that there is an express agreement in words which would make it clear that both parties wish Shri Khan to continue as arbitrator despite being ineligible to act as such. This being the case, the impugned judgment is not correct when it applies Section 4, Section 7, Section 12(4), Section 13(2), and Section 16(2) of the Act to the facts of the present case, and goes on to state that the appellant cannot be allowed to raise the issue of eligibility of an arbitrator, having itself appointed the arbitrator. The judgment under appeal is also incorrect in stating that there is an express waiver in writing from the fact that an appointment letter has been issued by the appellant, and a statement of claim has been filed by the respondent before the arbitrator. The moment the appellant came to know that Shriappointment itself would be invalid, it filed an application before the sole arbitrator for termination of hisjudgment cannot possibly apply as the present case is governed by the express language of the proviso to Section 12(5) of the Act. Similarly, the judgments relied upon by the learned Senior Advocate appearing on behalf of the respondent, namely, Vasu P. Shetty v. Hotel Vandana Palace, (2014) 5 SCC 660 , and BSNL v. Motorola India (P) Ltd., (2009) 2 SCC 337 [for the same reason, cannot be said to have any application to the express language of the proviso to Section 12(5). It may be noted that BSNL (supra) deals with Section 4 of the Act which, as has been stated hereinabove, has no application, and must be contrasted with the language of the proviso to Section 12(5). | 1 | 7,709 | 2,969 | ### 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:
a challenge is made to an arbitrator, inter alia, by the same party who has appointed such arbitrator. This then refers to the challenge procedure set out in Section 13 of the Act. Section 12(4) has no applicability to an application made to the Court under Section 14(2) to determine whether the mandate of an arbitrator has terminated as he has, in law, become unable to perform his functions because he is ineligible to be appointed as such under Section 12(5) of the Act.20. This then brings us to the applicability of the proviso to Section 12(5) on the facts of this case. Unlike Section 4 of the Act which deals with deemed waiver of the right to object by conduct, the proviso to Section 12(5) will only apply if subsequent to disputes having arisen between the parties, the parties waive the applicability of sub-section (5) of Section 12 by an express agreement in writing. For this reason, the argument based on the analogy of Section 7 of the Act must also be rejected. Section 7 deals with arbitration agreements that must be in writing, and then explains that such agreements may be contained in documents which provide a record of such agreements. On the other hand, Section 12(5) refers to an “express agreement in writing”. The expression “express agreement in writing” refers to an agreement made in words as opposed to an agreement which is to be inferred by conduct. Here, Section 9 of the Indian Contract Act, 1872 becomes important. It states:“9. Promises, express and implied.—In so far as a proposal or acceptance of any promise is made in words, the promise is said to be express. In so far as such proposal or acceptance is made otherwise than in words, the promise is said to be implied.”It is thus necessary that there be an “express” agreement in writing. This agreement must be an agreement by which both parties, with full knowledge of the fact that Shri Khan is ineligible to be appointed as an arbitrator, still go ahead and say that they have full faith and confidence in him to continue as such. The facts of the present case disclose no such express agreement. The appointment letter which is relied upon by the High Court as indicating an express agreement on the facts of the case is dated 17.01.2017. On this date, the Managing Director of the appellant was certainly not aware that Shri Khan could not be appointed by him as Section 12(5) read with the Seventh Schedule only went to the invalidity of the appointment of the Managing Director himself as an arbitrator. Shri Khan’s invalid appointment only became clear after the declaration of the law by the Supreme Court in TRF Ltd. (supra) which, as we have seen hereinabove, was only on 03.07.2017. After this date, far from there being an express agreement between the parties as to the validity of Shri Khan’s appointment, the appellant filed an application on 07.10.2017 before the sole arbitrator, bringing the arbitrator’s attention to the judgment in TRF Ltd. (supra) and asking him to declare that he has become de jure incapable of acting as an arbitrator. Equally, the fact that a statement of claim may have been filed before the arbitrator, would not mean that there is an express agreement in words which would make it clear that both parties wish Shri Khan to continue as arbitrator despite being ineligible to act as such. This being the case, the impugned judgment is not correct when it applies Section 4, Section 7, Section 12(4), Section 13(2), and Section 16(2) of the Act to the facts of the present case, and goes on to state that the appellant cannot be allowed to raise the issue of eligibility of an arbitrator, having itself appointed the arbitrator. The judgment under appeal is also incorrect in stating that there is an express waiver in writing from the fact that an appointment letter has been issued by the appellant, and a statement of claim has been filed by the respondent before the arbitrator. The moment the appellant came to know that Shri Khan’s appointment itself would be invalid, it filed an application before the sole arbitrator for termination of his mandate.21. The learned Additional Solicitor General appearing on behalf of the appellant has relied upon All India Power Engineer Federation v. Sasan Power Ltd., (2017) 1 SCC 487 , and referred to paragraph 21 thereof, which reads as follows:“21. Regard being had to the aforesaid decisions, it is clear that when waiver is spoken of in the realm of contract, Section 63 of the Contract Act, 1872 governs. But it is important to note that waiver is an intentional relinquishment of a known right, and that, therefore, unless there is a clear intention to relinquish a right that is fully known to a party, a party cannot be said to waive it. But the matter does not end here. It is also clear that if any element of public interest is involved and a waiver takes place by one of the parties to an agreement, such waiver will not be given effect to if it is contrary to such public interest. This is clear from a reading of the following authorities.”This judgment cannot possibly apply as the present case is governed by the express language of the proviso to Section 12(5) of the Act. Similarly, the judgments relied upon by the learned Senior Advocate appearing on behalf of the respondent, namely, Vasu P. Shetty v. Hotel Vandana Palace, (2014) 5 SCC 660 , and BSNL v. Motorola India (P) Ltd., (2009) 2 SCC 337 [ “BSNL”], for the same reason, cannot be said to have any application to the express language of the proviso to Section 12(5). It may be noted that BSNL (supra) deals with Section 4 of the Act which, as has been stated hereinabove, has no application, and must be contrasted with the language of the proviso to Section 12(5).
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as Shri Khan would be valid if made before the date of the judgment. Section 26 of the Amendment Act, 2015 makes it clear that the Amendment Act, 2015 shall apply in relation to arbitral proceedings commenced on or after 23.10.2015. Indeed, the judgment itself set aside the order appointing the arbitrator, which was an order dated 27.01.2016, by which the Managing Director of the respondent nominated a former Judge of this Court as sole arbitrator in terms of clause 33(d) of the Purchase Order dated 10.05.2014. It will be noticed that the facts in the present case are somewhat similar. The APO itself is of the year 2014, whereas the appointment by the Managing Director is after the Amendment Act, 2015, just as in the case of TRF Ltd. (supra). Considering that the appointment in the case of TRF Ltd. (supra) of a retired Judge of this Court was set aside as being non-est in law, the appointment of Shri Khan in the present case must follow suit.19. However, the learned Senior Advocate appearing on behalf of the respondent has argued that Section 12(4) would bar theapplication before the Court. Section 12(4) will only apply when a challenge is made to an arbitrator, inter alia, by the same party who has appointed such arbitrator. This then refers to the challenge procedure set out in Section 13 of the Act. Section 12(4) has no applicability to an application made to the Court under Section 14(2) to determine whether the mandate of an arbitrator has terminated as he has, in law, become unable to perform his functions because he is ineligible to be appointed as such under Section 12(5) of the Act.20. This then brings us to the applicability of the proviso to Section 12(5) on the facts of this case. Unlike Section 4 of the Act which deals with deemed waiver of the right to object by conduct, the proviso to Section 12(5) will only apply if subsequent to disputes having arisen between the parties, the parties waive the applicability of sub-section (5) of Section 12 by an express agreement in writing. For this reason, the argument based on the analogy of Section 7 of the Act must also be rejected. Section 7 deals with arbitration agreements that must be in writing, and then explains that such agreements may be contained in documents which provide a record of such agreements. On the other hand, Section 12(5) refers to anThe expressionrefers to an agreement made in words as opposed to an agreement which is to be inferred by conduct. Here, Section 9 of the Indian Contract Act, 1872 becomes important. ItPromises, express and implied.—In so far as a proposal or acceptance of any promise is made in words, the promise is said to be express. In so far as such proposal or acceptance is made otherwise than in words, the promise is said to beis thus necessary that there be anagreement in writing. This agreement must be an agreement by which both parties, with full knowledge of the fact that Shri Khan is ineligible to be appointed as an arbitrator, still go ahead and say that they have full faith and confidence in him to continue as such. The facts of the present case disclose no such express agreement. The appointment letter which is relied upon by the High Court as indicating an express agreement on the facts of the case is dated 17.01.2017. On this date, the Managing Director of the appellant was certainly not aware that Shri Khan could not be appointed by him as Section 12(5) read with the Seventh Schedule only went to the invalidity of the appointment of the Managing Director himself as an arbitrator. Shriinvalid appointment only became clear after the declaration of the law by the Supreme Court in TRF Ltd. (supra) which, as we have seen hereinabove, was only on 03.07.2017. After this date, far from there being an express agreement between the parties as to the validity of Shriappointment, the appellant filed an application on 07.10.2017 before the sole arbitrator, bringing theattention to the judgment in TRF Ltd. (supra) and asking him to declare that he has become de jure incapable of acting as an arbitrator. Equally, the fact that a statement of claim may have been filed before the arbitrator, would not mean that there is an express agreement in words which would make it clear that both parties wish Shri Khan to continue as arbitrator despite being ineligible to act as such. This being the case, the impugned judgment is not correct when it applies Section 4, Section 7, Section 12(4), Section 13(2), and Section 16(2) of the Act to the facts of the present case, and goes on to state that the appellant cannot be allowed to raise the issue of eligibility of an arbitrator, having itself appointed the arbitrator. The judgment under appeal is also incorrect in stating that there is an express waiver in writing from the fact that an appointment letter has been issued by the appellant, and a statement of claim has been filed by the respondent before the arbitrator. The moment the appellant came to know that Shriappointment itself would be invalid, it filed an application before the sole arbitrator for termination of hisjudgment cannot possibly apply as the present case is governed by the express language of the proviso to Section 12(5) of the Act. Similarly, the judgments relied upon by the learned Senior Advocate appearing on behalf of the respondent, namely, Vasu P. Shetty v. Hotel Vandana Palace, (2014) 5 SCC 660 , and BSNL v. Motorola India (P) Ltd., (2009) 2 SCC 337 [for the same reason, cannot be said to have any application to the express language of the proviso to Section 12(5). It may be noted that BSNL (supra) deals with Section 4 of the Act which, as has been stated hereinabove, has no application, and must be contrasted with the language of the proviso to Section 12(5).
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Parbhat General Agencies Etc Vs. Union Of India & Anr. Etc | reason to think that the arbitration will be infructuous at all. If the particular officer sanctioning the contracts refuses to act or is incapable of doing so by reason of his absence or otherwise there are provisions in the Arbitration Act for the appointment of another arbitrator in his place and the arbitrator so appointed will be quite competent to proceed with the arbitration." 11. In Union of India v. Raj Narain Misra, ILR (1952) 1 Cal 324. S. R. Das Gupta 3. (as he then was) held that in the absence of an indication in the agreement against supplying any vacancy in the office of the arbitrator and in view of the provision in S. 8 of the Arbitration Act, 1940, for supplying a vacancy, the agreement for arbitration cannot become infructuous due to a vacancy. 12. In Fertilizer Corporation of India Ltd. v. M/s. Domestic Engg. Installation, AIR 1970 All 31 a Division Bench of the Allahabad High Court laid down that a perusal of Clause (4) of Section 20 of the Act indicates that there are three courses open to the court under that provision of law. After the arbitration agreement has been ordered to be filed the Court shall proceed to make a reference firstly to the arbitrator appointed by the parties in the agreement; secondly to the arbitrator not named in the agreement, but with regard to whom the parties agree otherwise; and thirdly when the parties cannot agree upon an arbitrator, to an arbitrator appointed by itself. 13. The respondents, in support of their case that the vacancy could not be filled up relied on the decision of the Rajasthan High Court in Chief Engineer, Buildings and Roads, Jaipur v. Harbans Singh, AIR 1955 Raj 30 . Therein Wanchoo C. J. (as he then was) after referring to the various clauses in the agreement and particularly to the clause which said"that the Chief Engineer shall be the sole arbitrator and judge in case of dispute......" came to the conclusion that the parties to the agreement intended that the vacancy should not be filled up if the Chief Engineer refused or failed to act. The said decision turned on the facts of that case. The learned judges who decided that case came to the conclusion by reference to the various clauses in the agreement that the parties to the agreement intended not to supply the vacancy. Hence this decision is clearly distinguishable. 14. Reliance was next placed by the respondents on the decision of the Division Bench of the Calcutta High Court in Bharat Construction Co. Ltd. v. Union of India, AIR 1954 Cal 606 . Therein Chakravartti C. J. speaking for the court opined that it is doubtful whether Clause (b) of Section 8 (1) of the Arbitration Act at all applies to a case where a named arbitrator, obviously chosen for the possession of qualifications special to him, has become unavailable or refused to act; but any way the applicability of that clause in a particular case, must be determined by the test laid down in the section itself; the test is that the arbitration agreement must not show that it was intended that the vacancy should not be supplied: in other words however individual the original choice may appear to be, if the agreement itself contains sufficient indication that the parties nevertheless intended that, in default of their original nominee, they would be prepared to fill up the vacancy by choosing another arbitrator, the section will apply and a new appointment may be made either by the parties or by the Court, as the case may be. 15. In our opinion the learned judge while approaching the question from a correct angle fell into the error of thinking that the agreement must indicate that the parties intended to fill up the vacancy. That is not what S. 8 (1) (b) says. What that section says is that"the arbitration agreement does not show that it was intended that the vacancy should not be supplied." 16. Reference was next made to the decision of the Judicial Commissioner, Himachal Pradesh in Dist. Co-operative Federation Ltd.s case, AIR 1901 Him Pra 35 (supra). Therein the learned judge purporting to follow the decision in Harbans Singhs case AIR 1955 Raj 30 (supra) held that it may reasonably be assumed that the way arbitrator is appointed by the parties with reference to the office the intention is that the arbitration should be conducted by the holder of that office and by none else; and on refusal of such an arbitrator to act, the Court has no power to appoint another in his place. The learned judge, in our opinion, has misunderstood the decision of the Rajasthan High Court and the principles of law enunciated by him are not borne out by the provisions of S. 8 (1) (b). 17. Lastly reference was made on behalf of the respondents to the decision of the Punjab High Court in M/s. Isherdass Sahni and Bros. v. Union of India, 68 Pun LR 325, wherein one of us (Grover J.) after referring to the various decisions rendered under Section 8 (1) (b) and Section 20 (4) of the Act and noticing the conflict of the judicial opinion rejected the revision petition solely on the ground that he would not be justified in the exercise of his revisional powers in setting aside the view taken by the lower Court. In fact in the course of his judgment he observed:"If the matter were res integra I might have agreed with one view or the other but in my opinion the court below has on a consideration of the material facts and relevant law came to the conclusion that the arbitration agreement in question showed that there was no intention to fill up the vacancy. I would not be justified in revision in setting aside that finding even if I was disposed not to concur with the decision of the trial court on this point." | 1[ds]3. It may be noted that the agreements in these appeals relate to the exploitation of certain forest produce. The disputes that have arisen between the parties are not of technical nature requiring any specialised knowledge on the part of the arbitrator. It is clear from the terms of the agreements that the Judicial Commissioner was not appointed as an arbitrator because of any special or technical knowledge possessed by him relating to the subject matter of the dispute. Evidently he was appointed, though in our opinion quite improperly, arbitrator because he was a high judicial officer. The relevant provisions of the Act which bear on the point under consideration are Sections 8 (1) and 20 (4) of the Act6. In the cases before us it is admitted that there is an agreement to refer the dispute to arbitration. It is also admitted that the parties had designated the Judicial Commissioner of Himachal Pradesh as the arbitrator for resolving any dispute that may arise between them in respect of the agreement. The Judicial Commissioner had refused to act as the arbitrator. The parties have not supplied that vacancy.It may be noted that the language of the provision is not that the parties intended to supply the vacancy but on the other hand it is that the parties did not intend to supply the vacancy. In other words if the agreement is silent as regards supplying the vacancy, the law presumes the parties intended to supply the vacancy. To take the case out of Section 8 (1) (b) what is required is not the intention of the parties to supply the vacancy but their intention not to supply the vacancy7. As mentioned earlier the only relevant provision in the agreements before us is the provision relating to arbitration. The other provisions in the agreements do not throw any light as regards the intention of the parties. We have earlier mentioned that the Judicial Commissioner, Himachal Pradesh could not have been appointed as the arbitrator for any specialised knowledge possessed by him relating to any dispute that may arise under the agreement. What the Judicial Commissioner could have competently done if he had acted as an arbitrator could certainly be done by an independent and impartial person possessing adequate knowledge of law. In our opinion the language of Section 8 (1) (b) is plain and unambiguous and the terms of the agreement before us do not in the least show that the parties intended not to supply the vacancy8. The Judicial Commissioner as well as the learned subordinate judge erred in thinking that merely because the arbitrator was designated with reference to the office held by him, it should be inferred that the parties intended not to supply the vacancy. Evidently the parties did not mention the name of any particular Judicial Commissioner as arbitrator because there may be a change in the personnel. The appointment of Judicial Commissioner as arbitrator by itself does not afford any indication that the parties to the agreement intended not to supply into vacancy if the Judicial Commissioner refused to act or is incapable of acting15. In our opinion the learned judge while approaching the question from a correct angle fell into the error of thinking that the agreement must indicate that the parties intended to fill up the vacancy.16. Reference was next made to the decision of the Judicial Commissioner, Himachal Pradesh in Dist.Cooperative FederationLtd.s case, AIR 1901 Him Pra 35. Therein the learned judge purporting to follow the decision in Harbans Singhs case AIR 1955 Raj 30 (supra) held that it may reasonably be assumed that the way arbitrator is appointed by the parties with reference to the office the intention is that the arbitration should be conducted by the holder of that office and by none else; and on refusal of such an arbitrator to act, the Court has no power to appoint another in his place. The learned judge, in our opinion, has misunderstood the decision of the Rajasthan High Court and the principles of law enunciated by him are not borne out by the provisions of S. 8 (1) (b)17. Lastly reference was made on behalf of the respondents to the decision of the Punjab High Court in M/s. Isherdass Sahni and Bros. v. Union of India, 68 Pun LR, wherein one of us (Grover J.) after referring to the various decisions rendered under Section 8 (1) (b) and Section 20 (4) of the Act and noticing the conflict of the judicial opinion rejected the revision petition solely on the ground that he would not be justified in the exercise of his revisional powers in setting aside the view taken by the lower Court. | 1 | 3,103 | 854 | ### 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:
reason to think that the arbitration will be infructuous at all. If the particular officer sanctioning the contracts refuses to act or is incapable of doing so by reason of his absence or otherwise there are provisions in the Arbitration Act for the appointment of another arbitrator in his place and the arbitrator so appointed will be quite competent to proceed with the arbitration." 11. In Union of India v. Raj Narain Misra, ILR (1952) 1 Cal 324. S. R. Das Gupta 3. (as he then was) held that in the absence of an indication in the agreement against supplying any vacancy in the office of the arbitrator and in view of the provision in S. 8 of the Arbitration Act, 1940, for supplying a vacancy, the agreement for arbitration cannot become infructuous due to a vacancy. 12. In Fertilizer Corporation of India Ltd. v. M/s. Domestic Engg. Installation, AIR 1970 All 31 a Division Bench of the Allahabad High Court laid down that a perusal of Clause (4) of Section 20 of the Act indicates that there are three courses open to the court under that provision of law. After the arbitration agreement has been ordered to be filed the Court shall proceed to make a reference firstly to the arbitrator appointed by the parties in the agreement; secondly to the arbitrator not named in the agreement, but with regard to whom the parties agree otherwise; and thirdly when the parties cannot agree upon an arbitrator, to an arbitrator appointed by itself. 13. The respondents, in support of their case that the vacancy could not be filled up relied on the decision of the Rajasthan High Court in Chief Engineer, Buildings and Roads, Jaipur v. Harbans Singh, AIR 1955 Raj 30 . Therein Wanchoo C. J. (as he then was) after referring to the various clauses in the agreement and particularly to the clause which said"that the Chief Engineer shall be the sole arbitrator and judge in case of dispute......" came to the conclusion that the parties to the agreement intended that the vacancy should not be filled up if the Chief Engineer refused or failed to act. The said decision turned on the facts of that case. The learned judges who decided that case came to the conclusion by reference to the various clauses in the agreement that the parties to the agreement intended not to supply the vacancy. Hence this decision is clearly distinguishable. 14. Reliance was next placed by the respondents on the decision of the Division Bench of the Calcutta High Court in Bharat Construction Co. Ltd. v. Union of India, AIR 1954 Cal 606 . Therein Chakravartti C. J. speaking for the court opined that it is doubtful whether Clause (b) of Section 8 (1) of the Arbitration Act at all applies to a case where a named arbitrator, obviously chosen for the possession of qualifications special to him, has become unavailable or refused to act; but any way the applicability of that clause in a particular case, must be determined by the test laid down in the section itself; the test is that the arbitration agreement must not show that it was intended that the vacancy should not be supplied: in other words however individual the original choice may appear to be, if the agreement itself contains sufficient indication that the parties nevertheless intended that, in default of their original nominee, they would be prepared to fill up the vacancy by choosing another arbitrator, the section will apply and a new appointment may be made either by the parties or by the Court, as the case may be. 15. In our opinion the learned judge while approaching the question from a correct angle fell into the error of thinking that the agreement must indicate that the parties intended to fill up the vacancy. That is not what S. 8 (1) (b) says. What that section says is that"the arbitration agreement does not show that it was intended that the vacancy should not be supplied." 16. Reference was next made to the decision of the Judicial Commissioner, Himachal Pradesh in Dist. Co-operative Federation Ltd.s case, AIR 1901 Him Pra 35 (supra). Therein the learned judge purporting to follow the decision in Harbans Singhs case AIR 1955 Raj 30 (supra) held that it may reasonably be assumed that the way arbitrator is appointed by the parties with reference to the office the intention is that the arbitration should be conducted by the holder of that office and by none else; and on refusal of such an arbitrator to act, the Court has no power to appoint another in his place. The learned judge, in our opinion, has misunderstood the decision of the Rajasthan High Court and the principles of law enunciated by him are not borne out by the provisions of S. 8 (1) (b). 17. Lastly reference was made on behalf of the respondents to the decision of the Punjab High Court in M/s. Isherdass Sahni and Bros. v. Union of India, 68 Pun LR 325, wherein one of us (Grover J.) after referring to the various decisions rendered under Section 8 (1) (b) and Section 20 (4) of the Act and noticing the conflict of the judicial opinion rejected the revision petition solely on the ground that he would not be justified in the exercise of his revisional powers in setting aside the view taken by the lower Court. In fact in the course of his judgment he observed:"If the matter were res integra I might have agreed with one view or the other but in my opinion the court below has on a consideration of the material facts and relevant law came to the conclusion that the arbitration agreement in question showed that there was no intention to fill up the vacancy. I would not be justified in revision in setting aside that finding even if I was disposed not to concur with the decision of the trial court on this point."
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3. It may be noted that the agreements in these appeals relate to the exploitation of certain forest produce. The disputes that have arisen between the parties are not of technical nature requiring any specialised knowledge on the part of the arbitrator. It is clear from the terms of the agreements that the Judicial Commissioner was not appointed as an arbitrator because of any special or technical knowledge possessed by him relating to the subject matter of the dispute. Evidently he was appointed, though in our opinion quite improperly, arbitrator because he was a high judicial officer. The relevant provisions of the Act which bear on the point under consideration are Sections 8 (1) and 20 (4) of the Act6. In the cases before us it is admitted that there is an agreement to refer the dispute to arbitration. It is also admitted that the parties had designated the Judicial Commissioner of Himachal Pradesh as the arbitrator for resolving any dispute that may arise between them in respect of the agreement. The Judicial Commissioner had refused to act as the arbitrator. The parties have not supplied that vacancy.It may be noted that the language of the provision is not that the parties intended to supply the vacancy but on the other hand it is that the parties did not intend to supply the vacancy. In other words if the agreement is silent as regards supplying the vacancy, the law presumes the parties intended to supply the vacancy. To take the case out of Section 8 (1) (b) what is required is not the intention of the parties to supply the vacancy but their intention not to supply the vacancy7. As mentioned earlier the only relevant provision in the agreements before us is the provision relating to arbitration. The other provisions in the agreements do not throw any light as regards the intention of the parties. We have earlier mentioned that the Judicial Commissioner, Himachal Pradesh could not have been appointed as the arbitrator for any specialised knowledge possessed by him relating to any dispute that may arise under the agreement. What the Judicial Commissioner could have competently done if he had acted as an arbitrator could certainly be done by an independent and impartial person possessing adequate knowledge of law. In our opinion the language of Section 8 (1) (b) is plain and unambiguous and the terms of the agreement before us do not in the least show that the parties intended not to supply the vacancy8. The Judicial Commissioner as well as the learned subordinate judge erred in thinking that merely because the arbitrator was designated with reference to the office held by him, it should be inferred that the parties intended not to supply the vacancy. Evidently the parties did not mention the name of any particular Judicial Commissioner as arbitrator because there may be a change in the personnel. The appointment of Judicial Commissioner as arbitrator by itself does not afford any indication that the parties to the agreement intended not to supply into vacancy if the Judicial Commissioner refused to act or is incapable of acting15. In our opinion the learned judge while approaching the question from a correct angle fell into the error of thinking that the agreement must indicate that the parties intended to fill up the vacancy.16. Reference was next made to the decision of the Judicial Commissioner, Himachal Pradesh in Dist.Cooperative FederationLtd.s case, AIR 1901 Him Pra 35. Therein the learned judge purporting to follow the decision in Harbans Singhs case AIR 1955 Raj 30 (supra) held that it may reasonably be assumed that the way arbitrator is appointed by the parties with reference to the office the intention is that the arbitration should be conducted by the holder of that office and by none else; and on refusal of such an arbitrator to act, the Court has no power to appoint another in his place. The learned judge, in our opinion, has misunderstood the decision of the Rajasthan High Court and the principles of law enunciated by him are not borne out by the provisions of S. 8 (1) (b)17. Lastly reference was made on behalf of the respondents to the decision of the Punjab High Court in M/s. Isherdass Sahni and Bros. v. Union of India, 68 Pun LR, wherein one of us (Grover J.) after referring to the various decisions rendered under Section 8 (1) (b) and Section 20 (4) of the Act and noticing the conflict of the judicial opinion rejected the revision petition solely on the ground that he would not be justified in the exercise of his revisional powers in setting aside the view taken by the lower Court.
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HRD Corporation Vs. GAIL Limited | in the first arbitration, insurer B may in practice learn of this success and the identity of the arbitrators who have upheld insurer As arguments. It follows from Locabail and AMEC Capital Projects Ltd v. Whitefriars City Estates Ltd [2005] 1 All ER 723 that an objection to the appointment of a member of a previous panel would not be sustained simply on the basis that the arbitrator had previously decided a particular issue in favour of one or other party. It equally follows that an arbitrator can properly be appointed at the outset in respect of a number of layers of coverage, even though he may then decide the dispute under one layer before hearing the case on another layer." 26. We were, however, referred to Russell on Arbitration (23rd edition), in which the learned author has referred to the ground of bias in the context of previous views expressed by an arbitrator. In Chapter 4-124, the learned author states as follows: "In certain circumstances, previously expressed views of an arbitrator, which suggest a certain pre-disposition to a particular course of action, outcome or in favour of a party, can constitute grounds for removal. One of the Locabail v. Bayfield applications ([2000] 1 All E.R. 65 at 92-93) against a judge was successful on this basis. The judge had written four strongly worded articles which led the Court to conclude that an objective apprehension of bias may arise on the part of one of the parties. However, a challenge against a sole arbitrator in a trade arbitration which alleged apparent bias because the arbitrator had previously been involved in a dispute with one of the parties failed. The judge found this on the facts to be no more than "an ordinary incident of commercial life" occurring in the relatively small field of trade arbitrations where it was thought the parties and arbitrators were quite likely to have had prior dealing with each other (Rustal Trading Ltd. v. Gill and Duffas SA [2000] 1 Lloyds Rep. 14). Similarly, the fact that an insurance arbitrator had previously given a statement in another arbitration (and may have been called to give evidence subsequently) about the meaning of a standard form clause which might have had a tentative bearing on the present arbitration would not give grounds for removal (Argonaut Insurance Co v. Republic Insurance Co [2003] EWHC 547)." 27. The judgment referred to in Russell is reported in Locabail v. Bayfield, (2000) 1 All E.R. 65. In paragraph 89 thereof, the Court of Appeal stated: "We have found this a difficult and anxious application to resolve. There is no suggestion of actual bias on the part of the recorder. Nor, quite rightly, is any imputation made as to his good faith. His voluntary disclosure of the matters already referred to show that he was conscious of his judicial duty. The views he expressed in the articles relied on are no doubt shared by other experienced commentators. We have, however, to ask, taking a broad commonsense approach, whether a person holding the pronounced pro-claimant anti-insurer views expressed by the recorder in the articles might not unconsciously have leant in favour of the claimant and against the defendant in resolving the factual issues between them. Not without misgiving, we conclude that there was on the facts here a real danger of such a result. We do not think a lay observer with knowledge of the facts could have excluded that possibility, and nor can we. We accordingly grant permission to appeal on this ground, allow the defendants appeal and order a retrial. We should not be thought to hold any view at all on the likely or proper outcome of any retrial." 28. We have not been shown anything to indicate that Justice Doabia would be a person holding a pronounced anti-claimant view as in Locabail (supra). Therefore, we are satisfied that there is no real possibility that Justice Doabia will not bring an open mind and objective judgment to bear on arguments made by the parties in the fourth arbitration, which may or may not differ from arguments made in the third arbitration.29. The appointment of Justice Doabia was also attacked on the ground that he had not made a complete disclosure, in that his disclosure statement did not indicate as to whether he was likely to devote sufficient time to the arbitration and would be able to complete it within 12 months. We are afraid that we cannot allow the appellant to raise this point at this stage as it was never raised earlier. Obviously, if Justice Doabia did not indicate anything to the contrary, he would be able to devote sufficient time to the arbitration and complete the process within 12 months.30. It was also faintly urged that the arbitrator must without delay make a disclosure to the parties in writing. Justice Doabias disclosure was by a letter dated October 31, 2016 which was sent to the Secretary General of the International Centre for Alternative Dispute Resolution (ICADR). It has come on record that for no fault of Justice Doabia, the ICADR, through oversight, did not handover the said letter or a copy thereof to the appellant until November 24, 2016, which is stated in its letter dated November 29, 2016. This contention also, therefore, need not detain us.31. It was then argued that under Explanation 3 to the Seventh Schedule, maritime or commodities arbitration may draw arbitrators from a small, specialized pool, in which case it is the custom and practice for parties to appoint the same arbitrator in different cases. This is in contrast to an arbitrator in other cases where he should not be appointed more than once. We are afraid that this argument again cannot be countenanced for the simple reason that Explanation 3 stands by itself and has to be applied as a relevant fact to be taken into account. It has no indirect bearing on any of the other items mentioned in the Seventh Schedule. | 0[ds]Section 12(5) read with the Seventh Schedule makes it clear that if the arbitrator falls in any one of the categories specified in the Seventh Schedule, he becomes "ineligible" to act as arbitrator. Once he becomes ineligible, it is clear that, under Section 14(1)(a), he then becomes de jure unable to perform his functions inasmuch as, in law, he is regarded as "ineligible". In order to determine whether an arbitrator is de jure unable to perform his functions, it is not necessary to go to the Arbitral Tribunal under Section 13. Since such a person would lack inherent jurisdiction to proceed any further, an application may be filed under Section 14(2) to the Court to decide on the termination of his/her mandate on this ground. As opposed to this, in a challenge where grounds stated in the Fifth Schedule are disclosed, which give rise to justifiable doubts as to the arbitrators independence or impartiality, such doubts as to independence or impartiality have to be determined as a matter of fact in the facts of the particular challenge by the Arbitral Tribunal under Section 13. If a challenge is not successful, and the Arbitral Tribunal decides that there are no justifiable doubts as to the independence or impartiality of the arbitrator/arbitrators, the Tribunal must then continue the arbitral proceedings under Section 13(4) and make an award. It is only after such award is made, that the party challenging the arbitrators appointment on grounds contained in the Fifth Schedule may make an application for setting aside the arbitral award in accordance with Section 34 on the aforesaid grounds. It is clear, therefore, that any challenge contained in the Fifth Schedule against the appointment of Justice Doabia and Justice Lahoti cannot be gone into at this stage, but will be gone into only after the Arbitral Tribunal has given an award. Therefore, we express no opinion on items contained in the Fifth Schedule under which the appellant may challenge the appointment of either arbitrator. They will be free to do so only after an award is rendered by the Tribunal.Shri Divan is right in drawing our attention to the fact that the 246th Law Commission Report brought in amendments to the Act narrowing the grounds of challengewith seeing that independent, impartial and neutral arbitrators are appointed and that, therefore, we must be careful in preserving such independence, impartiality and neutrality of arbitrators. In fact, the same Law Commission Report has amended Sections 28 and 34 so as to narrow grounds of challenge available under the Act. The judgment in ONGC v. Saw Pipes Ltd, (2003) 5 SCC 705 , has been expressly done away with. So has the judgment in ONGC v. Western Geco International Ltd., (2014) 9 SCC 263. Both Sections 34 and 48 have been brought back to the position of law contained in Renusagar Power Plant Co Ltd. v. General Electric Co., (1994) Supp (1) SCC 644, where "public policy" will now include only two of the three things set out therein, viz., "fundamental policy of Indian law" and "justice or morality". The ground relating to "the interest of India" no longer obtains. "Fundamental policy of Indian law" is now to be understood as laid down in Renusagar (supra). "Justice or morality" has been tightened and is now to be understood as meaning only basic notions of justice and morality i.e. such notions as would shock the conscience of the Court as understood in Associate Builders v. Delhi Development Authority, (2015) 3 SCC 49. Section 28(3) has also been amended to bring it in line with the judgment of this Court in Associate Builders (supra), making it clear that the construction of the terms of the contract is primarily for the arbitrator to decide unless it is found that such a construction is not a possible one.19. Thus, an award rendered in an international commercial arbitrationwhether in India or abroadis subject to the same tests qua setting aside under Section 34 or enforcement under Section 48, as the case may be. The only difference is that in an arbitral award governed by Part I, arising out of an arbitration other than an international commercial arbitration, one more ground of challenge is available viz. patent illegality appearing on the face of the award. The ground of patent illegality would not be established, if there is merely an erroneous application of the law or aof evidence.20. However, to accede to Shri Divans submission that because the grounds for challenge have been narrowed as aforesaid, we must construe the items in the Fifth and Seventh Schedules in the most expansive manner, so that the remotest likelihood of bias gets removed, is not an acceptable way of interpreting the Schedules. As has been pointed out by us hereinabove, the items contained in the Schedules owe their origin to the IBA Guidelines, which are to be construed in the light of the general principles contained thereinthat every arbitrator shall be impartial and independent of the parties at the time of accepting his/her appointment. Doubts as to the above are only justifiable if a reasonable third person having knowledge of the relevant facts and circumstances would reach the conclusion that there is a likelihood that the arbitrator may be influenced by factors other than the merits of the case in reaching his or her decision. This test requires taking a broadapproach to the items stated in the Fifth and Seventh Schedules. This approach would, therefore, require a fair construction of the words used therein, neither tending to enlarge or restrict them unduly. It is with these prefatory remarks that we proceed to deal with the arguments of both sides in construing the language of the Seventh Schedule.On reading the aforesaid guideline and reading the heading which appears with Item 16, namely "Relationship of the arbitrator to the dispute", it is obvious that the arbitrator has to have a previous involvement in the very dispute contained in the present arbitration. Admittedly, Justice Doabia has no such involvement. Further, Item 16 must be read along with Items 22 and 24 of the Fifth Schedule. The disqualification contained in Items 22 and 24 is not absolute, as an arbitrator who has, within the past three years, been appointed as arbitrator on two or more occasions by one of the parties or an affiliate, may yet not be disqualified on his showing that he was independent and impartial on the earlier two occasions. Also, if he currently serves or has served within the past three years as arbitrator in another arbitration on a related issue, he may be disqualified under Item 24, which must then be contrasted with Item 16. Item 16 cannot be read as including previous involvements in another arbitration on a related issue involving one of the parties as otherwise Item 24 will be rendered largely ineffective. It must not be forgotten that Item 16 also appears in the Fifth Schedule and has, therefore, to be harmoniously read with Item 24.The fact that Justice Doabia has already rendered an award in a previous arbitration between the parties would not, by itself, on the ground of reasonable likelihood of bias, render him ineligible to be an arbitrator in a subsequent arbitration.We have not been shown anything to indicate that Justice Doabia would be a person holding a pronouncedview as in Locabail (supra). Therefore, we are satisfied that there is no real possibility that Justice Doabia will not bring an open mind and objective judgment to bear on arguments made by the parties in the fourth arbitration, which may or may not differ from arguments made in the third arbitration.29. The appointment of Justice Doabia was also attacked on the ground that he had not made a complete disclosure, in that his disclosure statement did not indicate as to whether he was likely to devote sufficient time to the arbitration and would be able to complete it within 12 months. We are afraid that we cannot allow the appellant to raise this point at this stage as it was never raised earlier. Obviously, if Justice Doabia did not indicate anything to the contrary, he would be able to devote sufficient time to the arbitration and complete the process within 12 months.30. It was also faintly urged that the arbitrator must without delay make a disclosure to the parties in writing. Justice Doabias disclosure was by a letter dated October 31, 2016 which was sent to the Secretary General of the International Centre for Alternative Dispute Resolution (ICADR). It has come on record that for no fault of Justice Doabia, the ICADR, through oversight, did not handover the said letter or a copy thereof to the appellant until November 24, 2016, which is stated in its letter dated November 29, 2016. This contention also, therefore, need not detain us.We are afraid that this argument again cannot be countenanced for the simple reason that Explanation 3 stands by itself and has to be applied as a relevant fact to be taken into account. It has no indirect bearing on any of the other items mentioned in the Seventh Schedule. | 0 | 11,954 | 1,699 | ### 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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in the first arbitration, insurer B may in practice learn of this success and the identity of the arbitrators who have upheld insurer As arguments. It follows from Locabail and AMEC Capital Projects Ltd v. Whitefriars City Estates Ltd [2005] 1 All ER 723 that an objection to the appointment of a member of a previous panel would not be sustained simply on the basis that the arbitrator had previously decided a particular issue in favour of one or other party. It equally follows that an arbitrator can properly be appointed at the outset in respect of a number of layers of coverage, even though he may then decide the dispute under one layer before hearing the case on another layer." 26. We were, however, referred to Russell on Arbitration (23rd edition), in which the learned author has referred to the ground of bias in the context of previous views expressed by an arbitrator. In Chapter 4-124, the learned author states as follows: "In certain circumstances, previously expressed views of an arbitrator, which suggest a certain pre-disposition to a particular course of action, outcome or in favour of a party, can constitute grounds for removal. One of the Locabail v. Bayfield applications ([2000] 1 All E.R. 65 at 92-93) against a judge was successful on this basis. The judge had written four strongly worded articles which led the Court to conclude that an objective apprehension of bias may arise on the part of one of the parties. However, a challenge against a sole arbitrator in a trade arbitration which alleged apparent bias because the arbitrator had previously been involved in a dispute with one of the parties failed. The judge found this on the facts to be no more than "an ordinary incident of commercial life" occurring in the relatively small field of trade arbitrations where it was thought the parties and arbitrators were quite likely to have had prior dealing with each other (Rustal Trading Ltd. v. Gill and Duffas SA [2000] 1 Lloyds Rep. 14). Similarly, the fact that an insurance arbitrator had previously given a statement in another arbitration (and may have been called to give evidence subsequently) about the meaning of a standard form clause which might have had a tentative bearing on the present arbitration would not give grounds for removal (Argonaut Insurance Co v. Republic Insurance Co [2003] EWHC 547)." 27. The judgment referred to in Russell is reported in Locabail v. Bayfield, (2000) 1 All E.R. 65. In paragraph 89 thereof, the Court of Appeal stated: "We have found this a difficult and anxious application to resolve. There is no suggestion of actual bias on the part of the recorder. Nor, quite rightly, is any imputation made as to his good faith. His voluntary disclosure of the matters already referred to show that he was conscious of his judicial duty. The views he expressed in the articles relied on are no doubt shared by other experienced commentators. We have, however, to ask, taking a broad commonsense approach, whether a person holding the pronounced pro-claimant anti-insurer views expressed by the recorder in the articles might not unconsciously have leant in favour of the claimant and against the defendant in resolving the factual issues between them. Not without misgiving, we conclude that there was on the facts here a real danger of such a result. We do not think a lay observer with knowledge of the facts could have excluded that possibility, and nor can we. We accordingly grant permission to appeal on this ground, allow the defendants appeal and order a retrial. We should not be thought to hold any view at all on the likely or proper outcome of any retrial." 28. We have not been shown anything to indicate that Justice Doabia would be a person holding a pronounced anti-claimant view as in Locabail (supra). Therefore, we are satisfied that there is no real possibility that Justice Doabia will not bring an open mind and objective judgment to bear on arguments made by the parties in the fourth arbitration, which may or may not differ from arguments made in the third arbitration.29. The appointment of Justice Doabia was also attacked on the ground that he had not made a complete disclosure, in that his disclosure statement did not indicate as to whether he was likely to devote sufficient time to the arbitration and would be able to complete it within 12 months. We are afraid that we cannot allow the appellant to raise this point at this stage as it was never raised earlier. Obviously, if Justice Doabia did not indicate anything to the contrary, he would be able to devote sufficient time to the arbitration and complete the process within 12 months.30. It was also faintly urged that the arbitrator must without delay make a disclosure to the parties in writing. Justice Doabias disclosure was by a letter dated October 31, 2016 which was sent to the Secretary General of the International Centre for Alternative Dispute Resolution (ICADR). It has come on record that for no fault of Justice Doabia, the ICADR, through oversight, did not handover the said letter or a copy thereof to the appellant until November 24, 2016, which is stated in its letter dated November 29, 2016. This contention also, therefore, need not detain us.31. It was then argued that under Explanation 3 to the Seventh Schedule, maritime or commodities arbitration may draw arbitrators from a small, specialized pool, in which case it is the custom and practice for parties to appoint the same arbitrator in different cases. This is in contrast to an arbitrator in other cases where he should not be appointed more than once. We are afraid that this argument again cannot be countenanced for the simple reason that Explanation 3 stands by itself and has to be applied as a relevant fact to be taken into account. It has no indirect bearing on any of the other items mentioned in the Seventh Schedule.
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### Explanation:
of India" no longer obtains. "Fundamental policy of Indian law" is now to be understood as laid down in Renusagar (supra). "Justice or morality" has been tightened and is now to be understood as meaning only basic notions of justice and morality i.e. such notions as would shock the conscience of the Court as understood in Associate Builders v. Delhi Development Authority, (2015) 3 SCC 49. Section 28(3) has also been amended to bring it in line with the judgment of this Court in Associate Builders (supra), making it clear that the construction of the terms of the contract is primarily for the arbitrator to decide unless it is found that such a construction is not a possible one.19. Thus, an award rendered in an international commercial arbitrationwhether in India or abroadis subject to the same tests qua setting aside under Section 34 or enforcement under Section 48, as the case may be. The only difference is that in an arbitral award governed by Part I, arising out of an arbitration other than an international commercial arbitration, one more ground of challenge is available viz. patent illegality appearing on the face of the award. The ground of patent illegality would not be established, if there is merely an erroneous application of the law or aof evidence.20. However, to accede to Shri Divans submission that because the grounds for challenge have been narrowed as aforesaid, we must construe the items in the Fifth and Seventh Schedules in the most expansive manner, so that the remotest likelihood of bias gets removed, is not an acceptable way of interpreting the Schedules. As has been pointed out by us hereinabove, the items contained in the Schedules owe their origin to the IBA Guidelines, which are to be construed in the light of the general principles contained thereinthat every arbitrator shall be impartial and independent of the parties at the time of accepting his/her appointment. Doubts as to the above are only justifiable if a reasonable third person having knowledge of the relevant facts and circumstances would reach the conclusion that there is a likelihood that the arbitrator may be influenced by factors other than the merits of the case in reaching his or her decision. This test requires taking a broadapproach to the items stated in the Fifth and Seventh Schedules. This approach would, therefore, require a fair construction of the words used therein, neither tending to enlarge or restrict them unduly. It is with these prefatory remarks that we proceed to deal with the arguments of both sides in construing the language of the Seventh Schedule.On reading the aforesaid guideline and reading the heading which appears with Item 16, namely "Relationship of the arbitrator to the dispute", it is obvious that the arbitrator has to have a previous involvement in the very dispute contained in the present arbitration. Admittedly, Justice Doabia has no such involvement. Further, Item 16 must be read along with Items 22 and 24 of the Fifth Schedule. The disqualification contained in Items 22 and 24 is not absolute, as an arbitrator who has, within the past three years, been appointed as arbitrator on two or more occasions by one of the parties or an affiliate, may yet not be disqualified on his showing that he was independent and impartial on the earlier two occasions. Also, if he currently serves or has served within the past three years as arbitrator in another arbitration on a related issue, he may be disqualified under Item 24, which must then be contrasted with Item 16. Item 16 cannot be read as including previous involvements in another arbitration on a related issue involving one of the parties as otherwise Item 24 will be rendered largely ineffective. It must not be forgotten that Item 16 also appears in the Fifth Schedule and has, therefore, to be harmoniously read with Item 24.The fact that Justice Doabia has already rendered an award in a previous arbitration between the parties would not, by itself, on the ground of reasonable likelihood of bias, render him ineligible to be an arbitrator in a subsequent arbitration.We have not been shown anything to indicate that Justice Doabia would be a person holding a pronouncedview as in Locabail (supra). Therefore, we are satisfied that there is no real possibility that Justice Doabia will not bring an open mind and objective judgment to bear on arguments made by the parties in the fourth arbitration, which may or may not differ from arguments made in the third arbitration.29. The appointment of Justice Doabia was also attacked on the ground that he had not made a complete disclosure, in that his disclosure statement did not indicate as to whether he was likely to devote sufficient time to the arbitration and would be able to complete it within 12 months. We are afraid that we cannot allow the appellant to raise this point at this stage as it was never raised earlier. Obviously, if Justice Doabia did not indicate anything to the contrary, he would be able to devote sufficient time to the arbitration and complete the process within 12 months.30. It was also faintly urged that the arbitrator must without delay make a disclosure to the parties in writing. Justice Doabias disclosure was by a letter dated October 31, 2016 which was sent to the Secretary General of the International Centre for Alternative Dispute Resolution (ICADR). It has come on record that for no fault of Justice Doabia, the ICADR, through oversight, did not handover the said letter or a copy thereof to the appellant until November 24, 2016, which is stated in its letter dated November 29, 2016. This contention also, therefore, need not detain us.We are afraid that this argument again cannot be countenanced for the simple reason that Explanation 3 stands by itself and has to be applied as a relevant fact to be taken into account. It has no indirect bearing on any of the other items mentioned in the Seventh Schedule.
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K. Kumara Gupta Vs. Sri Markendaya and Sri Omkareswara Swamy Temple & Ors | participate in the re-auction. It is to be noted that as such the original writ petitioner never participated in the public auction, which was conducted/held on 24.06.1998. Therefore, by such a liberty being granted, the High Court has given one another opportunity to the original writ petitioner, who has died, and/or to his heirs to participate in the re-auction, which liberty could not have been reserved. As a result, the writ petition filed by the deceased petitioner Shri L. Kantha Rao has ceased to be a Public Interest Litigation but it is a litigation with a private mala fide interest as the original writ petitioner had no locus to file such a case, not being a participant in the auction and being unable to point out any irregularity or illegality in the auction. 8.10 Even the Division Bench of the High Court ought not to have passed the impugned judgment and order in an appeal preferred by the Temple Trust for the simple reason that it was the Executive Officer of the Temple Trust, who had conducted the auction; it was the Executive Officer, who had obtained the Clearance Certificate from the Income Tax department and who executed the sale deed in favour of the highest bidder – appellant herein. At no point of time till the judgment and order was passed by the learned Single Judge, the Temple Trust had challenged the auction/sale on the ground that the amount realized was inadequate. Therefore, the Temple Trust could not have challenged their own decision, which they had never challenged earlier. 8.11 Similarly, the appeal preferred by the heirs of Shri L. Kantha Rao also ought not to have been entertained. Shri L. Kantha Rao never participated in the auction. He never submitted any offer. The proceedings initiated by Shri L. Kantha Rao was in the nature of a Public Interest Litigation and therefore being heir of Shri L. Kantha Rao, his wife could not have been permitted to prosecute further with the Public Interest Litigation. 8.12 Now, in so far as the decisions relied upon by the learned Senior Advocate appearing on behalf of the respondents referred to hereinabove are concerned, there cannot be any dispute to the proposition of law laid down by this Court in the aforesaid decisions. However, in the facts and circumstances of the case narrated hereinabove, none of the decisions are of any assistance to the respondents. There was/is no material to show that the market value at the time of auction/sale in favour of the appellant was more than what was offered by the appellant as a highest bidder. The base price fixed was Rs. 4,00,000/- per acre against which the appellant being highest bidder offered Rs.13,01,000/- per acre. In all 45 persons participated in the auction, in which the appellant was found to be the highest bidder. There are no allegations of fraud and/or collusion. According to the appellant, the entire litigation started at the instance of Shri L. Kantha Rao when one Shri M.M. Gupta, brother-in-law of Shri L. Kantha Rao, who was the second highest bidder and who had purchased lands in the name of his family members near the auction land at Rs.7,50,000/- per acre on 28.07.1998 and 22.09.1998. Therefore, it is observed that the proceedings initiated by Shri L. Kantha Rao as such cannot be said to be a Public Interest Litigation but is squarely a private interest litigation in the garb of espousing a public cause, which also did not exist in the instant case. Therefore, in the facts and circumstances of the case, the Division Bench of the High Court ought not to have passed an order for re-auction of the property after a period of 23 years from the date of auction/sale to the detriment of the rights of the appellant who was the successful bidder in the auction sale. In this regard, we wish to rely on some of the observations made by this Court in the case of State of Uttaranchal Vs. Balwant Singh Chaufal and Ors., (2010) 3 SCC 402, cautioning the High Courts to be more discerning / vigilant and/or cautious while entertaining writ petitions apparently filed in public interest. In the said decision, it is observed and held that: (1) The Courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations; (2) The Courts should prima facie verify the credentials of the petitioner before entertaining a PIL; (3) The Courts should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL; (4) The Courts should be fully satisfied that substantial public interest is involved before entertaining the petition; (5) The Courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The Court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation; and (6) The Courts should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations. 8.13 The submission on behalf of the respondents that as on today the value of the property is Rs.15 crores and therefore, this Court may not interfere with the impugned judgment and order passed by the Division Bench of the High Court is concerned, the aforesaid cannot be accepted. After a period of 20-23 years, the prices of lands are bound to increase. The auction was conducted and held in the year 1998 and was sold in favour of the appellant then on payment of the full sale consideration as per the highest bid offered by him. Therefore, the valuation as on the date of auction is the relevant consideration and not the value after so many years and over two decades after conducting the auction and confirming the sale. | 1[ds]8. At the outset, it is required to be noted that by the impugned judgment and order, the Division Bench of the High Court has ordered re-auction of the land in question by fixing the upset price more than what has been fixed earlier by observing that since more than 20 years have elapsed from the date of the issuance of G.O. dated 26.11.1999, it is in the interest of the Temple that the property in auction is put to re- auction. However, it is required to be noted that the appellant purchased the property in question in a public auction, which took place on 24.06.1998. He was found to be the highest bidder, who offered Rs.13,01,000/- per acre. It is also required to be noted that in the said auction, which took place on 24.06.1998, in all 45 people participated. The auction was conducted after following due procedure under the provisions of the Act of 1987 and the auction was conducted by none other than the Executive Officer of the Temple Trust. It is also to be noted that after receiving a detailed report of Assistant Commissioner of Endowments, office of the Commissioner, Endowments Department vide order dated 22.12.1998 confirmed the sale in favour of the appellant. Consequently, the appellant deposited the balance amount. The sale deed came to be executed in his favour vide Sale Deed dated 31.12.1998. Even thereafter on the application made by the Executive Officer of the Devasthanam/Temple, the Income Tax Department granted Clearance Certificate to the Executive Officer on 12.01.1999. Therefore, as such the sale, which was held and confirmed in the year 1998 and for which the sale deed was executed on 31.12.1998, the Division Bench of the High Court has ordered re-auction of the property in question after a period of more than 23 years solely on the basis of the offer made by one Shri Jagat Kumar in the year 1998 (after the public auction was concluded) and the offer made by one Shri L. Kantha Rao that they are ready to offer / pay a higher price than fetched in the public auction already concluded and therefore, the Division Bench of the High Court has presumed that the value of the property must have been much more than the sale consideration realized in the public auction. However, the Division Bench of the High Court has not at all appreciated and considered the lack of bona fides on the part of the said Shri Jagat Kumar and even Shri L. Kantha Rao. It is to be noted that though in the month of July, 1998, i.e., after the public auction was held, the said Shri Jagat Kumar, who even did not participate in the auction proceedings initially came out with a case that he was ready and willing to pay a higher price for the auctioned land. But subsequently, he backed out and did not deposit any money. Neither did the said Shri Jagat Kumar nor Shri L. Kantha Rao had participated in the auction proceedings and made any offer. Therefore, as such both of them ought not have been permitted to raise any objection subsequently on the valuation when they had not participated in the public auction and made any offer. The Division Bench of the High Court ought to have considered whether these subsequent objectors had acted in a bona fide manner. At this stage, it is required to be noted that even Shri Jagat Kumar subsequently did not prosecute the matter further and subsequently it was only Shri L. Kantha Rao, who filed the revision before the Government by way of a Public Interest Litigation. It is also to be noted that neither the Government nor even the Division Bench of the High Court have given any finding that the auction, which was conducted/held on 24.06.1998 was in any way irregular and/or illegal. Even the Division Bench of the High Court has as such not set aside the auction/sale in favour of the appellant, however, it has ordered re-auction by observing that as Shri L. Kantha Rao deposited a sum of Rs. 30 lakhs pursuant to the interim order passed by the High Court in Writ Petition No. 41 of 1999 and as even the learned Single Judge had also directed the appellant to pay a total sum of Rs. 30 lakhs, which the appellant had agreed, the Division Bench of the High Court has observed that the value of the property can be said to be much more than what was realized in the public auction.8.1 Once the appellant was found to be the highest bidder in a public auction in which 45 persons had participated and thereafter when the sale was confirmed in his favour and even the sale deed was executed, unless and until it was found that there was any material irregularity and/or illegality in holding the public auction and/or auction/sale was vitiated by any fraud or collusion, it is not open to set aside the auction or sale in favour of a highest bidder on the basis of some representations made by third parties, who did not even participate in the auction proceedings and did not make any offer. In this context, we rely on the following observations of this Court in the case of Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed and Ors., (1976) 1 SCC 671 made in paragraphs 34, 37 and 49, which are as under:-34. This Court has laid down in a number of decisions that in order to have the locus siandi to invoke the extraordinary jurisdiction under Article 226, an applicant should ordinarily be one who has a personal or individual right in the subject-matter of the application, though in the case of some of the writs like habeas corpus or quo warranto this rule is relaxed or modified. In other words, as a general rule, infringement of some legal right or prejudice to some legal interest inhering in the petitioner is necessary to give him a locus standi in the matter, (see State of Orissa v. Madan Gopal Rungta [AIR 1952 SC 12 ]; Calcutta Gas Co. v. State of W.B. [AIR 1962 SC 1044 ]; Ram Umeshwari Suthoo v. Member, Board of Revenue, Orissa [(1967) 1 SCA 413]; Gadde Venkateswara Rao v. Government of A.P. [AIR 1966 SC 828 ]; State of Orissa v. Rajasaheb Chandanmall [(1973) 3 SCC 739] ; Satyanarayana Sinha Dr v. S. Lal & Co. [(1973) 2 SCC 696] ).37. It will be seen that in the context of locus standi to apply for a writ of certiorari, an applicant may ordinarily fall in any of these categories: (i) person aggrieved; (ii) stranger; (iii) busybody or meddlesome interloper. Persons in the last category are easily distinguishable from those coming under the first two categories. Such persons interfere in things which do not concern them. They masquerade as crusaders for justice. They pretend to act in the name of pro bono publico, though they have no interest of the public or even of their own to protect. They indulge in the pastime of meddling with the judicial process either by force of habit or from improper motives. Often, they are actuated by a desire to win notoriety or cheap popularity; while the ulterior intent of some applicants in this category, may be no more than spoking the wheels of administration. The High Court should do well to reject the applications of such busybodies at the threshold.49. It is true that in the ultimate analysis, the jurisdiction under Article 226 in general, and certiorari in particular is discretionary. But in a country like India where writ petitions are instituted in the High Courts by the thousand, many of them frivolous, a strict ascertainment, at the outset, of the standing of the petitioner to invoke this extraordinary jurisdiction, must be insisted upon. The broad guidelines indicated by us, coupled with other well- established self-devised rules of practice, such as the availability of an alternative remedy, the conduct of the petitioner etc. can go a long way to help the courts in weeding out a large number of writ petitions at the initial stage with consequent saving of public time and money.In the aforesaid decision, it was also observed that despite adequate opportunity, if a person has not lodged any objection at an appropriate stage and time, he could not be said to have been in fact, grieved.8.2 It is also required to be noted that the sale was confirmed in favour of the appellant by the Commissioner, Endowments Department after obtaining the report of the Assistant Commissioner. Therefore, we are of the opinion that in the aforesaid facts and circumstances of the case, the High Court ought not to have ordered re-auction of the land in question after a period of 23 years of confirmation of the sale and execution of the sale deed in favour of the auction purchaser by observing that the value of the property might have been much more, otherwise, the object and purpose of holding the public auction and the sanctity of the public auction will be frustrated. Unless there is concrete material and it is established that there was any fraud and/or collusion or the land in question was sold at a throw away price, the sale pursuant to the public auction cannot be set aside at the instance of strangers to the auction proceeding. The sale pursuant to the public auction can be set aside in an eventuality where it is found on the basis of material on record that the property had been sold away at a throw away price and/or on a wholly inadequate consideration because of the fraud and/or collusion and/or after any material irregularity and/or illegality is found in conducing/holding the public auction. After the public auction is held and the highest bid is received and the property is sold in a public auction in favour of a highest bidder, such a sale cannot be set aside on the basis of some offer made by third parties subsequently and that too when they did not participate in the auction proceedings and made any offer and/or the offer is made only for the sake of making it and without any serious intent. In the present case, as observed hereinabove, though Shri Jagat Kumar immediately after finalising the auction stated that he is ready and willing to pay a higher price, however, subsequently, he backed out. If the auction/sale pursuant to the public auction is set aside on the basis of the such frivolous and irresponsible representations made by such persons then the sanctity of a public auction would be frustrated and the rights of a genuine bidder would be adversely affected.8.3 Further, the Division Bench of the High Court ought to have appreciated that the objector – Shri L. Kantha Rao, who did not participate in the auction proceedings and submit any bid can be said to be a fence sitter having no stakes on his shoulder and had simply come forward just to nullify the registered sale deed executed in favour of the appellant by adopting an indirect method of making a public offer by way of filing a Public Interest Litigation before the High Court. The so-called lucrative offer initially made by Shri Jagat Kumar and the subsequent offer made by Shri L. Kantha Rao appears to be made only to frustrate the auction proceedings with a mala fide intent. As observed hereinabove, if there was any error in the decision-making process adopted by the authority, the remedy available was to question the sale deed in an appropriate proceeding available under the law and not by filing a petition under Article 226 of the Constitution of India.8.4 The Division Bench of the High Court has observed that as the said Shri L. Kantha Rao submitted a bank guarantee of Rs. 30 lakhs as he offered to pay Rs. 30 lakhs and even the learned Single Judge had also directed the appellant to pay a total sum of Rs.30 lakhs against his original offer and the appellant had agreed to pay the same, the High Court has presumed that the value of the property at the time of auction would have been much more. There was no concrete material before the Division Bench of the High Court to come to such a conclusion that what was received in the public auction in the year 1998 was a lesser amount and/or at the relevant time, the valuation of the property was much more than the highest bid received. Merely because the appellant might have agreed to pay a total sum of Rs.30 lakhs (after deducting whatever he paid earlier), by that itself, it cannot be presumed and/or held against the appellant that in the year 1998 what was offered by him was a lesser amount than the actual valuation. The appellant agreed to pay a higher price for the land in question in order to save his rights.8.5 At the cost of repetition, it is observed that as such there was no material available with the Division Bench to the effect that the valuation of the property in the year 1998 was much more and that the highest bid of the appellant was for a lesser consideration than the actual value of the land.8.7 None of the aforesaid aspects have been dealt with and/or considered by the Division Bench of the High Court while passing the impugned judgment and order. Even it was the specific case of the appellant before the learned Single Judge that the order dated 26.11.1999 passed by the Government cancelling the sale and ordering for re-auction was passed without hearing him. The same is also not dealt with by the Division Bench of the High Court.8.8 Now, in so far as the submission on behalf of the respondents that the value of the property as on today is Rs. 15 crores approximately and therefore in the interest of the Deity/Temple, the impugned judgment and order passed by the Division Bench of the High Court may not be interfered with by this Court is concerned, it is to be noted that by the passage of time the value of the property is bound to increase. In the present case, subsequent to the auction and the sale, more than 23 years have passed, therefore, whatever was the value in the year 1998 would not be same at a future date and that too, after 20-23 years. What is required to be considered is, at the relevant time, when the sale was conducted, what was the value of the land/property. Learned Senior Advocate appearing on behalf of the respondents are not in a position to point out any material on which it can be said that what was offered by the appellant in the year 1998 was not a fair value. The base price was Rs.4,00,000/- per acre in the public auction, in which 45 persons participated and what was offered by the appellant, i.e., Rs. 13,01,000/- per acre was much higher than the base price. Under normal circumstances, unless there are allegations of fraud and/or collusion and/or cartel and/or any other material irregularity or illegality, the highest offer received in the public auction may be accepted as a fair value. Otherwise, there shall not be any sanctity of a public auction.8.10 Even the Division Bench of the High Court ought not to have passed the impugned judgment and order in an appeal preferred by the Temple Trust for the simple reason that it was the Executive Officer of the Temple Trust, who had conducted the auction; it was the Executive Officer, who had obtained the Clearance Certificate from the Income Tax department and who executed the sale deed in favour of the highest bidder – appellant herein. At no point of time till the judgment and order was passed by the learned Single Judge, the Temple Trust had challenged the auction/sale on the ground that the amount realized was inadequate. Therefore, the Temple Trust could not have challenged their own decision, which they had never challenged earlier.8.11 Similarly, the appeal preferred by the heirs of Shri L. Kantha Rao also ought not to have been entertained. Shri L. Kantha Rao never participated in the auction. He never submitted any offer. The proceedings initiated by Shri L. Kantha Rao was in the nature of a Public Interest Litigation and therefore being heir of Shri L. Kantha Rao, his wife could not have been permitted to prosecute further with the Public Interest Litigation.8.12 Now, in so far as the decisions relied upon by the learned Senior Advocate appearing on behalf of the respondents referred to hereinabove are concerned, there cannot be any dispute to the proposition of law laid down by this Court in the aforesaid decisions. However, in the facts and circumstances of the case narrated hereinabove, none of the decisions are of any assistance to the respondents. There was/is no material to show that the market value at the time of auction/sale in favour of the appellant was more than what was offered by the appellant as a highest bidder. The base price fixed was Rs. 4,00,000/- per acre against which the appellant being highest bidder offered Rs.13,01,000/- per acre. In all 45 persons participated in the auction, in which the appellant was found to be the highest bidder. There are no allegations of fraud and/or collusion. According to the appellant, the entire litigation started at the instance of Shri L. Kantha Rao when one Shri M.M. Gupta, brother-in-law of Shri L. Kantha Rao, who was the second highest bidder and who had purchased lands in the name of his family members near the auction land at Rs.7,50,000/- per acre on 28.07.1998 and 22.09.1998. Therefore, it is observed that the proceedings initiated by Shri L. Kantha Rao as such cannot be said to be a Public Interest Litigation but is squarely a private interest litigation in the garb of espousing a public cause, which also did not exist in the instant case. Therefore, in the facts and circumstances of the case, the Division Bench of the High Court ought not to have passed an order for re-auction of the property after a period of 23 years from the date of auction/sale to the detriment of the rights of the appellant who was the successful bidder in the auction sale. In this regard, we wish to rely on some of the observations made by this Court in the case of State of Uttaranchal Vs. Balwant Singh Chaufal and Ors., (2010) 3 SCC 402, cautioning the High Courts to be more discerning / vigilant and/or cautious while entertaining writ petitions apparently filed in public interest. In the said decision, it is observed and held that: (1) The Courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations; (2) The Courts should prima facie verify the credentials of the petitioner before entertaining a PIL; (3) The Courts should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL; (4) The Courts should be fully satisfied that substantial public interest is involved before entertaining the petition; (5) The Courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The Court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation; and (6) The Courts should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations.8.13 The submission on behalf of the respondents that as on today the value of the property is Rs.15 crores and therefore, this Court may not interfere with the impugned judgment and order passed by the Division Bench of the High Court is concerned, the aforesaid cannot be accepted. After a period of 20-23 years, the prices of lands are bound to increase. The auction was conducted and held in the year 1998 and was sold in favour of the appellant then on payment of the full sale consideration as per the highest bid offered by him. Therefore, the valuation as on the date of auction is the relevant consideration and not the value after so many years and over two decades after conducting the auction and confirming the sale. | 1 | 8,582 | 3,709 | ### Instruction:
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participate in the re-auction. It is to be noted that as such the original writ petitioner never participated in the public auction, which was conducted/held on 24.06.1998. Therefore, by such a liberty being granted, the High Court has given one another opportunity to the original writ petitioner, who has died, and/or to his heirs to participate in the re-auction, which liberty could not have been reserved. As a result, the writ petition filed by the deceased petitioner Shri L. Kantha Rao has ceased to be a Public Interest Litigation but it is a litigation with a private mala fide interest as the original writ petitioner had no locus to file such a case, not being a participant in the auction and being unable to point out any irregularity or illegality in the auction. 8.10 Even the Division Bench of the High Court ought not to have passed the impugned judgment and order in an appeal preferred by the Temple Trust for the simple reason that it was the Executive Officer of the Temple Trust, who had conducted the auction; it was the Executive Officer, who had obtained the Clearance Certificate from the Income Tax department and who executed the sale deed in favour of the highest bidder – appellant herein. At no point of time till the judgment and order was passed by the learned Single Judge, the Temple Trust had challenged the auction/sale on the ground that the amount realized was inadequate. Therefore, the Temple Trust could not have challenged their own decision, which they had never challenged earlier. 8.11 Similarly, the appeal preferred by the heirs of Shri L. Kantha Rao also ought not to have been entertained. Shri L. Kantha Rao never participated in the auction. He never submitted any offer. The proceedings initiated by Shri L. Kantha Rao was in the nature of a Public Interest Litigation and therefore being heir of Shri L. Kantha Rao, his wife could not have been permitted to prosecute further with the Public Interest Litigation. 8.12 Now, in so far as the decisions relied upon by the learned Senior Advocate appearing on behalf of the respondents referred to hereinabove are concerned, there cannot be any dispute to the proposition of law laid down by this Court in the aforesaid decisions. However, in the facts and circumstances of the case narrated hereinabove, none of the decisions are of any assistance to the respondents. There was/is no material to show that the market value at the time of auction/sale in favour of the appellant was more than what was offered by the appellant as a highest bidder. The base price fixed was Rs. 4,00,000/- per acre against which the appellant being highest bidder offered Rs.13,01,000/- per acre. In all 45 persons participated in the auction, in which the appellant was found to be the highest bidder. There are no allegations of fraud and/or collusion. According to the appellant, the entire litigation started at the instance of Shri L. Kantha Rao when one Shri M.M. Gupta, brother-in-law of Shri L. Kantha Rao, who was the second highest bidder and who had purchased lands in the name of his family members near the auction land at Rs.7,50,000/- per acre on 28.07.1998 and 22.09.1998. Therefore, it is observed that the proceedings initiated by Shri L. Kantha Rao as such cannot be said to be a Public Interest Litigation but is squarely a private interest litigation in the garb of espousing a public cause, which also did not exist in the instant case. Therefore, in the facts and circumstances of the case, the Division Bench of the High Court ought not to have passed an order for re-auction of the property after a period of 23 years from the date of auction/sale to the detriment of the rights of the appellant who was the successful bidder in the auction sale. In this regard, we wish to rely on some of the observations made by this Court in the case of State of Uttaranchal Vs. Balwant Singh Chaufal and Ors., (2010) 3 SCC 402, cautioning the High Courts to be more discerning / vigilant and/or cautious while entertaining writ petitions apparently filed in public interest. In the said decision, it is observed and held that: (1) The Courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations; (2) The Courts should prima facie verify the credentials of the petitioner before entertaining a PIL; (3) The Courts should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL; (4) The Courts should be fully satisfied that substantial public interest is involved before entertaining the petition; (5) The Courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The Court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation; and (6) The Courts should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations. 8.13 The submission on behalf of the respondents that as on today the value of the property is Rs.15 crores and therefore, this Court may not interfere with the impugned judgment and order passed by the Division Bench of the High Court is concerned, the aforesaid cannot be accepted. After a period of 20-23 years, the prices of lands are bound to increase. The auction was conducted and held in the year 1998 and was sold in favour of the appellant then on payment of the full sale consideration as per the highest bid offered by him. Therefore, the valuation as on the date of auction is the relevant consideration and not the value after so many years and over two decades after conducting the auction and confirming the sale.
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relevant time, when the sale was conducted, what was the value of the land/property. Learned Senior Advocate appearing on behalf of the respondents are not in a position to point out any material on which it can be said that what was offered by the appellant in the year 1998 was not a fair value. The base price was Rs.4,00,000/- per acre in the public auction, in which 45 persons participated and what was offered by the appellant, i.e., Rs. 13,01,000/- per acre was much higher than the base price. Under normal circumstances, unless there are allegations of fraud and/or collusion and/or cartel and/or any other material irregularity or illegality, the highest offer received in the public auction may be accepted as a fair value. Otherwise, there shall not be any sanctity of a public auction.8.10 Even the Division Bench of the High Court ought not to have passed the impugned judgment and order in an appeal preferred by the Temple Trust for the simple reason that it was the Executive Officer of the Temple Trust, who had conducted the auction; it was the Executive Officer, who had obtained the Clearance Certificate from the Income Tax department and who executed the sale deed in favour of the highest bidder – appellant herein. At no point of time till the judgment and order was passed by the learned Single Judge, the Temple Trust had challenged the auction/sale on the ground that the amount realized was inadequate. Therefore, the Temple Trust could not have challenged their own decision, which they had never challenged earlier.8.11 Similarly, the appeal preferred by the heirs of Shri L. Kantha Rao also ought not to have been entertained. Shri L. Kantha Rao never participated in the auction. He never submitted any offer. The proceedings initiated by Shri L. Kantha Rao was in the nature of a Public Interest Litigation and therefore being heir of Shri L. Kantha Rao, his wife could not have been permitted to prosecute further with the Public Interest Litigation.8.12 Now, in so far as the decisions relied upon by the learned Senior Advocate appearing on behalf of the respondents referred to hereinabove are concerned, there cannot be any dispute to the proposition of law laid down by this Court in the aforesaid decisions. However, in the facts and circumstances of the case narrated hereinabove, none of the decisions are of any assistance to the respondents. There was/is no material to show that the market value at the time of auction/sale in favour of the appellant was more than what was offered by the appellant as a highest bidder. The base price fixed was Rs. 4,00,000/- per acre against which the appellant being highest bidder offered Rs.13,01,000/- per acre. In all 45 persons participated in the auction, in which the appellant was found to be the highest bidder. There are no allegations of fraud and/or collusion. According to the appellant, the entire litigation started at the instance of Shri L. Kantha Rao when one Shri M.M. Gupta, brother-in-law of Shri L. Kantha Rao, who was the second highest bidder and who had purchased lands in the name of his family members near the auction land at Rs.7,50,000/- per acre on 28.07.1998 and 22.09.1998. Therefore, it is observed that the proceedings initiated by Shri L. Kantha Rao as such cannot be said to be a Public Interest Litigation but is squarely a private interest litigation in the garb of espousing a public cause, which also did not exist in the instant case. Therefore, in the facts and circumstances of the case, the Division Bench of the High Court ought not to have passed an order for re-auction of the property after a period of 23 years from the date of auction/sale to the detriment of the rights of the appellant who was the successful bidder in the auction sale. In this regard, we wish to rely on some of the observations made by this Court in the case of State of Uttaranchal Vs. Balwant Singh Chaufal and Ors., (2010) 3 SCC 402, cautioning the High Courts to be more discerning / vigilant and/or cautious while entertaining writ petitions apparently filed in public interest. In the said decision, it is observed and held that: (1) The Courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations; (2) The Courts should prima facie verify the credentials of the petitioner before entertaining a PIL; (3) The Courts should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL; (4) The Courts should be fully satisfied that substantial public interest is involved before entertaining the petition; (5) The Courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The Court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation; and (6) The Courts should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations.8.13 The submission on behalf of the respondents that as on today the value of the property is Rs.15 crores and therefore, this Court may not interfere with the impugned judgment and order passed by the Division Bench of the High Court is concerned, the aforesaid cannot be accepted. After a period of 20-23 years, the prices of lands are bound to increase. The auction was conducted and held in the year 1998 and was sold in favour of the appellant then on payment of the full sale consideration as per the highest bid offered by him. Therefore, the valuation as on the date of auction is the relevant consideration and not the value after so many years and over two decades after conducting the auction and confirming the sale.
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Commissioner Of Income-Tax, Madras Vs. Express Newspapers Ltd., Madras | item of income falls specifically under one head it is to be charged under that head and no other. The expression "income, profits and gains" in S. 6 is a composite concept which takes in all the six heads of income mentioned therein. The 4th head is "profits and gains of business, profession or vocation" and the 6th head is "capital gains". Section 10 taxes the profits and gains of a business, profession or vocation carried on by an assessee; it also enumerates the different kinds of allowances that can be made in computing the profits. Under S.10(1), as we have already pointed out, the necessary condition for the application of the section is that the assessee should have carried on the business for some part of the accounting year. Section 26(2) indicates the manner of assessment of the income, profits and gains of any business, profession or vocation. This section does not provide for the assessment of income under any other head. It only says that if there is a succession to a person carrying on business during in accounting year, the person succeeded and the person succeeding can each of them be assessed in respect of his actual share. The proviso deals with a case where the person succeeded cannot be found; in that event, the assessment of the profits of the year in which the succession took place up to the date of the succession and for the year preceding that year shall be made on the person succeeding him. If an assessment has already been made in respect of the said years on the person succeeded, it can be recovered from the person succeeding. But both sub-s. (2) and the proviso deal only with income, profits and gains of the business, that is to say, for the assessment made in respect of profit and gains under the 4th head of S. 6. Now turning to S.12B, it provides for capital gains. Under that section the tax shall be payable by the assessee under the head capital gains in respect of any profits or gains arising from the sale of a capital asset effected during the prescribed period. It says further that such profits or gains shall be deemed to be income of the previous year in which the sale etc. took place. This deeming clause does not lift the capital gains from the 6th head in S. 6 and place it under the 4th head. It only introduces a limited fiction, namely, that capital gains accrued will be deemed to be income of the previous year in which the sale was effected. The fiction does not make them the profit or gains of the business. It is well settled that a legal fiction is limited to the purpose for which it is created and should not be extended beyond its legitimate field. Sub-sections (2A) and (2B) of S. 24 provide for the setting off of the loss falling under the head "capital gains" against any capital gains falling under the same head. Such loss cannot be set off against an income falling under any different head. These three sections indicate beyond any doubt that the capital gains are separately computed in accordance with the said provisions and they are not treated as the profits from the business. The profits and gains of business, and capital gains are two distinct concepts in the Income-tax Act : the former arises from the activity which is called business and the latter accrues because capital assets are disposed of at a value higher than what they cost the assessee. They are placed under different heads; they are derived from different sources; and the income is computed under different methods. The fact that the capital gains are connected with the capital assets of the business cannot make them the profit of the business. They are only deemed to be income of the previous year and not the profit or gains arising from the business during that year.8. If that be the scheme of the Act, the contention of the learned counsel for the Revenue can easily be answered. He asks that if S. 26(2) deals with only profits and gains of the business, why should the Legislature use the word "income" therein? As we have indicated, the expression "income, profits and gains" is a compendious term to connote the income from the various sources mentioned in S. 6; therefore, the use of such an expression does not efface the distinction between the different heads, but only describes the income from the business. The expression "profits" in the proviso makes it clear that the income, profits and gains in sub-s. (2) of S. 26 only refer to the profits under the 4th head in S. 6. On the other hand, if the interpretation sought to be put upon the expression "income" in sub-s. (2) of S. 26 by the Revenue is accepted, then the absence of that word in the proviso destroys the argument. But the more reasonable view is that both the sub-section and the proviso deal only with the profits under the 4th head mentioned in S. 6 and, so construed, excludes capital gains. The argument that sub-s. (2) of S. 26 read with the proviso thereto indicates that the total income of the person succeeded is the criterion for separate assessment under subs. (2) and for assessment and realisation under the proviso is on the assumption that sub-s. (2) and the proviso deals with all the heads mentioned in S. 6 of the Act. But if, as we have held, the scope of sub-s- (2) of S.26 is only limited to the income from the business, the share under sub-s. (2) and the assessment and realisation under the proviso can only relate to the income from the business. The argument is really begging the question itself. In the result we agree with the High Court in regard to the answer it has given in respect of the second question.9 | 0[ds]A conspectus of the said sections discloses a clearcut scheme. Though income-tax is only one tax levided on the total income, S. 6 enumerates six heads whereunder the income of an assessee falls to be charged. This Court in United Commercial Bank Ltd. v. Commr. of Income-tax, West Bengal, (1957) 32 ITR 688 : ((S) AIR 1957 SC 918 ) laid down that Ss.7 to 12 are mutually exclusive and where an item of income falls specifically under one head it is to be charged under that head and no other. The expression "income, profits and gains" in S. 6 is a composite concept which takes in all the six heads of income mentioned therein. The 4th head is "profits and gains of business, profession or vocation" and the 6th head is "capital gains". Section 10 taxes the profits and gains of a business, profession or vocation carried on by an assessee; it also enumerates the different kinds of allowances that can be made in computing the profits. Under S.10(1), as we have already pointed out, the necessary condition for the application of the section is that the assessee should have carried on the business for some part of the accounting year. Section 26(2) indicates the manner of assessment of the income, profits and gains of any business, profession or vocation. This section does not provide for the assessment of income under any other head. It only says that if there is a succession to a person carrying on business during in accounting year, the person succeeded and the person succeeding can each of them be assessed in respect of his actual share. The proviso deals with a case where the person succeeded cannot be found; in that event, the assessment of the profits of the year in which the succession took place up to the date of the succession and for the year preceding that year shall be made on the person succeeding him. If an assessment has already been made in respect of the said years on the person succeeded, it can be recovered from the person succeeding. But both sub-s. (2) and the proviso deal only with income, profits and gains of the business, that is to say, for the assessment made in respect of profit and gains under the 4th head of S. 6. Now turning to S.12B, it provides for capital gains. Under that section the tax shall be payable by the assessee under the head capital gains in respect of any profits or gains arising from the sale of a capital asset effected during the prescribed period. It says further that such profits or gains shall be deemed to be income of the previous year in which the sale etc. took place. This deeming clause does not lift the capital gains from the 6th head in S. 6 and place it under the 4th head. It only introduces a limited fiction, namely, that capital gains accrued will be deemed to be income of the previous year in which the sale was effected. The fiction does not make them the profit or gains of the business. It is well settled that a legal fiction is limited to the purpose for which it is created and should not be extended beyond its legitimate field. Sub-sections (2A) and (2B) of S. 24 provide for the setting off of the loss falling under the head "capital gains" against any capital gains falling under the same head. Such loss cannot be set off against an income falling under any different head. These three sections indicate beyond any doubt that the capital gains are separately computed in accordance with the said provisions and they are not treated as the profits from the business. The profits and gains of business, and capital gains are two distinct concepts in the Income-tax Act : the former arises from the activity which is called business and the latter accrues because capital assets are disposed of at a value higher than what they cost the assessee. They are placed under different heads; they are derived from different sources; and the income is computed under different methods. The fact that the capital gains are connected with the capital assets of the business cannot make them the profit of the business. They are only deemed to be income of the previous year and not the profit or gains arising from the business during that year.8. If that be the scheme of the Act, the contention of the learned counsel for the Revenue can easily be answered. He asks that if S. 26(2) deals with only profits and gains of the business, why should the Legislature use the word "income" therein? As we have indicated, the expression "income, profits and gains" is a compendious term to connote the income from the various sources mentioned in S. 6; therefore, the use of such an expression does not efface the distinction between the different heads, but only describes the income from the business. The expression "profits" in the proviso makes it clear that the income, profits and gains in sub-s. (2) of S. 26 only refer to the profits under the 4th head in S. 6. On the other hand, if the interpretation sought to be put upon the expression "income" in sub-s. (2) of S. 26 by the Revenue is accepted, then the absence of that word in the proviso destroys the argument. But the more reasonable view is that both the sub-section and the proviso deal only with the profits under the 4th head mentioned in S. 6 and, so construed, excludes capital gains. The argument that sub-s. (2) of S. 26 read with the proviso thereto indicates that the total income of the person succeeded is the criterion for separate assessment under subs. (2) and for assessment and realisation under the proviso is on the assumption that sub-s. (2) and the proviso deals with all the heads mentioned in S. 6 of the Act. But if, as we have held, the scope of sub-s- (2) of S.26 is only limited to the income from the business, the share under sub-s. (2) and the assessment and realisation under the proviso can only relate to the income from the business. The argument is really begging the question itself. In the result we agree with the High Court in regard to the answer it has given in respect of the second question. | 0 | 5,740 | 1,208 | ### 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:
item of income falls specifically under one head it is to be charged under that head and no other. The expression "income, profits and gains" in S. 6 is a composite concept which takes in all the six heads of income mentioned therein. The 4th head is "profits and gains of business, profession or vocation" and the 6th head is "capital gains". Section 10 taxes the profits and gains of a business, profession or vocation carried on by an assessee; it also enumerates the different kinds of allowances that can be made in computing the profits. Under S.10(1), as we have already pointed out, the necessary condition for the application of the section is that the assessee should have carried on the business for some part of the accounting year. Section 26(2) indicates the manner of assessment of the income, profits and gains of any business, profession or vocation. This section does not provide for the assessment of income under any other head. It only says that if there is a succession to a person carrying on business during in accounting year, the person succeeded and the person succeeding can each of them be assessed in respect of his actual share. The proviso deals with a case where the person succeeded cannot be found; in that event, the assessment of the profits of the year in which the succession took place up to the date of the succession and for the year preceding that year shall be made on the person succeeding him. If an assessment has already been made in respect of the said years on the person succeeded, it can be recovered from the person succeeding. But both sub-s. (2) and the proviso deal only with income, profits and gains of the business, that is to say, for the assessment made in respect of profit and gains under the 4th head of S. 6. Now turning to S.12B, it provides for capital gains. Under that section the tax shall be payable by the assessee under the head capital gains in respect of any profits or gains arising from the sale of a capital asset effected during the prescribed period. It says further that such profits or gains shall be deemed to be income of the previous year in which the sale etc. took place. This deeming clause does not lift the capital gains from the 6th head in S. 6 and place it under the 4th head. It only introduces a limited fiction, namely, that capital gains accrued will be deemed to be income of the previous year in which the sale was effected. The fiction does not make them the profit or gains of the business. It is well settled that a legal fiction is limited to the purpose for which it is created and should not be extended beyond its legitimate field. Sub-sections (2A) and (2B) of S. 24 provide for the setting off of the loss falling under the head "capital gains" against any capital gains falling under the same head. Such loss cannot be set off against an income falling under any different head. These three sections indicate beyond any doubt that the capital gains are separately computed in accordance with the said provisions and they are not treated as the profits from the business. The profits and gains of business, and capital gains are two distinct concepts in the Income-tax Act : the former arises from the activity which is called business and the latter accrues because capital assets are disposed of at a value higher than what they cost the assessee. They are placed under different heads; they are derived from different sources; and the income is computed under different methods. The fact that the capital gains are connected with the capital assets of the business cannot make them the profit of the business. They are only deemed to be income of the previous year and not the profit or gains arising from the business during that year.8. If that be the scheme of the Act, the contention of the learned counsel for the Revenue can easily be answered. He asks that if S. 26(2) deals with only profits and gains of the business, why should the Legislature use the word "income" therein? As we have indicated, the expression "income, profits and gains" is a compendious term to connote the income from the various sources mentioned in S. 6; therefore, the use of such an expression does not efface the distinction between the different heads, but only describes the income from the business. The expression "profits" in the proviso makes it clear that the income, profits and gains in sub-s. (2) of S. 26 only refer to the profits under the 4th head in S. 6. On the other hand, if the interpretation sought to be put upon the expression "income" in sub-s. (2) of S. 26 by the Revenue is accepted, then the absence of that word in the proviso destroys the argument. But the more reasonable view is that both the sub-section and the proviso deal only with the profits under the 4th head mentioned in S. 6 and, so construed, excludes capital gains. The argument that sub-s. (2) of S. 26 read with the proviso thereto indicates that the total income of the person succeeded is the criterion for separate assessment under subs. (2) and for assessment and realisation under the proviso is on the assumption that sub-s. (2) and the proviso deals with all the heads mentioned in S. 6 of the Act. But if, as we have held, the scope of sub-s- (2) of S.26 is only limited to the income from the business, the share under sub-s. (2) and the assessment and realisation under the proviso can only relate to the income from the business. The argument is really begging the question itself. In the result we agree with the High Court in regard to the answer it has given in respect of the second question.9
### Response:
0
### Explanation:
item of income falls specifically under one head it is to be charged under that head and no other. The expression "income, profits and gains" in S. 6 is a composite concept which takes in all the six heads of income mentioned therein. The 4th head is "profits and gains of business, profession or vocation" and the 6th head is "capital gains". Section 10 taxes the profits and gains of a business, profession or vocation carried on by an assessee; it also enumerates the different kinds of allowances that can be made in computing the profits. Under S.10(1), as we have already pointed out, the necessary condition for the application of the section is that the assessee should have carried on the business for some part of the accounting year. Section 26(2) indicates the manner of assessment of the income, profits and gains of any business, profession or vocation. This section does not provide for the assessment of income under any other head. It only says that if there is a succession to a person carrying on business during in accounting year, the person succeeded and the person succeeding can each of them be assessed in respect of his actual share. The proviso deals with a case where the person succeeded cannot be found; in that event, the assessment of the profits of the year in which the succession took place up to the date of the succession and for the year preceding that year shall be made on the person succeeding him. If an assessment has already been made in respect of the said years on the person succeeded, it can be recovered from the person succeeding. But both sub-s. (2) and the proviso deal only with income, profits and gains of the business, that is to say, for the assessment made in respect of profit and gains under the 4th head of S. 6. Now turning to S.12B, it provides for capital gains. Under that section the tax shall be payable by the assessee under the head capital gains in respect of any profits or gains arising from the sale of a capital asset effected during the prescribed period. It says further that such profits or gains shall be deemed to be income of the previous year in which the sale etc. took place. This deeming clause does not lift the capital gains from the 6th head in S. 6 and place it under the 4th head. It only introduces a limited fiction, namely, that capital gains accrued will be deemed to be income of the previous year in which the sale was effected. The fiction does not make them the profit or gains of the business. It is well settled that a legal fiction is limited to the purpose for which it is created and should not be extended beyond its legitimate field. Sub-sections (2A) and (2B) of S. 24 provide for the setting off of the loss falling under the head "capital gains" against any capital gains falling under the same head. Such loss cannot be set off against an income falling under any different head. These three sections indicate beyond any doubt that the capital gains are separately computed in accordance with the said provisions and they are not treated as the profits from the business. The profits and gains of business, and capital gains are two distinct concepts in the Income-tax Act : the former arises from the activity which is called business and the latter accrues because capital assets are disposed of at a value higher than what they cost the assessee. They are placed under different heads; they are derived from different sources; and the income is computed under different methods. The fact that the capital gains are connected with the capital assets of the business cannot make them the profit of the business. They are only deemed to be income of the previous year and not the profit or gains arising from the business during that year.8. If that be the scheme of the Act, the contention of the learned counsel for the Revenue can easily be answered. He asks that if S. 26(2) deals with only profits and gains of the business, why should the Legislature use the word "income" therein? As we have indicated, the expression "income, profits and gains" is a compendious term to connote the income from the various sources mentioned in S. 6; therefore, the use of such an expression does not efface the distinction between the different heads, but only describes the income from the business. The expression "profits" in the proviso makes it clear that the income, profits and gains in sub-s. (2) of S. 26 only refer to the profits under the 4th head in S. 6. On the other hand, if the interpretation sought to be put upon the expression "income" in sub-s. (2) of S. 26 by the Revenue is accepted, then the absence of that word in the proviso destroys the argument. But the more reasonable view is that both the sub-section and the proviso deal only with the profits under the 4th head mentioned in S. 6 and, so construed, excludes capital gains. The argument that sub-s. (2) of S. 26 read with the proviso thereto indicates that the total income of the person succeeded is the criterion for separate assessment under subs. (2) and for assessment and realisation under the proviso is on the assumption that sub-s. (2) and the proviso deals with all the heads mentioned in S. 6 of the Act. But if, as we have held, the scope of sub-s- (2) of S.26 is only limited to the income from the business, the share under sub-s. (2) and the assessment and realisation under the proviso can only relate to the income from the business. The argument is really begging the question itself. In the result we agree with the High Court in regard to the answer it has given in respect of the second question.
|
Indian Hume Pipe Company Limited Vs. Its Workmen and Another | respondents. Even so, in 1956 the respondents seemed to demand that the said classifications should be revised and the wage up-graded.3. It also appears that when the matter was discussed before the tribunal at the present enquiry and more particularly when the tribunal visited the factory in the company of the appellants lawyer Sri Mehta and the respondents representative Sri Ram Desai, both of them agreed "that the nature of skill of the various categories would be as per the first award." The tribunal then inspected the factory and ultimately made its award. During the course of its inspection, the tribunal found that there were no designations like the assistant mason, assistant fitter, assistant moulder and others specified by it in Para. 16 of its award, and so, it created categories of certain assistants in respect of the job done by mason, fitter, moulder, hand welder, turner, shaper, transformer maker, carpenter, machine welder and machine driver. The tribunal then but the different employees in the three respective categories and revised the wages payable to them. It is against this award that the appellant has come to this Court.Sri Shroff for the appellant has attacked the award only on one narrow point. He contends that the tribunal has committed an obvious error in changing the classes of four categories of employees, namely, mason, welder, carpenter and moulder. He also argues that in creating the post of an assistant moulder, the tribunal has overlooked that fact that there is nobody who is known as assistant moulder in the appellants concern and who satisfies the requirements of the said office. In regard to the first four categories of employees, it is not disputed that the present award has made a substantial change and has differed from the earlier award. Under the earlier award, masons other than those who were skilled were placed in the category of semi-skilled and only masons who worked on Hume steel special were put under the category of skilled employees. Indu Chottu was treated as a special case and was put under the skilled category. Under the present award all masons are put in the skilled category. In regard to the welder, it was only welders who were working in H. S. S. and W. shops that were skilled under the earlier award and the rest were semi-skilled. Under the present award, hand welders, machine welders and gas welders are all put in the skilled category. Carpenters other than skilled were treated as semi-skilled under the earlier award and carpenters, excepting workshop stores, were treated as skilled. Under the present award, all carpenters are put under the category of skilled workmen. Moulder under the earlier award was not under semi-skilled category whether it was a case of a moulder H.P., R.C.C., pole lining and our-coating. A mazdoor working under a moulder was treated as unskilled. Under the present award, all moulders are put under the skilled category. Sri Shroff contends that in changing the categories of these workmen, the tribunal through error has failed to notice the fact that it was common ground between the parties before the tribunal that the classification and the categories prescribed by the earlier award had not to be changed and the only question which the tribunal was asked to decide in the present proceedings was one in regard to the revision of wages payable to the employees in the respective categories and classes.It seems to us that the grievance made by the appellant is well-founded. There is no doubt that before the tribunal, parties had agreed to take the skill of the various categories as it was prescribed by the earlier award and it has in fact observed that in view of the admission of the parties regarding classification. "the categories and classification of the respective employees had to be take as it was specified in annexure A, " annexure A containing the categories and the classification of the respective employees made in the earlier award. It is to be regretted that the tribunal proceeded to change the classification in respect of four categories of employees to which we have just referred, overlooking the fact that by virtue of the agreement between the parties, it was not competent to the tribunal to adopt such a course.4. Sri Sowani for the respondents attempted to argue that the tribunal has created a category of assistants, and so, it thought that it would be anomalous to treat an assistant mason, an assistant welder, an assistant carpenter or an assistant moulder as semi-skilled, and the mason, the welder, the carpenter and the moulder also as semi-skilled. That may perhaps explain why the tribunal changed the classification in respect of the four categories of employees. In the present appeal, no grievance is made by the appellant in regard to the creation of certain assistant in the category of semi-skilled employees, and so, we are not called upon to consider whether the tribunal could have created this class of assistants, but it seems to us that the tribunal was not justified in promoting the four categories of employees into the skilled class in a manner which was inconsistent with the classification adopted by the earlier award. That is why we must hold that in regard to the mason, the welder the carpenter and the moulder, the classification must be deemed to be the same as was adopted by the earlier award. In regard to the assistant moulder, the appellants grievance is that there is no person who answers the description of that office. We propose to express no opinion on this part of the appellants case. If there are employees who can be regarded as assistant moulders under the award, their rights will not be affected, because the appellant has not seriously contended that the tribunal was not competent to create a class of assistant moulders, just as it has not been argued that a class of assistant masons, assistant fitter and other assistants could not have been created. | 1[ds]f contends that in changing the categories of these workmen, the tribunal through error has failed to notice the fact that it was common ground between the parties before the tribunal that the classification and the categories prescribed by the earlier award had not to be changed and the only question which the tribunal was asked to decide in the present proceedings was one in regard to the revision of wages payable to the employees in the respective categories andseems to us that the grievance made by the appellant isThere is no doubt that before the tribunal, parties had agreed to take the skill of the various categories as it was prescribed by the earlier award and it has in fact observed that in view of the admission of the parties regarding classification. "the categories and classification of the respective employees had to be take as it was specified in annexure A, " annexure A containing the categories and the classification of the respective employees made in the earlier award. It is to be regretted that the tribunal proceeded to change the classification in respect of four categories of employees to which we have just referred, overlooking the fact that by virtue of the agreement between the parties, it was not competent to the tribunal to adopt such a course.Sri Sowani for the respondents attempted to argue that the tribunal has created a category of assistants, and so, it thought that it would be anomalous to treat an assistant mason, an assistant welder, an assistant carpenter or an assistant moulder asand the mason, the welder, the carpenter and the moulder also asThat may perhaps explain why the tribunal changed the classification in respect of the four categories of employees. In the present appeal, no grievance is made by the appellant in regard to the creation of certain assistant in the category ofemployees, and so, we are not called upon to consider whether the tribunal could have created this class of assistants, but it seems to us that the tribunal was not justified in promoting the four categories of employees into the skilled class in a manner which was inconsistent with the classification adopted by the earlier award. That is why we must hold that in regard to the mason, the welder the carpenter and the moulder, the classification must be deemed to be the same as was adopted by the earlier award. In regard to the assistant moulder, the appellants grievance is that there is no person who answers the description of that office. We propose to express no opinion on this part of the appellants case. If there are employees who can be regarded as assistant moulders under the award, their rights will not be affected, because the appellant has not seriously contended that the tribunal was not competent to create a class of assistant moulders, just as it has not been argued that a class of assistant masons, assistant fitter and other assistants could not have been created. | 1 | 1,710 | 535 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
respondents. Even so, in 1956 the respondents seemed to demand that the said classifications should be revised and the wage up-graded.3. It also appears that when the matter was discussed before the tribunal at the present enquiry and more particularly when the tribunal visited the factory in the company of the appellants lawyer Sri Mehta and the respondents representative Sri Ram Desai, both of them agreed "that the nature of skill of the various categories would be as per the first award." The tribunal then inspected the factory and ultimately made its award. During the course of its inspection, the tribunal found that there were no designations like the assistant mason, assistant fitter, assistant moulder and others specified by it in Para. 16 of its award, and so, it created categories of certain assistants in respect of the job done by mason, fitter, moulder, hand welder, turner, shaper, transformer maker, carpenter, machine welder and machine driver. The tribunal then but the different employees in the three respective categories and revised the wages payable to them. It is against this award that the appellant has come to this Court.Sri Shroff for the appellant has attacked the award only on one narrow point. He contends that the tribunal has committed an obvious error in changing the classes of four categories of employees, namely, mason, welder, carpenter and moulder. He also argues that in creating the post of an assistant moulder, the tribunal has overlooked that fact that there is nobody who is known as assistant moulder in the appellants concern and who satisfies the requirements of the said office. In regard to the first four categories of employees, it is not disputed that the present award has made a substantial change and has differed from the earlier award. Under the earlier award, masons other than those who were skilled were placed in the category of semi-skilled and only masons who worked on Hume steel special were put under the category of skilled employees. Indu Chottu was treated as a special case and was put under the skilled category. Under the present award all masons are put in the skilled category. In regard to the welder, it was only welders who were working in H. S. S. and W. shops that were skilled under the earlier award and the rest were semi-skilled. Under the present award, hand welders, machine welders and gas welders are all put in the skilled category. Carpenters other than skilled were treated as semi-skilled under the earlier award and carpenters, excepting workshop stores, were treated as skilled. Under the present award, all carpenters are put under the category of skilled workmen. Moulder under the earlier award was not under semi-skilled category whether it was a case of a moulder H.P., R.C.C., pole lining and our-coating. A mazdoor working under a moulder was treated as unskilled. Under the present award, all moulders are put under the skilled category. Sri Shroff contends that in changing the categories of these workmen, the tribunal through error has failed to notice the fact that it was common ground between the parties before the tribunal that the classification and the categories prescribed by the earlier award had not to be changed and the only question which the tribunal was asked to decide in the present proceedings was one in regard to the revision of wages payable to the employees in the respective categories and classes.It seems to us that the grievance made by the appellant is well-founded. There is no doubt that before the tribunal, parties had agreed to take the skill of the various categories as it was prescribed by the earlier award and it has in fact observed that in view of the admission of the parties regarding classification. "the categories and classification of the respective employees had to be take as it was specified in annexure A, " annexure A containing the categories and the classification of the respective employees made in the earlier award. It is to be regretted that the tribunal proceeded to change the classification in respect of four categories of employees to which we have just referred, overlooking the fact that by virtue of the agreement between the parties, it was not competent to the tribunal to adopt such a course.4. Sri Sowani for the respondents attempted to argue that the tribunal has created a category of assistants, and so, it thought that it would be anomalous to treat an assistant mason, an assistant welder, an assistant carpenter or an assistant moulder as semi-skilled, and the mason, the welder, the carpenter and the moulder also as semi-skilled. That may perhaps explain why the tribunal changed the classification in respect of the four categories of employees. In the present appeal, no grievance is made by the appellant in regard to the creation of certain assistant in the category of semi-skilled employees, and so, we are not called upon to consider whether the tribunal could have created this class of assistants, but it seems to us that the tribunal was not justified in promoting the four categories of employees into the skilled class in a manner which was inconsistent with the classification adopted by the earlier award. That is why we must hold that in regard to the mason, the welder the carpenter and the moulder, the classification must be deemed to be the same as was adopted by the earlier award. In regard to the assistant moulder, the appellants grievance is that there is no person who answers the description of that office. We propose to express no opinion on this part of the appellants case. If there are employees who can be regarded as assistant moulders under the award, their rights will not be affected, because the appellant has not seriously contended that the tribunal was not competent to create a class of assistant moulders, just as it has not been argued that a class of assistant masons, assistant fitter and other assistants could not have been created.
### Response:
1
### Explanation:
f contends that in changing the categories of these workmen, the tribunal through error has failed to notice the fact that it was common ground between the parties before the tribunal that the classification and the categories prescribed by the earlier award had not to be changed and the only question which the tribunal was asked to decide in the present proceedings was one in regard to the revision of wages payable to the employees in the respective categories andseems to us that the grievance made by the appellant isThere is no doubt that before the tribunal, parties had agreed to take the skill of the various categories as it was prescribed by the earlier award and it has in fact observed that in view of the admission of the parties regarding classification. "the categories and classification of the respective employees had to be take as it was specified in annexure A, " annexure A containing the categories and the classification of the respective employees made in the earlier award. It is to be regretted that the tribunal proceeded to change the classification in respect of four categories of employees to which we have just referred, overlooking the fact that by virtue of the agreement between the parties, it was not competent to the tribunal to adopt such a course.Sri Sowani for the respondents attempted to argue that the tribunal has created a category of assistants, and so, it thought that it would be anomalous to treat an assistant mason, an assistant welder, an assistant carpenter or an assistant moulder asand the mason, the welder, the carpenter and the moulder also asThat may perhaps explain why the tribunal changed the classification in respect of the four categories of employees. In the present appeal, no grievance is made by the appellant in regard to the creation of certain assistant in the category ofemployees, and so, we are not called upon to consider whether the tribunal could have created this class of assistants, but it seems to us that the tribunal was not justified in promoting the four categories of employees into the skilled class in a manner which was inconsistent with the classification adopted by the earlier award. That is why we must hold that in regard to the mason, the welder the carpenter and the moulder, the classification must be deemed to be the same as was adopted by the earlier award. In regard to the assistant moulder, the appellants grievance is that there is no person who answers the description of that office. We propose to express no opinion on this part of the appellants case. If there are employees who can be regarded as assistant moulders under the award, their rights will not be affected, because the appellant has not seriously contended that the tribunal was not competent to create a class of assistant moulders, just as it has not been argued that a class of assistant masons, assistant fitter and other assistants could not have been created.
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Hind Construction & Engineering Co. Ltd Vs. Their Workmen | when their dispute was taken over by the Union and though they were offered employment they would have been treated like the others unless they broke away from their Union or went against its wishes. In these circumstances, Government was entitled to treat the dispute as single and undivided and to refer the cases of all workmen who had absented themselves on the 2nd of January on the ground they claimed it as a holiday. We do not, therefore, interfere with the award on this ground:5. The next question is whether the Tribunal was justified in interfering with the punishment of dismissal after it had come to the conclusion that the workmen had gone on a strike even though the strike was not illegal. Reference is made to a number of cases in which the principles for the guidance of the Tribunals in which matters have been laid down by this Court. It is now settled law that the Tribunal is not to examine the finding or the quantum of punishment because the whole of the dispute is not really open before the Tribunal as it is ordinarily before a court of appeal. The Tribunals powers have been stated by this Court in a large number of cases and it has been ruled that the Tribunal can only interfere if the conduct of the employer shows lack of bona fides or victimization of employee or employees or unfair labour practice. The Tribunal may in a strong case interfere with a basic error on a point of fact or a perverse finding, but it cannot substitute its own appraisal of the evidence for that of the officer conducting the domestic enquiry though it may interfere where the principles of natural justice or fair play have not been followed or where the enquiry is so perverted in its procedure as to amount to no enquiry at all. In respect of punishment it has been ruled that the award of punishment for misconduct under the Standing Orders, if any, is a matter for the management to decide and if there is any justification for the punishment imposed the Tribunal should not interfere. The Tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or too severe. But where the punishment is shockingly disproportionate, regard being had to the particular conduct and the past record or is such, as no reasonable employer would ever impose in like circumstances, the Tribunal may treat the imposition of such punishment as itself showing victimization or unfair labour practice. These principles can be gathered from the following cases:-Bengal Bhatdee Coal Co. Ltd. v.Ram Probesh Singh, AIR 1964 SC 486 ; Buckingham and Carnatic Co. Ltd. v. Workers, 1952 Lab AC 490 (LATI-Cal); Titaghar Paper Mills Co. Ltd. v. Ram Naresh Kumar, (1961) 1 Lab LJ 511 (SC);- Doom Dooma Tea Co. Ltd. v. Assam Chah Karmachari Sangh, 1960-2 Lab LJ 56 (SC); Punjab National Bank Ltd. v. Their Workmen, 1959-2 Lab LJ 666 : (AIR 1960 SC 160 ); Chartered Bank Bombay v. Chartered Bank Employees Union, 1960-2 Lab LJ 222 (AIR 1960 SC 919 ).6. In the present case the dispute was whether the punishment amounted to victimization or unfair labour practice. Mr. Sen Gupta referred to various parts of the record of the enquiry to show that the conduct of the workmen was regarded as collective, that it was described as a strike, that it was considered to be the result of a conspiracy and that there was a demand for over-time. Mr. Sen Gupota contended that, in the circumstances, this must be regarded as a case of victimization because only the permanent workers were subjected to this treatment. Mr. Sen Gupta hinted that there was an ulterior motive in dismissing the permanent workers and getting the work done by temporary hands so that the Union may break down and even the re-employment of three workmen, who were probably indispensable to the employer, was with the same motive. On the other hand, Mr. Setalvad argued that there was nothing on the record to show that this was a case of victimization. These persons were found guilty at the enquiry and also by the Tribunal and it was merely a question of what punishment should be imposed and that was a matter entirely within the competence of the employer.7. In our judgment, this is one of those cases in which it can plainly be said that the punishment imposed was one which no reasonable employer would have imposed in like circumstances unless it served same other purpose. There was a practice of substituting for a holiday falling on a Sunday, the day next following. This appears to have been done in the appellant Company for a number of years. In this year also the 2nd of January would have been a holiday but for the contrary decision of the Management. From the record it does not appear that there was anything very special requiring attention on the day. But assuming there was, the absence of the eleven workmen on the 2nd was not something for which no lesser punishment could have been imposed. The absence could have been treated as leave without pay; the workmen might even have been warned and fined. It is impossible to think that any other reasonable employer would have imposed the extreme punishment of dismissal on its entire permanent staff in this manner. Assuming for a moment, that three workmen were warned and taken back, the employer knew very well that they could not join in view of the intervention of the Union. On the whole, therefore, though we emphasise again that a Tribunal should not interfere with the kind or severity of punishment except in very extraordinary circumstances, we think that interference was justified in this case because the punishment was not only severe and out of proportion to the fault, but one which, in our judgment, no reasonable employer would have imposed. | 0[ds]Technically this is correct but we do not think that we should interfere with the award on this ground alone. All workmen were charged together and their defence more or less was that the day following the 1st of January was to be a holiday in accordance with the established practice, though three of them raised additional defence when asked to file separate defences. It is obvious that these three workmen could not join when their dispute was taken over by the Union and though they were offered employment they would have been treated like the others unless they broke away from their Union or went against its wishes. In these circumstances, Government was entitled to treat the dispute as single and undivided and to refer the cases of all workmen who had absented themselves on the 2nd of January on the ground they claimed it as a holiday. We do not, therefore, interfere with the award on thisis now settled law that the Tribunal is not to examine the finding or the quantum of punishment because the whole of the dispute is not really open before the Tribunal as it is ordinarily before a court ofrespect of punishment it has been ruled that the award of punishment for misconduct under the Standing Orders, if any, is a matter for the management to decide and if there is any justification for the punishment imposed the Tribunal should not interfere. The Tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or tooIn our judgment, this is one of those cases in which it can plainly be said that the punishment imposed was one which no reasonable employer would have imposed in like circumstances unless it served same other purpose. There was a practice of substituting for a holiday falling on a Sunday, the day next following. This appears to have been done in the appellant Company for a number of years. In this year also the 2nd of January would have been a holiday but for the contrary decision of the Management. From the record it does not appear that there was anything very special requiring attention on the day. But assuming there was, the absence of the eleven workmen on the 2nd was not something for which no lesser punishment could have been imposed. The absence could have been treated as leave without pay; the workmen might even have been warned and fined. It is impossible to think that any other reasonable employer would have imposed the extreme punishment of dismissal on its entire permanent staff in this manner. Assuming for a moment, that three workmen were warned and taken back, the employer knew very well that they could not join in view of the intervention of the Union. On the whole, therefore, though we emphasise again that a Tribunal should not interfere with the kind or severity of punishment except in very extraordinary circumstances, we think that interference was justified in this case because the punishment was not only severe and out of proportion to the fault, but one which, in our judgment, no reasonable employer would have imposed. | 0 | 1,866 | 566 | ### Instruction:
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when their dispute was taken over by the Union and though they were offered employment they would have been treated like the others unless they broke away from their Union or went against its wishes. In these circumstances, Government was entitled to treat the dispute as single and undivided and to refer the cases of all workmen who had absented themselves on the 2nd of January on the ground they claimed it as a holiday. We do not, therefore, interfere with the award on this ground:5. The next question is whether the Tribunal was justified in interfering with the punishment of dismissal after it had come to the conclusion that the workmen had gone on a strike even though the strike was not illegal. Reference is made to a number of cases in which the principles for the guidance of the Tribunals in which matters have been laid down by this Court. It is now settled law that the Tribunal is not to examine the finding or the quantum of punishment because the whole of the dispute is not really open before the Tribunal as it is ordinarily before a court of appeal. The Tribunals powers have been stated by this Court in a large number of cases and it has been ruled that the Tribunal can only interfere if the conduct of the employer shows lack of bona fides or victimization of employee or employees or unfair labour practice. The Tribunal may in a strong case interfere with a basic error on a point of fact or a perverse finding, but it cannot substitute its own appraisal of the evidence for that of the officer conducting the domestic enquiry though it may interfere where the principles of natural justice or fair play have not been followed or where the enquiry is so perverted in its procedure as to amount to no enquiry at all. In respect of punishment it has been ruled that the award of punishment for misconduct under the Standing Orders, if any, is a matter for the management to decide and if there is any justification for the punishment imposed the Tribunal should not interfere. The Tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or too severe. But where the punishment is shockingly disproportionate, regard being had to the particular conduct and the past record or is such, as no reasonable employer would ever impose in like circumstances, the Tribunal may treat the imposition of such punishment as itself showing victimization or unfair labour practice. These principles can be gathered from the following cases:-Bengal Bhatdee Coal Co. Ltd. v.Ram Probesh Singh, AIR 1964 SC 486 ; Buckingham and Carnatic Co. Ltd. v. Workers, 1952 Lab AC 490 (LATI-Cal); Titaghar Paper Mills Co. Ltd. v. Ram Naresh Kumar, (1961) 1 Lab LJ 511 (SC);- Doom Dooma Tea Co. Ltd. v. Assam Chah Karmachari Sangh, 1960-2 Lab LJ 56 (SC); Punjab National Bank Ltd. v. Their Workmen, 1959-2 Lab LJ 666 : (AIR 1960 SC 160 ); Chartered Bank Bombay v. Chartered Bank Employees Union, 1960-2 Lab LJ 222 (AIR 1960 SC 919 ).6. In the present case the dispute was whether the punishment amounted to victimization or unfair labour practice. Mr. Sen Gupta referred to various parts of the record of the enquiry to show that the conduct of the workmen was regarded as collective, that it was described as a strike, that it was considered to be the result of a conspiracy and that there was a demand for over-time. Mr. Sen Gupota contended that, in the circumstances, this must be regarded as a case of victimization because only the permanent workers were subjected to this treatment. Mr. Sen Gupta hinted that there was an ulterior motive in dismissing the permanent workers and getting the work done by temporary hands so that the Union may break down and even the re-employment of three workmen, who were probably indispensable to the employer, was with the same motive. On the other hand, Mr. Setalvad argued that there was nothing on the record to show that this was a case of victimization. These persons were found guilty at the enquiry and also by the Tribunal and it was merely a question of what punishment should be imposed and that was a matter entirely within the competence of the employer.7. In our judgment, this is one of those cases in which it can plainly be said that the punishment imposed was one which no reasonable employer would have imposed in like circumstances unless it served same other purpose. There was a practice of substituting for a holiday falling on a Sunday, the day next following. This appears to have been done in the appellant Company for a number of years. In this year also the 2nd of January would have been a holiday but for the contrary decision of the Management. From the record it does not appear that there was anything very special requiring attention on the day. But assuming there was, the absence of the eleven workmen on the 2nd was not something for which no lesser punishment could have been imposed. The absence could have been treated as leave without pay; the workmen might even have been warned and fined. It is impossible to think that any other reasonable employer would have imposed the extreme punishment of dismissal on its entire permanent staff in this manner. Assuming for a moment, that three workmen were warned and taken back, the employer knew very well that they could not join in view of the intervention of the Union. On the whole, therefore, though we emphasise again that a Tribunal should not interfere with the kind or severity of punishment except in very extraordinary circumstances, we think that interference was justified in this case because the punishment was not only severe and out of proportion to the fault, but one which, in our judgment, no reasonable employer would have imposed.
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Technically this is correct but we do not think that we should interfere with the award on this ground alone. All workmen were charged together and their defence more or less was that the day following the 1st of January was to be a holiday in accordance with the established practice, though three of them raised additional defence when asked to file separate defences. It is obvious that these three workmen could not join when their dispute was taken over by the Union and though they were offered employment they would have been treated like the others unless they broke away from their Union or went against its wishes. In these circumstances, Government was entitled to treat the dispute as single and undivided and to refer the cases of all workmen who had absented themselves on the 2nd of January on the ground they claimed it as a holiday. We do not, therefore, interfere with the award on thisis now settled law that the Tribunal is not to examine the finding or the quantum of punishment because the whole of the dispute is not really open before the Tribunal as it is ordinarily before a court ofrespect of punishment it has been ruled that the award of punishment for misconduct under the Standing Orders, if any, is a matter for the management to decide and if there is any justification for the punishment imposed the Tribunal should not interfere. The Tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or tooIn our judgment, this is one of those cases in which it can plainly be said that the punishment imposed was one which no reasonable employer would have imposed in like circumstances unless it served same other purpose. There was a practice of substituting for a holiday falling on a Sunday, the day next following. This appears to have been done in the appellant Company for a number of years. In this year also the 2nd of January would have been a holiday but for the contrary decision of the Management. From the record it does not appear that there was anything very special requiring attention on the day. But assuming there was, the absence of the eleven workmen on the 2nd was not something for which no lesser punishment could have been imposed. The absence could have been treated as leave without pay; the workmen might even have been warned and fined. It is impossible to think that any other reasonable employer would have imposed the extreme punishment of dismissal on its entire permanent staff in this manner. Assuming for a moment, that three workmen were warned and taken back, the employer knew very well that they could not join in view of the intervention of the Union. On the whole, therefore, though we emphasise again that a Tribunal should not interfere with the kind or severity of punishment except in very extraordinary circumstances, we think that interference was justified in this case because the punishment was not only severe and out of proportion to the fault, but one which, in our judgment, no reasonable employer would have imposed.
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Mukesh K. Tripathi Vs. Sr.Divn.Manager, L.I.C. | and obligations under the statute.37. In case any person raises a contention that his status has been changed from apprentice to a workman, he must plead and prove the requisite facts. In absence of any pleading or proof that either by novation of the contract or by reason of the conduct of the parties, such a change has been brought about, an apprentice cannot be held to be workman.38. It is true that the definition of workman as contained in Section 2(s) of the Industrial Disputes Act is exhaustive.39. The interpretation clause contained in a statute although may deserve a broader meaning having employed the word includes but therefor also it is necessary to keep in view the scheme of the object and purport of the statute, which takes him out of the said definition. Furthermore, the interpretation section begins with the words unless the context otherwise requires." 40. In Ramesh Mehta vs. Sanwal Chand, Singhvi and others reported in 2004 (5) SCC 409 , it was noticed: "A definition is not to be read in isolation. It must be read in the context of the phrase which would define it. It should not be vague or ambiguous. The definition of words must be given a meaningful application; where the context makes the definition given in the interpretation clause inapplicable, the same meaning cannot be assigned.In State of Maharashtra vs. Indian Medical Assn. one of us (V.N. Khare, CJ.) stated that the definition given in the interpretation clause having regard to the contents would not be applicable. It was stated: (SCC p.598, para 8)"8. A bare perusal of Section 2 of the Act shows that it starts with the words in this Act, unless the context otherwise require. Let us find out whether in the context of the provisions of Section 64 of the Act the defined meaning of the expression management can be assigned to the word management in Section 64 of the Act. In para 3 of the Regulation, the Essentially Certificate is required to be given by the State Government and permission to establish a new medical college is to be given by the State Government under Section 64 of the Act. If we give the defined meaning to the expression management occurring in Section 64 of the Act, it would mean the State Government is required to apply to itself for grant of permission to set up a government medical college through the University. Similarly it would also mean the State Government applying to itself for grant of Essentially Certificate under para 3 of the Regulation. We are afraid the defined meaning of the expression management cannot be assigned to the expression management occurring in Section 64 of the Act. In the present case, the context does not permit or requires to apply the defined meaning to the word management occurring in Section 64 of the Act." 41. In Sri Chittaranjan Das vs. Durgapore Project Limited and others (1995 (2) CLJ 388 ), it was opined: "In my opinion, it is not difficult to resolve the apparent conflict. Both in the Industrial Employment (Standing Order) Act, 1946 as also the certified Standing Order of the company the word including an apprentice occurs after the word person. In that view of the matter in place of the word person, the word apprentice can be substituted in a given situation but for the purpose of becoming a workman either within the meaning of the 1946 Act or the standing order framed thereunder, he is required to fulfil the other conditions laid down therein meaning thereby he is required to be employed in an industry to do the works enumerated in the said definition for hire or reward, whether the terms of employment be express or implied." 42. The question as to who would answer the description of the term workman fell for consideration before this Court in Dharangadhra Chemical Works Ltd. vs. State of Saurashtra and others (AIR 1957 SC 264 ), wherein this Court held: "The essential condition of a person being a workman within the terms of this definition is that he should be employed to do the work in that industry, that there should be, in other words, an employment of his by the employer and that there should be the relationship between the employer and him as between the employer and employee or master and servant. Unless a person is thus employed there can be no question of his being a workman within the definition of the term as contained in the Act." 43. Yet again in Workmen of Dimakuchi Tea Estate vs. Management of Dimakuchi Tea Estate (AIR 1958 SC 353 ), this Court held: "A little careful consideration will show, however, that the expression any person occurring in the third part of the definition clause cannot mean anybody and everybody in this wide would. First of all, the subject matter of dispute must relate to (i) employment or non-employment or (ii) terms of employment or conditions of labour of any person; these necessarily import a limitation in the sense that a person in respect of whom the employer- employee relation never existed or can never possibly exist cannot be the subject matter of a dispute between employers and workman. Secondly, the definition clause must be read in the context of the subject matter and scheme of the Act, and consistently with the objects and other provisions of the Act. It is well settled that -the words of a statute, when there is a doubt about their meaning are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the legislature has in view. Their meaning is found not so much in a strictly grammatical or etymological propriety of language, nor even in its popular use, as in the subject or in the occasion on which they are used, and the object to be attained." (Maxwell, Interpretation of Statutes, 9th Edition, p.55). | 0[ds]20. The said reasons are, therefore, supplemental to the ones recorded earlier viz: (i) They were rendered per incurium; and (ii) May and Baker (supra) is still a good law.21. Once the ratio of May and Baker (supra) and other decisions following the same had been reiterated despite observations made to the effect that S.K. Verma (supra) and other decisions following the same were rendered on the facts of that case, we are of the opinion that this Court had approved the reasonings of May and Baker (supra) and subsequent decisions in preference to S.K. Verma (supra).22. The Constitution Bench further took notice of the subsequent amendment in the definition of workman and held that even the Legislature impliedly did not accept the said interpretation of this Court in S.K. Verma (supra) and other decisions:23. It may be true, as has been submitted by Ms. Jaisingh, that S.K. Verma (supra) has not been expressly overruled in H.R. Advanthaya (supra) but once the said decision has been held to have been rendered per incuriam, it cannot be said to have laid down a good law. This Court is bound by the decision of the Constitution Bench.24. From a perusal of the award dated 28.5.1996 of the Tribunal, it does not appear that the Appellant herein had adduced any evidence whatsoever as regard the nature of his duties so as to establish that he had performed any skilled, unskilled, manual, technical or operational duties. The offer of appointment dated 16.7.1987 read with the Scheme clearly proved that he was appointed as an apprentice and not to do any skilled, unskilled, manual, technical or operational job. The onus was on the Appellant to prove that he is a workman. He failed to prove the same. Furthermore, the duties and obligations of a Development Officer of the Corporation by no stretch of imagination can be held to be performed by an apprentice.25. Even assuming that the duties and obligations of a Development Officer, as noticed in paragraph 8 of S.K. Verma (supra) are applicable in the instant case, it would be evident that the Appellant herein could not have organized or developed the business of the Corporation without becoming a full-fledged officer of the Corporation. Only an officer of the Corporation duly appointed can perform the functions of recruiting agents and take steps for organizing and developing the business of the Corporation. No area furtherance could be allotted to him for the purpose of recruiting active and reliable agents drawn from different communities and walks of life in view of the categorical findings of the Tribunal that he had been working as an apprentice. If organizing and developing the business of the Corporation and to act as a friend, philosopher and guide of the agents working within his jurisdiction were the primary duties and obligations of a Development Officer, an apprentice evidently cannot perform the same.26. We may consider the matter from another angle, viz., the appointment of the Appellant as an apprentice under the Scheme vis-a-vis the Apprentices Act, 1961.27. The expression Apprentice has been included in the definition of workman contained in Section 2(s) of the Industrial Disputes Act, 1947 but by reason of a subsequent Parliamentary legislation, namely, Apprentices Act, 1961 (the 1961 Act), the term apprentice has been defined in Section 2(aa) to mean a person who is undergoing apprenticeship training in a designated trade in pursuance of a contract of apprenticeship. Section 18 of the 1961 Act provides that apprentices are trainees and not workers save as otherwise provided in the Act.The term employee under various labour laws has been defined by different expressions but Section 18 of the 1961 Act carves out an exception to the applicability of labour laws in the event the concerned person is an apprentice as contra-distinguished from the expressions worker, employee and workman, used in different statutes.29. Apprentice under the general law means a person who is bound by a legal agreement to serve an employer for an agreed period and the employer is bound to instruct him.Apprentice, as noticed hereinbefore, is defined to mean a who is undergoing apprenticeship training pursuant to a contract apprenticeship. How a contract of apprenticeship would be entered into is to be found in sub-section (1) of Section 4 of the 1961 Act. The embargos placed in this regard are: (i) entering into a contract of apprenticeship with a minor in which event the contract must be executed by his guardian; and (ii) on such terms or conditions which shall not be inconsistent with any provision of the Act or any rule framed thereunder.31. Furthermore, the apprentice must satisfy the statutory requirements as regard qualification to be appointed as an apprentice.32. Training of apprenticeship by reason of sub-section (2) of Section 4 shall be deemed to have commenced on the date on which the contract of apprenticeship has been entered into under sub-section (1) thereof.33. The provisions of the Scheme framed by the Corporation conform to the provisions of the Apprentices Act and Rules framed thereunder. It is worth noticing that Provident funds and insurance have been specified to be a designated trade within the meaning of Section 2(k) of the Apprentices Act, 1961 by a notification No. G.S.R. 463(E) dated 23rd August, 1975.34. The definition of workman as contained in Section 2(s) of the Industrial Disputes Act, 1947 includes an apprentice, but a workman defined under the Industrial Disputes Act, 1947 must conform to the requirements laid down therein meaning thereby, inter alia, that he must be working in one or the other capacities mentioned therein and not otherwise.35. We may further notice before the Tribunal a contention was raised by the Appellant that upon expiry of the period of one year he was appointed as a probationary officer but the said plea was categorically rejected by theA workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 must not only establish that he is not covered by the provisions of the Apprenticeship Act but must further establish that he is employed in the establishment for the purpose of doing any work contemplated in the definition. Even in a case where a period of apprenticeship is extended, a further written contract carrying out such intention need not be executed. But in a case where a person is allowed to continue without extending the period of apprenticeship either expressly or by necessary implication and regular work is taken from him, he may become a workman. A person who claims himself to be an apprentice has certain rights and obligations under the statute.37. In case any person raises a contention that his status has been changed from apprentice to a workman, he must plead and prove the requisite facts. In absence of any pleading or proof that either by novation of the contract or by reason of the conduct of the parties, such a change has been brought about, an apprentice cannot be held to be workman.38. It is true that the definition of workman as contained in Section 2(s) of the Industrial Disputes Act is exhaustive.39. The interpretation clause contained in a statute although may deserve a broader meaning having employed the word includes but therefor also it is necessary to keep in view the scheme of the object and purport of the statute, which takes him out of the said definition. Furthermore, the interpretation section begins with the words unless the context otherwise requires." | 0 | 5,500 | 1,398 | ### Instruction:
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and obligations under the statute.37. In case any person raises a contention that his status has been changed from apprentice to a workman, he must plead and prove the requisite facts. In absence of any pleading or proof that either by novation of the contract or by reason of the conduct of the parties, such a change has been brought about, an apprentice cannot be held to be workman.38. It is true that the definition of workman as contained in Section 2(s) of the Industrial Disputes Act is exhaustive.39. The interpretation clause contained in a statute although may deserve a broader meaning having employed the word includes but therefor also it is necessary to keep in view the scheme of the object and purport of the statute, which takes him out of the said definition. Furthermore, the interpretation section begins with the words unless the context otherwise requires." 40. In Ramesh Mehta vs. Sanwal Chand, Singhvi and others reported in 2004 (5) SCC 409 , it was noticed: "A definition is not to be read in isolation. It must be read in the context of the phrase which would define it. It should not be vague or ambiguous. The definition of words must be given a meaningful application; where the context makes the definition given in the interpretation clause inapplicable, the same meaning cannot be assigned.In State of Maharashtra vs. Indian Medical Assn. one of us (V.N. Khare, CJ.) stated that the definition given in the interpretation clause having regard to the contents would not be applicable. It was stated: (SCC p.598, para 8)"8. A bare perusal of Section 2 of the Act shows that it starts with the words in this Act, unless the context otherwise require. Let us find out whether in the context of the provisions of Section 64 of the Act the defined meaning of the expression management can be assigned to the word management in Section 64 of the Act. In para 3 of the Regulation, the Essentially Certificate is required to be given by the State Government and permission to establish a new medical college is to be given by the State Government under Section 64 of the Act. If we give the defined meaning to the expression management occurring in Section 64 of the Act, it would mean the State Government is required to apply to itself for grant of permission to set up a government medical college through the University. Similarly it would also mean the State Government applying to itself for grant of Essentially Certificate under para 3 of the Regulation. We are afraid the defined meaning of the expression management cannot be assigned to the expression management occurring in Section 64 of the Act. In the present case, the context does not permit or requires to apply the defined meaning to the word management occurring in Section 64 of the Act." 41. In Sri Chittaranjan Das vs. Durgapore Project Limited and others (1995 (2) CLJ 388 ), it was opined: "In my opinion, it is not difficult to resolve the apparent conflict. Both in the Industrial Employment (Standing Order) Act, 1946 as also the certified Standing Order of the company the word including an apprentice occurs after the word person. In that view of the matter in place of the word person, the word apprentice can be substituted in a given situation but for the purpose of becoming a workman either within the meaning of the 1946 Act or the standing order framed thereunder, he is required to fulfil the other conditions laid down therein meaning thereby he is required to be employed in an industry to do the works enumerated in the said definition for hire or reward, whether the terms of employment be express or implied." 42. The question as to who would answer the description of the term workman fell for consideration before this Court in Dharangadhra Chemical Works Ltd. vs. State of Saurashtra and others (AIR 1957 SC 264 ), wherein this Court held: "The essential condition of a person being a workman within the terms of this definition is that he should be employed to do the work in that industry, that there should be, in other words, an employment of his by the employer and that there should be the relationship between the employer and him as between the employer and employee or master and servant. Unless a person is thus employed there can be no question of his being a workman within the definition of the term as contained in the Act." 43. Yet again in Workmen of Dimakuchi Tea Estate vs. Management of Dimakuchi Tea Estate (AIR 1958 SC 353 ), this Court held: "A little careful consideration will show, however, that the expression any person occurring in the third part of the definition clause cannot mean anybody and everybody in this wide would. First of all, the subject matter of dispute must relate to (i) employment or non-employment or (ii) terms of employment or conditions of labour of any person; these necessarily import a limitation in the sense that a person in respect of whom the employer- employee relation never existed or can never possibly exist cannot be the subject matter of a dispute between employers and workman. Secondly, the definition clause must be read in the context of the subject matter and scheme of the Act, and consistently with the objects and other provisions of the Act. It is well settled that -the words of a statute, when there is a doubt about their meaning are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the legislature has in view. Their meaning is found not so much in a strictly grammatical or etymological propriety of language, nor even in its popular use, as in the subject or in the occasion on which they are used, and the object to be attained." (Maxwell, Interpretation of Statutes, 9th Edition, p.55).
### Response:
0
### Explanation:
duties. The offer of appointment dated 16.7.1987 read with the Scheme clearly proved that he was appointed as an apprentice and not to do any skilled, unskilled, manual, technical or operational job. The onus was on the Appellant to prove that he is a workman. He failed to prove the same. Furthermore, the duties and obligations of a Development Officer of the Corporation by no stretch of imagination can be held to be performed by an apprentice.25. Even assuming that the duties and obligations of a Development Officer, as noticed in paragraph 8 of S.K. Verma (supra) are applicable in the instant case, it would be evident that the Appellant herein could not have organized or developed the business of the Corporation without becoming a full-fledged officer of the Corporation. Only an officer of the Corporation duly appointed can perform the functions of recruiting agents and take steps for organizing and developing the business of the Corporation. No area furtherance could be allotted to him for the purpose of recruiting active and reliable agents drawn from different communities and walks of life in view of the categorical findings of the Tribunal that he had been working as an apprentice. If organizing and developing the business of the Corporation and to act as a friend, philosopher and guide of the agents working within his jurisdiction were the primary duties and obligations of a Development Officer, an apprentice evidently cannot perform the same.26. We may consider the matter from another angle, viz., the appointment of the Appellant as an apprentice under the Scheme vis-a-vis the Apprentices Act, 1961.27. The expression Apprentice has been included in the definition of workman contained in Section 2(s) of the Industrial Disputes Act, 1947 but by reason of a subsequent Parliamentary legislation, namely, Apprentices Act, 1961 (the 1961 Act), the term apprentice has been defined in Section 2(aa) to mean a person who is undergoing apprenticeship training in a designated trade in pursuance of a contract of apprenticeship. Section 18 of the 1961 Act provides that apprentices are trainees and not workers save as otherwise provided in the Act.The term employee under various labour laws has been defined by different expressions but Section 18 of the 1961 Act carves out an exception to the applicability of labour laws in the event the concerned person is an apprentice as contra-distinguished from the expressions worker, employee and workman, used in different statutes.29. Apprentice under the general law means a person who is bound by a legal agreement to serve an employer for an agreed period and the employer is bound to instruct him.Apprentice, as noticed hereinbefore, is defined to mean a who is undergoing apprenticeship training pursuant to a contract apprenticeship. How a contract of apprenticeship would be entered into is to be found in sub-section (1) of Section 4 of the 1961 Act. The embargos placed in this regard are: (i) entering into a contract of apprenticeship with a minor in which event the contract must be executed by his guardian; and (ii) on such terms or conditions which shall not be inconsistent with any provision of the Act or any rule framed thereunder.31. Furthermore, the apprentice must satisfy the statutory requirements as regard qualification to be appointed as an apprentice.32. Training of apprenticeship by reason of sub-section (2) of Section 4 shall be deemed to have commenced on the date on which the contract of apprenticeship has been entered into under sub-section (1) thereof.33. The provisions of the Scheme framed by the Corporation conform to the provisions of the Apprentices Act and Rules framed thereunder. It is worth noticing that Provident funds and insurance have been specified to be a designated trade within the meaning of Section 2(k) of the Apprentices Act, 1961 by a notification No. G.S.R. 463(E) dated 23rd August, 1975.34. The definition of workman as contained in Section 2(s) of the Industrial Disputes Act, 1947 includes an apprentice, but a workman defined under the Industrial Disputes Act, 1947 must conform to the requirements laid down therein meaning thereby, inter alia, that he must be working in one or the other capacities mentioned therein and not otherwise.35. We may further notice before the Tribunal a contention was raised by the Appellant that upon expiry of the period of one year he was appointed as a probationary officer but the said plea was categorically rejected by theA workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 must not only establish that he is not covered by the provisions of the Apprenticeship Act but must further establish that he is employed in the establishment for the purpose of doing any work contemplated in the definition. Even in a case where a period of apprenticeship is extended, a further written contract carrying out such intention need not be executed. But in a case where a person is allowed to continue without extending the period of apprenticeship either expressly or by necessary implication and regular work is taken from him, he may become a workman. A person who claims himself to be an apprentice has certain rights and obligations under the statute.37. In case any person raises a contention that his status has been changed from apprentice to a workman, he must plead and prove the requisite facts. In absence of any pleading or proof that either by novation of the contract or by reason of the conduct of the parties, such a change has been brought about, an apprentice cannot be held to be workman.38. It is true that the definition of workman as contained in Section 2(s) of the Industrial Disputes Act is exhaustive.39. The interpretation clause contained in a statute although may deserve a broader meaning having employed the word includes but therefor also it is necessary to keep in view the scheme of the object and purport of the statute, which takes him out of the said definition. Furthermore, the interpretation section begins with the words unless the context otherwise requires."
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Prithvi Raj Taneja Vs. State of Madhya Pradesh and Others | This is an appeal on certificate by Prithvi Raj Taneja (now deceased and represented by his legal representatives) against the judgment of the Madhya Pradesh High Court whereby the High Court partially accepted the appeal filed by the appellant regarding the quantum of compensation for the acquisition of land.2. A plot of land measuring 27 bighas and 17 biswas situated in Ashok Nagar, district Guna, belonging to the appellant was acquired for the construction of a police station and residential quarters for policemen. A bigha, it is stated, is equivalent to 2, 500 square yards. The land sought to be acquired measured 68, 658 square yards. Notification under section 4 of the Land Acquisition Act for the acquisition of the land was issued on April 7, 1961. The Land Acquisition Officer as per award dated June 13, 1961 awarded compensation for the land at the rate of Rs. 100 per bigha. In addition to that, he awarded a sum of Rs. 1, 175 for large trees and Rs. 1, 380 for small trees standing on the land. The appellant was also awarded Rs. 1, 000 as compensation for a well which had been sunk in t he. land, and Rs. 800 for a house standing on the land In all, the appellant was awarded a sum of Rs. 7, 616. including solatium at the rate. of fifteen per cent by the Land Acquisition Officer.3. The appellant wanted compensation for the land at the rate of Rs. 10 per square yard. He accordingly had the matter referred to the District Judge. Learned Additional District Judge determined the market value of the land in questi on to be Rs. 900 per bigha. Regarding the well, the Additional District Judge awarded compensation of Rs. 3, 000 as against the amount of Rs. 1, 000 which had been awarded by the Land Acquisition Officer. In other respects, the award of the Land Acquisition Officer was upheld. Computing solatium at the rate of 10 per cent, the. total amount awarded by District Judge to the appellant was Rs. 32, 285 besides interest at the rate of six per cent per annum.The appellant not being satisfied with the award of the Additional District Judge took the matter in appeal to the High Court. The High Court awarded compensation to the appellant at the rat e of Re. 1. per square yard for the land in question. The High Court also awarded Rs. 2, 500 for the loss of earnings to the appellant. The rate of solatium for compulsory acquisition was increased by the High Court from ten per cent to, fifteen per cent. In all, the appellant was held entitled to a compensation of Rs. 88, 381 besides interest at the rate of six per cent per annum.4. The appellant thereupon obtained a certificate of fitness for appeal to this Court under article 133(1)(a) of the Constitution, as it stood at that time.5. In appeal before us, Mr. Andley on behalf of the appellant has argued that more than half of the land in dispute is within the municipal limits of Ashok Nagar Municipality, while the remaining land was also likely to be included within those limits shortly. It is further stated that the land in question abutts Ashok Nagar-Isagarh Road and is situated near the tehsil building and the. railway station. Learned counsel has also referred to the fact that small plots of land adjoining the land in dispute were sold at rates of Rs. 9 and Rs. 8 per square yard during the years 1958 to 1960. In this respect, we find that the High Court has considered most of the above circumstances and has come to the conclusion that Re. 1 per square yard represents fair market value of the land in dispute. The High Court has also referred to the special circumstances under which the small plots were sold and their price was fixed. We agree with the High Court that the price paid for small plots of land cannot provide a safe criterion for determining the amount of compensation for a vast area of land. We may in this context refer to a recent judgment in the case of Smt. Padma Uppal etc. v. State of Punjab &Ors. ([1977] 1 S.C.R. 329, ) wherein this Court observed that it is well settled that in determining compensation the value fetched for small plots of land cannot be applied to the lands covering a very large area and that the large area of land cannot possibly fetch a price at the same rate at which small plots are sold.Section 23 of the Land Acquisition Act provides that in mining the amount of compensation t o, be awarded for the land acquired under the Act, the Court shall take into. account inter alia the market value of the land at the date of the publication of the notification under section 4 of the Act. The market value means the price that a willing purchaser would pay to a willing seller for the property having due regard to its existing condition with all its existing advantages and its potential possibilities when laid out in the most advantageous manner excluding any advantage due to the carrying out of the scheme for which the property is compulsorily acquired. In considering market value the disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy should be disregarded. There is an element of guess-work inherent in most cases involving determination of the market value of the acquired land. But this in the very nature of things cannot be helped. The essential thing is to keep in view the relevant factors prescribed by the Act. If the judgment of the High Court reveals that it has taken into consideration the relevant factors, the assessment of the market value of the acquired land should not be disturbed (see Thakur Kanta Prasad Singh (dead) by Lrs. v. State of Bihar (A.I.R. 1976 S.C. 2219.).6. | 0[ds]In this respect, we find that the High Court has considered most of the above circumstances and has come to the conclusion that Re. 1 per square yard represents fair market value of the land in dispute. The High Court has also referred to the special circumstances under which the small plots were sold and their price was fixed. We agree with the High Court that the price paid for small plots of land cannot provide a safe criterion for determining the amount of compensation for a vast area of23 of the Land Acquisition Act provides that in mining the amount of compensation t o, be awarded for the land acquired under the Act, the Court shall take into. account inter alia the market value of the land at the date of the publication of the notification under section 4 of the Act. The market value means the price that a willing purchaser would pay to a willing seller for the property having due regard to its existing condition with all its existing advantages and its potential possibilities when laid out in the most advantageous manner excluding any advantage due to the carrying out of the scheme for which the property is compulsorily acquired. In considering market value the disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy should be disregarded. There is an element of guess-work inherent in most cases involving determination of the market value of the acquired land. But this in the very nature of things cannot be helped. The essential thing is to keep in view the relevant factors prescribed by the Act. If the judgment of the High Court reveals that it has taken into consideration the relevant factors, the assessment of the market value of the acquired land should not be disturbed (see Thakur Kanta Prasad Singh (dead) by Lrs. v. State of Bihar (A.I.R. 1976 S.C. 2219.). | 0 | 1,121 | 353 | ### 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:
This is an appeal on certificate by Prithvi Raj Taneja (now deceased and represented by his legal representatives) against the judgment of the Madhya Pradesh High Court whereby the High Court partially accepted the appeal filed by the appellant regarding the quantum of compensation for the acquisition of land.2. A plot of land measuring 27 bighas and 17 biswas situated in Ashok Nagar, district Guna, belonging to the appellant was acquired for the construction of a police station and residential quarters for policemen. A bigha, it is stated, is equivalent to 2, 500 square yards. The land sought to be acquired measured 68, 658 square yards. Notification under section 4 of the Land Acquisition Act for the acquisition of the land was issued on April 7, 1961. The Land Acquisition Officer as per award dated June 13, 1961 awarded compensation for the land at the rate of Rs. 100 per bigha. In addition to that, he awarded a sum of Rs. 1, 175 for large trees and Rs. 1, 380 for small trees standing on the land. The appellant was also awarded Rs. 1, 000 as compensation for a well which had been sunk in t he. land, and Rs. 800 for a house standing on the land In all, the appellant was awarded a sum of Rs. 7, 616. including solatium at the rate. of fifteen per cent by the Land Acquisition Officer.3. The appellant wanted compensation for the land at the rate of Rs. 10 per square yard. He accordingly had the matter referred to the District Judge. Learned Additional District Judge determined the market value of the land in questi on to be Rs. 900 per bigha. Regarding the well, the Additional District Judge awarded compensation of Rs. 3, 000 as against the amount of Rs. 1, 000 which had been awarded by the Land Acquisition Officer. In other respects, the award of the Land Acquisition Officer was upheld. Computing solatium at the rate of 10 per cent, the. total amount awarded by District Judge to the appellant was Rs. 32, 285 besides interest at the rate of six per cent per annum.The appellant not being satisfied with the award of the Additional District Judge took the matter in appeal to the High Court. The High Court awarded compensation to the appellant at the rat e of Re. 1. per square yard for the land in question. The High Court also awarded Rs. 2, 500 for the loss of earnings to the appellant. The rate of solatium for compulsory acquisition was increased by the High Court from ten per cent to, fifteen per cent. In all, the appellant was held entitled to a compensation of Rs. 88, 381 besides interest at the rate of six per cent per annum.4. The appellant thereupon obtained a certificate of fitness for appeal to this Court under article 133(1)(a) of the Constitution, as it stood at that time.5. In appeal before us, Mr. Andley on behalf of the appellant has argued that more than half of the land in dispute is within the municipal limits of Ashok Nagar Municipality, while the remaining land was also likely to be included within those limits shortly. It is further stated that the land in question abutts Ashok Nagar-Isagarh Road and is situated near the tehsil building and the. railway station. Learned counsel has also referred to the fact that small plots of land adjoining the land in dispute were sold at rates of Rs. 9 and Rs. 8 per square yard during the years 1958 to 1960. In this respect, we find that the High Court has considered most of the above circumstances and has come to the conclusion that Re. 1 per square yard represents fair market value of the land in dispute. The High Court has also referred to the special circumstances under which the small plots were sold and their price was fixed. We agree with the High Court that the price paid for small plots of land cannot provide a safe criterion for determining the amount of compensation for a vast area of land. We may in this context refer to a recent judgment in the case of Smt. Padma Uppal etc. v. State of Punjab &Ors. ([1977] 1 S.C.R. 329, ) wherein this Court observed that it is well settled that in determining compensation the value fetched for small plots of land cannot be applied to the lands covering a very large area and that the large area of land cannot possibly fetch a price at the same rate at which small plots are sold.Section 23 of the Land Acquisition Act provides that in mining the amount of compensation t o, be awarded for the land acquired under the Act, the Court shall take into. account inter alia the market value of the land at the date of the publication of the notification under section 4 of the Act. The market value means the price that a willing purchaser would pay to a willing seller for the property having due regard to its existing condition with all its existing advantages and its potential possibilities when laid out in the most advantageous manner excluding any advantage due to the carrying out of the scheme for which the property is compulsorily acquired. In considering market value the disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy should be disregarded. There is an element of guess-work inherent in most cases involving determination of the market value of the acquired land. But this in the very nature of things cannot be helped. The essential thing is to keep in view the relevant factors prescribed by the Act. If the judgment of the High Court reveals that it has taken into consideration the relevant factors, the assessment of the market value of the acquired land should not be disturbed (see Thakur Kanta Prasad Singh (dead) by Lrs. v. State of Bihar (A.I.R. 1976 S.C. 2219.).6.
### Response:
0
### Explanation:
In this respect, we find that the High Court has considered most of the above circumstances and has come to the conclusion that Re. 1 per square yard represents fair market value of the land in dispute. The High Court has also referred to the special circumstances under which the small plots were sold and their price was fixed. We agree with the High Court that the price paid for small plots of land cannot provide a safe criterion for determining the amount of compensation for a vast area of23 of the Land Acquisition Act provides that in mining the amount of compensation t o, be awarded for the land acquired under the Act, the Court shall take into. account inter alia the market value of the land at the date of the publication of the notification under section 4 of the Act. The market value means the price that a willing purchaser would pay to a willing seller for the property having due regard to its existing condition with all its existing advantages and its potential possibilities when laid out in the most advantageous manner excluding any advantage due to the carrying out of the scheme for which the property is compulsorily acquired. In considering market value the disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy should be disregarded. There is an element of guess-work inherent in most cases involving determination of the market value of the acquired land. But this in the very nature of things cannot be helped. The essential thing is to keep in view the relevant factors prescribed by the Act. If the judgment of the High Court reveals that it has taken into consideration the relevant factors, the assessment of the market value of the acquired land should not be disturbed (see Thakur Kanta Prasad Singh (dead) by Lrs. v. State of Bihar (A.I.R. 1976 S.C. 2219.).
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Morvi Industries Ltd Vs. Commissioner Of Income Tax (Central)Calcutta | we find that according to Cl. 2 (e) of the Managing Agency Agreement reproduced above, the commission for the two years in question became due to the appellant on the 31st day of December, 1954 and 31st day of December, 1955. The appellant also became entitled to receive fixed office allowance of Rs. 12,000,/- for each of the two years. It, therefore, can be said that the income of Rs. 50, 719/- had accrued to the appellant on 31st December, 1954 and of Rs. 13,973/- on 31st December, 1955. The fact that the payment of the managing agency commission was deferred till after the accounts had been passed in the meetings of the managed company did not affect the accrual of the income of those amounts on December 31, 1954 and December 31, 1955 respectively. According to Section 4 (1) (b) (i) of the Act, subject to the provisions of this Act, the total income of any previous year of any person includes all income profits and gains from whatever source derived which if such person is resident in the taxable territories during such year accrue or arise or are deemed to accrue or arise to him in the taxable territories during such year. The dictionary meaning of the word "accrue is "to come as an accession, increment, or produced to fall to one by way of advantage; to fall due." The income can thus be said to accrue when it becomes due. The postponement of the date of payment has a bearing only in so far as the time of payment is concerned, but it does not affect the accrual of income. The moment the income accrues, the assessee gets vested with the right to claim that amount even though it may not be immediately. There also arises a corresponding liability of the other party from whom the income becomes due to pay that amount. The further fact that the amount of income is not subsequently received by, the assessee would also not detract from or efface the accrual of the income, although that non-receipt may, in appropriate cases, be a valid ground for claiming deductions. The accrual of an income is not to be equated with the receipt of the income. That the two, accrual and receipt of income, have different connotations is also clear from the language of Section 4 of the Act. Clause (a) of sub-see. (1) of Section 4 of the Act deals with the receipt of income while the accrual of income is dealt with in Clause (b) of that sub-section.12. The appellant-company admittedly was maintaining its account according to the mereantile system. It is well known that the mercantile system of accounting differs substantially from the cash system of book keeping. Under the cash system, it is only actual cash receipts and actual cash payments that are recorded as credits and debits, whereas under the mercantile system, credit entries are made in respect of amounts due immediately they become legally due and before they are actually received similarly, the expenditure items for which legal liability has been incured are immediately debited even before the amounts in question are actually disbursed. Where accounts are kept on mercantile basis, the profits or gains are credited though they are not actually realised and the entries thus made really show nothing more than an accrual or arising of the said profits at the material time. The same is the position with regard to debits made.(See Indermani Jatia v. Commissioner of Income Tax U. P., 35 ITR 298 = (AIR 1959 SC 82 )13. In the case of Commissioner of Income Tax Bombay City 1 v. M/s. Shoorji Vallabhdas and Co., (1962) 46 ITR 44 (SC), Hidyantullah, J. (as he then was) speaking for the Court observed "Income-tax is a levy on income. No doubt, the Income-tax Act takes into account two points of time at which the liability to tax is attracted, viz, the accrual of the income or its receipt; but the substance of the matter is the income. If income does not result at all, there cannot be a tax, even though in bookkeeping an entry is made about a "hypothetical income, which does not materialise.Where income has, in fact, been received and is subsequently given up in such circumstances that it remains the income of the recipient, even though given up, the tax may be payable. Where, however, the income can be said not to have resulted at all there is obviously neither accrual nor receipt of income, even though an entry to that effort might in certain circumstances, have been made in the books of account."14. The assessee firm, who was the managing agent of two shipping companies in that case, gave up 75% of the managing agency commission with a view to get the managing agency transferred to two private companies. It was held that this was not a case of a gift by the assessee to the managed companies of a portion of income which had already accrued but an agreement to receive a lesser remuneration than what had been agreed upon.In the present case, the amounts of income for the two years in question were given up unilaterally after they had accrued to the appellant company. As such, the appellant could not escape the tax liability or those amounts.15. Coming to the second question, we find that the appellant could claim deduction of the amounts under Section 10 (2) (xv) of the Act if the amounts had represented an expenditure laid out or expended wholly and exclusively for the business of the appellant. There is, however, nothing to show that the amounts were relinquished for the purpose of the appellants business. The present is not a case wherein the amount due to the assessee were given up on grounds of commercial expediency or for advancing the business interest at the assessee. The conclusion of the learned Judges of the High Court in this respect, in our opinion, is well founded. | 0[ds]11. So far as the first question is concerned, we find that according to Cl. 2 (e) of the Managing Agency Agreement reproduced above, the commission for the two years in question became due to the appellant on the 31st day of December, 1954 and 31st day of December, 1955. The appellant also became entitled to receive fixed office allowance of Rs. 12,000,/- for each of the two years. It, therefore, can be said that the income of Rs. 50, 719/- had accrued to the appellant on 31st December, 1954 and of Rs. 13,973/- on 31st December, 1955. The fact that the payment of the managing agency commission was deferred till after the accounts had been passed in the meetings of the managed company did not affect the accrual of the income of those amounts on December 31, 1954 and December 31, 1955 respectively. According to Section 4 (1) (b) (i) of the Act, subject to the provisions of this Act, the total income of any previous year of any person includes all income profits and gains from whatever source derived which if such person is resident in the taxable territories during such year accrue or arise or are deemed to accrue or arise to him in the taxable territories during such year. The dictionary meaning of the word "accrue is "to come as an accession, increment, or produced to fall to one by way of advantage; to fall due." The income can thus be said to accrue when it becomes due. The postponement of the date of payment has a bearing only in so far as the time of payment is concerned, but it does not affect the accrual of income. The moment the income accrues, the assessee gets vested with the right to claim that amount even though it may not be immediately. There also arises a corresponding liability of the other party from whom the income becomes due to pay that amount. The further fact that the amount of income is not subsequently received by, the assessee would also not detract from or efface the accrual of the income, although that non-receipt may, in appropriate cases, be a valid ground for claiming deductions. The accrual of an income is not to be equated with the receipt of the income. That the two, accrual and receipt of income, have different connotations is also clear from the language of Section 4 of the Act. Clause (a) of sub-see. (1) of Section 4 of the Act deals with the receipt of income while the accrual of income is dealt with in Clause (b) of that sub-section.12. The appellant-company admittedly was maintaining its account according to the mereantile system. It is well known that the mercantile system of accounting differs substantially from the cash system of book keeping. Under the cash system, it is only actual cash receipts and actual cash payments that are recorded as credits and debits, whereas under the mercantile system, credit entries are made in respect of amounts due immediately they become legally due and before they are actually received similarly, the expenditure items for which legal liability has been incured are immediately debited even before the amounts in question are actually disbursed. Where accounts are kept on mercantile basis, the profits or gains are credited though they are not actually realised and the entries thus made really show nothing more than an accrual or arising of the said profits at the material time. The same is the position with regard to debits made.(See Indermani Jatia v. Commissioner of Income Tax U. P., 35 ITR 298 = (AIR 1959 SC 82 )13. In the case of Commissioner of Income Tax Bombay City 1 v. M/s. Shoorji Vallabhdas and Co., (1962) 46 ITR 44 (SC), Hidyantullah, J. (as he then was) speaking for the Court observed "Income-tax is a levy on income. No doubt, the Income-tax Act takes into account two points of time at which the liability to tax is attracted, viz, the accrual of the income or its receipt; but the substance of the matter is the income. If income does not result at all, there cannot be a tax, even though in bookkeeping an entry is made about a "hypothetical income, which does not materialise.Where income has, in fact, been received and is subsequently given up in such circumstances that it remains the income of the recipient, even though given up, the tax may be payable. Where, however, the income can be said not to have resulted at all there is obviously neither accrual nor receipt of income, even though an entry to that effort might in certain circumstances, have been made in the books of account."14. The assessee firm, who was the managing agent of two shipping companies in that case, gave up 75% of the managing agency commission with a view to get the managing agency transferred to two private companies. It was held that this was not a case of a gift by the assessee to the managed companies of a portion of income which had already accrued but an agreement to receive a lesser remuneration than what had been agreed upon.In the present case, the amounts of income for the two years in question were given up unilaterally after they had accrued to the appellant company. As such, the appellant could not escape the tax liability or those amounts.15. Coming to the second question, we find that the appellant could claim deduction of the amounts under Section 10 (2) (xv) of the Act if the amounts had represented an expenditure laid out or expended wholly and exclusively for the business of the appellant. There is, however, nothing to show that the amounts were relinquished for the purpose of the appellants business. The present is not a case wherein the amount due to the assessee were given up on grounds of commercial expediency or for advancing the business interest at the assessee. The conclusion of the learned Judges of the High Court in this respect, in our opinion, is well founded. | 0 | 2,570 | 1,148 | ### 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:
we find that according to Cl. 2 (e) of the Managing Agency Agreement reproduced above, the commission for the two years in question became due to the appellant on the 31st day of December, 1954 and 31st day of December, 1955. The appellant also became entitled to receive fixed office allowance of Rs. 12,000,/- for each of the two years. It, therefore, can be said that the income of Rs. 50, 719/- had accrued to the appellant on 31st December, 1954 and of Rs. 13,973/- on 31st December, 1955. The fact that the payment of the managing agency commission was deferred till after the accounts had been passed in the meetings of the managed company did not affect the accrual of the income of those amounts on December 31, 1954 and December 31, 1955 respectively. According to Section 4 (1) (b) (i) of the Act, subject to the provisions of this Act, the total income of any previous year of any person includes all income profits and gains from whatever source derived which if such person is resident in the taxable territories during such year accrue or arise or are deemed to accrue or arise to him in the taxable territories during such year. The dictionary meaning of the word "accrue is "to come as an accession, increment, or produced to fall to one by way of advantage; to fall due." The income can thus be said to accrue when it becomes due. The postponement of the date of payment has a bearing only in so far as the time of payment is concerned, but it does not affect the accrual of income. The moment the income accrues, the assessee gets vested with the right to claim that amount even though it may not be immediately. There also arises a corresponding liability of the other party from whom the income becomes due to pay that amount. The further fact that the amount of income is not subsequently received by, the assessee would also not detract from or efface the accrual of the income, although that non-receipt may, in appropriate cases, be a valid ground for claiming deductions. The accrual of an income is not to be equated with the receipt of the income. That the two, accrual and receipt of income, have different connotations is also clear from the language of Section 4 of the Act. Clause (a) of sub-see. (1) of Section 4 of the Act deals with the receipt of income while the accrual of income is dealt with in Clause (b) of that sub-section.12. The appellant-company admittedly was maintaining its account according to the mereantile system. It is well known that the mercantile system of accounting differs substantially from the cash system of book keeping. Under the cash system, it is only actual cash receipts and actual cash payments that are recorded as credits and debits, whereas under the mercantile system, credit entries are made in respect of amounts due immediately they become legally due and before they are actually received similarly, the expenditure items for which legal liability has been incured are immediately debited even before the amounts in question are actually disbursed. Where accounts are kept on mercantile basis, the profits or gains are credited though they are not actually realised and the entries thus made really show nothing more than an accrual or arising of the said profits at the material time. The same is the position with regard to debits made.(See Indermani Jatia v. Commissioner of Income Tax U. P., 35 ITR 298 = (AIR 1959 SC 82 )13. In the case of Commissioner of Income Tax Bombay City 1 v. M/s. Shoorji Vallabhdas and Co., (1962) 46 ITR 44 (SC), Hidyantullah, J. (as he then was) speaking for the Court observed "Income-tax is a levy on income. No doubt, the Income-tax Act takes into account two points of time at which the liability to tax is attracted, viz, the accrual of the income or its receipt; but the substance of the matter is the income. If income does not result at all, there cannot be a tax, even though in bookkeeping an entry is made about a "hypothetical income, which does not materialise.Where income has, in fact, been received and is subsequently given up in such circumstances that it remains the income of the recipient, even though given up, the tax may be payable. Where, however, the income can be said not to have resulted at all there is obviously neither accrual nor receipt of income, even though an entry to that effort might in certain circumstances, have been made in the books of account."14. The assessee firm, who was the managing agent of two shipping companies in that case, gave up 75% of the managing agency commission with a view to get the managing agency transferred to two private companies. It was held that this was not a case of a gift by the assessee to the managed companies of a portion of income which had already accrued but an agreement to receive a lesser remuneration than what had been agreed upon.In the present case, the amounts of income for the two years in question were given up unilaterally after they had accrued to the appellant company. As such, the appellant could not escape the tax liability or those amounts.15. Coming to the second question, we find that the appellant could claim deduction of the amounts under Section 10 (2) (xv) of the Act if the amounts had represented an expenditure laid out or expended wholly and exclusively for the business of the appellant. There is, however, nothing to show that the amounts were relinquished for the purpose of the appellants business. The present is not a case wherein the amount due to the assessee were given up on grounds of commercial expediency or for advancing the business interest at the assessee. The conclusion of the learned Judges of the High Court in this respect, in our opinion, is well founded.
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according to Cl. 2 (e) of the Managing Agency Agreement reproduced above, the commission for the two years in question became due to the appellant on the 31st day of December, 1954 and 31st day of December, 1955. The appellant also became entitled to receive fixed office allowance of Rs. 12,000,/- for each of the two years. It, therefore, can be said that the income of Rs. 50, 719/- had accrued to the appellant on 31st December, 1954 and of Rs. 13,973/- on 31st December, 1955. The fact that the payment of the managing agency commission was deferred till after the accounts had been passed in the meetings of the managed company did not affect the accrual of the income of those amounts on December 31, 1954 and December 31, 1955 respectively. According to Section 4 (1) (b) (i) of the Act, subject to the provisions of this Act, the total income of any previous year of any person includes all income profits and gains from whatever source derived which if such person is resident in the taxable territories during such year accrue or arise or are deemed to accrue or arise to him in the taxable territories during such year. The dictionary meaning of the word "accrue is "to come as an accession, increment, or produced to fall to one by way of advantage; to fall due." The income can thus be said to accrue when it becomes due. The postponement of the date of payment has a bearing only in so far as the time of payment is concerned, but it does not affect the accrual of income. The moment the income accrues, the assessee gets vested with the right to claim that amount even though it may not be immediately. There also arises a corresponding liability of the other party from whom the income becomes due to pay that amount. The further fact that the amount of income is not subsequently received by, the assessee would also not detract from or efface the accrual of the income, although that non-receipt may, in appropriate cases, be a valid ground for claiming deductions. The accrual of an income is not to be equated with the receipt of the income. That the two, accrual and receipt of income, have different connotations is also clear from the language of Section 4 of the Act. Clause (a) of sub-see. (1) of Section 4 of the Act deals with the receipt of income while the accrual of income is dealt with in Clause (b) of that sub-section.12. The appellant-company admittedly was maintaining its account according to the mereantile system. It is well known that the mercantile system of accounting differs substantially from the cash system of book keeping. Under the cash system, it is only actual cash receipts and actual cash payments that are recorded as credits and debits, whereas under the mercantile system, credit entries are made in respect of amounts due immediately they become legally due and before they are actually received similarly, the expenditure items for which legal liability has been incured are immediately debited even before the amounts in question are actually disbursed. Where accounts are kept on mercantile basis, the profits or gains are credited though they are not actually realised and the entries thus made really show nothing more than an accrual or arising of the said profits at the material time. The same is the position with regard to debits made.(See Indermani Jatia v. Commissioner of Income Tax U. P., 35 ITR 298 = (AIR 1959 SC 82 )13. In the case of Commissioner of Income Tax Bombay City 1 v. M/s. Shoorji Vallabhdas and Co., (1962) 46 ITR 44 (SC), Hidyantullah, J. (as he then was) speaking for the Court observed "Income-tax is a levy on income. No doubt, the Income-tax Act takes into account two points of time at which the liability to tax is attracted, viz, the accrual of the income or its receipt; but the substance of the matter is the income. If income does not result at all, there cannot be a tax, even though in bookkeeping an entry is made about a "hypothetical income, which does not materialise.Where income has, in fact, been received and is subsequently given up in such circumstances that it remains the income of the recipient, even though given up, the tax may be payable. Where, however, the income can be said not to have resulted at all there is obviously neither accrual nor receipt of income, even though an entry to that effort might in certain circumstances, have been made in the books of account."14. The assessee firm, who was the managing agent of two shipping companies in that case, gave up 75% of the managing agency commission with a view to get the managing agency transferred to two private companies. It was held that this was not a case of a gift by the assessee to the managed companies of a portion of income which had already accrued but an agreement to receive a lesser remuneration than what had been agreed upon.In the present case, the amounts of income for the two years in question were given up unilaterally after they had accrued to the appellant company. As such, the appellant could not escape the tax liability or those amounts.15. Coming to the second question, we find that the appellant could claim deduction of the amounts under Section 10 (2) (xv) of the Act if the amounts had represented an expenditure laid out or expended wholly and exclusively for the business of the appellant. There is, however, nothing to show that the amounts were relinquished for the purpose of the appellants business. The present is not a case wherein the amount due to the assessee were given up on grounds of commercial expediency or for advancing the business interest at the assessee. The conclusion of the learned Judges of the High Court in this respect, in our opinion, is well founded.
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Chitturi Subbanna Vs. Kudapa Subbanna & Others | inclined to think that the rent of Rs. 6 per month might be fixed in regard to these items."The reasons given by the Subordinate Judge for fixing the monthly rent at Rs. 4 are, in his own words :"The Commissioner has, however, fixed the mesne profits for these items at Rs. 2 per month. The Union tax itself on this house appears to be Rs. 6-4-0 per year. The annual tax is generally equivalent to about 2 months, rent. The tax may be taken as a fairly correct basis for fixing the mesne profits. In that case, the rate fixed by the Commissioner is too low and I would fix the profits for these items at Rs. 4 per month."41. Items Nos. 1, 4 and 8 : The Subordinate Judge fixed the actual profits for the land comprised in these items at Rs. 35 per acre. His reasons were :"It is seen from the evidence of R. W. 26 that the prices of land and maktas rose about 10 years after China Bapannas death which took place in 1915. If this statement were to be taken as correct and if, according to Exhibits P-10 and P-11, the rent realised by dry lands works out to Rs. 30 per acre, it cannot be said to be unreasonable or excessive to fix the profits on these dry lands at Rs. 35 per acre from 1925 onwards. It may also be remembered that prices rose after the close of the 1918 war. The Commissioner has fixed it at the rate of Rs. 30 only. I would, however, fix the profits on these dry lands at Rs. 35 per acre per year and the petitioner would be entitled to profits at this rate on items Nos. 1 and 4 and from 1926."The High Court reduced the rate of profits to Rs. 30 per acre for the period up to 1940 and raised it to Rs. 60 per year for the period 1941 to 1943 and stated, in this connection:"The learned Subordinate Judge increased rent from Rs. 30 to Rs. 35 without giving any reasons. We are inclined to hold that in respect of all these three items, the rate ought to have been fixed at Rs. 30 per year up to 1940. After 1940 there was an increase in prices. We are inclined to hold that for all these three items the rate might be fixed at Rs. 60 per year for the period 1941 to 1943."The High Court was in error in noting that the Subordinate Judge had given no reasons for raising the rate recommended by the Commissioner. It is really the High Court which gave no reason for lowering the rate up to 1940 and doubling the rate from 1941 onwards.42. Items Nos. 9, 10, 11 and 12 : We have already dealt with items Nos. 9, 10, 11 and 12 and shown how the High Court had gone wrong in increasing the rate of profits for them.43. Items Nos. 18 to 20: The Commissioner recommended profits at the rate of Rs. 30 a year. The Subordinate Judge agreed with him and so did the High Court, for the period up to 1940. It, however raised the rate to Rs. 60 a year from 1941 onward stating simply:-"But, so far as the years 1941 to 1943 are concerned, we think it would be reasonable to fix the rate at Rs. 60 per acre.”44. Items Nos. 2, 3, 5, 6 and 7: The High Court confirmed the findings of the Subordinate Judge with respect to the profits for the period up to 1940 but fixed the rate per bag at Rs. 10 for the period subsequent to 1941 stating:"However, for the years 1941 to 1943, we fix the rate per bag at Rs. 10 as the prices had increased after 1940."SCHEDULE C45. The Commissioner allowed profits at Rs. 30 per acre as in the case of dry lands. The Subordinate Judge fixed profits at Rs. 35 for the same reason as he had fixed that rate for dry lands of items Nos. 1, 4 and 8 of Schedule A. The High Court reduced the rate to Rs. 30 relying on leases Exhibits P.10 and P. 11 of 1915. It ignored the statement of R.W.26 considered by the Subordinate Judge, that rents increased from 1925.46. In view of what we have said above, we are unable to say that High Court was right in considering the rates of profits fixed by the Subordinate Judge to be wrong and in increasing the rate of profits for most of the items of Schedules A and C and, especially, for the period between 1926 and 1940.47. Two courses are now open for us. One is to set aside the decree for mesne profits and send back the case to the Court below for deciding it with respect to the quantum of mesne profits. The other is to set aside the decree of the High Court and restore that of the subordinate Judge with respect to the quantum of mesne profits up to March 7, 1941, in view of the facts that the mesne profits awarded against the appellant are for the period between 1926 and 1943 that any further enquiry about mesne profits would further put off a final decree for mesne profits. In view of such consideration, learned counsel for the appellant had expressed, without prejudice, his clients agreeing to the calculation of mesne profits at the rate determined by the trial Court and, consequently, to the decree for mesne profits passed by that Court, but the learned counsel for the decreeholder respondent had stated that his client would prefer a fresh decision of the High Court on the point in case this Court found that the High Court was not justified to raise the amount of mesne profits. The respondent is more interested in the early finalisation of the mesne profits than the appellant and so we would order in conformity with his wishes. | 1[ds]We agree with this contention.The question sought to be raised was pure question of law and was not dependent on the determination of any question of fact. The first appellate Court ought to have allowed it. Such pure questions of law are allowed for the first time at later stages too.5. The appellant could not have claimedand did not claima right to urge the new point which has not been taken in the grounds of appeal. He made a separate application for permission to take up that point. The procedure followed was in full conformity with what had been suggested in Wilson v. United Counties Bank, Ltd., 1920 AC 102 at p. 106, to thein exceptional cases parties desire to add new grounds to those of which they have given notice, it will usually be convenient, by a substantive application, to apply to the indulgence of the Court which is to hear theutmost that can be said is that both the parties theor, were under the impression that mesne profits could be awarded till the date of delivery of possession as directed by the decree of the High Court. The fact that the appellant raised no question at the trial Court, does not mean that he had given his consent for the determination of mesne profitsfor the periodsubsequent to the expiry of 3 years from the date of the High court decree and that the order of the trial Court for the payment of mesne profits upto the date of delivery of possession is an order based on the consent of the parties.12. In the circumstances of the case, we are not prepared to hold that the omission of the appellant to raise the point before the trial Court amounts to his waiving his right to raise the objection on the basis of O. 20, R, 12, C.P.C.In the present case the appellant did a not let the Trial Court determine the question of the period upto which mesne profits could be decreed as he had raised no controversy in this respect. He did not take a chance of the judgment being given one way or the other and therefore the attempt of the appellant to raise the question in the High Court was not to get round the judgment of the Court which happened to go against him.15. The Commissioner conducted the enquiry about mesne profits from August 29, 1946 till December 4, 1947. Suits for mesne profitseen March 7, 1941 and February 28, 1943 could not be instituted in August 1946 as the period of 3 yearshe institution of a suit formesne profits of those years had expired by then. It follows that even if the appellant had raised the objection that mesne profits could not be decreedfor the periodsubsequent to March 7, 1941 therespondent could not have sued in Court for the recovery of those mesne profits when he had failed to sue for them within the specified period of limitation and, therefore, could not have been prejudiced by the appellants raising the new ground at the hearing of the appeal.16. We are, therefore, of opinion that the High Court was in error in not allowing the appellant to urge this additional ground beforehave already held that the appellants conduct did not amount to his consenting to mesne profits being decreedfor the periodsubsequent to March 7, 1941.18. There is no provision of law other than the provision of R. 12, O. 20, C. P.C. which empowers the Court to decree mesne profits subsequent tothe institution ofa suit for the recovery ofpossession of immovable property and mesne profits. It is not disputed for the respondentthat R, 12, O. 20, does not empower a Court to direct an inqury and pass a final decree with respect to mesne profits for a period exceeding 3 years from the date of the decree. This is very clear from the language of thisprecedent case law is in favour of thent. The ratio decidendi mainly is that the Court had no power to pass a decree against the clear provisions of R. 12, O. 20, and that, therefore, the decree should be so construed as to be in accordance with these provisions.19. The law with respect to the decree for mesne profits had been changing from time to time, but all the same the expressions in the decree about the period for which mesne profits were to be awarded have been considered to be matters of construction and had been construed in accordance with the law at the relevantprinciple enunciated in this case about the construction of the decree for mesne profitsfor the periodof dispossession was followed subsequently by the various High Courts on the ground that the Court had no power to award mesne profits for a period beyond three years from the date of the decree and that, therefore, the decree should be construed to be subject to the condition that if possession is not delivered within three years of the decree, the mesne profits would be awardedfor the periodof three years from the date of the decree. These views were expressed in connection with decrees which either did not specify any period for the payment of mesne profits or expressly stated that mesne profits would be payable only until delivery of possession.We are, therefore, of opinion that it is open to the Court to construe the direction in the preliminary decree about the inquiry with respect to future mesne profits when such direction is not so fully expressed as to cover all the alternatives mentioned in O. 20, R. 12 (1) (c), C. P. C. and to hold that the decree be construed in accordance with thoseobject of S. 97 is that questions which had been urged by the parties and decided by the Court at the stage of the preliminary decree will not be open forat the stage of the preparation of the final decree and would be taken as finally decided if no appeal had been preferred against the preliminary decree. The provisions of this section appear to be inapplicable to the present case.27. The preliminary decree directed an inquiry about the mesne profits from the date ofthe institution ofthe suit upto the date of delivery of possession to ther could not have felt aggrieved against this order. Thecould not have insisted for detailing all the various alternatives mentioned in O. 20, R. 12 (1)(c) and he could not have expected that possession would not be taken within three years of the decree. The direction about the enquiry with respect to future mesne profits does not amount to an adjudication and certainly does not amount to an adjudication of any controversy between the parties in the suit. It has no reference to any cause of action which had arisen in favour of thehe institution ofthe suit. The direction was given on account of a special power given to the Court under O. 20, R. 12 (1)(c) of the Code to make such a direction if it considered it fit to do so. It was within the discretion of the Court to make the direction or not. The Court does not decide, when making such a direction, the period for which thewould be entitled to get mesne profits. No such point can be raised before it. Theliability to mesne profits arose under the ordinary law and a suit for realizing mesne profits could be separately filed by theThe provisions of O. 20, R.12 (1)(c), are just to avoid multiplicity of suits with consequent harassment to the parties. The mere fact that the direction for an enquiry into mesne profits is contained in a preliminary decree does not make it such a part of the decree against which alone appeal could have been filed. The appeal could be filed only after a final decree is passed decreeing certain amount for mesne profits to theIt follows that the question about the proper period for which mesne profits was to be decreed really comes up for decision at the time of passing the final decree by which time the parties in the suit would be in a position to know the exact period for which future mesne profits could be decreed in view of the provisions of O. 20, R. 12(1)(c).28. The direction in the preliminary decree cannot operate, in terms of S. 11, C. P. C. or on general principles, as res judicata, for the simple reason, as stated earlier, that the direction is not based on the decision of any matter in controversy between the parties and is given in the exercise of the power vested in the Court under O. 20, R. 12 (1)(c). Again, for similar reasons, the principle that a Court can decide a question within its jurisdiction wrongly as well as rightly and, if the decision said to be wrong had become final, the Courts have to respect it, will not apply to these cases.29. We, therefore, hold that the judgmentdebtor appellant is not precluded from contending that mesne profits could not be awarded for a period exceeding three years from the date of the decree.30. We may now consider the question from another aspect. Rule 12, O. 20, C. P. C. requires the Court to direct at the time of passing the preliminary decree, an inquiry as to mesne profits frominstitution of the suit untilthe actual delivery of possession of the property to theor until the expiration of three years from the date of the decree whichever event first occurs. The Court at the time of the passing of the decree is not in a position to say which of the three events mentioned in cl. (c) of(1) of R. 12 will determine the period for which mesne profits would be payable to theEither, therefore, the Court has to repeat the various alternatives mentioned in this clause in the judgment and the decree which is to follow the judgment or the judgment and the decree for mesne profit is to be construed in accordance with these provisions. It is preferable to construe it in this way rather than to insist that the Court should mechanically repeat in the judgment and decree the various provisions of cl. (c). It may sometimes even happen that the enquiry into mesne profits is completed before the expiry of 3 years and the final decree follows in due course while in fact no possession had been delivered by them. It would not be possible for the judgmentdebtor to contend at that time that the decree has not been properly prepared and that it should state that in case possession is not delivered within the period of three years, mesne profits would be payable onlyfor the periodof three years from the date of the decree. It does not appear to be desirable that the passing of the final decree be put off till either possession is delivered or a period of three years had expired from the date of the decree.31. Lastly, we may draw attention to a possibility of thegaining by his own default, if he did not take possession for a period longer than 3 years after the date of the decree, when the decree did not specify the period for which mesne profits would be allowed or merely stated that mesne profits would be paid until delivery of possession. the law did not contemplate such a case and, therefore, clearly provided the maximum period for which mesne profits would be allowed to theafter the passing of the decree. Such a case was ILR (1959) 1 All 114 : (AIR 1959 All 242 ).32. We, therefore, hold that a decree under R.12, O. 20, C. P. C. directing enquiry into the mesne profits, however, expressed, must be construed to be a decree directing the enquiry into the mesne profits in conformity with the requirements of R.12 (1)(c) of O. 20 and that thein this case cannot get mesne profitsfor the periodsubsequent to March 7, 1941 when the three years period from the date of the High Court decreeare of opinion that the High Court had not really come to grips with the question of proper mesne profits and that it varied the rates in most cases, without expressing its reasons for holding that the Subordinate Judge was wrong in his findings regarding the quantum of mesne profits. This is clear from certain circumstances. The first is that the High Court overlooked the period of depression in considering the quantum of mesne profits.The trial Court fixed at first a normal rate, i.e., a rate which was considered adequate for the first and the last period, then made allowancefor the periodof depression and calculated mesne profits at a lower rate for the ten years between 1931 and 1940. The High Court appears to have missed noticing the fact of the trial Court calculating mesne profits at a lower ratefor the periodof ten years. It fixed one ratefor the period1926 to 1940 and another ratefor the period1941 to 1943, and thus overlooked the long period of depression. It is on this account that the mesne profits ordered by the High Court are very much higher than what were fixed by the trial Court. If this fact had not been ignored, the difference between the two amounts would not have been so much and might have been in the neighbourhood of Rs. 2,000 plus a corresponding increase in the amount of interest. The High Court appears to have missed this point as it was considered by the learned Subordinate Judge practically at the end of his judgment, at para. 25. Below is given the Table showing reduced rates of profits allowed by the Subordinate Judgefor the periodhe basis for raising the amount of mesne profits vanishes, when the High Court finally agrees with the Subordinate Judge that the tax would be Re. 1.39. Another consideration is that the Subordinate Judge calculated mesne profits for item No. 12, consisting of dry land, at Rs. 35 per acre. The High Court enhanced the amount to Rs. 50 per acre, probably thinking that garden crops could be raised on this land as itlearned Subordinate Judge stated in paragraph 18 that garden crops could be grown on the surroundingis not a very precise summing up of what the Subordinate Judge had said in para. 18 of hisSubordinate Judge did not fix the rate on the basis that garden crops could be raised or were raised on the land of item No. 12 and fixed the rate on the basis that it was dry land. The Commissioner too does not appear to have fixed the rate on the basis that garden crops could be raised on thisHigh Court was in error in noting that the Subordinate Judge had given no reasons for raising the rate recommended by the Commissioner. It is really the High Court which gave no reason for lowering the rate up to 1940 and doubling the rate from 1941 onwards.In view of what we have said above, we are unable to say that High Court was right in considering the rates of profits fixed by the Subordinate Judge to be wrong and in increasing the rate of profits for most of the items of Schedules A and C and, especially,for the periodbetween 1926 and 1940.47. Two courses are now open for us. One is to set aside the decree for mesne profits and send back the case to the Court below for deciding it with respect to the quantum of mesne profits. The other is to set aside the decree of the High Court and restore that of the subordinate Judge with respect to the quantum of mesne profits up to March 7, 1941, in view of the facts that the mesne profits awarded against the appellant arefor the periodbetween 1926 and 1943 that any further enquiry about mesne profits would further put off a final decree for mesne profits. In view of such consideration, learned counsel for the appellant had expressed, without prejudice, his clients agreeing to the calculation of mesne profits at the rate determined by the trial Court and, consequently, to the decree for mesne profits passed by that Court, but the learned counsel for the decreeholder respondent had stated that his client would prefer a fresh decision of the High Court on the point in case this Court found that the High Court was not justified to raise the amount of mesne profits. The respondent is more interested in the early finalisation of the mesne profits than the appellant and so we would order in conformity with his wishes. | 1 | 8,924 | 3,009 | ### Instruction:
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inclined to think that the rent of Rs. 6 per month might be fixed in regard to these items."The reasons given by the Subordinate Judge for fixing the monthly rent at Rs. 4 are, in his own words :"The Commissioner has, however, fixed the mesne profits for these items at Rs. 2 per month. The Union tax itself on this house appears to be Rs. 6-4-0 per year. The annual tax is generally equivalent to about 2 months, rent. The tax may be taken as a fairly correct basis for fixing the mesne profits. In that case, the rate fixed by the Commissioner is too low and I would fix the profits for these items at Rs. 4 per month."41. Items Nos. 1, 4 and 8 : The Subordinate Judge fixed the actual profits for the land comprised in these items at Rs. 35 per acre. His reasons were :"It is seen from the evidence of R. W. 26 that the prices of land and maktas rose about 10 years after China Bapannas death which took place in 1915. If this statement were to be taken as correct and if, according to Exhibits P-10 and P-11, the rent realised by dry lands works out to Rs. 30 per acre, it cannot be said to be unreasonable or excessive to fix the profits on these dry lands at Rs. 35 per acre from 1925 onwards. It may also be remembered that prices rose after the close of the 1918 war. The Commissioner has fixed it at the rate of Rs. 30 only. I would, however, fix the profits on these dry lands at Rs. 35 per acre per year and the petitioner would be entitled to profits at this rate on items Nos. 1 and 4 and from 1926."The High Court reduced the rate of profits to Rs. 30 per acre for the period up to 1940 and raised it to Rs. 60 per year for the period 1941 to 1943 and stated, in this connection:"The learned Subordinate Judge increased rent from Rs. 30 to Rs. 35 without giving any reasons. We are inclined to hold that in respect of all these three items, the rate ought to have been fixed at Rs. 30 per year up to 1940. After 1940 there was an increase in prices. We are inclined to hold that for all these three items the rate might be fixed at Rs. 60 per year for the period 1941 to 1943."The High Court was in error in noting that the Subordinate Judge had given no reasons for raising the rate recommended by the Commissioner. It is really the High Court which gave no reason for lowering the rate up to 1940 and doubling the rate from 1941 onwards.42. Items Nos. 9, 10, 11 and 12 : We have already dealt with items Nos. 9, 10, 11 and 12 and shown how the High Court had gone wrong in increasing the rate of profits for them.43. Items Nos. 18 to 20: The Commissioner recommended profits at the rate of Rs. 30 a year. The Subordinate Judge agreed with him and so did the High Court, for the period up to 1940. It, however raised the rate to Rs. 60 a year from 1941 onward stating simply:-"But, so far as the years 1941 to 1943 are concerned, we think it would be reasonable to fix the rate at Rs. 60 per acre.”44. Items Nos. 2, 3, 5, 6 and 7: The High Court confirmed the findings of the Subordinate Judge with respect to the profits for the period up to 1940 but fixed the rate per bag at Rs. 10 for the period subsequent to 1941 stating:"However, for the years 1941 to 1943, we fix the rate per bag at Rs. 10 as the prices had increased after 1940."SCHEDULE C45. The Commissioner allowed profits at Rs. 30 per acre as in the case of dry lands. The Subordinate Judge fixed profits at Rs. 35 for the same reason as he had fixed that rate for dry lands of items Nos. 1, 4 and 8 of Schedule A. The High Court reduced the rate to Rs. 30 relying on leases Exhibits P.10 and P. 11 of 1915. It ignored the statement of R.W.26 considered by the Subordinate Judge, that rents increased from 1925.46. In view of what we have said above, we are unable to say that High Court was right in considering the rates of profits fixed by the Subordinate Judge to be wrong and in increasing the rate of profits for most of the items of Schedules A and C and, especially, for the period between 1926 and 1940.47. Two courses are now open for us. One is to set aside the decree for mesne profits and send back the case to the Court below for deciding it with respect to the quantum of mesne profits. The other is to set aside the decree of the High Court and restore that of the subordinate Judge with respect to the quantum of mesne profits up to March 7, 1941, in view of the facts that the mesne profits awarded against the appellant are for the period between 1926 and 1943 that any further enquiry about mesne profits would further put off a final decree for mesne profits. In view of such consideration, learned counsel for the appellant had expressed, without prejudice, his clients agreeing to the calculation of mesne profits at the rate determined by the trial Court and, consequently, to the decree for mesne profits passed by that Court, but the learned counsel for the decreeholder respondent had stated that his client would prefer a fresh decision of the High Court on the point in case this Court found that the High Court was not justified to raise the amount of mesne profits. The respondent is more interested in the early finalisation of the mesne profits than the appellant and so we would order in conformity with his wishes.
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not delivered within the period of three years, mesne profits would be payable onlyfor the periodof three years from the date of the decree. It does not appear to be desirable that the passing of the final decree be put off till either possession is delivered or a period of three years had expired from the date of the decree.31. Lastly, we may draw attention to a possibility of thegaining by his own default, if he did not take possession for a period longer than 3 years after the date of the decree, when the decree did not specify the period for which mesne profits would be allowed or merely stated that mesne profits would be paid until delivery of possession. the law did not contemplate such a case and, therefore, clearly provided the maximum period for which mesne profits would be allowed to theafter the passing of the decree. Such a case was ILR (1959) 1 All 114 : (AIR 1959 All 242 ).32. We, therefore, hold that a decree under R.12, O. 20, C. P. C. directing enquiry into the mesne profits, however, expressed, must be construed to be a decree directing the enquiry into the mesne profits in conformity with the requirements of R.12 (1)(c) of O. 20 and that thein this case cannot get mesne profitsfor the periodsubsequent to March 7, 1941 when the three years period from the date of the High Court decreeare of opinion that the High Court had not really come to grips with the question of proper mesne profits and that it varied the rates in most cases, without expressing its reasons for holding that the Subordinate Judge was wrong in his findings regarding the quantum of mesne profits. This is clear from certain circumstances. The first is that the High Court overlooked the period of depression in considering the quantum of mesne profits.The trial Court fixed at first a normal rate, i.e., a rate which was considered adequate for the first and the last period, then made allowancefor the periodof depression and calculated mesne profits at a lower rate for the ten years between 1931 and 1940. The High Court appears to have missed noticing the fact of the trial Court calculating mesne profits at a lower ratefor the periodof ten years. It fixed one ratefor the period1926 to 1940 and another ratefor the period1941 to 1943, and thus overlooked the long period of depression. It is on this account that the mesne profits ordered by the High Court are very much higher than what were fixed by the trial Court. If this fact had not been ignored, the difference between the two amounts would not have been so much and might have been in the neighbourhood of Rs. 2,000 plus a corresponding increase in the amount of interest. The High Court appears to have missed this point as it was considered by the learned Subordinate Judge practically at the end of his judgment, at para. 25. Below is given the Table showing reduced rates of profits allowed by the Subordinate Judgefor the periodhe basis for raising the amount of mesne profits vanishes, when the High Court finally agrees with the Subordinate Judge that the tax would be Re. 1.39. Another consideration is that the Subordinate Judge calculated mesne profits for item No. 12, consisting of dry land, at Rs. 35 per acre. The High Court enhanced the amount to Rs. 50 per acre, probably thinking that garden crops could be raised on this land as itlearned Subordinate Judge stated in paragraph 18 that garden crops could be grown on the surroundingis not a very precise summing up of what the Subordinate Judge had said in para. 18 of hisSubordinate Judge did not fix the rate on the basis that garden crops could be raised or were raised on the land of item No. 12 and fixed the rate on the basis that it was dry land. The Commissioner too does not appear to have fixed the rate on the basis that garden crops could be raised on thisHigh Court was in error in noting that the Subordinate Judge had given no reasons for raising the rate recommended by the Commissioner. It is really the High Court which gave no reason for lowering the rate up to 1940 and doubling the rate from 1941 onwards.In view of what we have said above, we are unable to say that High Court was right in considering the rates of profits fixed by the Subordinate Judge to be wrong and in increasing the rate of profits for most of the items of Schedules A and C and, especially,for the periodbetween 1926 and 1940.47. Two courses are now open for us. One is to set aside the decree for mesne profits and send back the case to the Court below for deciding it with respect to the quantum of mesne profits. The other is to set aside the decree of the High Court and restore that of the subordinate Judge with respect to the quantum of mesne profits up to March 7, 1941, in view of the facts that the mesne profits awarded against the appellant arefor the periodbetween 1926 and 1943 that any further enquiry about mesne profits would further put off a final decree for mesne profits. In view of such consideration, learned counsel for the appellant had expressed, without prejudice, his clients agreeing to the calculation of mesne profits at the rate determined by the trial Court and, consequently, to the decree for mesne profits passed by that Court, but the learned counsel for the decreeholder respondent had stated that his client would prefer a fresh decision of the High Court on the point in case this Court found that the High Court was not justified to raise the amount of mesne profits. The respondent is more interested in the early finalisation of the mesne profits than the appellant and so we would order in conformity with his wishes.
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GOPAL SINGH (DEAD) THROUGH LRS Vs. SWARAN SINGH | Jain, learned senior counsel for the respondents who are on caveat and also perused the written submissions submitted on behalf of the parties. 9. In this appeal, it is the case of the appellants that against the initial cancellation of sale vide order dated 17.06.1975 the vendees of the original transferee have approached the High Court in Civil Writ Petition No.5210 of 1975 and in view of the judgment dated 09.10.1979, after hearing all the necessary parties, order dated 28.03.1985 was passed by the competent authority, cancelling the sale and said order has become final and not challenged before the revenue authorities. It is the case of the appellants that the validity of the order dated 28.03.1985 cannot be the subject matter of challenge before the civil court in view of the bar under Section 16 of the Act. It is further submitted that in view of the opportunity provided by the authorities judgment relied on by the High Court cannot be applied having regard to the facts and circumstances. It is submitted that in any event the finding recorded by the first appellate court that suit is not maintainable for not issuing notice under Section 80 of the CPC is not interfered with and without recording any finding Second Appeal is allowed. 10. On the other hand, it is the case of the respondent- plaintiffs that respondent-plaintiffs are bonafide purchasers of the suit land for a valuable consideration and in similar cases this Court has dismissed the Special Leave Petitions, as such, there is no ground to interfere with the same. It is further submitted that in any event, in view of Section 41 of the Transfer of Property Act 1882, Civil Court is competent to entertain the suit for grant of relief as prayed for. It is also pleaded that defect in the prayer, if any, for quashing the order dated 28.03.1985, may not come in the way of the respondent-plaintiffs for seeking relief of declaration of their title which is to be protected in view of the provision under Section 41 of the Transfer of Property Act 1882. 11. Having heard learned counsel on both sides, we have perused the impugned judgment and the judgments of the lower appellate court and the trial court. 12. It is not in dispute that originally land was put to restricted auction to sell the land under the provisions of the Act and the Rules framed thereunder. There are restrictions on the alienation of the land as per the original transfer. At first instance when the order of cancellation was passed, matter was carried to High Court and the High Court has disposed of the petition by directing the authorities not to take steps for eviction of the petitioners therein unless they are provided opportunity before passing appropriate order. After order was passed by the High Court, order dated 28.03.1985 was passed cancelling the transfer and further allotment made in favour of the appellants herein was confirmed. Section 16 of the Act reads as under :?16. Bar of jurisdiction and finality of orders (1) Save as otherwise expressly provided in this Act, every order made by any officer or authority under this Act shall be final and no Civil Court shall have jurisdiction to entertain any suit or proceeding, in respect of any matter which the State Government, or any officer or authority apopinted under this Act is empowered by or under this Act to determine, and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act. (2) Nothing in the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973, shall apply to package deal property.?13. From a reading of the aforesaid provision, it is clear that every order made by any officer or authority under the said Act is final and no Civil Court shall have jurisdiction to entertain any suit or proceeding and no injunction shall be granted by any court or other authority in respect of any action taken under provisions of the Act. The first appellate court, by applying the aforesaid provision, has clearly recorded a finding that the suit is barred and further it was also held that suit is not maintainable against the State and its authorities, who are defendant nos.1 to 4, without issuing notice under Section 80 of CPC. There is also nothing on record seeking leave from the court for dispensing with issuance of notice as provided under Section 80(2) of the CPC. The said aspect is not at all dealt by the High Court. So far as the bar of the suit under Section 16 is concerned, the High Court referred to Special Leave Petition(C) No.26714 of 2015, but, it appears that the said petition is dismissed for non-prosecution. High Court also referred to certain other earlier judgments to support a finding on the validity of the order dated 28.03.1985. But we are of the view that when the suit itself is barred, it is not open for the civil court to record any finding on the validity of the order dated 28.03.1985. Even the judgment of the Full Bench of the High Court in the case of State of Haryana & Ors. v. Vinod Kumar & Ors. 1986 (1) PLR 222 cannot be applied unless it is held that the order passed by the primary authority is a nullity. As we are of the view that the respondent-plaintiffs had an opportunity before the authority and when the said order has become final, in view of the bar under Section 16 of the Act, the High Court has committed error in recording finding on the validity of the order dated 28.03.1985. Further, as rightly contended by counsel for the appellants that the appellate court also has not disturbed the finding of the lower appellate court on issue of notice as contemplated under Section 80 of the CPC. | 1[ds]12. It is not in dispute that originally land was put to restricted auction to sell the land under the provisions of the Act and the Rules framed thereunder. There are restrictions on the alienation of the land as per the original transfer. At first instance when the order of cancellation was passed, matter was carried to High Court and the High Court has disposed of the petition by directing the authorities not to take steps for eviction of the petitioners therein unless they are provided opportunity before passing appropriate order. After order was passed by the High Court, order dated 28.03.1985 was passed cancelling the transfer and further allotment made in favour of the appellants herein was confirmed.From a reading of the aforesaid provision, it is clear that every order made by any officer or authority under the said Act is final and no Civil Court shall have jurisdiction to entertain any suit or proceeding and no injunction shall be granted by any court or other authority in respect of any action taken under provisions of the Act. The first appellate court, by applying the aforesaid provision, has clearly recorded a finding that the suit is barred and further it was also held that suit is not maintainable against the State and its authorities, who are defendant nos.1 to 4, without issuing notice under Section 80 of CPC. There is also nothing on record seeking leave from the court for dispensing with issuance of notice as provided under Section 80(2) of the CPC. The said aspect is not at all dealt by the High Court. So far as the bar of the suitunder Section 16 is concerned, the High Court referred to Special Leave Petition(C) No.26714 of 2015, but, it appears that the said petition is dismissed forHigh Court also referred to certain other earlier judgments to support a finding on the validity of the order dated 28.03.1985. But we are of the view that when the suit itself is barred, it is not open for the civil court to record any finding on the validity of the order dated 28.03.1985. Even the judgment of the Full Bench of the High Court in the case of State of Haryana & Ors. v. Vinod Kumar & Ors. 1986 (1) PLR 222 cannot be applied unless it is held that the order passed by the primary authority is a nullity. As we are of the view that thehad an opportunity before the authority and when the said order has become final, in view of the bar under Section 16 of the Act, the High Court has committed error in recording finding on the validity of the order dated 28.03.1985. Further, as rightly contended by counsel for the appellants that the appellate court also has not disturbed the finding of the lower appellate court on issue of notice as contemplated under Section 80 of the CPC. | 1 | 1,983 | 526 | ### Instruction:
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Jain, learned senior counsel for the respondents who are on caveat and also perused the written submissions submitted on behalf of the parties. 9. In this appeal, it is the case of the appellants that against the initial cancellation of sale vide order dated 17.06.1975 the vendees of the original transferee have approached the High Court in Civil Writ Petition No.5210 of 1975 and in view of the judgment dated 09.10.1979, after hearing all the necessary parties, order dated 28.03.1985 was passed by the competent authority, cancelling the sale and said order has become final and not challenged before the revenue authorities. It is the case of the appellants that the validity of the order dated 28.03.1985 cannot be the subject matter of challenge before the civil court in view of the bar under Section 16 of the Act. It is further submitted that in view of the opportunity provided by the authorities judgment relied on by the High Court cannot be applied having regard to the facts and circumstances. It is submitted that in any event the finding recorded by the first appellate court that suit is not maintainable for not issuing notice under Section 80 of the CPC is not interfered with and without recording any finding Second Appeal is allowed. 10. On the other hand, it is the case of the respondent- plaintiffs that respondent-plaintiffs are bonafide purchasers of the suit land for a valuable consideration and in similar cases this Court has dismissed the Special Leave Petitions, as such, there is no ground to interfere with the same. It is further submitted that in any event, in view of Section 41 of the Transfer of Property Act 1882, Civil Court is competent to entertain the suit for grant of relief as prayed for. It is also pleaded that defect in the prayer, if any, for quashing the order dated 28.03.1985, may not come in the way of the respondent-plaintiffs for seeking relief of declaration of their title which is to be protected in view of the provision under Section 41 of the Transfer of Property Act 1882. 11. Having heard learned counsel on both sides, we have perused the impugned judgment and the judgments of the lower appellate court and the trial court. 12. It is not in dispute that originally land was put to restricted auction to sell the land under the provisions of the Act and the Rules framed thereunder. There are restrictions on the alienation of the land as per the original transfer. At first instance when the order of cancellation was passed, matter was carried to High Court and the High Court has disposed of the petition by directing the authorities not to take steps for eviction of the petitioners therein unless they are provided opportunity before passing appropriate order. After order was passed by the High Court, order dated 28.03.1985 was passed cancelling the transfer and further allotment made in favour of the appellants herein was confirmed. Section 16 of the Act reads as under :?16. Bar of jurisdiction and finality of orders (1) Save as otherwise expressly provided in this Act, every order made by any officer or authority under this Act shall be final and no Civil Court shall have jurisdiction to entertain any suit or proceeding, in respect of any matter which the State Government, or any officer or authority apopinted under this Act is empowered by or under this Act to determine, and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act. (2) Nothing in the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973, shall apply to package deal property.?13. From a reading of the aforesaid provision, it is clear that every order made by any officer or authority under the said Act is final and no Civil Court shall have jurisdiction to entertain any suit or proceeding and no injunction shall be granted by any court or other authority in respect of any action taken under provisions of the Act. The first appellate court, by applying the aforesaid provision, has clearly recorded a finding that the suit is barred and further it was also held that suit is not maintainable against the State and its authorities, who are defendant nos.1 to 4, without issuing notice under Section 80 of CPC. There is also nothing on record seeking leave from the court for dispensing with issuance of notice as provided under Section 80(2) of the CPC. The said aspect is not at all dealt by the High Court. So far as the bar of the suit under Section 16 is concerned, the High Court referred to Special Leave Petition(C) No.26714 of 2015, but, it appears that the said petition is dismissed for non-prosecution. High Court also referred to certain other earlier judgments to support a finding on the validity of the order dated 28.03.1985. But we are of the view that when the suit itself is barred, it is not open for the civil court to record any finding on the validity of the order dated 28.03.1985. Even the judgment of the Full Bench of the High Court in the case of State of Haryana & Ors. v. Vinod Kumar & Ors. 1986 (1) PLR 222 cannot be applied unless it is held that the order passed by the primary authority is a nullity. As we are of the view that the respondent-plaintiffs had an opportunity before the authority and when the said order has become final, in view of the bar under Section 16 of the Act, the High Court has committed error in recording finding on the validity of the order dated 28.03.1985. Further, as rightly contended by counsel for the appellants that the appellate court also has not disturbed the finding of the lower appellate court on issue of notice as contemplated under Section 80 of the CPC.
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12. It is not in dispute that originally land was put to restricted auction to sell the land under the provisions of the Act and the Rules framed thereunder. There are restrictions on the alienation of the land as per the original transfer. At first instance when the order of cancellation was passed, matter was carried to High Court and the High Court has disposed of the petition by directing the authorities not to take steps for eviction of the petitioners therein unless they are provided opportunity before passing appropriate order. After order was passed by the High Court, order dated 28.03.1985 was passed cancelling the transfer and further allotment made in favour of the appellants herein was confirmed.From a reading of the aforesaid provision, it is clear that every order made by any officer or authority under the said Act is final and no Civil Court shall have jurisdiction to entertain any suit or proceeding and no injunction shall be granted by any court or other authority in respect of any action taken under provisions of the Act. The first appellate court, by applying the aforesaid provision, has clearly recorded a finding that the suit is barred and further it was also held that suit is not maintainable against the State and its authorities, who are defendant nos.1 to 4, without issuing notice under Section 80 of CPC. There is also nothing on record seeking leave from the court for dispensing with issuance of notice as provided under Section 80(2) of the CPC. The said aspect is not at all dealt by the High Court. So far as the bar of the suitunder Section 16 is concerned, the High Court referred to Special Leave Petition(C) No.26714 of 2015, but, it appears that the said petition is dismissed forHigh Court also referred to certain other earlier judgments to support a finding on the validity of the order dated 28.03.1985. But we are of the view that when the suit itself is barred, it is not open for the civil court to record any finding on the validity of the order dated 28.03.1985. Even the judgment of the Full Bench of the High Court in the case of State of Haryana & Ors. v. Vinod Kumar & Ors. 1986 (1) PLR 222 cannot be applied unless it is held that the order passed by the primary authority is a nullity. As we are of the view that thehad an opportunity before the authority and when the said order has become final, in view of the bar under Section 16 of the Act, the High Court has committed error in recording finding on the validity of the order dated 28.03.1985. Further, as rightly contended by counsel for the appellants that the appellate court also has not disturbed the finding of the lower appellate court on issue of notice as contemplated under Section 80 of the CPC.
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Karnani Industrial Bank, Limited Vs. The Province Of Bengal And Others | a manner as to be equivalent to the landlord assenting to the lessee continuing in possession. Both the Cts below, after dealing with the matter elaborately, have concurrently held that in the circumstance of the case the consent of resp. 1 to the applts. continuing in possession cannot be inferred, & we agree with this finding.11. It was pointed out to us in behalf of the resp. that the entry relating to this payment in the books of the pltf. contains the words :"received without prejudice from Karnani Industrial Bank. . . , ."The same words, however, occur in several earlier entries, & we are not inclined to attach any special significance to them. But it seems to us that the very fact that the payment was made at time when there was no. question of the lessor assenting to the lessees continuing in possession & neither party treated the payment as importing such assent is sufficient to take the case out of the mischief of S. 116, T. P. Act.12. There is also another view which we think is possible to take upon the facts of the case. As we have seen the rent for the first year was paid in advance near about the time of the execution of the lease & nothing turns upon it. When however the second payment was made, the sum paid was Rs. 6, 714 & odd, & the payment was made in respect of rent up to 31-3-1930. After this all the subsequent payments were made up to the 31st March of the succeeding year, evidently because the financial year, which the parties considered themselves to be governed by, ran from the 1st April to the 31st March of the succeeding year. It was presumably in view of this fact that the pltf. filed an appln. on 6- 11-1941, for amending the plaint so as to include the following statement : "The pltf submits that even assuming that the registered lease terminated on 23-2-1938 by an agreement between the pltf & the deft. 1, the latter was allowed to hold over up to 31-3-1938. This appln., however, was rejected, because it was made at a very late stage that is to say, after the defts. evidence had been closed & an adjournment had been granted to the plft. to adduce rebutting evidence. However that may be, the utmost that can be said upon the evidence as it stands is that by the implied consent of the parties the period of the lease was extended up to 31- 3 1938. In this view, the resp. 1 became entitled to re-enter after the 31st March, & no. notice u/s. 106, T. P. Act, was necessary. In the circumstances, the decree for ejectment passed by the Court below must be upheld.13. The next question which arises in this case turns on the proper construction of cl. 11 of part I & cl. 1 of part III of the lease, which have already been quoted. It seems to us that cl. 11 should be read as a whole, & when it is so read, it becomes clear that it was intended to be applicable only where the Secretary of State decided to exercise his right to terminate the lease at any time subject to 6 months notice, " in the event of the lessee failing to observe & duly perform the conditions mentioned in the lease. In such a case, if the lessee did not remove the boilers, engines & all other materials & yield up the premises to the Secretary of State, those articles were to become the property of the Secretary of State. This clause is evidently not applicable to the present case. The clause which applies to this case is cl. 1 of part III, which is intended to be applicable to the normal case of the lease expiring by efflux of time. This clause as we have seen provides that the lessee shall be at liberty to keep on the demised premises for 3 months after the expiration of the lease any bricks, boilers, etc., but it also provides that "any bricks & other materials in contravention of this condition shall become the absolute property of the Secretary of State without payment." There can be no. doubt that under this clause, the bricks & other materials have become the absolute property of the pltf. The only question is as to the meaning of "other materials." It seems to us on an examination of the lease as a whole that there must be a distinction between materials, & machinery & tools & similar articles, & the words "other materials" have no. reference to engines, trucks, rly. & tramway lines & plant. They mean building materials such as bricks, tiles & similar articles that might have been manufactured by the applts. on the demised premises. That being so, the decree under appeal should be modified accordingly.14. The only other point which arises for consideration relates to the pltfs prayer for a decree for permanent injunction against the defts. to restrain them from removing or otherwise disposing of the articles in regard to which the decree is to be passed. It was contended on behalf of the applts. that the resp. 1 not being in possession of these properties could not ask for the relief of injunction without asking for the declaration of its title in respect of them & possession over them, & in support of this proposition, the following cases were cited : -Rathnasabapathi Pillai v. Ramasami Aiyar, 33 Mad. 452) , Bhramar Lal v. Nanda Lal, (24 I. C. 199), and Valia Tamburathi v. Parvati, 13 Mad. 454. After reading & fully considering those cases, we find them to be wholly inapplicable to the present case. In the present case, it has been found that the bricks & other materials have become the property of the pltf. & there can be no. legal objection to the granting of an injunction as prayed.15. | 0[ds]It was pointed out to us in behalf of the resp. that the entry relating to this payment in the books of the pltf. contains the words :"received without prejudice from Karnani Industrial Bank. . . , ."The same words, however, occur in several earlier entries, & we are not inclined to attach any special significance to them. But it seems to us that the very fact that the payment was made at time when there was no. question of the lessor assenting to the lessees continuing in possession & neither party treated the payment as importing such assent is sufficient to take the case out of the mischief of S. 116, T. P. Act.There is also another view which we think is possible to take upon the facts of the case. As we have seen the rent for the first year was paid in advance near about the time of the execution of the lease & nothing turns upon it. When however the second payment was made, the sum paid was Rs. 6, 714 & odd, & the payment was made in respect of rent up to 31-3-1930. After this all the subsequent payments were made up to the 31st March of the succeeding year, evidently because the financial year, which the parties considered themselves to be governed by, ran from the 1st April to the 31st March of the succeeding year. It was presumably in view of this fact that the pltf. filed an appln. on 6- 11-1941, for amending the plaint so as to include the following statement : "The pltf submits that even assuming that the registered lease terminated on 23-2-1938 by an agreement between the pltf & the deft. 1, the latter was allowed to hold over up toThis appln., however, was rejected, because it was made at a very late stage that is to say, after the defts. evidence had been closed & an adjournment had been granted to the plft. to adduce rebutting evidence. However that may be, the utmost that can be said upon the evidence as it stands is that by the implied consent of the parties the period of the lease was extended up to 31- 3In this view, the resp. 1 became entitled to re-enter after the 31st March, & no. notice u/s. 106, T. P. Act, was necessary. In the circumstances, the decree for ejectment passed by the Court below must be upheld.e next question which arises in this case turns on the proper construction of cl. 11 of part I & cl. 1 of part III of the lease, which have already been quoted.It seems to us that cl. 11 should be read as a whole, & when it is so read, it becomes clear that it was intended to be applicable only where the Secretary of State decided to exercise his right to terminate the lease at any time subject to 6 months notice, " in the event of the lessee failing to observe & duly perform the conditions mentioned in the lease. In such a case, if the lessee did not remove the boilers, engines & all other materials & yield up the premises to the Secretary of State, those articles were to become the property of the Secretary of State. This clause is evidently not applicable to the present case. The clause which applies to this case is cl. 1 of part III, which is intended to be applicable to the normal case of the lease expiring by efflux of time. This clause as we have seen provides that the lessee shall be at liberty to keep on the demised premises for 3 months after the expiration of the lease any bricks, boilers, etc., but it also provides that "any bricks & other materials in contravention of this condition shall become the absolute property of the Secretary of State without payment." There can be no. doubt that under this clause, the bricks & other materials have become the absolute property of the pltf. The only question is as to the meaning of "other materials." It seems to us on an examination of the lease as a whole that there must be a distinction between materials, & machinery & tools & similar articles, & the words "other materials" have no. reference to engines, trucks, rly. & tramway lines & plant. They mean building materials such as bricks, tiles & similar articles that might have been manufactured by the applts. on the demised premises. That being so, the decree under appeal should be modified accordingly.The only other point which arises for consideration relates to the pltfs prayer for a decree for permanent injunction against the defts. to restrain them from removing or otherwise disposing of the articles in regard to which the decree is to be passed. It was contended on behalf of the applts. that the resp. 1 not being in possession of these properties could not ask for the relief of injunction without asking for the declaration of its title in respect of them & possession over them, & in support of this proposition, the following cases were cited : -Rathnasabapathi Pillai v. Ramasami Aiyar, 33 Mad. 452) , Bhramar Lal v. Nanda Lal, (24 I. C. 199), and Valia Tamburathi v. Parvati, 13 Mad.After reading & fully considering those cases, we find them to be wholly inapplicable to the present case. In the present case, it has been found that the bricks & other materials have become the property of the pltf. & there can be no. legal objection to the granting of an injunction as prayed. | 0 | 3,957 | 1,046 | ### Instruction:
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a manner as to be equivalent to the landlord assenting to the lessee continuing in possession. Both the Cts below, after dealing with the matter elaborately, have concurrently held that in the circumstance of the case the consent of resp. 1 to the applts. continuing in possession cannot be inferred, & we agree with this finding.11. It was pointed out to us in behalf of the resp. that the entry relating to this payment in the books of the pltf. contains the words :"received without prejudice from Karnani Industrial Bank. . . , ."The same words, however, occur in several earlier entries, & we are not inclined to attach any special significance to them. But it seems to us that the very fact that the payment was made at time when there was no. question of the lessor assenting to the lessees continuing in possession & neither party treated the payment as importing such assent is sufficient to take the case out of the mischief of S. 116, T. P. Act.12. There is also another view which we think is possible to take upon the facts of the case. As we have seen the rent for the first year was paid in advance near about the time of the execution of the lease & nothing turns upon it. When however the second payment was made, the sum paid was Rs. 6, 714 & odd, & the payment was made in respect of rent up to 31-3-1930. After this all the subsequent payments were made up to the 31st March of the succeeding year, evidently because the financial year, which the parties considered themselves to be governed by, ran from the 1st April to the 31st March of the succeeding year. It was presumably in view of this fact that the pltf. filed an appln. on 6- 11-1941, for amending the plaint so as to include the following statement : "The pltf submits that even assuming that the registered lease terminated on 23-2-1938 by an agreement between the pltf & the deft. 1, the latter was allowed to hold over up to 31-3-1938. This appln., however, was rejected, because it was made at a very late stage that is to say, after the defts. evidence had been closed & an adjournment had been granted to the plft. to adduce rebutting evidence. However that may be, the utmost that can be said upon the evidence as it stands is that by the implied consent of the parties the period of the lease was extended up to 31- 3 1938. In this view, the resp. 1 became entitled to re-enter after the 31st March, & no. notice u/s. 106, T. P. Act, was necessary. In the circumstances, the decree for ejectment passed by the Court below must be upheld.13. The next question which arises in this case turns on the proper construction of cl. 11 of part I & cl. 1 of part III of the lease, which have already been quoted. It seems to us that cl. 11 should be read as a whole, & when it is so read, it becomes clear that it was intended to be applicable only where the Secretary of State decided to exercise his right to terminate the lease at any time subject to 6 months notice, " in the event of the lessee failing to observe & duly perform the conditions mentioned in the lease. In such a case, if the lessee did not remove the boilers, engines & all other materials & yield up the premises to the Secretary of State, those articles were to become the property of the Secretary of State. This clause is evidently not applicable to the present case. The clause which applies to this case is cl. 1 of part III, which is intended to be applicable to the normal case of the lease expiring by efflux of time. This clause as we have seen provides that the lessee shall be at liberty to keep on the demised premises for 3 months after the expiration of the lease any bricks, boilers, etc., but it also provides that "any bricks & other materials in contravention of this condition shall become the absolute property of the Secretary of State without payment." There can be no. doubt that under this clause, the bricks & other materials have become the absolute property of the pltf. The only question is as to the meaning of "other materials." It seems to us on an examination of the lease as a whole that there must be a distinction between materials, & machinery & tools & similar articles, & the words "other materials" have no. reference to engines, trucks, rly. & tramway lines & plant. They mean building materials such as bricks, tiles & similar articles that might have been manufactured by the applts. on the demised premises. That being so, the decree under appeal should be modified accordingly.14. The only other point which arises for consideration relates to the pltfs prayer for a decree for permanent injunction against the defts. to restrain them from removing or otherwise disposing of the articles in regard to which the decree is to be passed. It was contended on behalf of the applts. that the resp. 1 not being in possession of these properties could not ask for the relief of injunction without asking for the declaration of its title in respect of them & possession over them, & in support of this proposition, the following cases were cited : -Rathnasabapathi Pillai v. Ramasami Aiyar, 33 Mad. 452) , Bhramar Lal v. Nanda Lal, (24 I. C. 199), and Valia Tamburathi v. Parvati, 13 Mad. 454. After reading & fully considering those cases, we find them to be wholly inapplicable to the present case. In the present case, it has been found that the bricks & other materials have become the property of the pltf. & there can be no. legal objection to the granting of an injunction as prayed.15.
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It was pointed out to us in behalf of the resp. that the entry relating to this payment in the books of the pltf. contains the words :"received without prejudice from Karnani Industrial Bank. . . , ."The same words, however, occur in several earlier entries, & we are not inclined to attach any special significance to them. But it seems to us that the very fact that the payment was made at time when there was no. question of the lessor assenting to the lessees continuing in possession & neither party treated the payment as importing such assent is sufficient to take the case out of the mischief of S. 116, T. P. Act.There is also another view which we think is possible to take upon the facts of the case. As we have seen the rent for the first year was paid in advance near about the time of the execution of the lease & nothing turns upon it. When however the second payment was made, the sum paid was Rs. 6, 714 & odd, & the payment was made in respect of rent up to 31-3-1930. After this all the subsequent payments were made up to the 31st March of the succeeding year, evidently because the financial year, which the parties considered themselves to be governed by, ran from the 1st April to the 31st March of the succeeding year. It was presumably in view of this fact that the pltf. filed an appln. on 6- 11-1941, for amending the plaint so as to include the following statement : "The pltf submits that even assuming that the registered lease terminated on 23-2-1938 by an agreement between the pltf & the deft. 1, the latter was allowed to hold over up toThis appln., however, was rejected, because it was made at a very late stage that is to say, after the defts. evidence had been closed & an adjournment had been granted to the plft. to adduce rebutting evidence. However that may be, the utmost that can be said upon the evidence as it stands is that by the implied consent of the parties the period of the lease was extended up to 31- 3In this view, the resp. 1 became entitled to re-enter after the 31st March, & no. notice u/s. 106, T. P. Act, was necessary. In the circumstances, the decree for ejectment passed by the Court below must be upheld.e next question which arises in this case turns on the proper construction of cl. 11 of part I & cl. 1 of part III of the lease, which have already been quoted.It seems to us that cl. 11 should be read as a whole, & when it is so read, it becomes clear that it was intended to be applicable only where the Secretary of State decided to exercise his right to terminate the lease at any time subject to 6 months notice, " in the event of the lessee failing to observe & duly perform the conditions mentioned in the lease. In such a case, if the lessee did not remove the boilers, engines & all other materials & yield up the premises to the Secretary of State, those articles were to become the property of the Secretary of State. This clause is evidently not applicable to the present case. The clause which applies to this case is cl. 1 of part III, which is intended to be applicable to the normal case of the lease expiring by efflux of time. This clause as we have seen provides that the lessee shall be at liberty to keep on the demised premises for 3 months after the expiration of the lease any bricks, boilers, etc., but it also provides that "any bricks & other materials in contravention of this condition shall become the absolute property of the Secretary of State without payment." There can be no. doubt that under this clause, the bricks & other materials have become the absolute property of the pltf. The only question is as to the meaning of "other materials." It seems to us on an examination of the lease as a whole that there must be a distinction between materials, & machinery & tools & similar articles, & the words "other materials" have no. reference to engines, trucks, rly. & tramway lines & plant. They mean building materials such as bricks, tiles & similar articles that might have been manufactured by the applts. on the demised premises. That being so, the decree under appeal should be modified accordingly.The only other point which arises for consideration relates to the pltfs prayer for a decree for permanent injunction against the defts. to restrain them from removing or otherwise disposing of the articles in regard to which the decree is to be passed. It was contended on behalf of the applts. that the resp. 1 not being in possession of these properties could not ask for the relief of injunction without asking for the declaration of its title in respect of them & possession over them, & in support of this proposition, the following cases were cited : -Rathnasabapathi Pillai v. Ramasami Aiyar, 33 Mad. 452) , Bhramar Lal v. Nanda Lal, (24 I. C. 199), and Valia Tamburathi v. Parvati, 13 Mad.After reading & fully considering those cases, we find them to be wholly inapplicable to the present case. In the present case, it has been found that the bricks & other materials have become the property of the pltf. & there can be no. legal objection to the granting of an injunction as prayed.
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M.V. Shankar Bhat & Another Vs. Claude Pinto Since (Deceased) by Lrs. & Others | into subject to ratification by others, a concluded contract is not arrived at. Whenever ratification by some other persons, who are not parties to the agreement is required, such a clause must be held to be a condition precedent for coming into force of a concluded contract. 32. The word ‘subject to? has been defined in Black?s Law Dictionary, Fifth Edition, at page 1278, inter alia , as : ?subservient, inferior, obedient to; governed or affected by; provided that; provided; answerable for?. In Collins? English the words ‘subject to? has been stated to mean as : ?under the condition that: we accept, subject to her agreement?. 33. The said agreement for sale, therefore, was not enforceable in a court of law. 34. In Henry Earnest Meaney and another v. E.C. Eyre Walker , AIR 1947 All. 332, the law is stated in the following terms: ?Apart from this, we are of the opinion that there was no completed contract between the parties. We have already said that in the plaint the plaintiff alleged that the letter of Mr. Meaney dated 29th August 1941, was the acceptance be which the contract was completed. In his arguments before us learned counsel for the plaintiff-respondent admitted that the letter of 29th August, 1941, was nothing more than an invitation to offer and the plaintiff?s telegram dated 31st August, 1941, must be taken as a d efinite offer of purchase made on his behalf. We have already said that the letter of 1st September 1941 was not an absolute and unqualified acceptance of the offer as required by S.7, Contract Act. In the letter there was no doubt an expression of the willingness to sell the land to the plaintiff, but then it was qualified by the statement that the defendant would sell the land to the plaintiff if it was not wanted by others who might have a right of pre-emption. The plaintiff was not able to rely on a ny correspondence after 1st September 1941, for his argument that there was a completed contract between the parties. It was not till about 2nd October 1941, that the parties met when Mr. Meaney came to Dehra Dun. It is nobody?s case that there was an oral contract entered into between the 2nd and 4th October. On 4th October we know that the plot of land which the defendants intended to sell and the plaintiff intended to purchase was measured and was found to be less than five bighas in area and the whole talk fell through.? 35. In Warehousing & Forwarding Company of East Africa Ltd. v. Jafferali and Sons Ltd., 1964 Law Reports - Appeal Cases 1, the Privy Council held: ?... If Elliott contracted subject to ratification by his principal there would be no concluded contract until ratification had been obtained. The respondents contended upon the authority of Koenigsblatt vs. Sweet that ratification by the principal can operate back to the date when the contract was made by the agent without the necessity of communication to the other party. But in that case the limitation of the agent?s authority was not known to the other contracting party. In such a case the agent contracts as principal and his principal is bound upon ratification taking place. When, however, the other party to the contract has intimation of the limitation of the agent?s authority neither party can be bound until ratification has been duly intimated to the other party to the contract. It would be contrary to good sense to held that a concluded contract had been made in these circumstances.? 36. In Dr. Jiwan Lal?s case, 1973 (2) SCR 230 whereupon reliance has been placed by Mr. Bhatt, Clause (6) of the agreement was an under: ?6. In the event of the above said premises, which is the subject matter of sale not being vacated by the Income-tax Authorities or is subsequently requisitioned by the Government prior to the registration of the sale-deed the vendor shall refund to the purchaser the sum of Rs. 10,000 (Rupees ten thousand only received by the order as earnest money plus interest at the rate of 6 per cent per annum?. 37. Having regard to the nature of the transaction and keeping in view the materials on record it was held that the clause 6 aforementioned was for the benefit of the purchaser and in that situation, this Court held that the same may be waived. Such is not the position here. 38. It is, however, beyond any cavil that in terms of Sections 211(1) and 307(1) of the Indian Succession Act, the Executor of a Will has an absolute right to transfer the property as has been held in Smt. Babuain Chandrakala Devi?s case , AIR 1963 Pat. 2 and P.H. Alphonso?s case, 1967 (2) Mys L.J465 . 39. However, in the instant case the question was as to whether in the facts and circumstances of the case a concluded contract can be said to have been arrived at. Having regard to the discussions made hereinbefore,, we have no hesitation in holding that the agreement of sale in question could not have been specifically enforced and in that view of the matter the question is as to whether the Original Defendant No.1 had an absolute right to dispose of the property in question in exercise of his power as an Executor of the Will or not takes a back seat. 40. In any event having regard to the facts and circumstances of this case and in particular the subsequent events as well the conduct of Plaintiff No.1, we are of the opinion that it is not a fit case where a discretionary jurisdiction of this Court in terms of Section 20 of the Specific Relief Act, 1963 should be exercised. (See V. Muthusami (Dead) by Lrs. v. Angammal and others , 2002 (3) SCC 316 and Nirmala Anand v. Advent Corporation (P) Ltd. and others , 2002 (4) CTC 624 : 2002 (8) SCC 146. | 0[ds]15. A bare perusal of the Will dated 25.4.1972 leaves no manner of doubt that although thereby the Original Defendant was given liberty to sell the property in question and distribute the amount received thereby in the manner stated therein but the legatees have also been given an option to partition the property. Once such a desire is expressed before a deed of sale is executed, the Executor had no other option but to consent thereto.It is in the aforementioned backdrop, the conduct of the parties may be noticed. Plaintiff No.1 was a tenant in respect of a part of the premises in suit. The other part of the premises was occupied by one Venketesh. The evidence on record clearly shows that the parties to the agreement were in correspondences. The Original Defendant took the legal advice of Plaintiff No.1 as regards the effect of the said Will in 1974. Plaintiff No.1 advised the Original Defendant to obtain a probate. He also gave an advice that steps are required to be taken under the Urban Land (Ceiling and Regulation) Act. The correspondence passed between the parties would clearly show that they were in good terms.However, it does not appear from the records that any provision of law or any judgment of the High Court had been rendered to the effect that in the event a landlord requires the premises for the purpose of selling the same, Sections 4 and 5 of the Karnataka Rent Control Act would not apply.It is evident that negotiation for selling the property in question started in the aforementioned backdrop of events and ultimately the agreement of sale was executed.Mr. Gambhir, therefore, in our opinion is right in contending that Plaintiff No.1. created a scare in the mind of Defendant No.1 about the house being allotted to some other person by the Rent Controller. Plaintiff No. 1 evidently had an upper hand when negotiation for sale for the house between him and the Original Defendant No.1 took place.It would, therefore, not be correct to contend that the restrictive covenant was inserted for the benefit of Plaintiff No.1. Furthermore, if the agreement was entered into by him only as an Executor of the Will, it was not necessary for him to write that the same was being executed for self as well as an Executor. He, therefore, wanted to convey, the property also as a legatee and/ or one of the heirs of her mother, Mrs. Minto Mary Pinto apart from being the Executor of the Will.In the aforesaid context only the expression ‘subject to ratification by the co-heirs? must be interpreted.The draft sale deeds which were marked as Exhibits D-15 and D-23 were also drafted by Plaintiff No.1. It appears from the letter dated 21.1.1980 that Plaintiff No.1 asked the Defendant No.1 to get powers of attorney executed by his brothers and sister in his favour, the drafts whereof were also prepared by him. The draft sale deed would clearly demonstrate that the property in suit was to be executed by Stanely T. Thomas, Victor L. Pinto, Mrs. Agnee Rodrigues Nee Pinto, represented by their brother and power of attorney holder Claude Pinto having been authorised by Nos. 1 and 2 as per power of attorney (dated blank) and by Claude Pinto.It therefore, cannot be said that the intention of the parties was that the Defendant No.1 would alienate the property in suit as Executor of his mother?s Will.When an agreement is entered into subject to ratification by others, a concluded contract is not arrived at. Whenever ratification by some other persons, who are not parties to the agreement is required, such a clause must be held to be a condition precedent for coming into force of a concluded contract.The said agreement for sale, therefore, was not enforceable in a court of law.Having regard to the nature of the transaction and keeping in view the materials on record it was held that the clause 6 aforementioned was for the benefit of the purchaser and in that situation, this Court held that the same may be waived. Such is not the position here.It is, however, beyond any cavil that in terms of Sections 211(1) and 307(1) of the Indian Succession Act, the Executor of a Will has an absolute right to transfer the property as has been held in Smt. Babuain Chandrakala Devi?s case , AIR 1963 Pat. 2 and P.H. Alphonso?s case, 1967 (2) Mys L.J465 .However, in the instant case the question was as to whether in the facts and circumstances of the case a concluded contract can be said to have been arrived at. Having regard to the discussions made hereinbefore,, we have no hesitation in holding that the agreement of sale in question could not have been specifically enforced and in that view of the matter the question is as to whether the Original Defendant No.1 had an absolute right to dispose of the property in question in exercise of his power as an Executor of the Will or not takes a back seat.In any event having regard to the facts and circumstances of this case and in particular the subsequent events as well the conduct of Plaintiff No.1, we are of the opinion that it is not a fit case where a discretionary jurisdiction of this Court in terms of Section 20 of the Specific Relief Act, 1963 should be exercised. (See V. Muthusami (Dead) by Lrs. v. Angammal and others , 2002 (3) SCC 316 and Nirmala Anand v. Advent Corporation (P) Ltd. and others , 2002 (4) CTC 624 : 2002 (8) SCC 146. | 0 | 6,109 | 1,031 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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into subject to ratification by others, a concluded contract is not arrived at. Whenever ratification by some other persons, who are not parties to the agreement is required, such a clause must be held to be a condition precedent for coming into force of a concluded contract. 32. The word ‘subject to? has been defined in Black?s Law Dictionary, Fifth Edition, at page 1278, inter alia , as : ?subservient, inferior, obedient to; governed or affected by; provided that; provided; answerable for?. In Collins? English the words ‘subject to? has been stated to mean as : ?under the condition that: we accept, subject to her agreement?. 33. The said agreement for sale, therefore, was not enforceable in a court of law. 34. In Henry Earnest Meaney and another v. E.C. Eyre Walker , AIR 1947 All. 332, the law is stated in the following terms: ?Apart from this, we are of the opinion that there was no completed contract between the parties. We have already said that in the plaint the plaintiff alleged that the letter of Mr. Meaney dated 29th August 1941, was the acceptance be which the contract was completed. In his arguments before us learned counsel for the plaintiff-respondent admitted that the letter of 29th August, 1941, was nothing more than an invitation to offer and the plaintiff?s telegram dated 31st August, 1941, must be taken as a d efinite offer of purchase made on his behalf. We have already said that the letter of 1st September 1941 was not an absolute and unqualified acceptance of the offer as required by S.7, Contract Act. In the letter there was no doubt an expression of the willingness to sell the land to the plaintiff, but then it was qualified by the statement that the defendant would sell the land to the plaintiff if it was not wanted by others who might have a right of pre-emption. The plaintiff was not able to rely on a ny correspondence after 1st September 1941, for his argument that there was a completed contract between the parties. It was not till about 2nd October 1941, that the parties met when Mr. Meaney came to Dehra Dun. It is nobody?s case that there was an oral contract entered into between the 2nd and 4th October. On 4th October we know that the plot of land which the defendants intended to sell and the plaintiff intended to purchase was measured and was found to be less than five bighas in area and the whole talk fell through.? 35. In Warehousing & Forwarding Company of East Africa Ltd. v. Jafferali and Sons Ltd., 1964 Law Reports - Appeal Cases 1, the Privy Council held: ?... If Elliott contracted subject to ratification by his principal there would be no concluded contract until ratification had been obtained. The respondents contended upon the authority of Koenigsblatt vs. Sweet that ratification by the principal can operate back to the date when the contract was made by the agent without the necessity of communication to the other party. But in that case the limitation of the agent?s authority was not known to the other contracting party. In such a case the agent contracts as principal and his principal is bound upon ratification taking place. When, however, the other party to the contract has intimation of the limitation of the agent?s authority neither party can be bound until ratification has been duly intimated to the other party to the contract. It would be contrary to good sense to held that a concluded contract had been made in these circumstances.? 36. In Dr. Jiwan Lal?s case, 1973 (2) SCR 230 whereupon reliance has been placed by Mr. Bhatt, Clause (6) of the agreement was an under: ?6. In the event of the above said premises, which is the subject matter of sale not being vacated by the Income-tax Authorities or is subsequently requisitioned by the Government prior to the registration of the sale-deed the vendor shall refund to the purchaser the sum of Rs. 10,000 (Rupees ten thousand only received by the order as earnest money plus interest at the rate of 6 per cent per annum?. 37. Having regard to the nature of the transaction and keeping in view the materials on record it was held that the clause 6 aforementioned was for the benefit of the purchaser and in that situation, this Court held that the same may be waived. Such is not the position here. 38. It is, however, beyond any cavil that in terms of Sections 211(1) and 307(1) of the Indian Succession Act, the Executor of a Will has an absolute right to transfer the property as has been held in Smt. Babuain Chandrakala Devi?s case , AIR 1963 Pat. 2 and P.H. Alphonso?s case, 1967 (2) Mys L.J465 . 39. However, in the instant case the question was as to whether in the facts and circumstances of the case a concluded contract can be said to have been arrived at. Having regard to the discussions made hereinbefore,, we have no hesitation in holding that the agreement of sale in question could not have been specifically enforced and in that view of the matter the question is as to whether the Original Defendant No.1 had an absolute right to dispose of the property in question in exercise of his power as an Executor of the Will or not takes a back seat. 40. In any event having regard to the facts and circumstances of this case and in particular the subsequent events as well the conduct of Plaintiff No.1, we are of the opinion that it is not a fit case where a discretionary jurisdiction of this Court in terms of Section 20 of the Specific Relief Act, 1963 should be exercised. (See V. Muthusami (Dead) by Lrs. v. Angammal and others , 2002 (3) SCC 316 and Nirmala Anand v. Advent Corporation (P) Ltd. and others , 2002 (4) CTC 624 : 2002 (8) SCC 146.
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15. A bare perusal of the Will dated 25.4.1972 leaves no manner of doubt that although thereby the Original Defendant was given liberty to sell the property in question and distribute the amount received thereby in the manner stated therein but the legatees have also been given an option to partition the property. Once such a desire is expressed before a deed of sale is executed, the Executor had no other option but to consent thereto.It is in the aforementioned backdrop, the conduct of the parties may be noticed. Plaintiff No.1 was a tenant in respect of a part of the premises in suit. The other part of the premises was occupied by one Venketesh. The evidence on record clearly shows that the parties to the agreement were in correspondences. The Original Defendant took the legal advice of Plaintiff No.1 as regards the effect of the said Will in 1974. Plaintiff No.1 advised the Original Defendant to obtain a probate. He also gave an advice that steps are required to be taken under the Urban Land (Ceiling and Regulation) Act. The correspondence passed between the parties would clearly show that they were in good terms.However, it does not appear from the records that any provision of law or any judgment of the High Court had been rendered to the effect that in the event a landlord requires the premises for the purpose of selling the same, Sections 4 and 5 of the Karnataka Rent Control Act would not apply.It is evident that negotiation for selling the property in question started in the aforementioned backdrop of events and ultimately the agreement of sale was executed.Mr. Gambhir, therefore, in our opinion is right in contending that Plaintiff No.1. created a scare in the mind of Defendant No.1 about the house being allotted to some other person by the Rent Controller. Plaintiff No. 1 evidently had an upper hand when negotiation for sale for the house between him and the Original Defendant No.1 took place.It would, therefore, not be correct to contend that the restrictive covenant was inserted for the benefit of Plaintiff No.1. Furthermore, if the agreement was entered into by him only as an Executor of the Will, it was not necessary for him to write that the same was being executed for self as well as an Executor. He, therefore, wanted to convey, the property also as a legatee and/ or one of the heirs of her mother, Mrs. Minto Mary Pinto apart from being the Executor of the Will.In the aforesaid context only the expression ‘subject to ratification by the co-heirs? must be interpreted.The draft sale deeds which were marked as Exhibits D-15 and D-23 were also drafted by Plaintiff No.1. It appears from the letter dated 21.1.1980 that Plaintiff No.1 asked the Defendant No.1 to get powers of attorney executed by his brothers and sister in his favour, the drafts whereof were also prepared by him. The draft sale deed would clearly demonstrate that the property in suit was to be executed by Stanely T. Thomas, Victor L. Pinto, Mrs. Agnee Rodrigues Nee Pinto, represented by their brother and power of attorney holder Claude Pinto having been authorised by Nos. 1 and 2 as per power of attorney (dated blank) and by Claude Pinto.It therefore, cannot be said that the intention of the parties was that the Defendant No.1 would alienate the property in suit as Executor of his mother?s Will.When an agreement is entered into subject to ratification by others, a concluded contract is not arrived at. Whenever ratification by some other persons, who are not parties to the agreement is required, such a clause must be held to be a condition precedent for coming into force of a concluded contract.The said agreement for sale, therefore, was not enforceable in a court of law.Having regard to the nature of the transaction and keeping in view the materials on record it was held that the clause 6 aforementioned was for the benefit of the purchaser and in that situation, this Court held that the same may be waived. Such is not the position here.It is, however, beyond any cavil that in terms of Sections 211(1) and 307(1) of the Indian Succession Act, the Executor of a Will has an absolute right to transfer the property as has been held in Smt. Babuain Chandrakala Devi?s case , AIR 1963 Pat. 2 and P.H. Alphonso?s case, 1967 (2) Mys L.J465 .However, in the instant case the question was as to whether in the facts and circumstances of the case a concluded contract can be said to have been arrived at. Having regard to the discussions made hereinbefore,, we have no hesitation in holding that the agreement of sale in question could not have been specifically enforced and in that view of the matter the question is as to whether the Original Defendant No.1 had an absolute right to dispose of the property in question in exercise of his power as an Executor of the Will or not takes a back seat.In any event having regard to the facts and circumstances of this case and in particular the subsequent events as well the conduct of Plaintiff No.1, we are of the opinion that it is not a fit case where a discretionary jurisdiction of this Court in terms of Section 20 of the Specific Relief Act, 1963 should be exercised. (See V. Muthusami (Dead) by Lrs. v. Angammal and others , 2002 (3) SCC 316 and Nirmala Anand v. Advent Corporation (P) Ltd. and others , 2002 (4) CTC 624 : 2002 (8) SCC 146.
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Valiyavalappil Sarojakshan Vs. Sumalsankar Gaikevada | Kurian Joseph, J.1. In the present appeals, we are called upon to consider the interplay between Section 11(4)(iii) and Section 11(4)(iv) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (in short, "the Act").2. The provisions to the extent relevant read as follows :-"(iii) If the tenant already has in his possession a building or subsequently acquires possession of or puts up a building, reasonably sufficient for his requirements in the same city, town or village; or(iv) If the building is in such a condition that it needs reconstruction and if the landlord requires bona fide to reconstruct the same and if he satisfies the court that he has the plan and licence, if any required, and the ability to build and if the proposal is not made as a pretext for eviction; Provided that the landlord who evicts a tenant and does not reconstruct completely the building within a time which may be fixed or extended by the Rent Control Court, shall on a petition before that Court be liable to a fine of rupees five hundred, if its proved that he has wilfully neglected to reconstruct completely the building within such time; provided further that the court shall have power at any time to issue directions regarding the reconstruction of the building and on failure of compliance by the landlord, to give effect to the order in any manner the Court deems fit and in appropriate cases to put the tenant back in possession or award the evicted tenant damages equal tot he excess rent he has to pay for another building that he is occupying in consequence of such eviction; provided further that the tenant who was evicted shall have the first option to have the reconstructed building allotted to him with liability to pay its fair rent."3. The appellants filed Rent Control Petition Nos. 82 of 1994 and 83 of 1994 on the file of the Rent Control Court, Vatakara, seeking eviction of the respondents-tenants, mainly under Sections 11(4)(iii) and 11(4)(iv).4. The Rent Control Court allowed the petitions under Sections 11(4)(iv) on the ground of requirement for demolition and reconstruction.5. Aggrieved, the appellants-landlords pursued the eviction before the first Appellate Authority on the ground also of Section 11(4)(iii), which had been declined by the Rent Control Court. The first Appellate Authority, in RCA No. 106 of 1997 and 107 of 1997, entered a finding that the respondents-tenants were in possession of buildings of their own, which were reasonably sufficient for their requirement in the same town and, hence, allowed the eviction on the ground of Section 11(4) (iii) as well.6. While the Rent Control appeals were pending before the first Appellate Authority, the appellants-landlords took delivery of the premises in execution proceedings. The order passed by the Appellate Authority happened to be passed after such delivery.7. The respondents-tenants pursued the matter before the High Court in Civil Revision Petition Nos. 1274 and 1377 of 2000, leading to the impugned Judgment.8. The High Court has taken a view that once the delivery of the premises had already been taken in execution and for that matter, in case vacant possession of the premises had been surrendered, no further proceedings for eviction can be pursued on any other ground. In the instant case, the delivery of possession had already been taken. The High Court observed that ".........the subject matter of eviction proceedings itself having become non-est by such demolition, the landlord could not have proceeded further with a claim for eviction on other grounds, inter alia, on ground under Section 11(4)(iii) of the Act, which was illegally allowed by the Appellate Authority." In that view of the matter, the Civil Revision Petitions were allowed. The orders passed by the first Appellate Authority were set aside and those of the Rent Control Court were restored. In other words, the appellants-landlords have been granted eviction only on the ground of demolition and reconstruction under Section 11(4)(iv) of the Act.9. Thus aggrieved, the appellants-landlords are before this Court.10. Heard Sh. R. Basant, learned senior counsel appearing for the appellants-landlords and Sh.Ranjith K.C., learned counsel appearing for the respondents-tenants.11. With great respect, we find it difficult to appreciate the view taken by the High Court. The moot question is whether the landlords are entitled to eviction on all the grounds taken by the landlords in the petitions for eviction. It needs to be noted that eviction on the respective grounds under the Act has different ramifications since the grounds being distinct and separate. Therefore, merely because the landlords have taken possession on the basis of an order for eviction granted on one ground, that does not mean that the surviving grounds have become non-est. For all practical purposes and legal consequences, the said grounds do survive to be considered under law.12. We find that in the instant case, the High Court has not considered the revision petitions filed by the respondents-tenants on merits on account of the view taken by the High Court, which we have found to be unacceptable. | 1[ds]11. With great respect, we find it difficult to appreciate the view taken by the High Court. The moot question is whether the landlords are entitled to eviction on all the grounds taken by the landlords in the petitions for eviction. It needs to be noted that eviction on the respective grounds under the Act has different ramifications since the grounds being distinct and separate. Therefore, merely because the landlords have taken possession on the basis of an order for eviction granted on one ground, that does not mean that the surviving grounds have become non-est. For all practical purposes and legal consequences, the said grounds do survive to be considered under law.12. We find that in the instant case, the High Court has not considered the revision petitions filed by the respondents-tenants on merits on account of the view taken by the High Court, which we have found to be unacceptable. | 1 | 985 | 169 | ### Instruction:
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Kurian Joseph, J.1. In the present appeals, we are called upon to consider the interplay between Section 11(4)(iii) and Section 11(4)(iv) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (in short, "the Act").2. The provisions to the extent relevant read as follows :-"(iii) If the tenant already has in his possession a building or subsequently acquires possession of or puts up a building, reasonably sufficient for his requirements in the same city, town or village; or(iv) If the building is in such a condition that it needs reconstruction and if the landlord requires bona fide to reconstruct the same and if he satisfies the court that he has the plan and licence, if any required, and the ability to build and if the proposal is not made as a pretext for eviction; Provided that the landlord who evicts a tenant and does not reconstruct completely the building within a time which may be fixed or extended by the Rent Control Court, shall on a petition before that Court be liable to a fine of rupees five hundred, if its proved that he has wilfully neglected to reconstruct completely the building within such time; provided further that the court shall have power at any time to issue directions regarding the reconstruction of the building and on failure of compliance by the landlord, to give effect to the order in any manner the Court deems fit and in appropriate cases to put the tenant back in possession or award the evicted tenant damages equal tot he excess rent he has to pay for another building that he is occupying in consequence of such eviction; provided further that the tenant who was evicted shall have the first option to have the reconstructed building allotted to him with liability to pay its fair rent."3. The appellants filed Rent Control Petition Nos. 82 of 1994 and 83 of 1994 on the file of the Rent Control Court, Vatakara, seeking eviction of the respondents-tenants, mainly under Sections 11(4)(iii) and 11(4)(iv).4. The Rent Control Court allowed the petitions under Sections 11(4)(iv) on the ground of requirement for demolition and reconstruction.5. Aggrieved, the appellants-landlords pursued the eviction before the first Appellate Authority on the ground also of Section 11(4)(iii), which had been declined by the Rent Control Court. The first Appellate Authority, in RCA No. 106 of 1997 and 107 of 1997, entered a finding that the respondents-tenants were in possession of buildings of their own, which were reasonably sufficient for their requirement in the same town and, hence, allowed the eviction on the ground of Section 11(4) (iii) as well.6. While the Rent Control appeals were pending before the first Appellate Authority, the appellants-landlords took delivery of the premises in execution proceedings. The order passed by the Appellate Authority happened to be passed after such delivery.7. The respondents-tenants pursued the matter before the High Court in Civil Revision Petition Nos. 1274 and 1377 of 2000, leading to the impugned Judgment.8. The High Court has taken a view that once the delivery of the premises had already been taken in execution and for that matter, in case vacant possession of the premises had been surrendered, no further proceedings for eviction can be pursued on any other ground. In the instant case, the delivery of possession had already been taken. The High Court observed that ".........the subject matter of eviction proceedings itself having become non-est by such demolition, the landlord could not have proceeded further with a claim for eviction on other grounds, inter alia, on ground under Section 11(4)(iii) of the Act, which was illegally allowed by the Appellate Authority." In that view of the matter, the Civil Revision Petitions were allowed. The orders passed by the first Appellate Authority were set aside and those of the Rent Control Court were restored. In other words, the appellants-landlords have been granted eviction only on the ground of demolition and reconstruction under Section 11(4)(iv) of the Act.9. Thus aggrieved, the appellants-landlords are before this Court.10. Heard Sh. R. Basant, learned senior counsel appearing for the appellants-landlords and Sh.Ranjith K.C., learned counsel appearing for the respondents-tenants.11. With great respect, we find it difficult to appreciate the view taken by the High Court. The moot question is whether the landlords are entitled to eviction on all the grounds taken by the landlords in the petitions for eviction. It needs to be noted that eviction on the respective grounds under the Act has different ramifications since the grounds being distinct and separate. Therefore, merely because the landlords have taken possession on the basis of an order for eviction granted on one ground, that does not mean that the surviving grounds have become non-est. For all practical purposes and legal consequences, the said grounds do survive to be considered under law.12. We find that in the instant case, the High Court has not considered the revision petitions filed by the respondents-tenants on merits on account of the view taken by the High Court, which we have found to be unacceptable.
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11. With great respect, we find it difficult to appreciate the view taken by the High Court. The moot question is whether the landlords are entitled to eviction on all the grounds taken by the landlords in the petitions for eviction. It needs to be noted that eviction on the respective grounds under the Act has different ramifications since the grounds being distinct and separate. Therefore, merely because the landlords have taken possession on the basis of an order for eviction granted on one ground, that does not mean that the surviving grounds have become non-est. For all practical purposes and legal consequences, the said grounds do survive to be considered under law.12. We find that in the instant case, the High Court has not considered the revision petitions filed by the respondents-tenants on merits on account of the view taken by the High Court, which we have found to be unacceptable.
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Central Bureau of Investigation and Another Vs. Rajesh Gandhi & Another | offences was transferred to the first appellant and a fresh case RC.1(S)/95(D) was registered on 3-1-1995 against the first respondent and other accused persons incorporating the offences mentioned in FIR No. 159 of 1993. The first respondent filed a writ petition in the Patna High Court challenging the said notifications of 2-6-1994 and 26-10-1994. The present appeal arises from an order of a learned Single Judge of the Patna High Court quashing the said notifications. 4. This is, however, not the first such proceeding. Earlier Respondent 1 herein and other accused persons filed a writ petition on or about 7-2-1995 in the High Court of Calcutta in respect of the same criminal proceedings. The Calcutta High Court by its order dated 9-2-1995 disposed of the writ petition by directing that the venue of the investigation be shifted from Dhanbad to Ranchi and the investigating officers be changed. This order, however, was set aside by this Court in SLP (Crl) No. 1155 of 1995. 5. Thereafter, M/s. Continental Transport and Construction Corporation Limited and one of the directors, Ramesh Gandhi, the brother of Respondent 1, filed a writ petition before the Ranchi Bench of the Patna High Court praying, inter alia, for a writ quashing the FIR dated 3-1-1995 lodged in the Court of the Special Judicial Magistrate, CBI cases, Dhanbad and for quashing the notifications of 2-6-1994 and 26-10-1994. The Ranchi Bench of the Patna High Court, however, dismissed the writ petition by a reasoned judgment and order dated 10-5-1995. 6. The first respondent then filed a writ petition before the Patna High Court for identical reliefs of quashing the said notifications. The Patna High Court allowed the writ petition holding that the impugned notifications must disclose reasons as to why the investigation was being entrusted to the Delhi Special Police Establishment. This decision is under challenge before us. 7. In the first place, the same two notifications were challenged before the Ranchi Bench of the same High Court. A learned Single Judge of the High Court by a reasoned order declined to quash the two notifications. We fail to appreciate how another learned Single Judge of the same High Court has quashed the same notifications in disregard of the earlier judgment. Secondly, there is a clear attempt on the part of first respondent as well as other accused to stall investigation by the CBI, looking to the course of conduct adopted by them starting with the filing of a writ petition in the Calcutta High Court when CBI had registered an FIR before the Special Judicial Magistrate, CBI cases, at Dhanbad. 8. There is no merit in the pleas raised by the first respondent either. The decision to investigate or the decision on the agency which should investigate, does not attract principles of natural justice. The accused cannot have a say in who should investigate the offences he is charged with. We also fail to see any provision of law for recording reasons for such a decision. The notification dated 2-6-1994 is issued by the Government of Bihar (Police Department) by which in exercise of powers under Section 6 of the Delhi Special Police Establishment Act, 1946, Governor of Bihar was pleased to consent and extend the power and jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Bihar in connection with investigation of the concerned Police Station case No. 159 of 9-3-1993 in the District of Dhanbad, under Sections 457, 436, 427, 201 and 120-B, Indian Penal Code and conspiracy arising out of the same and any other offence committed in course of the same. The notification of 26-10-1994 is issued by the Government of India, Ministry of Personnel in exercise of the powers conferred by sub-section (1) of Section 5 read with Section 6 of the Delhi Special Police Establishment Act, 1946 whereby the Central Government with the consent of the State Government of Bihar in their notification dated 2-6-1994 extended the powers and jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Bihar for investigation of offences under Sections 457, 436, 427/120-B and 201 IPC and Section 4 of the Prevention of Damage to Public Property Act, 1984 registered at Dhanbad Police Station, Dhansar, Bihar in their case No. 159 dated 9-3-1993 and any other offences, attempts, abetment and conspiracy in relation to or in connection with the said offence committed in the course of the same transactions or arising out of the same fact or facts in relation to the said case. There is no provision in law under which, while granting consent or extending the powers and jurisdiction of the Delhi Special Police Establishment to the specified State and to any specified case any reasons are required to be recorded on the face of the notification. The learned Single Judge of the Patna High Court was clearly in error in holding so. If investigation by the local police is not satisfactory, a further investigation is not precluded. In the present case the material on record shows that the investigation by the local police was not satisfactory. In fact the local police had filed a final report before the Chief Judicial Magistrate, Dhanbad. The report, however, was pending and had not been accepted when the Central Government with the consent of the State Government issued the impugned notification. As a result, the CBI has been directed to further investigate the offences registered under the said FIR with the consent of the State Government and in accordance with law. Under Section 173(8) of the CrPC 1973 also, there is an analogous provision for further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate. 9. We fail to see any requirement of law under which the reasons for further investigation by the CBI are required to be recorded in the notifications of the kind in question. The reasons can be shown independentl.y. | 1[ds]8. There is no merit in the pleas raised by the first respondent either. The decision to investigate or the decision on the agency which should investigate, does not attract principles of natural justice. The accused cannot have a say in who should investigate the offences he is charged with. We also fail to see any provision of law for recording reasons for such a decision. The notification datedis issued by the Government of Bihar (Police Department) by which in exercise of powers under Section 6 of the Delhi Special Police Establishment Act, 1946, Governor of Bihar was pleased to consent and extend the power and jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Bihar in connection with investigation of the concerned Police Station case No. 159 ofin the District of Dhanbad, under Sections 457, 436, 427, 201 andIndian Penal Code and conspiracy arising out of the same and any other offence committed in course of the same. The notification ofis issued by the Government of India, Ministry of Personnel in exercise of the powers conferred by(1) of Section 5 read with Section 6 of the Delhi Special Police Establishment Act, 1946 whereby the Central Government with the consent of the State Government of Bihar in their notification datedextended the powers and jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Bihar for investigation of offences under Sections 457, 436,and 201 IPC and Section 4 of the Prevention of Damage to Public Property Act, 1984 registered at Dhanbad Police Station, Dhansar, Bihar in their case No. 159 datedand any other offences, attempts, abetment and conspiracy in relation to or in connection with the said offence committed in the course of the same transactions or arising out of the same fact or facts in relation to the said case. There is no provision in law under which, while granting consent or extending the powers and jurisdiction of the Delhi Special Police Establishment to the specified State and to any specified case any reasons are required to be recorded on the face of the notification. The learned Single Judge of the Patna High Court was clearly in error in holding so. If investigation by the local police is not satisfactory, a further investigation is not precluded. In the present case the material on record shows that the investigation by the local police was not satisfactory. In fact the local police had filed a final report before the Chief Judicial Magistrate, Dhanbad. The report, however, was pending and had not been accepted when the Central Government with the consent of the State Government issued the impugned notification. As a result, the CBI has been directed to further investigate the offences registered under the said FIR with the consent of the State Government and in accordance with law. Under Section 173(8) of the CrPC 1973 also, there is an analogous provision for further investigation in respect of an offence after a report under(2) has been forwarded to theWe fail to see any requirement of law under which the reasons for further investigation by the CBI are required to be recorded in the notifications of the kind in question. The reasons can be shown | 1 | 1,416 | 603 | ### Instruction:
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offences was transferred to the first appellant and a fresh case RC.1(S)/95(D) was registered on 3-1-1995 against the first respondent and other accused persons incorporating the offences mentioned in FIR No. 159 of 1993. The first respondent filed a writ petition in the Patna High Court challenging the said notifications of 2-6-1994 and 26-10-1994. The present appeal arises from an order of a learned Single Judge of the Patna High Court quashing the said notifications. 4. This is, however, not the first such proceeding. Earlier Respondent 1 herein and other accused persons filed a writ petition on or about 7-2-1995 in the High Court of Calcutta in respect of the same criminal proceedings. The Calcutta High Court by its order dated 9-2-1995 disposed of the writ petition by directing that the venue of the investigation be shifted from Dhanbad to Ranchi and the investigating officers be changed. This order, however, was set aside by this Court in SLP (Crl) No. 1155 of 1995. 5. Thereafter, M/s. Continental Transport and Construction Corporation Limited and one of the directors, Ramesh Gandhi, the brother of Respondent 1, filed a writ petition before the Ranchi Bench of the Patna High Court praying, inter alia, for a writ quashing the FIR dated 3-1-1995 lodged in the Court of the Special Judicial Magistrate, CBI cases, Dhanbad and for quashing the notifications of 2-6-1994 and 26-10-1994. The Ranchi Bench of the Patna High Court, however, dismissed the writ petition by a reasoned judgment and order dated 10-5-1995. 6. The first respondent then filed a writ petition before the Patna High Court for identical reliefs of quashing the said notifications. The Patna High Court allowed the writ petition holding that the impugned notifications must disclose reasons as to why the investigation was being entrusted to the Delhi Special Police Establishment. This decision is under challenge before us. 7. In the first place, the same two notifications were challenged before the Ranchi Bench of the same High Court. A learned Single Judge of the High Court by a reasoned order declined to quash the two notifications. We fail to appreciate how another learned Single Judge of the same High Court has quashed the same notifications in disregard of the earlier judgment. Secondly, there is a clear attempt on the part of first respondent as well as other accused to stall investigation by the CBI, looking to the course of conduct adopted by them starting with the filing of a writ petition in the Calcutta High Court when CBI had registered an FIR before the Special Judicial Magistrate, CBI cases, at Dhanbad. 8. There is no merit in the pleas raised by the first respondent either. The decision to investigate or the decision on the agency which should investigate, does not attract principles of natural justice. The accused cannot have a say in who should investigate the offences he is charged with. We also fail to see any provision of law for recording reasons for such a decision. The notification dated 2-6-1994 is issued by the Government of Bihar (Police Department) by which in exercise of powers under Section 6 of the Delhi Special Police Establishment Act, 1946, Governor of Bihar was pleased to consent and extend the power and jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Bihar in connection with investigation of the concerned Police Station case No. 159 of 9-3-1993 in the District of Dhanbad, under Sections 457, 436, 427, 201 and 120-B, Indian Penal Code and conspiracy arising out of the same and any other offence committed in course of the same. The notification of 26-10-1994 is issued by the Government of India, Ministry of Personnel in exercise of the powers conferred by sub-section (1) of Section 5 read with Section 6 of the Delhi Special Police Establishment Act, 1946 whereby the Central Government with the consent of the State Government of Bihar in their notification dated 2-6-1994 extended the powers and jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Bihar for investigation of offences under Sections 457, 436, 427/120-B and 201 IPC and Section 4 of the Prevention of Damage to Public Property Act, 1984 registered at Dhanbad Police Station, Dhansar, Bihar in their case No. 159 dated 9-3-1993 and any other offences, attempts, abetment and conspiracy in relation to or in connection with the said offence committed in the course of the same transactions or arising out of the same fact or facts in relation to the said case. There is no provision in law under which, while granting consent or extending the powers and jurisdiction of the Delhi Special Police Establishment to the specified State and to any specified case any reasons are required to be recorded on the face of the notification. The learned Single Judge of the Patna High Court was clearly in error in holding so. If investigation by the local police is not satisfactory, a further investigation is not precluded. In the present case the material on record shows that the investigation by the local police was not satisfactory. In fact the local police had filed a final report before the Chief Judicial Magistrate, Dhanbad. The report, however, was pending and had not been accepted when the Central Government with the consent of the State Government issued the impugned notification. As a result, the CBI has been directed to further investigate the offences registered under the said FIR with the consent of the State Government and in accordance with law. Under Section 173(8) of the CrPC 1973 also, there is an analogous provision for further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate. 9. We fail to see any requirement of law under which the reasons for further investigation by the CBI are required to be recorded in the notifications of the kind in question. The reasons can be shown independentl.y.
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8. There is no merit in the pleas raised by the first respondent either. The decision to investigate or the decision on the agency which should investigate, does not attract principles of natural justice. The accused cannot have a say in who should investigate the offences he is charged with. We also fail to see any provision of law for recording reasons for such a decision. The notification datedis issued by the Government of Bihar (Police Department) by which in exercise of powers under Section 6 of the Delhi Special Police Establishment Act, 1946, Governor of Bihar was pleased to consent and extend the power and jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Bihar in connection with investigation of the concerned Police Station case No. 159 ofin the District of Dhanbad, under Sections 457, 436, 427, 201 andIndian Penal Code and conspiracy arising out of the same and any other offence committed in course of the same. The notification ofis issued by the Government of India, Ministry of Personnel in exercise of the powers conferred by(1) of Section 5 read with Section 6 of the Delhi Special Police Establishment Act, 1946 whereby the Central Government with the consent of the State Government of Bihar in their notification datedextended the powers and jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Bihar for investigation of offences under Sections 457, 436,and 201 IPC and Section 4 of the Prevention of Damage to Public Property Act, 1984 registered at Dhanbad Police Station, Dhansar, Bihar in their case No. 159 datedand any other offences, attempts, abetment and conspiracy in relation to or in connection with the said offence committed in the course of the same transactions or arising out of the same fact or facts in relation to the said case. There is no provision in law under which, while granting consent or extending the powers and jurisdiction of the Delhi Special Police Establishment to the specified State and to any specified case any reasons are required to be recorded on the face of the notification. The learned Single Judge of the Patna High Court was clearly in error in holding so. If investigation by the local police is not satisfactory, a further investigation is not precluded. In the present case the material on record shows that the investigation by the local police was not satisfactory. In fact the local police had filed a final report before the Chief Judicial Magistrate, Dhanbad. The report, however, was pending and had not been accepted when the Central Government with the consent of the State Government issued the impugned notification. As a result, the CBI has been directed to further investigate the offences registered under the said FIR with the consent of the State Government and in accordance with law. Under Section 173(8) of the CrPC 1973 also, there is an analogous provision for further investigation in respect of an offence after a report under(2) has been forwarded to theWe fail to see any requirement of law under which the reasons for further investigation by the CBI are required to be recorded in the notifications of the kind in question. The reasons can be shown
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PANKAJ KUMAR Vs. STATE OF JHARKHAND & ORS | participating in public employment to compete in open/general category and asked to seek the benefit of reservation in the neighbouring State of Bihar, to hold different status in his parent State of Jharkhand after he became a member of service of the State of Jharkhand, serving for sufficient long time on and after the appointed day, i.e. 15th November, 2000 in the State is unsustainable in law and in contravention to the scheme of the Act 2000. 53. It will be highly unfair and pernicious to their interest if the benefits of reservation with privileges and benefits flowing thereof are not being protected in the State of Jharkhand after he is absorbed by virtue to Section 73 of the Act 2000 that clearly postulates not only to protect the existing service conditions but the benefit of reservation and privileges which he was enjoying on or before the appointed day, i.e. 15th November, 2000 in the State of Bihar not to be varied to his disadvantage after he became a member of service in the State of Jharkhand. 54. The collective readings of the provisions of the Act, 2000 makes it apparent that such of the persons whose place of origin/domicile on or before the appointed day was of the State of Bihar now falling within the districts/regions which form a successor State, i.e., State of Jharkhand under Section 3 of the Act, 2000 became ordinary resident of the State of Jharkhand, at the same time, so far as the employees who were in public employment in the State of Bihar on or before the appointed day, i.e. 15th November, 2000 under the Act 2000, apart from those who are domicile of either of the district which became part of the State of Jharkhand, such of the employees who have submitted their option or employees who are junior in the cadre of their seniority as per the policy of the Government of India of which a reference has been made, either voluntarily or involuntarily call upon to serve the State of Jharkhand, their existing service conditions shall not be varied to their disadvantage and stands protected by virtue of Section 73 of the Act, 2000. 55. In our considered view, such of the employees who are members of the SC/ST/OBC whose caste/tribe has been notified by an amendment to the Constitution(Scheduled Castes)/(Scheduled Tribes) Order 1950 under Vth and VIth Schedule to Sections 23 and 24 of the Act 2000 or by the separate notification for members of other backward class category, benefit of reservation including privileges and benefits flowing thereof, shall remain protected by virtue of Section 73 of the Act 2000 for all practical purposes which can be claimed (including by their wards) for participation in public employment. 56. It is made clear that person is entitled to claim benefit of reservation in either of the successor State of Bihar or State of Jharkhand, but will not be entitled to claim benefit of reservation simultaneously in both the successor States and those who are members of the reserved category and are resident of the successor State of Bihar, while participating in open selection in State of Jharkhand shall be treated to be migrants and it will be open to participate in general category without claiming the benefit of reservation and vice-versa. 57. We are of the view that the present appellant Pankaj Kumar in Civil Appeal @ SLP(Civil) No.13473 of 2020, being a serving employee in the State of Jharkhand by virtue of Section 73 of the Act 2000, would be entitled to claim the benefit of reservation including the privileges and benefits admissible to the members of Scheduled Caste category in the State of Jharkhand for all practical purposes including participation in open competition seeking public employment. 58. So far as the case of other appellants in Civil Appeals @ SLP (Civil) Nos. 3610-3615 of 2021 is concerned, there is no material placed by either of them on record to justify that how long they were residing in the districts which now form part of the successor State of Jharkhand and the advertisement of the year 2004 required that one has to submit a caste certificate issued by the competent authority of the State of Jharkhand and none of them produced the caste certificate. As noticed by us, the present batch of appellants were appointed in the year 2005 as Constables against the post reserved for Scheduled Caste/Scheduled Tribe/OBC category in the State of Jharkhand, in our considered view, were migrants to the State of Jharkhand which would disentitle them in claiming the benefit of reservation in view of the judgment of the Constitution Bench of this Court of which a reference has been made(supra). 59. But taking note of the peculiar facts and circumstances of the case which, however, cannot be ignored, that the appellants had bonafidely submitted their application pursuant to an advertisement dated 13th January, 2004 issued by the State of Jharkhand holding selection for the post of Constable and it is not the case of the respondents that either of the appellant has misrepresented while participating in the selection process or the caste/tribe/OBC to which either of the appellant belongs is not being notified in the Constitution(Scheduled Castes)/(Scheduled Tribes) Order, 1950 which has been amended in reference to Sections 23 and 24 of the Act 2000 or the class of OBC which has been notified by the State of Jharkhand and once the appellants are appointed, after going through the process of selection served for 3-4 years, their services came to be terminated in June, 2008 and who were never at fault have lost almost 13 years in litigation and could not secure employment at a later stage. Taking note of the peculiar facts and circumstances and the period of service rendered, while exercising our plenary power under Article 142 of the Constitution, to do complete justice, each of the appellant deserves indulgence of reinstatement in service on notional fixation of pay and allowances, etc. | 1[ds]37. The Constitution Bench of this Court in Marri Chandra Shekhar Rao(supra) had an occasion to examine as to whether the person belonging to Scheduled Castes in relation to a particular State would be entitled to the benefits or concessions allowed to Scheduled Castes in the matter of education/employment in another State. Referring to various provisions of the Constitution and the grounds on which the Presidential Orders were issued and noticing earlier judgments, this Court held as under:-9. It appears that Scheduled Castes and Scheduled Tribes in some States had to suffer the social disadvantages and did not have the facilities for development and growth. It is, therefore, necessary in order to make them equal in those areas where they have so suffered and are in the state of underdevelopment to have reservations or protection in their favour so that they can compete on equal terms with the more advantageous or developed sections of the community. Extreme social and economic backwardness arising out of traditional practices of untouchability is normally considered as criterion for including a community in the list of Scheduled Castes and Scheduled Tribes. The social conditions of a caste, however, varies from State to State and it will not be proper to generalise any caste or any tribe as a Scheduled Tribe or Scheduled Caste for the whole country. This, however, is a different problem whether a member or the Scheduled Caste in one part of the country who migrates to another State or any other Union territory should continue to be treated as a Scheduled Caste or Scheduled Tribe in which he has migrated. That question has to be judged taking into consideration the interest and well-being of the Scheduled Castes and Scheduled Tribes in the country as a whole.38. This Court, while rejecting the contention that the member of the Scheduled Castes/Scheduled Tribes should get the benefit for the purpose of Constitution through out the territory of India, observed that if such contention is to be accepted, the very expression in relation to State would lose its significance. Marri Chandra Shekhar Rao(supra) was further followed by another Constitution Bench of this Court in Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes inthe State of Maharashtra and Anr.(supra)which further came to be followed by another Constitution Bench of this Court in Bir Singh(supra) wherein in para 34, it was held as under:-34. Unhesitatingly, therefore, it can be said that a person belonging to a Scheduled Caste in one State cannot be deemed to be a Scheduled Caste person in relation to any other State to which he migrates for the purpose of employment or education. The expressions in relation to that State or Union Territory and for the purpose of this Constitution used in Articles 341 and 342 of the Constitution of India would mean that the benefits of reservation provided for by the Constitution would stand confined to the geographical territories of a State/Union Territory in respect of which the lists of Scheduled Castes/Scheduled Tribes have been notified by the Presidential Orders issued from time to time. A person notified as a Scheduled Caste in State A cannot claim the s ame status in another State on the basis that he is declared as a Scheduled Caste in State A.39. So far as involuntary migration from one State to another State is concerned, the Constitution Bench of this Court in Marri Chandra Shekhar Rao(supra) taking note of the fate of those castes/tribes seeking protection of being classed as Scheduled Castes or Scheduled Tribes in the State of their origin when, because of transfer or movement of their father or guardians business or service, they move to another State having considered the fate of their migration from one State to another State being involuntary, by force or circumstances either of employment or of profession, left it for the legislature or the Parliament to consider it for appropriate legislation bearing that aspect in mind that their rights and privileges as members of Scheduled Castes/Scheduled Tribes be well protected by virtue of provisions of Articles 341(1) and 342(1) of the Constitution and observed in para 23 as under:-23. Having construed the provisions of Articles 341 and 342 of the Constitution in the manner we have done, the next question that falls for consideration, is, the question of the fate of those Scheduled Caste and Scheduled Tribe students who get the protection of being classed as Scheduled Caste or Scheduled Tribe in the States of origin when, because of transfer or movement of their father or guardians business or service, they move to other States as a matter of voluntary (sic involuntary) transfer, will they be entitled to some sort of protective treatment so that they may continue or pursue their education. Having considered the facts and circumstances of such situation, it appears to us that where the migration from one State to another is involuntary, by force of circumstances either of employment or of profession, in such cases if students or persons apply in the migrated State where without affecting prejudicially the rights of the Scheduled Castes or Scheduled Tribes in those States or areas, any facility or protection for continuance of study or admission can be given to one who has or migrated then some consideration is desirable to be made on that ground. It would, therefore, be necessary and perhaps desirable for the legislatures or the Parliament to consider appropriate legislations bearing this aspect in mind so that proper effect is given to the rights given to Scheduled Castes and Scheduled Tribes by virtue of the provisions under Articles 341 and 342 of the Constitution. This is a matter which the State legislatures or the Parliament may appropriately take into consideration.40. In relation to Backward Classes, this Court in M.C.D. Vs. Veena and Others 2001 (6) SCC 571 has specifically held that migrants are not entitled for reservation as Other Backward Classes (OBCs) in the States/Union Territories where they have migrated. The relevant portion of the judgment that may be noticed is as hereunder:6. Castes or groups are specified in relation to a given State or Union Territory, which obviously means that such caste would include caste belonging to an OBC group in relation to that State or Union Territory for which it is specified. The matters that are to be taken into consideration for specifying a particular caste in a particular group belonging to OBCs would depend on the nature and extent of disadvantages and social hardships suffered by that caste or group in that State. However, it may not be so in another State to which a person belonging thereto goes by migration. It may also be that a caste belonging to the same nomenclature is specified in two States but the considerations on the basis of which they had been specified may be totally different. So the degree of disadvantages of various elements which constitute the data for specification may also be entirely different. Thus, merely because a given caste is specified in one State as belonging to OBCs does not necessarily mean that if there be another group belonging to the same nomenclature in another State, a person belonging to that group is entitled to the rights, privileges and benefits admissible to the members of that caste. These aspects have to be borne in mind in interpreting the provisions of the Constitution with reference to application of reservation to OBCs.41. By the judgments of the Constitution Bench of which the reference has been made (supra), it has been settled that the person belonging to Scheduled Castes/Scheduled Tribes/OBC of the State, on migration to another State voluntarily or involuntarily, will not be entitled to claim benefits of reservation including privileges and benefits admissible to the member of the Scheduled Castes/Scheduled Tribes/OBC even though, the caste or tribe of the same nomenclature is notified in the latter State(State where migrated) and if that is being permitted, the very expression as mandated under Articles 341(1) and 342(1) of the Constitution in relation to the State would become otiose and this issue remain no more res integra after the pronouncements made by the Constitution Bench of this Court.The bare perusal of the Government Orders of which a reference has been made are addressed to the Chief Secretaries of all State Governments/Union Territory administrations in the form of clarifications issued from time to time to the respective competent authorities for issuance of Scheduled Castes/Scheduled Tribes caste certificates.45. In the instant case, we are not examining the issue of voluntary or involuntary migration of the members of the SC/ST/OBC from State A to another State B claiming privileges/benefits admissible to member of SC/ST/OBC even though there is a caste or tribe of the same nomenclature in the latter State.49. The scheme of the Act 2000 postulates that employees who are working immediately on or before the appointed date, in the State of Bihar, has either domicile of the districts that formed part of State of Jharkhand under Section 3 of the Act or opted or joined being junior in their respective seniority, stands absorbed in the successor State of Jharkhand and by virtue of a statutory instrument, their service conditions stand protected and became entitled to claim privileges and benefits to which the members of scheduled castes/scheduled tribes/OBC are entitled for in terms of the Presidential Order 1950 as amended from time to time.50. This Court, while examining almost a similar nature of controversy in Sudhakar Vithal Kumbhare(supra) held as under:-5. But the question which arises for consideration herein appears to have not been raised in any other case. It is not in dispute that the Scheduled Castes and Scheduled Tribes have suffered disadvantages and been denied facilities for development and growth in several States. They require protective preferences, facilities and benefits inter alia in the form of reservation, so as to enable them to compete on equal terms with the more advantaged and developed sections of the community. The question is as to whether the appellant being a Scheduled Tribe known as Halba/Halbi which stands recognized both in the State of Madhya Pradesh as well as in the State of Maharashtra having their origin in Chhindwara region, a part of which, on States reorganisation, has come to the State of Maharashtra, was entitled to the benefit of reservation. It is one thing to say that the expression in relation to that State occurring in Article 342 of the Constitution of India should be given an effective or proper meaning so as to exclude the possibility that a tribe which has been included as a Scheduled Tribe in one State after consultation with the Governor for the purpose of the Constitution may not get the same benefit in another State whose Governor has not been consulted; but it is another thing to say that when an area is dominated by members of the same tribe belonging to the same region which has been bifurcated, the members would not continue to get the same benefit when the said tribe is recognized in both the States. In other words, the question that is required to be posed and answered would be as to whether the members of a Scheduled Tribe belonging to one region would continue to get the same benefits despite bifurcation thereof in terms of the States Reorganisation Act. With a view to find out as to whether any particular area of the country was required to be given protection is a matter which requires detailed investigation having regard to the fact that both Pandhurna in the district of Chhindwara and a part of the area of Chandrapur at one point of time belonged to the same region and under the Constitution (Scheduled Tribes) Order, 1950 as it originally stood the tribe Halba/Halbi of that region may be given the same protection. In a case of this nature the degree of disadvantages of various elements which constitute the input for specification may not be totally different and the State of Maharashtra even after reorganisation might have agreed for inclusion of the said tribe Halba/Halbi as a Scheduled tribe in the State of Maharashtra having regard to the said fact in mind.51. It was a case where the person was a member of Scheduled Tribe known as Halba/Halbi. The tribe had its origin in District Chhindwara region which is a part of State of Madhya Pradesh, a part of the district of Chhindwara place Chandrapur, on States reorgaisation, came to the existing State of Maharashtra from the State of Madhya Pradesh, it was not considered a case of migration from State of Madhya Pradesh to State of Maharashtra. But the State of Maharashtra being the existing State and degree of disadvantages of various elements may be different on the objection being raised by the State of Maharashtra City Board where the incumbent was employed, it was left open for examination by the scrutiny committee constituted and established pursuant to a judgment of this Court in Kumari Madhuri Patil and Another Vs. Addl. Commissioner, Tribal Development and Others 1994(6) SCC 241.52. There is a fundamental dichotomy in the submissions made by the counsel for the State of Jharkhand that the existing service conditions including benefit of reservation in the promotional cadre post shall not be varied to his disadvantage but he shall be considered to be a migrant to the State of Jharkhand while participating in public employment to compete in open/general category and asked to seek the benefit of reservation in the neighbouring State of Bihar, to hold different status in his parent State of Jharkhand after he became a member of service of the State of Jharkhand, serving for sufficient long time on and after the appointed day, i.e. 15th November, 2000 in the State is unsustainable in law and in contravention to the scheme of the Act 2000.53. It will be highly unfair and pernicious to their interest if the benefits of reservation with privileges and benefits flowing thereof are not being protected in the State of Jharkhand after he is absorbed by virtue to Section 73 of the Act 2000 that clearly postulates not only to protect the existing service conditions but the benefit of reservation and privileges which he was enjoying on or before the appointed day, i.e. 15th November, 2000 in the State of Bihar not to be varied to his disadvantage after he became a member of service in the State of Jharkhand.54. The collective readings of the provisions of the Act, 2000 makes it apparent that such of the persons whose place of origin/domicile on or before the appointed day was of the State of Bihar now falling within the districts/regions which form a successor State, i.e., State of Jharkhand under Section 3 of the Act, 2000 became ordinary resident of the State of Jharkhand, at the same time, so far as the employees who were in public employment in the State of Bihar on or before the appointed day, i.e. 15th November, 2000 under the Act 2000, apart from those who are domicile of either of the district which became part of the State of Jharkhand, such of the employees who have submitted their option or employees who are junior in the cadre of their seniority as per the policy of the Government of India of which a reference has been made, either voluntarily or involuntarily call upon to serve the State of Jharkhand, their existing service conditions shall not be varied to their disadvantage and stands protected by virtue of Section 73 of the Act, 2000.55. In our considered view, such of the employees who are members of the SC/ST/OBC whose caste/tribe has been notified by an amendment to the Constitution(Scheduled Castes)/(Scheduled Tribes) Order 1950 under Vth and VIth Schedule to Sections 23 and 24 of the Act 2000 or by the separate notification for members of other backward class category, benefit of reservation including privileges and benefits flowing thereof, shall remain protected by virtue of Section 73 of the Act 2000 for all practical purposes which can be claimed (including by their wards) for participation in public employment.56. It is made clear that person is entitled to claim benefit of reservation in either of the successor State of Bihar or State of Jharkhand, but will not be entitled to claim benefit of reservation simultaneously in both the successor States and those who are members of the reserved category and are resident of the successor State of Bihar, while participating in open selection in State of Jharkhand shall be treated to be migrants and it will be open to participate in general category without claiming the benefit of reservation and vice-versa.57. We are of the view that the present appellant Pankaj Kumar in Civil Appeal @ SLP(Civil) No.13473 of 2020, being a serving employee in the State of Jharkhand by virtue of Section 73 of the Act 2000, would be entitled to claim the benefit of reservation including the privileges and benefits admissible to the members of Scheduled Caste category in the State of Jharkhand for all practical purposes including participation in open competition seeking public employment.58. So far as the case of other appellants in Civil Appeals @ SLP (Civil) Nos. 3610-3615 of 2021 is concerned, there is no material placed by either of them on record to justify that how long they were residing in the districts which now form part of the successor State of Jharkhand and the advertisement of the year 2004 required that one has to submit a caste certificate issued by the competent authority of the State of Jharkhand and none of them produced the caste certificate. As noticed by us, the present batch of appellants were appointed in the year 2005 as Constables against the post reserved for Scheduled Caste/Scheduled Tribe/OBC category in the State of Jharkhand, in our considered view, were migrants to the State of Jharkhand which would disentitle them in claiming the benefit of reservation in view of the judgment of the Constitution Bench of this Court of which a reference has been made(supra).59. But taking note of the peculiar facts and circumstances of the case which, however, cannot be ignored, that the appellants had bonafidely submitted their application pursuant to an advertisement dated 13th January, 2004 issued by the State of Jharkhand holding selection for the post of Constable and it is not the case of the respondents that either of the appellant has misrepresented while participating in the selection process or the caste/tribe/OBC to which either of the appellant belongs is not being notified in the Constitution(Scheduled Castes)/(Scheduled Tribes) Order, 1950 which has been amended in reference to Sections 23 and 24 of the Act 2000 or the class of OBC which has been notified by the State of Jharkhand and once the appellants are appointed, after going through the process of selection served for 3-4 years, their services came to be terminated in June, 2008 and who were never at fault have lost almost 13 years in litigation and could not secure employment at a later stage. Taking note of the peculiar facts and circumstances and the period of service rendered, while exercising our plenary power under Article 142 of the Constitution, to do complete justice, each of the appellant deserves indulgence of reinstatement in service on notional fixation of pay and allowances, etc. | 1 | 10,587 | 3,484 | ### 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:
participating in public employment to compete in open/general category and asked to seek the benefit of reservation in the neighbouring State of Bihar, to hold different status in his parent State of Jharkhand after he became a member of service of the State of Jharkhand, serving for sufficient long time on and after the appointed day, i.e. 15th November, 2000 in the State is unsustainable in law and in contravention to the scheme of the Act 2000. 53. It will be highly unfair and pernicious to their interest if the benefits of reservation with privileges and benefits flowing thereof are not being protected in the State of Jharkhand after he is absorbed by virtue to Section 73 of the Act 2000 that clearly postulates not only to protect the existing service conditions but the benefit of reservation and privileges which he was enjoying on or before the appointed day, i.e. 15th November, 2000 in the State of Bihar not to be varied to his disadvantage after he became a member of service in the State of Jharkhand. 54. The collective readings of the provisions of the Act, 2000 makes it apparent that such of the persons whose place of origin/domicile on or before the appointed day was of the State of Bihar now falling within the districts/regions which form a successor State, i.e., State of Jharkhand under Section 3 of the Act, 2000 became ordinary resident of the State of Jharkhand, at the same time, so far as the employees who were in public employment in the State of Bihar on or before the appointed day, i.e. 15th November, 2000 under the Act 2000, apart from those who are domicile of either of the district which became part of the State of Jharkhand, such of the employees who have submitted their option or employees who are junior in the cadre of their seniority as per the policy of the Government of India of which a reference has been made, either voluntarily or involuntarily call upon to serve the State of Jharkhand, their existing service conditions shall not be varied to their disadvantage and stands protected by virtue of Section 73 of the Act, 2000. 55. In our considered view, such of the employees who are members of the SC/ST/OBC whose caste/tribe has been notified by an amendment to the Constitution(Scheduled Castes)/(Scheduled Tribes) Order 1950 under Vth and VIth Schedule to Sections 23 and 24 of the Act 2000 or by the separate notification for members of other backward class category, benefit of reservation including privileges and benefits flowing thereof, shall remain protected by virtue of Section 73 of the Act 2000 for all practical purposes which can be claimed (including by their wards) for participation in public employment. 56. It is made clear that person is entitled to claim benefit of reservation in either of the successor State of Bihar or State of Jharkhand, but will not be entitled to claim benefit of reservation simultaneously in both the successor States and those who are members of the reserved category and are resident of the successor State of Bihar, while participating in open selection in State of Jharkhand shall be treated to be migrants and it will be open to participate in general category without claiming the benefit of reservation and vice-versa. 57. We are of the view that the present appellant Pankaj Kumar in Civil Appeal @ SLP(Civil) No.13473 of 2020, being a serving employee in the State of Jharkhand by virtue of Section 73 of the Act 2000, would be entitled to claim the benefit of reservation including the privileges and benefits admissible to the members of Scheduled Caste category in the State of Jharkhand for all practical purposes including participation in open competition seeking public employment. 58. So far as the case of other appellants in Civil Appeals @ SLP (Civil) Nos. 3610-3615 of 2021 is concerned, there is no material placed by either of them on record to justify that how long they were residing in the districts which now form part of the successor State of Jharkhand and the advertisement of the year 2004 required that one has to submit a caste certificate issued by the competent authority of the State of Jharkhand and none of them produced the caste certificate. As noticed by us, the present batch of appellants were appointed in the year 2005 as Constables against the post reserved for Scheduled Caste/Scheduled Tribe/OBC category in the State of Jharkhand, in our considered view, were migrants to the State of Jharkhand which would disentitle them in claiming the benefit of reservation in view of the judgment of the Constitution Bench of this Court of which a reference has been made(supra). 59. But taking note of the peculiar facts and circumstances of the case which, however, cannot be ignored, that the appellants had bonafidely submitted their application pursuant to an advertisement dated 13th January, 2004 issued by the State of Jharkhand holding selection for the post of Constable and it is not the case of the respondents that either of the appellant has misrepresented while participating in the selection process or the caste/tribe/OBC to which either of the appellant belongs is not being notified in the Constitution(Scheduled Castes)/(Scheduled Tribes) Order, 1950 which has been amended in reference to Sections 23 and 24 of the Act 2000 or the class of OBC which has been notified by the State of Jharkhand and once the appellants are appointed, after going through the process of selection served for 3-4 years, their services came to be terminated in June, 2008 and who were never at fault have lost almost 13 years in litigation and could not secure employment at a later stage. Taking note of the peculiar facts and circumstances and the period of service rendered, while exercising our plenary power under Article 142 of the Constitution, to do complete justice, each of the appellant deserves indulgence of reinstatement in service on notional fixation of pay and allowances, etc.
### Response:
1
### Explanation:
migrant to the State of Jharkhand while participating in public employment to compete in open/general category and asked to seek the benefit of reservation in the neighbouring State of Bihar, to hold different status in his parent State of Jharkhand after he became a member of service of the State of Jharkhand, serving for sufficient long time on and after the appointed day, i.e. 15th November, 2000 in the State is unsustainable in law and in contravention to the scheme of the Act 2000.53. It will be highly unfair and pernicious to their interest if the benefits of reservation with privileges and benefits flowing thereof are not being protected in the State of Jharkhand after he is absorbed by virtue to Section 73 of the Act 2000 that clearly postulates not only to protect the existing service conditions but the benefit of reservation and privileges which he was enjoying on or before the appointed day, i.e. 15th November, 2000 in the State of Bihar not to be varied to his disadvantage after he became a member of service in the State of Jharkhand.54. The collective readings of the provisions of the Act, 2000 makes it apparent that such of the persons whose place of origin/domicile on or before the appointed day was of the State of Bihar now falling within the districts/regions which form a successor State, i.e., State of Jharkhand under Section 3 of the Act, 2000 became ordinary resident of the State of Jharkhand, at the same time, so far as the employees who were in public employment in the State of Bihar on or before the appointed day, i.e. 15th November, 2000 under the Act 2000, apart from those who are domicile of either of the district which became part of the State of Jharkhand, such of the employees who have submitted their option or employees who are junior in the cadre of their seniority as per the policy of the Government of India of which a reference has been made, either voluntarily or involuntarily call upon to serve the State of Jharkhand, their existing service conditions shall not be varied to their disadvantage and stands protected by virtue of Section 73 of the Act, 2000.55. In our considered view, such of the employees who are members of the SC/ST/OBC whose caste/tribe has been notified by an amendment to the Constitution(Scheduled Castes)/(Scheduled Tribes) Order 1950 under Vth and VIth Schedule to Sections 23 and 24 of the Act 2000 or by the separate notification for members of other backward class category, benefit of reservation including privileges and benefits flowing thereof, shall remain protected by virtue of Section 73 of the Act 2000 for all practical purposes which can be claimed (including by their wards) for participation in public employment.56. It is made clear that person is entitled to claim benefit of reservation in either of the successor State of Bihar or State of Jharkhand, but will not be entitled to claim benefit of reservation simultaneously in both the successor States and those who are members of the reserved category and are resident of the successor State of Bihar, while participating in open selection in State of Jharkhand shall be treated to be migrants and it will be open to participate in general category without claiming the benefit of reservation and vice-versa.57. We are of the view that the present appellant Pankaj Kumar in Civil Appeal @ SLP(Civil) No.13473 of 2020, being a serving employee in the State of Jharkhand by virtue of Section 73 of the Act 2000, would be entitled to claim the benefit of reservation including the privileges and benefits admissible to the members of Scheduled Caste category in the State of Jharkhand for all practical purposes including participation in open competition seeking public employment.58. So far as the case of other appellants in Civil Appeals @ SLP (Civil) Nos. 3610-3615 of 2021 is concerned, there is no material placed by either of them on record to justify that how long they were residing in the districts which now form part of the successor State of Jharkhand and the advertisement of the year 2004 required that one has to submit a caste certificate issued by the competent authority of the State of Jharkhand and none of them produced the caste certificate. As noticed by us, the present batch of appellants were appointed in the year 2005 as Constables against the post reserved for Scheduled Caste/Scheduled Tribe/OBC category in the State of Jharkhand, in our considered view, were migrants to the State of Jharkhand which would disentitle them in claiming the benefit of reservation in view of the judgment of the Constitution Bench of this Court of which a reference has been made(supra).59. But taking note of the peculiar facts and circumstances of the case which, however, cannot be ignored, that the appellants had bonafidely submitted their application pursuant to an advertisement dated 13th January, 2004 issued by the State of Jharkhand holding selection for the post of Constable and it is not the case of the respondents that either of the appellant has misrepresented while participating in the selection process or the caste/tribe/OBC to which either of the appellant belongs is not being notified in the Constitution(Scheduled Castes)/(Scheduled Tribes) Order, 1950 which has been amended in reference to Sections 23 and 24 of the Act 2000 or the class of OBC which has been notified by the State of Jharkhand and once the appellants are appointed, after going through the process of selection served for 3-4 years, their services came to be terminated in June, 2008 and who were never at fault have lost almost 13 years in litigation and could not secure employment at a later stage. Taking note of the peculiar facts and circumstances and the period of service rendered, while exercising our plenary power under Article 142 of the Constitution, to do complete justice, each of the appellant deserves indulgence of reinstatement in service on notional fixation of pay and allowances, etc.
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