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Seth Jagjivan Mavji Vithlani Vs. Messrs Ranchhoddas Meghji | it is payable on demand, as is the suit hundi. In a bill payable after sight, there are two distinct stages, firstly when it is presented for acceptance, and later when it is presented for payment. Section 61 deals with the former, and section 64, with the latter. As observed in --- Ram Ravji v. Pralhaddas Subkaran, 20 Bom 133 at p. 141 (B), "presentment for acceptance must always and in every case precede presentment for payment". But when the bill is payable on demand, both the stages synchronise, and there is only one presentment, which is both for acceptance and for payment. When the bill is paid, it involves an acceptance; but when it is not paid, it is really dishonoured for non-acceptance. But whether the bill is payable after sight or at sight or on demand acceptance by the drawee is necessary before he can be fixed with liability on it. It is acceptance that establishes privity on the instrument between the payee and the drawee, and we agree with the learned Judges of the High Court that unless there is such acceptance, no action on the bill is maintainable by the payee against the drawees.7. The main contention on behalf of the appellant was that such acceptance must be implied when the respondents received the bill and made payment therefor. The argument was that the very act of the payment of the hundi to Vrajlal was an acknowledgement that the defendants were liable on the hundi to whosoever might be the lawful holder thereof. The answer to this contention is firstly, that there was no valid presentment of the hundi for acceptance; and secondly that there was no acceptance of the same required by the law.8. On the question of the presentment of the hundi for acceptance, the position stands thus : The person who present it to the defendants was Vrajlal ; and if he had no authority to act in the matter, it is difficult to see how he could be held to have acted on behalf of the plaintiff in presenting the hundi. There was only one single act, and that was the presentment of the hundi by Vrajlal and the receipt of the amount due thereunder. If he had no authority to receive the payment, he had no authority to present the bill for acceptance. It was argued that there was no provision in the Act requiring that bills payable at sight should be present for acceptance by the holder or on his behalf, and there was, for bill payable after sight, in Section 61.But, as already pointed out, in the case of a bill payable at sight, both the stages for presentment for acceptance and for payment are rolled up into one, and, therefore the person who his entitled to receive the payment under Section 78 of the Act is the person, who is entitled to present it for acceptance. Under Section 78, the payment must be to the holder of the instrument; and if Vrajlal had no authority to receive the amount on behalf of the plaintiff, there was no valid presentment of the hundi by him for acceptance either.9. It has next to be considered whether, assuming that there was a proper presentment of the hundi for acceptance, there was a valid acceptance thereof. The argument of the appellant was that as the hundi had got into the hands of the defendants and was produced by them, the very fact of its possession would be sufficient to constitute acceptance. Under the common law of England, even a verbal acceptance was valid. Vide the observation of Baron Parke in --- "Bank of Ireland v. Archer, (1843) 11 M and W 383 at pp. 389, 390 (C). It was accordingly held that such acceptance could be implied when there was undue retention of the bill by the drawee. (Vide Note to --- Harvey v. Martin, (1808) 1 Camp 425 (D) ). But the law was altered in England by Section 17 (2) of the Bill of Exchange Act, 1882, which enacted that an acceptance was invalid, unless it was written on the bill and signed by the drawee.Section 7 of the Negotiable Instruments Act following the English law, provides that the drawee became an acceptor, when he has signed his assent upon bill. In view of these provisions, there cannot be, apart from any mercantile usage, an oral acceptance of the hundi, mush less an acceptance by conduct, where at least no question of estoppel arises.10. But then, it was argued that the possession of the hundi was not the only circumstances from which acceptance could be inferred; that there was the plea of the defendants that they had discharged the hundi; and that that clearly imported an acknowledgement of liability on the bill, and was sufficient to clothe the plaintiff with a right of action thereon. Assume that the plea of discharge of a hundi implies an acknowledgement of liability thereunder --- an assumption which we find it difficult to accept. The question still remains whether that is sufficient in law to fasten a liability on the defendants on the hundi. What is requisite for fixing the drawees with liability under Section 32 is the acceptance by them of the acceptance by them of the instrument and not an acknowledgement of liability. As the law prescribes no particular form for acceptance, there should be no difficulty in construing an acknowledgement as an acceptance; but then, it must satisfy the requirements of Section 7, and must appear on the bill and be signed by the drawees. In the present case, the acknowledgement is neither in writing; nor is it signed by the defendants. It is a matter of implication arising from the discharge of the instrument. That is not sufficient to fix a liability on the defendants under Section 32. In conclusion, we must hold that there was neither a valid presentment of the hundi for acceptance, nor a valid acceptance thereof | 0[ds]The answer to this contention is firstly, that there was no valid presentment of the hundi for acceptance; and secondly that there was no acceptance of the same required by thea bill payable after sight, there are two distinct stages, firstly when it is presented for acceptance, and later when it is presented for payment. Section 61 deals with the former, and section 64, with the latter. As observed in --- Ram Ravji v. Pralhaddas Subkaran, 20 Bom 133 at p. 141 (B), "presentment for acceptance must always and in every case precede presentment for payment". But when the bill is payable on demand, both the stages synchronise, and there is only one presentment, which is both for acceptance and for payment. When the bill is paid, it involves an acceptance; but when it is not paid, it is really dishonoured for non-acceptance. But whether the bill is payable after sight or at sight or on demand acceptance by the drawee is necessary before he can be fixed with liability on it. It is acceptance that establishes privity on the instrument between the payee and the drawee, and we agree with the learned Judges of the High Court that unless there is such acceptance, no action on the bill is maintainable by the payee against theperson who present it to the defendants was Vrajlal ; and if he had no authority to act in the matter, it is difficult to see how he could be held to have acted on behalf of the plaintiff in presenting the hundi. There was only one single act, and that was the presentment of the hundi by Vrajlal and the receipt of the amount due thereunder. If he had no authority to receive the payment, he had no authority to present the bill for acceptance. It was argued that there was no provision in the Act requiring that bills payable at sight should be present for acceptance by the holder or on his behalf, and there was, for bill payable after sight, in Section 61.But, as already pointed out, in the case of a bill payable at sight, both the stages for presentment for acceptance and for payment are rolled up into one, and, therefore the person who his entitled to receive the payment under Section 78 of the Act is the person, who is entitled to present it for acceptance. Under Section 78, the payment must be to the holder of the instrument; and if Vrajlal had no authority to receive the amount on behalf of the plaintiff, there was no valid presentment of the hundi by him for acceptance7 of the Negotiable Instruments Act following the English law, provides that the drawee became an acceptor, when he has signed his assent upon bill. In view of these provisions, there cannot be, apart from any mercantile usage, an oral acceptance of the hundi, mush less an acceptance by conduct, where at least no question of estoppelthat the plea of discharge of a hundi implies an acknowledgement of liability thereunder --- an assumption which we find it difficult to accept. The question still remains whether that is sufficient in law to fasten a liability on the defendants on the hundi. What is requisite for fixing the drawees with liability under Section 32 is the acceptance by them of the acceptance by them of the instrument and not an acknowledgement of liability. As the law prescribes no particular form for acceptance, there should be no difficulty in construing an acknowledgement as an acceptance; but then, it must satisfy the requirements of Section 7, and must appear on the bill and be signed by the drawees. In the present case, the acknowledgement is neither in writing; nor is it signed by the defendants. It is a matter of implication arising from the discharge of the instrument. That is not sufficient to fix a liability on the defendants under SectionIn conclusion, we must hold that there was neither a valid presentment of the hundi for acceptance, nor a valid acceptance thereof | 0 | 1,916 | 749 | ### Instruction:
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it is payable on demand, as is the suit hundi. In a bill payable after sight, there are two distinct stages, firstly when it is presented for acceptance, and later when it is presented for payment. Section 61 deals with the former, and section 64, with the latter. As observed in --- Ram Ravji v. Pralhaddas Subkaran, 20 Bom 133 at p. 141 (B), "presentment for acceptance must always and in every case precede presentment for payment". But when the bill is payable on demand, both the stages synchronise, and there is only one presentment, which is both for acceptance and for payment. When the bill is paid, it involves an acceptance; but when it is not paid, it is really dishonoured for non-acceptance. But whether the bill is payable after sight or at sight or on demand acceptance by the drawee is necessary before he can be fixed with liability on it. It is acceptance that establishes privity on the instrument between the payee and the drawee, and we agree with the learned Judges of the High Court that unless there is such acceptance, no action on the bill is maintainable by the payee against the drawees.7. The main contention on behalf of the appellant was that such acceptance must be implied when the respondents received the bill and made payment therefor. The argument was that the very act of the payment of the hundi to Vrajlal was an acknowledgement that the defendants were liable on the hundi to whosoever might be the lawful holder thereof. The answer to this contention is firstly, that there was no valid presentment of the hundi for acceptance; and secondly that there was no acceptance of the same required by the law.8. On the question of the presentment of the hundi for acceptance, the position stands thus : The person who present it to the defendants was Vrajlal ; and if he had no authority to act in the matter, it is difficult to see how he could be held to have acted on behalf of the plaintiff in presenting the hundi. There was only one single act, and that was the presentment of the hundi by Vrajlal and the receipt of the amount due thereunder. If he had no authority to receive the payment, he had no authority to present the bill for acceptance. It was argued that there was no provision in the Act requiring that bills payable at sight should be present for acceptance by the holder or on his behalf, and there was, for bill payable after sight, in Section 61.But, as already pointed out, in the case of a bill payable at sight, both the stages for presentment for acceptance and for payment are rolled up into one, and, therefore the person who his entitled to receive the payment under Section 78 of the Act is the person, who is entitled to present it for acceptance. Under Section 78, the payment must be to the holder of the instrument; and if Vrajlal had no authority to receive the amount on behalf of the plaintiff, there was no valid presentment of the hundi by him for acceptance either.9. It has next to be considered whether, assuming that there was a proper presentment of the hundi for acceptance, there was a valid acceptance thereof. The argument of the appellant was that as the hundi had got into the hands of the defendants and was produced by them, the very fact of its possession would be sufficient to constitute acceptance. Under the common law of England, even a verbal acceptance was valid. Vide the observation of Baron Parke in --- "Bank of Ireland v. Archer, (1843) 11 M and W 383 at pp. 389, 390 (C). It was accordingly held that such acceptance could be implied when there was undue retention of the bill by the drawee. (Vide Note to --- Harvey v. Martin, (1808) 1 Camp 425 (D) ). But the law was altered in England by Section 17 (2) of the Bill of Exchange Act, 1882, which enacted that an acceptance was invalid, unless it was written on the bill and signed by the drawee.Section 7 of the Negotiable Instruments Act following the English law, provides that the drawee became an acceptor, when he has signed his assent upon bill. In view of these provisions, there cannot be, apart from any mercantile usage, an oral acceptance of the hundi, mush less an acceptance by conduct, where at least no question of estoppel arises.10. But then, it was argued that the possession of the hundi was not the only circumstances from which acceptance could be inferred; that there was the plea of the defendants that they had discharged the hundi; and that that clearly imported an acknowledgement of liability on the bill, and was sufficient to clothe the plaintiff with a right of action thereon. Assume that the plea of discharge of a hundi implies an acknowledgement of liability thereunder --- an assumption which we find it difficult to accept. The question still remains whether that is sufficient in law to fasten a liability on the defendants on the hundi. What is requisite for fixing the drawees with liability under Section 32 is the acceptance by them of the acceptance by them of the instrument and not an acknowledgement of liability. As the law prescribes no particular form for acceptance, there should be no difficulty in construing an acknowledgement as an acceptance; but then, it must satisfy the requirements of Section 7, and must appear on the bill and be signed by the drawees. In the present case, the acknowledgement is neither in writing; nor is it signed by the defendants. It is a matter of implication arising from the discharge of the instrument. That is not sufficient to fix a liability on the defendants under Section 32. In conclusion, we must hold that there was neither a valid presentment of the hundi for acceptance, nor a valid acceptance thereof
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### Explanation:
The answer to this contention is firstly, that there was no valid presentment of the hundi for acceptance; and secondly that there was no acceptance of the same required by thea bill payable after sight, there are two distinct stages, firstly when it is presented for acceptance, and later when it is presented for payment. Section 61 deals with the former, and section 64, with the latter. As observed in --- Ram Ravji v. Pralhaddas Subkaran, 20 Bom 133 at p. 141 (B), "presentment for acceptance must always and in every case precede presentment for payment". But when the bill is payable on demand, both the stages synchronise, and there is only one presentment, which is both for acceptance and for payment. When the bill is paid, it involves an acceptance; but when it is not paid, it is really dishonoured for non-acceptance. But whether the bill is payable after sight or at sight or on demand acceptance by the drawee is necessary before he can be fixed with liability on it. It is acceptance that establishes privity on the instrument between the payee and the drawee, and we agree with the learned Judges of the High Court that unless there is such acceptance, no action on the bill is maintainable by the payee against theperson who present it to the defendants was Vrajlal ; and if he had no authority to act in the matter, it is difficult to see how he could be held to have acted on behalf of the plaintiff in presenting the hundi. There was only one single act, and that was the presentment of the hundi by Vrajlal and the receipt of the amount due thereunder. If he had no authority to receive the payment, he had no authority to present the bill for acceptance. It was argued that there was no provision in the Act requiring that bills payable at sight should be present for acceptance by the holder or on his behalf, and there was, for bill payable after sight, in Section 61.But, as already pointed out, in the case of a bill payable at sight, both the stages for presentment for acceptance and for payment are rolled up into one, and, therefore the person who his entitled to receive the payment under Section 78 of the Act is the person, who is entitled to present it for acceptance. Under Section 78, the payment must be to the holder of the instrument; and if Vrajlal had no authority to receive the amount on behalf of the plaintiff, there was no valid presentment of the hundi by him for acceptance7 of the Negotiable Instruments Act following the English law, provides that the drawee became an acceptor, when he has signed his assent upon bill. In view of these provisions, there cannot be, apart from any mercantile usage, an oral acceptance of the hundi, mush less an acceptance by conduct, where at least no question of estoppelthat the plea of discharge of a hundi implies an acknowledgement of liability thereunder --- an assumption which we find it difficult to accept. The question still remains whether that is sufficient in law to fasten a liability on the defendants on the hundi. What is requisite for fixing the drawees with liability under Section 32 is the acceptance by them of the acceptance by them of the instrument and not an acknowledgement of liability. As the law prescribes no particular form for acceptance, there should be no difficulty in construing an acknowledgement as an acceptance; but then, it must satisfy the requirements of Section 7, and must appear on the bill and be signed by the drawees. In the present case, the acknowledgement is neither in writing; nor is it signed by the defendants. It is a matter of implication arising from the discharge of the instrument. That is not sufficient to fix a liability on the defendants under SectionIn conclusion, we must hold that there was neither a valid presentment of the hundi for acceptance, nor a valid acceptance thereof
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Prestige Engineering Ltd. and Ors Vs. Collector of Central Excise, Meerut and Ors | are "incidental or ancillary to the completion of manufactured product" - processes contemplated by clause (i) of Section 2(f). We do not see any warrant for restricting the meaning of the expression manufactured occurring in the notification only to the aforesaid processes. In our opinion, the stress in the notification is rather upon the word "job work". Now what does the expression "job work" mean ? On this question, the Explanation is not of much assistance. The Concise Oxford Dictionary assigns several meanings to the expression job but the relevant meaning having regard to the present context is "a piece of work especially one done for hire or profit". The expression "job work" is assigned the following meaning : "Work done and paid for the job." The notification, it is evident, was conceived in the interest of small manufacturers undertaking job works. The idea behind the notification was to help the job workers - persons who contributed mainly their labour and skill, though done with the help of tools, gadgets or machinery, as the case may be. The notification was not intended to benefit those who contributed their own material to the articles supplied by the customer and manufactured different goods. We must hasten to add that addition or application of minor items by the job worker would not detract from the nature and character of his work. For example, a tailor entrusted with a cloth piece and asked to stitch a shirt, a pant or a suit piece may add his own thread, buttons and lining cloth. Similarly, a factory may be supplied the shoe uppers, soles etc. by the customer and the factory applies its own thread or bonding material and manufactures shoes therefrom and supplies them back to the customer, charging only for its work; the nature of its work does not cease to be job work. Indeed, this aspect has been stressed in all the decisions of High Courts referred to hereinbefore. 18. The interpretation placed by us does not render the explanation in the notification redundant in any manner, while at the same time it advances the object of the notification, viz., helping factories undertaking manufacturing processes in the nature of job work. The restricted interpretation contended for by the Revenue unduly curtails the operating field of the notification. True it is that processes incidental or ancillary to the completion of the manufactured product are within the purview of the notification, but it may not be correct to say that the notification refers only to those processes and to nothing else. In the two illustrations given in Anup Engineering viz., where the brass sheet is moulded into a brass pot and where the cloth piece is stitched into a suit, or in the illustration given by us., viz., where shoe uppersand soles etc. are supplied by the customer and the factory prepares shoes out of them, it cannot be said that the article that is entrusted to the factory (undertaking job work) and the article that is supplied back to the customer are totally different. They are the same articles though in a different form. Insisting upon the same article being returned to the customer after undergoing the manufacturing process at the hands of the job worker may rob the notification of any substance whatsoever. The Special Bench evidently laid more emphasis upon the Explanation which led it to confine the operation of the notification only to those processes which are incidental or ancillary to the completion of the manufactured product. That in our view amounts to undue curtailment of the ambit of the notification. If that were the intention of the Central Government in issuing the notification, it would have said so clearly. It must be remembered that the notification was issued simultaneously with the introduction of Tariff Item 68 in Schedule 1 to the Act and was intended to help those factories job works, who were charging their customers only for the work done by them. In their hands, the value of the article would be the value of the job work done by them - and not the total value of the article which would have been the case but for the notification. According to the restricted view contended for by the Revenue. a tailoring factory stitching clothes out of the cloth supplied or a factory preparing shoes out of material supplied by the customer, in the illustrations given hereinabove, would not qualify for the benefit of the notification. (We are not concerned herein how such articles would be valued in the hands of the supplier.)19. Now, let us look at the process involved in this appeal. All that Modipon does is to supply steel pipes. The appellant purchases guide rings and strengthening rings from the market. It fits these rings into those steel pipes by itself or gets them fitted in another unit. Thereafter, adopters are fitted on the sides of the cops and then the plastic sleeves are fitted on the cylinders of the cops. This is not a case where the rings and the adopters and sleeves are supplied by Modipon. It is not suggested that the value of rings, adopters and sleeves is very small vis-a-vis the value of steel pipes. The additions made by the appellant are not minor additions; they are of a substantial name and of considerable value. Except the pipes, all other items which go into the manufacture of cops are either purchased or procured by the appellant itself and it manufactures the cops out of them. The work done by him cannot be characterised as a job work. If all the requisite rings adopters and sleeves had also been supplied by Modipon, it could probable have been said that the appellants work is in the nature of job work. But that is not the case here. The Tribunal was, therefore, right in holding that the appellant cannot avail of the benefit of the notification. The appeal accordingly fails and is dismissed. No costs. | 0[ds]16. In our opinion, while the Calcutta and Gujarat High Courts have by and large understood the notification correctly, their reasoning is vitiated by their omission to understand the expression manufacture in the sense it is defined in the Act. Both the High Courts have understood the expression manufacture in its ordinary/normal sense (as pointed out by this Court in Delhi Cloth and General Mills Ltd. Indeed, they have not even referred to the definition in Section 2(f) of the Act. Once an expression is defined in the Act, that expression wherever it occurs in the Act, rules or notifications issued thereunder, should be understood in the same sense. Indubitably, the definition of manufacture in Section 2(f) endows a wider content to the expression; several processes which would not ordinarily be understood as amounting to manufacturing are specifically included within its ambit. Clauses (i) and (ii) of the definition make this aspect clear beyond any doubt. In this connection, it must be remembered that even the unamended definition of manufacture included within the ambit of the definition several processes and activities which would not otherwise have amounted to manufacture. The unamended definition contained as many as eight sub-clauses. Sub-clause (iv), for example, stated that in relation to goods comprised in Item No. 18-A of the First Schedule, the expression manufacture includes sizing, beaming, warping, wrapping, winding and reeling or any one or more or these processes or the conversion of any form of the said goods into another form of such goods. (Item 18-A of the First Schedule pertained to "cotton yarn - all sorts".)15. In view of the conflict of opinion on the question, a Special Bench of five members of CEGAT was constituted to consider the issue. The decision of the Special Bench is reported in National Organic Chemical Industries Ltd. v. Collector of Central Excise. The facts considered by the Special Bench are : The appellants were manufacturing ethylene. They bought chlorine for that purpose. M/s. Calico Chemicals, who may be called a customer, also used to make available chlorine to the appellants. The appellants got chlorine reacted with ethylene for conversion into vinyl chloride. A part of vinyl chloride so manufactured by the appellants was delivered to Calico Chemicals, calculated with reference to an agreed formula. The balance vinyl chloride was utilised by the appellants for further conversion into polyvinyl chloride.The question was whether the vinyl chloride that was delivered to Calico Chemicals by the appellants attracted excise duty on the value of the said vinyl chloride or whether the appellants were liable to pay duty only on the amount charged by them as conversion charges.From the facts afore stated, it is clear that only a part of the material required for manufacturing vinyl chloride was supplied by Calico Chemicals and part of the material, namely, ethylene utilised for the said manufacture belonged to the appellants itself. Upon those facts and after considering the several decisions of the High Courts and also the earlier decisions of the various Benches of CEGAT, the Special Bench took the view that the benefit of the said notification is confined only to those processes which are incidental or ancillary to the completion of the manufactured productreference is to the definition of the expression manufacture in Section 2(f) of the Actand not to the usual activities that are normally understood as comprised in the activity of manufacture. The Special Bench held that to enable a person to claim the benefit of the said notification, he will have to receive an article from the customer, subject the same to the manufacturing process in the nature of a process incidental or ancillary to the completion of the manufactured product and then return the said article to the customer recovering from the customer charges for such activity only. The Special Bench laid emphasis on the Explanation which says that the article which is supplied by the customer to the job worker, that very article must come back to the supplier, after undertaking the manufacturing process. The manufacturing process contemplated by the said notification, the Special Bench held, is only that process which is incidental or ancillary to the completion of the manufacturing product. The Special Bench disagreed with the Calcutta and Gujarat High Courts insofar as they held that since manufacture necessarily involves emergence of new goods, such emergence of new goods cannot be a ground for denying the benefit of the notification. The Special Bench laid emphasis on the definition of the expression manufacture in Section 2(f) of the Act and pointed out that the said expression is not confined to its ordinary connotation pointed out by this Court in Union of India v. Delhi Cloth and General Mills Ltd.In our opinion, while the Calcutta and Gujarat High Courts have by and large understood the notification correctly, their reasoning is vitiated by their omission to understand the expression manufacture in the sense it is defined in the Act. Both the High Courts have understood the expression manufacture in its ordinary/normal sense (as pointed out by this Court in Delhi Cloth and General Mills Ltd. Indeed, they have not even referred to the definition in Section 2(f) of the Act. Once an expression is defined in the Act, that expression wherever it occurs in the Act, rules or notifications issued thereunder, should be understood in the same sense. Indubitably, the definition of manufacture in Section 2(f) endows a wider content to the expression; several processes which would not ordinarily be understood as amounting to manufacturing are specifically included within its ambit. Clauses (i) and (ii) of the definition make this aspect clear beyond any doubt. In this connection, it must be remembered that even the unamended definition of manufacture included within the ambit of the definition several processes and activities which would not otherwise have amounted to manufacture. The unamended definition contained as many as eighte (iv), for example, stated that in relation to goods comprised in Item No.of the First Schedule, the expression manufacture includes sizing, beaming, warping, wrapping, winding and reeling or any one or more or these processes or the conversion of any form of the said goods into another form of such goods. (Itemof the First Schedule pertained to "cotton yarne Concise Oxford Dictionary assigns several meanings to the expression job but the relevant meaning having regard to the present context is "a piece of work especially one done for hire or profit". The expression "job work" is assigned the following meaning : "Work done and paid for the job." The notification, it is evident, was conceived in the interest of small manufacturers undertaking job works. The idea behind the notification was to help the job workerspersons who contributed mainly their labour and skill, though done with the help of tools, gadgets or machinery, as the case may be. The notification was not intended to benefit those who contributed their own material to the articles supplied by the customer and manufactured different goods. We must hasten to add that addition or application of minor items by the job worker would not detract from the nature and character of his work. For example, a tailor entrusted with a cloth piece and asked to stitch a shirt, a pant or a suit piece may add his own thread, buttons and lining cloth. Similarly, a factory may be supplied the shoe uppers, soles etc. by the customer and the factory applies its own thread or bonding material and manufactures shoes therefrom and supplies them back to the customer, charging only for its work; the nature of its work does not cease to be job work. Indeed, this aspect has been stressed in all the decisions of High Courts referred toThe interpretation placed by us does not render the explanation in the notification redundant in any manner, while at the same time it advances the object of the notification, viz., helping factories undertaking manufacturing processes in the nature of job work. The restricted interpretation contended for by the Revenue unduly curtails the operating field of the notification. True it is that processes incidental or ancillary to the completion of the manufactured product are within the purview of the notification, but it may not be correct to say that the notification refers only to those processes and to nothing else. In the two illustrations given in Anup Engineering viz., where the brass sheet is moulded into a brass pot and where the cloth piece is stitched into a suit, or in the illustration given by us., viz., where shoe uppersand soles etc. are supplied by the customer and the factory prepares shoes out of them, it cannot be said that the article that is entrusted to the factory (undertaking job work) and the article that is supplied back to the customer are totally different. They are the same articles though in a different form. Insisting upon the same article being returned to the customer after undergoing the manufacturing process at the hands of the job worker may rob the notification of any substance whatsoever. The Special Bench evidently laid more emphasis upon the Explanation which led it to confine the operation of the notification only to those processes which are incidental or ancillary to the completion of the manufactured product. That in our view amounts to undue curtailment of the ambit of the notification. If that were the intention of the Central Government in issuing the notification, it would have said so clearly. It must be remembered that the notification was issued simultaneously with the introduction of Tariff Item 68 in Schedule 1 to the Act and was intended to help those factories job works, who were charging their customers only for the work done by them. In their hands, the value of the article would be the value of the job work done by themand not the total value of the article which would have been the case but for the notification. According to the restricted view contended for by the Revenue. a tailoring factory stitching clothes out of the cloth supplied or a factory preparing shoes out of material supplied by the customer, in the illustrations given hereinabove, would not qualify for the benefit of the notification. (We are not concerned herein how such articles would be valued in the hands of the supplier.)19. Now, let us look at the process involved in this appeal. All that Modipon does is to supply steel pipes. The appellant purchases guide rings and strengthening rings from the market. It fits these rings into those steel pipes by itself or gets them fitted in another unit. Thereafter, adopters are fitted on the sides of the cops and then the plastic sleeves are fitted on the cylinders of the cops. This is not a case where the rings and the adopters and sleeves are supplied by Modipon. It is not suggested that the value of rings, adopters and sleeves is very smallthe value of steel pipes. The additions made by the appellant are not minor additions; they are of a substantial name and of considerable value. Except the pipes, all other items which go into the manufacture of cops are either purchased or procured by the appellant itself and it manufactures the cops out of them. The work done by him cannot be characterised as a job work. If all the requisite rings adopters and sleeves had also been supplied by Modipon, it could probable have been said that the appellants work is in the nature of job work. But that is not the case here. The Tribunal was, therefore, right in holding that the appellant cannot avail of the benefit of the notification. The appeal accordingly fails and is dismissed. No costs | 0 | 5,497 | 2,168 | ### Instruction:
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are "incidental or ancillary to the completion of manufactured product" - processes contemplated by clause (i) of Section 2(f). We do not see any warrant for restricting the meaning of the expression manufactured occurring in the notification only to the aforesaid processes. In our opinion, the stress in the notification is rather upon the word "job work". Now what does the expression "job work" mean ? On this question, the Explanation is not of much assistance. The Concise Oxford Dictionary assigns several meanings to the expression job but the relevant meaning having regard to the present context is "a piece of work especially one done for hire or profit". The expression "job work" is assigned the following meaning : "Work done and paid for the job." The notification, it is evident, was conceived in the interest of small manufacturers undertaking job works. The idea behind the notification was to help the job workers - persons who contributed mainly their labour and skill, though done with the help of tools, gadgets or machinery, as the case may be. The notification was not intended to benefit those who contributed their own material to the articles supplied by the customer and manufactured different goods. We must hasten to add that addition or application of minor items by the job worker would not detract from the nature and character of his work. For example, a tailor entrusted with a cloth piece and asked to stitch a shirt, a pant or a suit piece may add his own thread, buttons and lining cloth. Similarly, a factory may be supplied the shoe uppers, soles etc. by the customer and the factory applies its own thread or bonding material and manufactures shoes therefrom and supplies them back to the customer, charging only for its work; the nature of its work does not cease to be job work. Indeed, this aspect has been stressed in all the decisions of High Courts referred to hereinbefore. 18. The interpretation placed by us does not render the explanation in the notification redundant in any manner, while at the same time it advances the object of the notification, viz., helping factories undertaking manufacturing processes in the nature of job work. The restricted interpretation contended for by the Revenue unduly curtails the operating field of the notification. True it is that processes incidental or ancillary to the completion of the manufactured product are within the purview of the notification, but it may not be correct to say that the notification refers only to those processes and to nothing else. In the two illustrations given in Anup Engineering viz., where the brass sheet is moulded into a brass pot and where the cloth piece is stitched into a suit, or in the illustration given by us., viz., where shoe uppersand soles etc. are supplied by the customer and the factory prepares shoes out of them, it cannot be said that the article that is entrusted to the factory (undertaking job work) and the article that is supplied back to the customer are totally different. They are the same articles though in a different form. Insisting upon the same article being returned to the customer after undergoing the manufacturing process at the hands of the job worker may rob the notification of any substance whatsoever. The Special Bench evidently laid more emphasis upon the Explanation which led it to confine the operation of the notification only to those processes which are incidental or ancillary to the completion of the manufactured product. That in our view amounts to undue curtailment of the ambit of the notification. If that were the intention of the Central Government in issuing the notification, it would have said so clearly. It must be remembered that the notification was issued simultaneously with the introduction of Tariff Item 68 in Schedule 1 to the Act and was intended to help those factories job works, who were charging their customers only for the work done by them. In their hands, the value of the article would be the value of the job work done by them - and not the total value of the article which would have been the case but for the notification. According to the restricted view contended for by the Revenue. a tailoring factory stitching clothes out of the cloth supplied or a factory preparing shoes out of material supplied by the customer, in the illustrations given hereinabove, would not qualify for the benefit of the notification. (We are not concerned herein how such articles would be valued in the hands of the supplier.)19. Now, let us look at the process involved in this appeal. All that Modipon does is to supply steel pipes. The appellant purchases guide rings and strengthening rings from the market. It fits these rings into those steel pipes by itself or gets them fitted in another unit. Thereafter, adopters are fitted on the sides of the cops and then the plastic sleeves are fitted on the cylinders of the cops. This is not a case where the rings and the adopters and sleeves are supplied by Modipon. It is not suggested that the value of rings, adopters and sleeves is very small vis-a-vis the value of steel pipes. The additions made by the appellant are not minor additions; they are of a substantial name and of considerable value. Except the pipes, all other items which go into the manufacture of cops are either purchased or procured by the appellant itself and it manufactures the cops out of them. The work done by him cannot be characterised as a job work. If all the requisite rings adopters and sleeves had also been supplied by Modipon, it could probable have been said that the appellants work is in the nature of job work. But that is not the case here. The Tribunal was, therefore, right in holding that the appellant cannot avail of the benefit of the notification. The appeal accordingly fails and is dismissed. No costs.
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included within the ambit of the definition several processes and activities which would not otherwise have amounted to manufacture. The unamended definition contained as many as eighte (iv), for example, stated that in relation to goods comprised in Item No.of the First Schedule, the expression manufacture includes sizing, beaming, warping, wrapping, winding and reeling or any one or more or these processes or the conversion of any form of the said goods into another form of such goods. (Itemof the First Schedule pertained to "cotton yarne Concise Oxford Dictionary assigns several meanings to the expression job but the relevant meaning having regard to the present context is "a piece of work especially one done for hire or profit". The expression "job work" is assigned the following meaning : "Work done and paid for the job." The notification, it is evident, was conceived in the interest of small manufacturers undertaking job works. The idea behind the notification was to help the job workerspersons who contributed mainly their labour and skill, though done with the help of tools, gadgets or machinery, as the case may be. The notification was not intended to benefit those who contributed their own material to the articles supplied by the customer and manufactured different goods. We must hasten to add that addition or application of minor items by the job worker would not detract from the nature and character of his work. For example, a tailor entrusted with a cloth piece and asked to stitch a shirt, a pant or a suit piece may add his own thread, buttons and lining cloth. Similarly, a factory may be supplied the shoe uppers, soles etc. by the customer and the factory applies its own thread or bonding material and manufactures shoes therefrom and supplies them back to the customer, charging only for its work; the nature of its work does not cease to be job work. Indeed, this aspect has been stressed in all the decisions of High Courts referred toThe interpretation placed by us does not render the explanation in the notification redundant in any manner, while at the same time it advances the object of the notification, viz., helping factories undertaking manufacturing processes in the nature of job work. The restricted interpretation contended for by the Revenue unduly curtails the operating field of the notification. True it is that processes incidental or ancillary to the completion of the manufactured product are within the purview of the notification, but it may not be correct to say that the notification refers only to those processes and to nothing else. In the two illustrations given in Anup Engineering viz., where the brass sheet is moulded into a brass pot and where the cloth piece is stitched into a suit, or in the illustration given by us., viz., where shoe uppersand soles etc. are supplied by the customer and the factory prepares shoes out of them, it cannot be said that the article that is entrusted to the factory (undertaking job work) and the article that is supplied back to the customer are totally different. They are the same articles though in a different form. Insisting upon the same article being returned to the customer after undergoing the manufacturing process at the hands of the job worker may rob the notification of any substance whatsoever. The Special Bench evidently laid more emphasis upon the Explanation which led it to confine the operation of the notification only to those processes which are incidental or ancillary to the completion of the manufactured product. That in our view amounts to undue curtailment of the ambit of the notification. If that were the intention of the Central Government in issuing the notification, it would have said so clearly. It must be remembered that the notification was issued simultaneously with the introduction of Tariff Item 68 in Schedule 1 to the Act and was intended to help those factories job works, who were charging their customers only for the work done by them. In their hands, the value of the article would be the value of the job work done by themand not the total value of the article which would have been the case but for the notification. According to the restricted view contended for by the Revenue. a tailoring factory stitching clothes out of the cloth supplied or a factory preparing shoes out of material supplied by the customer, in the illustrations given hereinabove, would not qualify for the benefit of the notification. (We are not concerned herein how such articles would be valued in the hands of the supplier.)19. Now, let us look at the process involved in this appeal. All that Modipon does is to supply steel pipes. The appellant purchases guide rings and strengthening rings from the market. It fits these rings into those steel pipes by itself or gets them fitted in another unit. Thereafter, adopters are fitted on the sides of the cops and then the plastic sleeves are fitted on the cylinders of the cops. This is not a case where the rings and the adopters and sleeves are supplied by Modipon. It is not suggested that the value of rings, adopters and sleeves is very smallthe value of steel pipes. The additions made by the appellant are not minor additions; they are of a substantial name and of considerable value. Except the pipes, all other items which go into the manufacture of cops are either purchased or procured by the appellant itself and it manufactures the cops out of them. The work done by him cannot be characterised as a job work. If all the requisite rings adopters and sleeves had also been supplied by Modipon, it could probable have been said that the appellants work is in the nature of job work. But that is not the case here. The Tribunal was, therefore, right in holding that the appellant cannot avail of the benefit of the notification. The appeal accordingly fails and is dismissed. No costs
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Phoolchand And Anr Vs. Gopal Lal | widow and it must descend on the remaining three surviving parties equally, namely, Phool Chand, Gopal Lal and Rajmal. The contention, therefore, on this head also fails.9. Then we come to the question whether the will by Sohan Lal in favour of Gopal Lal was genuine. We have already indicated that the trial Court held that it was not, while the High Court was of opinion that it was genuine. The trial Court based its finding mainly on some inconsistency in the statements made by Laxmichand, an attesting witness, on two different occasions. It seems that in this suit Laxmichand duly proved the will but on an earlier occasion he had stated that he had not attested the will. There was another attesting witness who also was produced, namely, Chhotey Lal, whose evidence did not suffer from any infirmity. Besides that Basanti Lal, the scribe of the will, was also produced, though he was not present at the time of the execution of the will. His evidence is that he prepared the draft of the will on the instruction of Sohan Lal and handed over the written document either to Gopal Lal or to Sohan Lal. Finally there was the statement of Gopal Lal to prove due execution of the will for he was present when it was executed though he was not an attesting witness. Thus except for the inconsistency in the two statements of Laxmichand the evidence of the due execution of the will was overwhelming.10. But it is urged that Gopal Lal in whose favour the will was made had taken a prominent part in its execution and Sohan Lal was an old man of about 70 years when the will was executed and, therefore, we should require strict proof of the due execution of the will. There are several circumstances which in our opinion clearly show that the will was duly executed by Sohan Lal in favour of Gopal Lal. Firstly, Phool Chand was obviously a thorn in the side of the father and had dragged him into litigation. The will says that Phool Chand separated from the father long before and picked up quarrels with him. It further says that Phool Chand had no regard for his duty as a son and had been behaving with the testator in a most improper and shameful way. It goes on to say that the testator was fed up with the improper behaviour of Phool Chand. The testator then says in the will that contrary to it, Gopal Lal lived with him, served him and was obedient to him and he was impressed with the services of Gopal Lal. He, therefore, wanted his property to go to Gopal Lal and was making the will in order that Gopal Lal may not be put to any trouble after his death and might live comfortably. The will, therefore, appears to be a very natural will in the circumstances. Sohan Lal obviously did not provide for his wife for she had been allotted one-fifth share in the property already by the trial Courts preliminary decree. As for Rajmal minor, it appears that he was the natural son of Phool Chand and there was dispute whether he had been adopted by Gokalchands widow, though the dispute was eventually settled in favour of Rajmal minor by the Court. In these circumstances we would not expect Sohan Lal to make any provision for Rajmal minor either who had got one-fifth share on the basis of adoption. The will, therefore, appears to us to be very natural and the fact that Gopal Lal took part in the execution has under the circumstances no significance. It is true that Sohan Lal was about 70 years old when the will was executed. But he lived almost seven years after the execution of the will and it is no ones case that he was in any way mentally or physically incompetent to make the will when he did so in 1940. It may be added that the will was later registered also, though the Registrar has not been examined as a witness. Finally there is the circumstance that the appellant knew about the will as far back as March 1941 but he never seems to have talked to his father Sohan Lal about it. In these circumstances we agree with the High Court that the due execution of the will has been proved.11. The last point that had been urged on behalf of the appellant is that Gopal Lal was not entitled to any movable or immovable ancestral property by virtue of the will, as a Hindu cannot will away joint family property. We are of opinion that there is nothing in this contention. The present suit had already been filed by the appellant in 1937 and immediately on the filing of the suit there was severance of status among the members of the joint Hindu family, even if Phool Chand had not separated earlier as stated by Sohan Lal in the will. Further a preliminary decree had also been passed by the trial Court in April 1938 by which various shares were allotted to various members of the family. In these circumstances Sohan Lal was perfectly competent to will away the share he got out of the joint family property and that is what he did. He has stated in the will that Gopal Lal would be the rightful owner of his self-acquired immovable property. He further stated that Gopal Lal would be the rightful owner of his share in the ancestral property and finally he stated that Gopal Lal would be the rightful owner of all of his articles, i.e., jewellery, ornaments, clothes, utensils and other domestic articles. The last clause relating to movable property clearly refers both to the share that Sohan Lal got in the movable property by severance of status and specification of shares in the preliminary decree and to any self acquired movable property. There is, therefore, no force in this contention. | 0[ds]That no doubt is the correct position in law; but as was pointed out in that case, there may be circumstances where an appeal may be competent even though a copy of the decree may not have been filed along with the memorandum ofsuch exceptional case was dealt with in Jagat Dhish Bhargavas case, (1961) 2 SCR 918 : (AIR 1961 SC 832 ). We consider that the present case is another exceptional case where in the absence of the copy of decree the appeal could be maintained. We have already indicated that the trial court did not frame a formal decree when it varied the shares and naturally Gopal Lal was not in a position to file a copy of the decree when he presented the memorandum of appeal to the High Court. Even when time was granted by the High Court and Gopal Lal moved the trial court for framing a formal decree, the trial court refused to do so. In those circumstances it was impossible for Gopal Lal to file a copy of the formal decree. It is unfortunate that when the matter was brought to the knowledge of the High Court it did not order the trial court to frame a formal decree; if it had done so, the appellant could have obtained a copy of the formal decree and filed it and the defect would have been cured. We do not think it was necessary for Gopal Lal to file a revision against the order of the trial court refusing to frame a formal decree, for Gopal Lals appeal was pending in the High Court and the High Court should and could have directed the trial court in that appeal to frame a decree to enable Gopal Lal to file it and cure the defect. In such circumstances we fail to see what more Gopal could have done in the matter of filing a copy of the decree. The fact that the trial court refused to frame a formal degree cannot in law deprive Gopal Lal of his right to appeal. The defect in the filing of the appeal in the circumstances was not due to any fault of Gopal Lal and it cannot be held that he should be deprived of the right to appeal, if he had it, simply because the court did not do its duty. We therefore agree with the High Court that in the circumstances the absence of the copy of decree would not deprive Gopal Lal of his right tois not disputed that in a partition suit the court has jurisdiction to amend the shares suitably even if the preliminary decree has been passed if some member of the family to whom an allotment was made in the preliminary decree diesthe trial court was justified in amending the shares on the deaths of Sohan Lal and Smt. Gulab Bai. The only question then is whether this amendment amounted to a fresh decree.We are of opinion that there is nothing in theCode of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. We have already said that it is not disputed that in partition suits the court can do so even after the preliminary decree is passed. It would in our opinion be convenient to the court and advantageous to the parties, specially in partition suits, to have disputed rights finally settled and specification of shares in the preliminary decree varied before a final decree is prepared. If this is done, there is a clear determination of the rights of parties to the suit on the question in dispute and we see no difficulty in holding that in such cases there is a decree deciding these disputed rights ; if so, there is no reason why a second preliminary decree correcting the shares in a partition suit cannot be passed by the court. So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the court can and should do so; and if there is a dispute in that behalf, the order of the court deciding that dispute and making variation in shares specified in the preliminary decree already passed is a decree in itself which would be liable to appeal. We should however like to point out that what we are saying must be confined to partition suits, for we are not concerned in the present appeal with other kinds of suits in which also preliminary and final decrees are passed. There is no prohibition in theCode of Civil Procedure against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such circumstances only on the ground that theCode of Civil Procedure does not contemplate such a possibility. In any case if two views are possible - and obviously this is so because the High Courts have differed on the question - we would prefer the view taken by the High Courts which hold that a second preliminary decree can be passed, particularly in partition suits where parties have died after the preliminary decree and shares specified in the preliminary decree have to be adjusted. We see no reason why in such a case if there is dispute, it should not be decided by the Court which passed the preliminary decree, for it must not be forgotten that the suit is not over to the final decree is passed and the Court has jurisdiction to decide all disputes that may arise after the preliminary decree, particularly in a partition suit due to deaths of some of the parties. Whether there can be more than one final decree does not arise in the present appeal and on that we express no opinion. We therefore hold that in the circumstances of this case it was open to the Court to draw np a fresh preliminary decree as two of the parties had died after the preliminary decree and before the final decree was passed. Further as there was dispute between the surviving parties as to devolution of the shares of the parties who were dead and that dispute was decided by the trial Court in the present case and thereafter the preliminary decree already passed was amended, the decision amounted to a decree and was liable to appeal. We therefore agree with the view taken by the High Court that in such circumstances a second preliminary decree can be passed in partition suits by which the shares allotted in the preliminary decree already passed can he amended and if there is dispute between surviving parties in that behalf and that dispute is decided the decision amounts to a decree. We should however like to make it clear that this can only be done so long as the final decree has not been passed. We therefore reject this contention of theit must be remembered that we are concerned in the present case with only the sale of the share allotted to Smt. Gulab Bai out of the ancestral property by the preliminary decree passed on August 1,High Court however held otherwise and we are of opinion that the High Court wasappears to us to be a correct statement of the law. We are concerned in the present appeal with the share which Smt. Gulab Bai got out of the ancestral property by the preliminary decree of August 1, 1942; she obviously had only a limited estate or a widows estate in that share and not an absolute estate. Therefore, she could not sell it in the manner in which she sold to the appellant. The High Court, therefore, was right in holding that the appellant could not take advantage of the sale of the share of the widow and it must descend on the remaining three surviving parties equally, namely, Phool Chand, Gopal Lal and Rajmal. The contention, therefore, on this head alsohave already indicated that the trial Court held that it was not, while the High Court was of opinion that it was genuine. The trial Court based its finding mainly on some inconsistency in the statements made by Laxmichand, an attesting witness, on two different occasions. It seems that in this suit Laxmichand duly proved the will but on an earlier occasion he had stated that he had not attested the will. There was another attesting witness who also was produced, namely, Chhotey Lal, whose evidence did not suffer from any infirmity. Besides that Basanti Lal, the scribe of the will, was also produced, though he was not present at the time of the execution of the will. His evidence is that he prepared the draft of the will on the instruction of Sohan Lal and handed over the written document either to Gopal Lal or to Sohan Lal. Finally there was the statement of Gopal Lal to prove due execution of the will for he was present when it was executed though he was not an attesting witness. Thus except for the inconsistency in the two statements of Laxmichand the evidence of the due execution of the will wasare several circumstances which in our opinion clearly show that the will was duly executed by Sohan Lal in favour of Gopal Lal. Firstly, Phool Chand was obviously a thorn in the side of the father and had dragged him into litigation. The will says that Phool Chand separated from the father long before and picked up quarrels with him. It further says that Phool Chand had no regard for his duty as a son and had been behaving with the testator in a most improper and shameful way. It goes on to say that the testator was fed up with the improper behaviour of Phool Chand. The testator then says in the will that contrary to it, Gopal Lal lived with him, served him and was obedient to him and he was impressed with the services of Gopal Lal. He, therefore, wanted his property to go to Gopal Lal and was making the will in order that Gopal Lal may not be put to any trouble after his death and might live comfortably. The will, therefore, appears to be a very natural will in the circumstances. Sohan Lal obviously did not provide for his wife for she had been allotted one-fifth share in the property already by the trial Courts preliminary decree. As for Rajmal minor, it appears that he was the natural son of Phool Chand and there was dispute whether he had been adopted by Gokalchands widow, though the dispute was eventually settled in favour of Rajmal minor by the Court. In these circumstances we would not expect Sohan Lal to make any provision for Rajmal minor either who had got one-fifth share on the basis of adoption. The will, therefore, appears to us to be very natural and the fact that Gopal Lal took part in the execution has under the circumstances no significance. It is true that Sohan Lal was about 70 years old when the will was executed. But he lived almost seven years after the execution of the will and it is no ones case that he was in any way mentally or physically incompetent to make the will when he did so in 1940. It may be added that the will was later registered also, though the Registrar has not been examined as a witness. Finally there is the circumstance that the appellant knew about the will as far back as March 1941 but he never seems to have talked to his father Sohan Lal about it. In these circumstances we agree with the High Court that the due execution of the will has beenare of opinion that there is nothing in this contention. The present suit had already been filed by the appellant in 1937 and immediately on the filing of the suit there was severance of status among the members of the joint Hindu family, even if Phool Chand had not separated earlier as stated by Sohan Lal in the will. Further a preliminary decree had also been passed by the trial Court in April 1938 by which various shares were allotted to various members of the family. In these circumstances Sohan Lal was perfectly competent to will away the share he got out of the joint family property and that is what he did. He has stated in the will that Gopal Lal would be the rightful owner of his self-acquired immovable property. He further stated that Gopal Lal would be the rightful owner of his share in the ancestral property and finally he stated that Gopal Lal would be the rightful owner of all of his articles, i.e., jewellery, ornaments, clothes, utensils and other domestic articles. The last clause relating to movable property clearly refers both to the share that Sohan Lal got in the movable property by severance of status and specification of shares in the preliminary decree and to any self acquired movable property. There is, therefore, no force in this contention. | 0 | 4,301 | 2,357 | ### Instruction:
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widow and it must descend on the remaining three surviving parties equally, namely, Phool Chand, Gopal Lal and Rajmal. The contention, therefore, on this head also fails.9. Then we come to the question whether the will by Sohan Lal in favour of Gopal Lal was genuine. We have already indicated that the trial Court held that it was not, while the High Court was of opinion that it was genuine. The trial Court based its finding mainly on some inconsistency in the statements made by Laxmichand, an attesting witness, on two different occasions. It seems that in this suit Laxmichand duly proved the will but on an earlier occasion he had stated that he had not attested the will. There was another attesting witness who also was produced, namely, Chhotey Lal, whose evidence did not suffer from any infirmity. Besides that Basanti Lal, the scribe of the will, was also produced, though he was not present at the time of the execution of the will. His evidence is that he prepared the draft of the will on the instruction of Sohan Lal and handed over the written document either to Gopal Lal or to Sohan Lal. Finally there was the statement of Gopal Lal to prove due execution of the will for he was present when it was executed though he was not an attesting witness. Thus except for the inconsistency in the two statements of Laxmichand the evidence of the due execution of the will was overwhelming.10. But it is urged that Gopal Lal in whose favour the will was made had taken a prominent part in its execution and Sohan Lal was an old man of about 70 years when the will was executed and, therefore, we should require strict proof of the due execution of the will. There are several circumstances which in our opinion clearly show that the will was duly executed by Sohan Lal in favour of Gopal Lal. Firstly, Phool Chand was obviously a thorn in the side of the father and had dragged him into litigation. The will says that Phool Chand separated from the father long before and picked up quarrels with him. It further says that Phool Chand had no regard for his duty as a son and had been behaving with the testator in a most improper and shameful way. It goes on to say that the testator was fed up with the improper behaviour of Phool Chand. The testator then says in the will that contrary to it, Gopal Lal lived with him, served him and was obedient to him and he was impressed with the services of Gopal Lal. He, therefore, wanted his property to go to Gopal Lal and was making the will in order that Gopal Lal may not be put to any trouble after his death and might live comfortably. The will, therefore, appears to be a very natural will in the circumstances. Sohan Lal obviously did not provide for his wife for she had been allotted one-fifth share in the property already by the trial Courts preliminary decree. As for Rajmal minor, it appears that he was the natural son of Phool Chand and there was dispute whether he had been adopted by Gokalchands widow, though the dispute was eventually settled in favour of Rajmal minor by the Court. In these circumstances we would not expect Sohan Lal to make any provision for Rajmal minor either who had got one-fifth share on the basis of adoption. The will, therefore, appears to us to be very natural and the fact that Gopal Lal took part in the execution has under the circumstances no significance. It is true that Sohan Lal was about 70 years old when the will was executed. But he lived almost seven years after the execution of the will and it is no ones case that he was in any way mentally or physically incompetent to make the will when he did so in 1940. It may be added that the will was later registered also, though the Registrar has not been examined as a witness. Finally there is the circumstance that the appellant knew about the will as far back as March 1941 but he never seems to have talked to his father Sohan Lal about it. In these circumstances we agree with the High Court that the due execution of the will has been proved.11. The last point that had been urged on behalf of the appellant is that Gopal Lal was not entitled to any movable or immovable ancestral property by virtue of the will, as a Hindu cannot will away joint family property. We are of opinion that there is nothing in this contention. The present suit had already been filed by the appellant in 1937 and immediately on the filing of the suit there was severance of status among the members of the joint Hindu family, even if Phool Chand had not separated earlier as stated by Sohan Lal in the will. Further a preliminary decree had also been passed by the trial Court in April 1938 by which various shares were allotted to various members of the family. In these circumstances Sohan Lal was perfectly competent to will away the share he got out of the joint family property and that is what he did. He has stated in the will that Gopal Lal would be the rightful owner of his self-acquired immovable property. He further stated that Gopal Lal would be the rightful owner of his share in the ancestral property and finally he stated that Gopal Lal would be the rightful owner of all of his articles, i.e., jewellery, ornaments, clothes, utensils and other domestic articles. The last clause relating to movable property clearly refers both to the share that Sohan Lal got in the movable property by severance of status and specification of shares in the preliminary decree and to any self acquired movable property. There is, therefore, no force in this contention.
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ancestral property by the preliminary decree passed on August 1,High Court however held otherwise and we are of opinion that the High Court wasappears to us to be a correct statement of the law. We are concerned in the present appeal with the share which Smt. Gulab Bai got out of the ancestral property by the preliminary decree of August 1, 1942; she obviously had only a limited estate or a widows estate in that share and not an absolute estate. Therefore, she could not sell it in the manner in which she sold to the appellant. The High Court, therefore, was right in holding that the appellant could not take advantage of the sale of the share of the widow and it must descend on the remaining three surviving parties equally, namely, Phool Chand, Gopal Lal and Rajmal. The contention, therefore, on this head alsohave already indicated that the trial Court held that it was not, while the High Court was of opinion that it was genuine. The trial Court based its finding mainly on some inconsistency in the statements made by Laxmichand, an attesting witness, on two different occasions. It seems that in this suit Laxmichand duly proved the will but on an earlier occasion he had stated that he had not attested the will. There was another attesting witness who also was produced, namely, Chhotey Lal, whose evidence did not suffer from any infirmity. Besides that Basanti Lal, the scribe of the will, was also produced, though he was not present at the time of the execution of the will. His evidence is that he prepared the draft of the will on the instruction of Sohan Lal and handed over the written document either to Gopal Lal or to Sohan Lal. Finally there was the statement of Gopal Lal to prove due execution of the will for he was present when it was executed though he was not an attesting witness. Thus except for the inconsistency in the two statements of Laxmichand the evidence of the due execution of the will wasare several circumstances which in our opinion clearly show that the will was duly executed by Sohan Lal in favour of Gopal Lal. Firstly, Phool Chand was obviously a thorn in the side of the father and had dragged him into litigation. The will says that Phool Chand separated from the father long before and picked up quarrels with him. It further says that Phool Chand had no regard for his duty as a son and had been behaving with the testator in a most improper and shameful way. It goes on to say that the testator was fed up with the improper behaviour of Phool Chand. The testator then says in the will that contrary to it, Gopal Lal lived with him, served him and was obedient to him and he was impressed with the services of Gopal Lal. He, therefore, wanted his property to go to Gopal Lal and was making the will in order that Gopal Lal may not be put to any trouble after his death and might live comfortably. The will, therefore, appears to be a very natural will in the circumstances. Sohan Lal obviously did not provide for his wife for she had been allotted one-fifth share in the property already by the trial Courts preliminary decree. As for Rajmal minor, it appears that he was the natural son of Phool Chand and there was dispute whether he had been adopted by Gokalchands widow, though the dispute was eventually settled in favour of Rajmal minor by the Court. In these circumstances we would not expect Sohan Lal to make any provision for Rajmal minor either who had got one-fifth share on the basis of adoption. The will, therefore, appears to us to be very natural and the fact that Gopal Lal took part in the execution has under the circumstances no significance. It is true that Sohan Lal was about 70 years old when the will was executed. But he lived almost seven years after the execution of the will and it is no ones case that he was in any way mentally or physically incompetent to make the will when he did so in 1940. It may be added that the will was later registered also, though the Registrar has not been examined as a witness. Finally there is the circumstance that the appellant knew about the will as far back as March 1941 but he never seems to have talked to his father Sohan Lal about it. In these circumstances we agree with the High Court that the due execution of the will has beenare of opinion that there is nothing in this contention. The present suit had already been filed by the appellant in 1937 and immediately on the filing of the suit there was severance of status among the members of the joint Hindu family, even if Phool Chand had not separated earlier as stated by Sohan Lal in the will. Further a preliminary decree had also been passed by the trial Court in April 1938 by which various shares were allotted to various members of the family. In these circumstances Sohan Lal was perfectly competent to will away the share he got out of the joint family property and that is what he did. He has stated in the will that Gopal Lal would be the rightful owner of his self-acquired immovable property. He further stated that Gopal Lal would be the rightful owner of his share in the ancestral property and finally he stated that Gopal Lal would be the rightful owner of all of his articles, i.e., jewellery, ornaments, clothes, utensils and other domestic articles. The last clause relating to movable property clearly refers both to the share that Sohan Lal got in the movable property by severance of status and specification of shares in the preliminary decree and to any self acquired movable property. There is, therefore, no force in this contention.
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M/S J.B. Boda & Co. Pvt. Ltd Vs. Central Board Of Direct Taxesnew Delhi | v. CBDT 1989 (175) ITR 523 (SC) , and contended that the income must be directly received by the assessee--the Indian company, and if it is not so directly received, any other substitute arrangement which may have the effect of receipt by the assessee is of no avail. In the said case, the question that arose for consideration was, whether an Indian company doing business or having a branch or establishment in a foreign country can be called a " foreign enterprise ", and the question was answered in the negative. It was held that the words " foreign enterprise " occurring in section 80-O of the Act do not include a foreign branch of an Indian company. In the said case, the impact of the words " received by an assessee from the Government of a foreign State or foreign enterprise " occurring in section 80-O did not arise for consideration nor was considered. The facts of the said case are distinguishable. Circular No. 731 (see 1996 (217) ITR(St) 5), dated December 20, 1995, promulgated by the respondent filed as annexure " B " (page 8 of the supplementary paper book) is relevant and affords guidance in understanding the purport of section 80-O of the Act. " Section 80-O of the Income-tax Act, 1961 -- Deduction -- Royalties, etc., from certain foreign enterprises -- In case of receipt of brokerage by reinsurance agent, operating in India on behalf of principals abroad, from gross premia before remittance to his foreign principals. 7. Circular No. 731, dated 20-12-1995 1. Under the provisions of section 80-O of the Income-tax Act, 1961, an Indian company or a non-corporate assessee, who is resident in India, is entitled to a deduction of fifty per cent. of the income received by way of royalty, commission, fees ; etc., from a foreign Government or foreign enterprise for the use outside India of any patent, invention, model, design, secret formula or process, etc., or in consideration of technical or professional services rendered by the resident. The deduction is available if such income is received in India in convertible foreign exchange or having been converted into convertible foreign exchange outside India, is brought in by or on behalf of the Indian company or aforementioned assessee in accordance with the relevant provisions of the Foreign Exchange Regulation Act, 1973, for the time being in force 2. Reinsurance brokers, operating in India on behalf of principals abroad, are required to collect the reinsurance premia from ceding insurance companies in India and remit the same to their principals. In such cases, brokerage can be paid either by allowing the brokers to deduct their brokerage out of the gross premia collected from Indian insurance companies and remit the net premia overseas or they could simply remit the gross prentia and get back their brokerage in the form of remittance through banking channels 3. The Reserve Bank of India have expressed the view that since the principle underlying both the transactions is the same, there is no difference between the two modes of brokerage payment. In fact, the former method is administratively more convenient and the reinsurance brokers had been following this method till 1987 when they switched over to the second method to avail of deduction under section 80-O of the Act 4. The matter has been examined. The condition for deduction under section 80-O is that the receipt should be in convertible foreign exchange. When the commission is remitted abroad, it should be in a currency that is regarded as convertible foreign exchange according to FERA. The Board are of the view that in such cases the receipt of brokerage by a reinsurance agent in India front the gross premia before remittance to his foreign principals will also be entitled to the deduction under section 80-O of the Act." (emphasis supplied) 8. The said circular which seeks to declare and clarify the real scope and impact of section 80-O of the Act, is certainly binding on the respondent which issued it. 9. The facts brought out in this case are clear as to how the remittance to the foreign reinsurance company is made through the Reserve Bank of India in conformity with the agreement between the appellant and the foreign reinsurers, and that the remittance statement filed along with annexure " A " which evidences that the amount due to the foreign reinsurers as also the brokerage due to the appellant and the balance due to the foreign reinsurers is remitted (and expressed so) in dollars. It is common ground that the entire transaction effected through the medium of the Reserve Bank of India is expressed in foreign exchange and in effect the retention of the fee due to the appellant is in dollars for the services rendered. This, according to us, is receipt of income in convertible foreign exchange. It seems to us that a " two-way traffic " is unnecessary. To insist on a formal remittance to the foreign reinsurers first and thereafter to receive the commission from the foreign reinsurer, will be an empty formality and a meaningless ritual, on the facts of this case. On a perusal of the nature of the transaction and in particular the statement of remittance filed in the Reserve Bank of India regarding the transaction, we are unable to uphold the view of the respondent that the income under the agreement is generated in India or that the amount is one not received in convertible foreign exchange. We are of the view that the income is received in India in convertible foreign exchange, in a lawful and permissible manner through the premier institution concerned with the subject-matter -- the Reserve Bank of India. In this view, we hold that the proceedings of the Central Board of Direct Taxes dated March 11, 1986, declining to approve the agreements of the appellant with Sedgwick Offshore Resources Ltd., London, for the purposes of section 80-O of the Income-tax Act, are improper and illegal. We declare so. | 1[ds]The provisions similar to section 80-O of the Act were originally available in the former section 85C ofthe Income-tax Act, 1961. While moving the Bill relevant to the Finance (No. 2) Act, 1967, the then Finance Minister highlighted the fact that fiscal encouragement needed to be given to Indian industries to encourage them to provide technical know-how and technical services to newly developing countries. It is also seen that the objective was to encourage Indian companies to develop technical know-how and to make it available to foreign companies so as to augment the foreign exchange earnings of this country and establish a reputation of Indian technical know-how for foreign countries. The objective was to secure that the deduction under the section shall be allowed with reference to the income which is received in convertible foreign exchange in India or having been received in convertible foreign exchange outside India, is brought to India by and on behalf of taxpayers in accordance with the foreign exchange regulations. So also, any income used by the taxpayers outside India in the manner permitted by the Reserve Bank of India, shall be deemed to have been brought into India in accordance with the foreign exchange regulations on the date on which such permission was givenThe said circular which seeks to declare and clarify the real scope and impact of section 80-O of the Act, is certainly binding on the respondent which issued itThe facts brought out in this case are clear as to how the remittance to the foreign reinsurance company is made through the Reserve Bank of India in conformity with the agreement between the appellant and the foreign reinsurers, and that the remittance statement filed along with annexure " A " which evidences that the amount due to the foreign reinsurers as also the brokerage due to the appellant and the balance due to the foreign reinsurers is remitted (and expressed so) in dollars. It is common ground that the entire transaction effected through the medium of the Reserve Bank of India is expressed in foreign exchange and in effect the retention of the fee due to the appellant is in dollars for the services rendered. This, according to us, is receipt of income in convertible foreign exchange. It seems to us that a " two-way traffic " is unnecessary. To insist on a formal remittance to the foreign reinsurers first and thereafter to receive the commission from the foreign reinsurer, will be an empty formality and a meaningless ritual, on the facts of this case. On a perusal of the nature of the transaction and in particular the statement of remittance filed in the Reserve Bank of India regarding the transaction, we are unable to uphold the view of the respondent that the income under the agreement is generated in India or that the amount is one not received in convertible foreign exchange. We are of the view that the income is received in India in convertible foreign exchange, in a lawful and permissible manner through the premier institution concerned with the subject-matter -- the Reserve Bank of India. In this view, we hold that the proceedings of the Central Board of Direct Taxes dated March 11, 1986, declining to approve the agreements of the appellant with Sedgwick Offshore Resources Ltd., London, for the purposes of section 80-O of the Income-tax Act, are improper and illegal. We declare so. | 1 | 3,978 | 609 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
v. CBDT 1989 (175) ITR 523 (SC) , and contended that the income must be directly received by the assessee--the Indian company, and if it is not so directly received, any other substitute arrangement which may have the effect of receipt by the assessee is of no avail. In the said case, the question that arose for consideration was, whether an Indian company doing business or having a branch or establishment in a foreign country can be called a " foreign enterprise ", and the question was answered in the negative. It was held that the words " foreign enterprise " occurring in section 80-O of the Act do not include a foreign branch of an Indian company. In the said case, the impact of the words " received by an assessee from the Government of a foreign State or foreign enterprise " occurring in section 80-O did not arise for consideration nor was considered. The facts of the said case are distinguishable. Circular No. 731 (see 1996 (217) ITR(St) 5), dated December 20, 1995, promulgated by the respondent filed as annexure " B " (page 8 of the supplementary paper book) is relevant and affords guidance in understanding the purport of section 80-O of the Act. " Section 80-O of the Income-tax Act, 1961 -- Deduction -- Royalties, etc., from certain foreign enterprises -- In case of receipt of brokerage by reinsurance agent, operating in India on behalf of principals abroad, from gross premia before remittance to his foreign principals. 7. Circular No. 731, dated 20-12-1995 1. Under the provisions of section 80-O of the Income-tax Act, 1961, an Indian company or a non-corporate assessee, who is resident in India, is entitled to a deduction of fifty per cent. of the income received by way of royalty, commission, fees ; etc., from a foreign Government or foreign enterprise for the use outside India of any patent, invention, model, design, secret formula or process, etc., or in consideration of technical or professional services rendered by the resident. The deduction is available if such income is received in India in convertible foreign exchange or having been converted into convertible foreign exchange outside India, is brought in by or on behalf of the Indian company or aforementioned assessee in accordance with the relevant provisions of the Foreign Exchange Regulation Act, 1973, for the time being in force 2. Reinsurance brokers, operating in India on behalf of principals abroad, are required to collect the reinsurance premia from ceding insurance companies in India and remit the same to their principals. In such cases, brokerage can be paid either by allowing the brokers to deduct their brokerage out of the gross premia collected from Indian insurance companies and remit the net premia overseas or they could simply remit the gross prentia and get back their brokerage in the form of remittance through banking channels 3. The Reserve Bank of India have expressed the view that since the principle underlying both the transactions is the same, there is no difference between the two modes of brokerage payment. In fact, the former method is administratively more convenient and the reinsurance brokers had been following this method till 1987 when they switched over to the second method to avail of deduction under section 80-O of the Act 4. The matter has been examined. The condition for deduction under section 80-O is that the receipt should be in convertible foreign exchange. When the commission is remitted abroad, it should be in a currency that is regarded as convertible foreign exchange according to FERA. The Board are of the view that in such cases the receipt of brokerage by a reinsurance agent in India front the gross premia before remittance to his foreign principals will also be entitled to the deduction under section 80-O of the Act." (emphasis supplied) 8. The said circular which seeks to declare and clarify the real scope and impact of section 80-O of the Act, is certainly binding on the respondent which issued it. 9. The facts brought out in this case are clear as to how the remittance to the foreign reinsurance company is made through the Reserve Bank of India in conformity with the agreement between the appellant and the foreign reinsurers, and that the remittance statement filed along with annexure " A " which evidences that the amount due to the foreign reinsurers as also the brokerage due to the appellant and the balance due to the foreign reinsurers is remitted (and expressed so) in dollars. It is common ground that the entire transaction effected through the medium of the Reserve Bank of India is expressed in foreign exchange and in effect the retention of the fee due to the appellant is in dollars for the services rendered. This, according to us, is receipt of income in convertible foreign exchange. It seems to us that a " two-way traffic " is unnecessary. To insist on a formal remittance to the foreign reinsurers first and thereafter to receive the commission from the foreign reinsurer, will be an empty formality and a meaningless ritual, on the facts of this case. On a perusal of the nature of the transaction and in particular the statement of remittance filed in the Reserve Bank of India regarding the transaction, we are unable to uphold the view of the respondent that the income under the agreement is generated in India or that the amount is one not received in convertible foreign exchange. We are of the view that the income is received in India in convertible foreign exchange, in a lawful and permissible manner through the premier institution concerned with the subject-matter -- the Reserve Bank of India. In this view, we hold that the proceedings of the Central Board of Direct Taxes dated March 11, 1986, declining to approve the agreements of the appellant with Sedgwick Offshore Resources Ltd., London, for the purposes of section 80-O of the Income-tax Act, are improper and illegal. We declare so.
### Response:
1
### Explanation:
The provisions similar to section 80-O of the Act were originally available in the former section 85C ofthe Income-tax Act, 1961. While moving the Bill relevant to the Finance (No. 2) Act, 1967, the then Finance Minister highlighted the fact that fiscal encouragement needed to be given to Indian industries to encourage them to provide technical know-how and technical services to newly developing countries. It is also seen that the objective was to encourage Indian companies to develop technical know-how and to make it available to foreign companies so as to augment the foreign exchange earnings of this country and establish a reputation of Indian technical know-how for foreign countries. The objective was to secure that the deduction under the section shall be allowed with reference to the income which is received in convertible foreign exchange in India or having been received in convertible foreign exchange outside India, is brought to India by and on behalf of taxpayers in accordance with the foreign exchange regulations. So also, any income used by the taxpayers outside India in the manner permitted by the Reserve Bank of India, shall be deemed to have been brought into India in accordance with the foreign exchange regulations on the date on which such permission was givenThe said circular which seeks to declare and clarify the real scope and impact of section 80-O of the Act, is certainly binding on the respondent which issued itThe facts brought out in this case are clear as to how the remittance to the foreign reinsurance company is made through the Reserve Bank of India in conformity with the agreement between the appellant and the foreign reinsurers, and that the remittance statement filed along with annexure " A " which evidences that the amount due to the foreign reinsurers as also the brokerage due to the appellant and the balance due to the foreign reinsurers is remitted (and expressed so) in dollars. It is common ground that the entire transaction effected through the medium of the Reserve Bank of India is expressed in foreign exchange and in effect the retention of the fee due to the appellant is in dollars for the services rendered. This, according to us, is receipt of income in convertible foreign exchange. It seems to us that a " two-way traffic " is unnecessary. To insist on a formal remittance to the foreign reinsurers first and thereafter to receive the commission from the foreign reinsurer, will be an empty formality and a meaningless ritual, on the facts of this case. On a perusal of the nature of the transaction and in particular the statement of remittance filed in the Reserve Bank of India regarding the transaction, we are unable to uphold the view of the respondent that the income under the agreement is generated in India or that the amount is one not received in convertible foreign exchange. We are of the view that the income is received in India in convertible foreign exchange, in a lawful and permissible manner through the premier institution concerned with the subject-matter -- the Reserve Bank of India. In this view, we hold that the proceedings of the Central Board of Direct Taxes dated March 11, 1986, declining to approve the agreements of the appellant with Sedgwick Offshore Resources Ltd., London, for the purposes of section 80-O of the Income-tax Act, are improper and illegal. We declare so.
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ABID-UL-ISLAM Vs. INDER SAIN DUA | may not be open to be interfered with, but (sic if) in a given case, the finding of fact is given on a wrong premise of law, certainly it would be open to the Revisional Court to interfere with such a matter. It was thus held, that though the scope of revisional powers of the High Court was very limited one, but even so in examining the legality or propriety of the proceedings before the Rent Controller, the High Court could examine the facts available in order, to find out whether he had correctly or on a firm legal basis approached the matters on record to decide the case. It has also been held, that pure findings of fact may not be open to be interfered with, but in a given case, if the finding of fact is given on a wrong premise of law, it would be open to the Revisional Court to interfere with the same. ON MERITS: 22. Learned Rent Controller passed a detailed speaking order. On undertaking such an exercise, he found that the bona fide need is satisfied; the averments of the respondent regarding alternative accommodation are vague; the title of the appellant cannot be questioned; and the embargo under the Enemy Property Act does not get attracted. Thus, having found that the defense set up by the respondent is only a moonshine, the application filed seeking leave to defend was accordingly rejected. 23. After completing the aforesaid process, the Court made certain observations in addition to the order on merits, giving its indictment on the conduct of the respondent, who dropped the names of not only a District Judge but also a High Court Judge, certainly not germane to the case. 24. The High Court, while ignoring the aforesaid conduct of the respondent, as noted by the learned Rent Controller, proceeded to allow the revision by treating it like an appeal. It did not even reverse the findings of the learned Rent Controller, but proceeded to hold that the denials of the appellant in his reply to the application seeking leave to defend are vague, qua the plea of alternative accommodation, notwithstanding the rejection of the contention of the respondent that he cannot question the title. This approach, in our considered view, cannot be sustained in the eye of law. 25. Section 14(1)(e) deals with only the requirement of a bona fide purpose. The contention regarding alternative accommodation can at best be only an incidental one. Such a requirement has not been found to be incorrect by the High Court, though it is not even open to it to do so, in view of the limited jurisdiction which it was supposed to exercise. Therefore, the very basis upon which the revision was allowed is obviously wrong being contrary to the very provision contained in Section 14(1)(e) and Section 25B(8). 26. We have already discussed the scope of Section 14(1)(e) vis a vis Section 25B(8) of the Act. Therefore, the mere existence of the other properties which are, in fact, denied by the appellant would not enure to the benefit of the respondent in the absence of any pleadings and supporting material before the learned Rent Controller to the effect that they are reasonably suitable for accommodation. 27. The respondent made substantial claims on the judgment of this Court in Precision Steel (supra). We do not find the said decision helping the case of the respondent, in the light of the discussion made on the scope of the relevant provisions, as leave to defend cannot be granted on mere asking. We can only reiterate that we do not find any perversity in the decision rendered by the learned Rent Controller and the High Court has not only certainly abdicated its jurisdiction, but also exceeded in a way. 28. We are constrained to note that the respondent continued to drop the names of persons holding high offices even before us. He proudly proclaimed during his argument that the proceedings under the Enemy Property Act, as amended, were initiated only at his instance on his personally meeting with an Honble Union Minister. We can only adopt the process undertaken by the learned Rent Controller by not letting the said statement come in the way of deciding the matter on merits, despite it being unconscionable and shockingly brazen. 29. Much reliance has been made on the documents indicating the re-creation of tenancy right in favour of the respondent by the authority constituted under the Amended Act. We do not wish to state anything on that, nor the said communication would have an impact on our order. Neither the said Authority is before us, nor its existence or viability can be gone into in these proceedings. The scope of the Enemy Property Act, as amended, vis a vis the proceedings for eviction was already dealt with by the learned Rent Controller, though not touched upon by the High Court. Further, the attempt of the respondent to implead himself in a pending case before the High Court of Delhi on a challenge made to the notices passed under the Amended Act got miserably failed with an observation by the High Court that it smacked of mala fides. We may further note, notwithstanding the earlier conclusion by way of a report dated 04.11.2015 wherein the Assistant Custodian of Enemy Property under the Enemy Property Act has observed that the predecessors of the appellant are non-evacuees and that the properties owned by them by no stretch of imagination can be termed as enemy property, there is another action initiated on which we dont wish to express any view. The decision of the High Court rejecting the respondents impleadment was not only confirmed by the dismissal of the intra-court appeal, but also that of the rejection of the special leave petition by this Court. On fact, the proceedings initiated under the Enemy Property Act, as amended, are also stayed by the High Court having considered the report dated 04.11.2015, by a reasoned order. | 1[ds]13. We may usefully refer to the decision of this Court in Inderjeet Kaur v. Nirpal Singh, (2001) 1 SCC 706 :9. Chapter III-A deals with summary trial of certain applications expressly stating that every application by a landlord for recovery of possession on the ground specified in clause (e) of the proviso to sub-section (1) of Section 14 of the Act, or under Section 14-A or 14-B or 14-C or 14-D shall be dealt with in accordance with the special provisions prescribed in Section 25-B of the Act. As per the broad scheme of this Chapter a tenant is precluded from contesting an application filed for eviction on the grounds mentioned in the aforementioned provisions unless he obtains leave from the Controller to contest the eviction petition. In default of obtaining leave to defend or leave is refused to him an order of eviction follows. It appears recourse to summary trial is adopted having due regard to nature of the grounds on which the eviction is sought with a view to avoid delay so that the landlord should not be deprived or denied of his right to immediate possession of premises for his bona fide use.10. At the same time, it is well settled and accepted position in law that no one shall be subjected to suffer a civil consequence like eviction from a premises resulting in hardship to him without providing adequate and effective opportunity to disprove the case against him and establish his case as pleaded.11. As is evident from Sections 25-B(4) and (5) of the Act, burden placed on a tenant is light and limited in that if the affidavit filed by him discloses such facts as would disentitle the landlord from obtaining an order for the recovery of the possession of the premises on the ground specified in clause (e) of the proviso to Section 14(1) of the Act, with which we are concerned in this case, are good enough to grant leave to defend.12. A landlord, who bonafidely requires a premises for his residence and occupation should not suffer for long, waiting for eviction of a tenant. At the same time a tenant cannot be thrown out from a premises summarily, even though prima facie he is able to say that the claim of the landlord is not bona fide or untenable and as such not entitled to obtain an order of eviction. Hence the approach has to be cautious and judicious in granting or refusing leave to defend to a tenant to contest an eviction petition within the broad scheme of Chapter III-A and in particular having regard to the clear terms and language of Section 25-B(5).13. We are of the considered view that at a stage when the tenant seeks leave to defend, it is enough if he prima facie makes out a case by disclosing such facts as would disentitle the landlord from obtaining an order of eviction. It would not be a right approach to say that unless the tenant at that stage itself establishes a strong case as would non-suit the landlord, leave to defend should not be granted when it is not the requirement of Section 25-B(5). A leave to defend sought for cannot also be granted for mere asking or in a routine manner which will defeat the very object of the special provisions contained in Chapter III-A of the Act. Leave to defend cannot be refused where an eviction petition is filed on a mere design or desire of a landlord to recover possession of the premises from a tenant under clause (e) of the proviso to sub-section (1) of Section 14, when as a matter of fact the requirement may not be bona fide. Refusing to grant leave in such a case leads to eviction of a tenant summarily resulting in great hardship to him and his family members, if any, although he could establish if only leave is granted that a landlord would be disentitled for an order of eviction. At the stage of granting leave to defend, parties rely on affidavits in support of the rival contentions. Assertions and counter-assertions made in affidavits may not afford safe and acceptable evidence so as to arrive at an affirmative conclusion one way or the other unless there is a strong and acceptable evidence available to show that the facts disclosed in the application filed by the tenant seeking leave to defend were either frivolous, untenable or most unreasonable. Take a case when possession is sought on the ground of personal requirement, a landlord has to establish his need and not his mere desire. The ground under clause (e) of the proviso to sub-section (1) of Section 14 enables a landlord to recover possession of the tenanted premises on the ground of his bona fide requirement. This being an enabling provision, essentially the burden is on the landlord to establish his case affirmatively. In short and substance, a wholly frivolous and totally untenable defence may not entitle a tenant to leave to defend, but when a triable issue is raised a duty is placed on the Rent Controller by the statute itself to grant leave. At the stage of granting leave the real test should be whether facts disclosed in the affidavit filed seeking leave to defend prima facie show that the landlord would be disentitled from obtaining an order of eviction and not whether at the end defence may fail. It is well to remember that when leave to defend is refused, serious consequences of eviction shall follow and the party seeking leave is denied an opportunity to test the truth of the averments made in the eviction petition by cross-examination. It may also be noticed that even in cases where leave is granted provisions are made in this very Chapter for expeditious disposal of eviction petitions. Section 25-B(6) states that where leave is granted to a tenant to contest the eviction application, the Controller shall commence the hearing of the application as early as practicable. Section 25-B(7) speaks of the procedure to be followed in such cases. Section 25-B(8) bars the appeals against an order of recovery of possession except a provision of revision to the High Court. Thus a combined effect of Sections 25-B(6), (7) and (8) would lead to expeditious disposal of eviction petitions so that a landlord need not wait and suffer for a long time. On the other hand, when a tenant is denied leave to defend although he had fair chance to prove his defence, will suffer great hardship. In this view a balanced view is to be taken having regard to competing claims.14. We further wish to place reliance on the judgment of this Court in Anil Bajaj and Anr. v. Vinod Ahuja, (2014) 15 SCC 610 :6. In the present case it is clear that while the landlord (Appellant 1) is carrying on his business from a shop premise located in a narrow lane, the tenant is in occupation of the premises located on the main road which the landlord considers to be more suitable for his own business. The materials on record, in fact, disclose that the landlord had offered to the tenant the premises located in the narrow lane in exchange for the tenanted premises which offer was declined by the tenant. It is not the tenants case that the landlord, Appellant 1, does not propose to utilise the tenanted premises from which eviction is sought for the purposes of his business. It is also not the tenants case that the landlord proposes to rent out/keep vacant the tenanted premises after obtaining possession thereof or to use the same is any way inconsistent with the need of the landlord. What the tenant contends is that the landlord has several other shop houses from which he is carrying on different businesses and further that the landlord has other premises from where the business proposed from the tenanted premises can be effectively carried out. It would hardly require any reiteration of the settled principle of law that it is not for the tenant to dictate to the landlord as to how the property belonging to the landlord should be utilised by him for the purpose of his business. Also, the fact that the landlord is doing business from various other premises cannot foreclose his right to seek eviction from the tenanted premises so long as he intends to use the said tenanted premises for his own business.17. Dealing with a pari materia provision, this Court in Baldev Singh Bajwa v. Monish Saini, (2005) 12 SCC 778, was pleased to clarify the aforesaid position holding the procedure as summary. In such a case, the tenant is expected to put in adequate and reasonable materials in support of the facts pleaded in the form of a declaration sufficient to raise a triable issue. One cannot lose sight of the object behind Section 25B in facilitating not only the expeditious but effective remedy for a class of landlords, sans the normal procedural route. In this regard, we wish to quote the decision of this court in Baldev Singh (supra):14. The phrase bona fide requirement or bona fide need or required reasonably in good faith or required, occurs in almost all Rent Control Acts with the underlying legislative intent which has been considered and demonstrated innumerable times by various High Courts as also by this Court, some of which we would like to refer to. In Ram Dass v. Ishwar Chander [(1988) 3 SCC 131] it is said that the bona fide need should be genuine and honest, conceived in good faith. It was also indicated that the landlords desire for possession, however honest it might otherwise be, has inevitably a subjective element in it, and that desire, to become a requirement in law must have the objective element of a need, which can be decided only by taking all the relevant circumstances into consideration so that the protection afforded to a tenant is not rendered illusory or whittled down.15. In Bega Begum v. Abdul Ahad Khan [(1979) 1 SCC 273] it was held by this Court that the words reasonable requirement undoubtedly postulate that there must be an element of need as opposed to a mere desire or wish. The distinction between desire and need should doubtless be kept in mind but not so as to make even the genuine need as nothing but a desire.16. In Surjit Singh Kalra v. Union of India [(1991) 2 SCC 87] a three-Judge Bench of this Court has held as under: (SCC p. 99, para 20)20. The tenant of course is entitled to raise all relevant contentions as against the claim of the classified landlords. The fact that there is no reference to the words bona fide requirement in Sections 14-B to 14-D does not absolve the landlord from proving that his requirement is bona fide or the tenant from showing that it is not bona fide. In fact every claim for eviction against a tenant must be a bona fide one. There is also enough indication in support of this construction from the title of Section 25-B which states special procedure for the disposal of applications for eviction on the ground of bona fide requirement.17. In Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta [(1999) 6 SCC 222] this Court while dealing with the aspect of bona fide requirement has said that the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant, refers to a state of mind prevailing with the landlord. The only way of peeping into the mind of the landlord is an exercise undertaken by the judge of facts by placing himself in the armchair of the landlord and then posing a question to himself — whether in the given facts, substantiated by the landlord, the need to occupy the premises can be said to be natural, real, sincere and honest.19. … In our view there are inbuilt protections in the relevant provisions for the tenants that whenever the landlord would approach the court he would approach when his need is genuine and bona fide. It is, of course, subject to the tenants right to rebut it but with strong and cogent evidence. In our view, in the proceeding taken up under Section 13-B by the NRI landlords for the ejectment of the tenant, the court shall presume that the landlords need pleaded in the petition is genuine and bona fide. But this would not disentitle the tenant from proving that in fact and in law the requirement of the landlord is not genuine. A heavy burden would lie on the tenant to prove that the requirement of the landlord is not genuine. To prove this fact the tenant will be called upon to give all the necessary facts and particulars supported by documentary evidence, if available, to support his plea in the affidavit itself so that the Controller will be in a position to adjudicate and decide the question of genuine or bona fide requirement of the landlord. A mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlords favour that his requirement of occupation of the premises is real and genuine.18. We further wish to place reliance upon a recent decision of this Court in Ram Krishan Grover v. Union of India, (2020) 12 SCC 506, wherein this Court considered the aforesaid decisions in Inderjeet Kaur (supra) and Baldev Singh (supra) and interpreted the burden on the tenant to be rebutted at the stage of leave to defend and observed:39. The requirement of a strong case for obtaining leave to defend means a good case that brings to fore reasonable and well-grounded basis on which the tenant seeks leave to contest the eviction proceedings. It does not mean setting up and establishing at that stage a case beyond any scintilla of doubt and debate. The grounds and pleas raised should reflect clear and strong defence and relate to the grounds mentioned in para 25 in Baldev Singh Bajwa [Baldev Singh Bajwa v. Monish Saini, (2005) 12 SCC 778] . The standard applied is similar to parameters elucidated in Inderjeet Kaur v. Nirpal Singh [(2001) 1 SCC 706] , in which this Court had held that the leave to defend should not be granted on mere asking but when the pleas and contentions raise triable issues and the dispute on facts demands that the matter be properly adjudicated after ascertaining the truth of affidavits filed by the witnesses in their cross-examination. Each case has to be decided on its merits and not on the basis of any preconceived suppositions and presumptions. By providing for a simplified procedure of eviction by the Non-Resident Indians, Section 13-B does not dilute the rights of tenants. It gives a chance to the tenants on merits to establish their case and when justified and necessary to take the matter to trial. By no means, therefore, Section 13-B can be held to be arbitrary and unreasonable.20. Proviso to Section 25B(8) gives the High Court exclusive power of revision against an order of the learned Rent Controller, being in the nature of superintendence over an inferior court on the decision making process, inclusive of procedural compliance. Thus, the High Court is not expected to substitute and supplant its views with that of the trial Court by exercising the appellate jurisdiction. Its role is to satisfy itself on the process adopted. The scope of interference by the High Court is very restrictive and except in cases where there is an error apparent on the face of the record, which would only mean that in the absence of any adjudication per se, the High Court should not venture to disturb such a decision. There is no need for holding a roving inquiry in such matters which would otherwise amount to converting the power of superintendence into that of a regular first appeal, an act, totally forbidden by the legislature. We do not wish to go further on this settled proposition of law, except by quoting the decision of this Court in Sarla Ahuja v. United India Insurance Co. Ltd., (1998) 8 SCC 119 :5. Section 25-B of the Act lays down special procedure for the disposal of application for eviction on the ground of bona fide requirement. Sub- section (1) says that every application for recovery of possession on the ground specified in Section 14(1)(e) of the Act shall be dealt with in accordance with the procedure specified in Section 25-B. Sub-section (8) says that no appeal or second appeal shall lie against an order for the recovery of possession of any premises made by the Rent Controller in accordance with the procedure specified in this section. The proviso to that sub-section reads thus:Provided that the High Court may, for the purpose of satisfying itself that an order made by the Controller under this section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit.6. The above proviso indicates that power of the High Court is supervisory in nature and it is intended to ensure that the Rent Controller conforms to law when he passes the order. The satisfaction of the High Court when perusing the records of the case must be confined to the limited sphere that the order of the Rent Controller is according to the law. In other words, the High Court shall scrutinize the records to ascertain whether any illegality has been committed by the Rent Controller in passing the order under Section 25-B. It is not permissible for the High Court in that exercise to come to a different fact finding unless the finding arrived at by the Rent Controller on the facts is so unreasonable that no Rent Controller should have reached such a finding on the materials available.7. Although, the word revision is not employed in the proviso to Section 25-B(8) of the Act, it is evident from the language used therein that the power conferred is revisional power. In legal parlance, distinction between appellate and revisional jurisdiction is well understood. Ordinarily, appellate jurisdiction is wide enough to afford a rehearing of the whole case for enabling the appellate forum to arrive at fresh conclusions untrammelled by the conclusions reached in the order challenged before it. Of course, the statute which provides appeal provision can circumscribe or limit the width of such appellate powers. Revisional power, on the contrary, is ordinarily a power of supervision keeping subordinate tribunals within the bounds of law. Expansion or constriction of such revisional power would depend upon how the statute has couched such power therein. In some legislations, revisional jurisdiction is meant for satisfying itself as to the regularity,legality or propriety of proceedings or decisions of the subordinate court. In Sri Raja Lakshmi Dyeing Works v. Rangaswamy Chettiar [(1980) 4 SCC 259] this Court considered the scope of the words (the High Court may call for and examine the records … to satisfy itself as to the regularity of such proceedings or the correctness, legality or propriety of any decision or order …) by which power of revision has been conferred by a particular statute. Dealing with the contention that the above words indicated conferment of a very wide power on the revisional authority, this Court has observed thus in the said decision: (SCC p. 262, para 3)The dominant idea conveyed by the incorporation of the words to satisfy itself under Section 25 appears to be that the power conferred on the High Court under Section 25 is essentially a power of superintendence. Therefore, despite the wide language employed in Section 25 the High Court quite obviously should not interfere with findings of fact merely because it does not agree with the finding of the subordinate authority.8. Dealing with Section 32, the Delhi and Ajmer Rent (Control) Act, 1952, which is almost identically worded as in the proviso to Section 25-B(8) of the Act, a three-Judge Bench of this Court has stated thus in Hari Shankar v. Rao Girdhari Lal Chowdhury [AIR 1963 SC 698 : 1962 Supp (1) SCR 933] :The section is thus framed to confer larger powers than the power to correct error of jurisdiction to which Section 115 is limited. But it must not be overlooked that the section — in spite of its apparent width of language where it confers a power on the High Court to pass such order as the High Court might think fit, — is controlled by the opening words, where it says that the High Court may send for the record of the case to satisfy itself that the decision is according to law. It stands to reason that if it was considered necessary that there should be a rehearing, a right of appeal would be a more appropriate remedy, but the Act says that there is to be no further appeal.9. In Malini Ayyappa Naicker v. Seth Manghraj Udhavadas [(1969) 1 SCC 688] another three-Judge Bench of this Court was considering a similarly worded proviso in Section 75(1) of the Provincial Insolvency Act, 1920. Though, learned Judges did not give an exhaustive definition of the expression according to law, a catalogue of instance in which the High Court may interfere under the said proviso was given in the decision as the following [Ed.: The passage quoted is an extract from Beaumont, C.J.s judgment in Bell & Co. Ltd. v. Wamen Hemrai, (1938) 40 Bom LR 125 which was approved by the Supreme Court in the case cited.]: (SCC p. 691, para 7)They are cases in which the Court which made the order had no jurisdiction or in which the Court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful party has not been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulders. Wherever the Court comes to the conclusion that the unsuccessful party has not had a proper trial according to law, then the Court can interfere.10. The Bench has, however, cautioned that the High Court should not interfere merely because it considered that possibly the Judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at.11. Learned Single Judge of the High Court in the present case has reassessed and reappraised the evidence afresh to reach a different finding as though it was exercising appellate jurisdiction. No doubt even while exercising revisional jurisdiction, a reappraisal of evidence can be made, but that should be for the limited purpose to ascertain whether the conclusion arrived at by the fact-finding court is wholly unreasonable. A reading of the impugned order shows that the High Court has overstepped the limit of its power as a revisional court. The order impugned on that score is hence vitiated by jurisdictional deficiency.12. Clause (e) of the proviso to Section 14(1) of the Act affords one of the grounds to the landlord to seek recovery of possession of the building leased. The said clause reads thus:14. (1)(e) that the premises let for residential purposes are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential accommodation;Explanation.—For the purposes of this clause, premises let for residential purposes include any premises which having been let for use as a residence are, without the consent of the landlord, used incidentally for commercial or other purposes;13. If the landlord has another residential accommodation which is reasonably suitable, he is not permitted to avail himself of the benefit afforded in the ground set out in the clause. Learned Single Judge of the High Court has noted that the landlord in this case has admitted in her deposition that the house in Calcutta was a 3-bedroom house with drawing/dining room and one of the bedrooms was used by her, another by her son with his wife and another bedroom was kept for her daughter who used to come and stay. This was one of the reasons which persuaded the learned Single Judge to interfere with the order of eviction. To deprive a landlord of the benefit of the ground mentioned in Section 14(1)(e) on account of availability of alternative residential accommodation, it is not enough that such alternative accommodation is in a far different State. Such accommodation must be available in the same city or town, or at least within reasonable proximity thereof if it is outside the limits of the city. The said limb of clause (e) cannot be interpreted as to mean that if the landlord has another house anywhere in the world, he cannot seek recovery of possession of his building under clause (e). The High Court therefore went wrong in observing that since the landlord has possession of another flat at Calcutta she is disentitled to seek recovery of possession of the tenanted premises situated at Delhi.14. The crux of the ground envisaged in clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation, the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case, it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself.21. The aforesaid decision has been recently considered and approved by this Court in the case of Mohd. Inam v. Sanjay Kumar Singhal, (2020) 7 SCC 327 :22. This Court in Sarla Ahuja v. United India Insurance Co. Ltd. [(1998) 8 SCC 119] had an occasion to consider the scope of proviso to Section 25- B(8) of the Delhi Rent Control Act, 1958. This Court found, that though the word revision was not employed in the said proviso, from the language used therein, the legislative intent was clear that the power conferred was revisional power. This Court observed thus: (SCC p. 124, para 11)11. The learned Single Judge of the High Court in the present case has reassessed and reappraised the evidence afresh to reach a different finding as though it was exercising appellate jurisdiction. No doubt even while exercising revisional jurisdiction, a reappraisal of evidence can be made, but that should be for the limited purpose to ascertain whether the conclusion arrived at by the fact-finding court is wholly unreasonable.It could thus be seen, that this Court has held, that the High Court while exercising the revisional powers under the Delhi Rent Control Act, 1958 though could not reassess and reappraise the evidence, as if it was exercising appellate jurisdiction, however, it was empowered to reappraise the evidence for the limited purpose so as to ascertain whether the conclusion arrived at by the fact-finding court is wholly unreasonable.23. Again in Ram Narain Arora v. Asha Rani [(1999) 1 SCC 141] , this Court had an occasion to consider the aforesaid powers under the Delhi Rent Control Act, 1958. This Court observed thus: (SCC p. 148, para 12)12. It is no doubt true that the scope of a revision petition under Section 25-B(8) proviso of the Delhi Rent Control Act is a very limited one, but even so in examining the legality or propriety of the proceedings before the Rent Controller, the High Court could examine the facts available in order to find out whether he had correctly or on a firm legal basis approached the matters on record to decide the case. Pure findings of fact may not be open to be interfered with, but (sic if) in a given case, the finding of fact is given on a wrong premise of law, certainly it would be open to the Revisional Court to interfere with such a matter.It was thus held, that though the scope of revisional powers of the High Court was very limited one, but even so in examining the legality or propriety of the proceedings before the Rent Controller, the High Court could examine the facts available in order, to find out whether he had correctly or on a firm legal basis approached the matters on record to decide the case. It has also been held, that pure findings of fact may not be open to be interfered with, but in a given case, if the finding of fact is given on a wrong premise of law, it would be open to the Revisional Court to interfere with the same.24. The High Court, while ignoring the aforesaid conduct of the respondent, as noted by the learned Rent Controller, proceeded to allow the revision by treating it like an appeal. It did not even reverse the findings of the learned Rent Controller, but proceeded to hold that the denials of the appellant in his reply to the application seeking leave to defend are vague, qua the plea of alternative accommodation, notwithstanding the rejection of the contention of the respondent that he cannot question the title. This approach, in our considered view, cannot be sustained in the eye of law.25. Section 14(1)(e) deals with only the requirement of a bona fide purpose. The contention regarding alternative accommodation can at best be only an incidental one. Such a requirement has not been found to be incorrect by the High Court, though it is not even open to it to do so, in view of the limited jurisdiction which it was supposed to exercise. Therefore, the very basis upon which the revision was allowed is obviously wrong being contrary to the very provision contained in Section 14(1)(e) and Section 25B(8).26. We have already discussed the scope of Section 14(1)(e) vis a vis Section 25B(8) of the Act. Therefore, the mere existence of the other properties which are, in fact, denied by the appellant would not enure to the benefit of the respondent in the absence of any pleadings and supporting material before the learned Rent Controller to the effect that they are reasonably suitable for accommodation.27. The respondent made substantial claims on the judgment of this Court in Precision Steel (supra). We do not find the said decision helping the case of the respondent, in the light of the discussion made on the scope of the relevant provisions, as leave to defend cannot be granted on mere asking. We can only reiterate that we do not find any perversity in the decision rendered by the learned Rent Controller and the High Court has not only certainly abdicated its jurisdiction, but also exceeded in a way.28. We are constrained to note that the respondent continued to drop the names of persons holding high offices even before us. He proudly proclaimed during his argument that the proceedings under the Enemy Property Act, as amended, were initiated only at his instance on his personally meeting with an Honble Union Minister. We can only adopt the process undertaken by the learned Rent Controller by not letting the said statement come in the way of deciding the matter on merits, despite it being unconscionable and shockingly brazen.29. Much reliance has been made on the documents indicating the re-creation of tenancy right in favour of the respondent by the authority constituted under the Amended Act. We do not wish to state anything on that, nor the said communication would have an impact on our order. Neither the said Authority is before us, nor its existence or viability can be gone into in these proceedings. The scope of the Enemy Property Act, as amended, vis a vis the proceedings for eviction was already dealt with by the learned Rent Controller, though not touched upon by the High Court. Further, the attempt of the respondent to implead himself in a pending case before the High Court of Delhi on a challenge made to the notices passed under the Amended Act got miserably failed with an observation by the High Court that it smacked of mala fides. We may further note, notwithstanding the earlier conclusion by way of a report dated 04.11.2015 wherein the Assistant Custodian of Enemy Property under the Enemy Property Act has observed that the predecessors of the appellant are non-evacuees and that the properties owned by them by no stretch of imagination can be termed as enemy property, there is another action initiated on which we dont wish to express any view. The decision of the High Court rejecting the respondents impleadment was not only confirmed by the dismissal of the intra-court appeal, but also that of the rejection of the special leave petition by this Court. On fact, the proceedings initiated under the Enemy Property Act, as amended, are also stayed by the High Court having considered the report dated 04.11.2015, by a reasoned order. | 1 | 8,786 | 6,185 | ### Instruction:
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may not be open to be interfered with, but (sic if) in a given case, the finding of fact is given on a wrong premise of law, certainly it would be open to the Revisional Court to interfere with such a matter. It was thus held, that though the scope of revisional powers of the High Court was very limited one, but even so in examining the legality or propriety of the proceedings before the Rent Controller, the High Court could examine the facts available in order, to find out whether he had correctly or on a firm legal basis approached the matters on record to decide the case. It has also been held, that pure findings of fact may not be open to be interfered with, but in a given case, if the finding of fact is given on a wrong premise of law, it would be open to the Revisional Court to interfere with the same. ON MERITS: 22. Learned Rent Controller passed a detailed speaking order. On undertaking such an exercise, he found that the bona fide need is satisfied; the averments of the respondent regarding alternative accommodation are vague; the title of the appellant cannot be questioned; and the embargo under the Enemy Property Act does not get attracted. Thus, having found that the defense set up by the respondent is only a moonshine, the application filed seeking leave to defend was accordingly rejected. 23. After completing the aforesaid process, the Court made certain observations in addition to the order on merits, giving its indictment on the conduct of the respondent, who dropped the names of not only a District Judge but also a High Court Judge, certainly not germane to the case. 24. The High Court, while ignoring the aforesaid conduct of the respondent, as noted by the learned Rent Controller, proceeded to allow the revision by treating it like an appeal. It did not even reverse the findings of the learned Rent Controller, but proceeded to hold that the denials of the appellant in his reply to the application seeking leave to defend are vague, qua the plea of alternative accommodation, notwithstanding the rejection of the contention of the respondent that he cannot question the title. This approach, in our considered view, cannot be sustained in the eye of law. 25. Section 14(1)(e) deals with only the requirement of a bona fide purpose. The contention regarding alternative accommodation can at best be only an incidental one. Such a requirement has not been found to be incorrect by the High Court, though it is not even open to it to do so, in view of the limited jurisdiction which it was supposed to exercise. Therefore, the very basis upon which the revision was allowed is obviously wrong being contrary to the very provision contained in Section 14(1)(e) and Section 25B(8). 26. We have already discussed the scope of Section 14(1)(e) vis a vis Section 25B(8) of the Act. Therefore, the mere existence of the other properties which are, in fact, denied by the appellant would not enure to the benefit of the respondent in the absence of any pleadings and supporting material before the learned Rent Controller to the effect that they are reasonably suitable for accommodation. 27. The respondent made substantial claims on the judgment of this Court in Precision Steel (supra). We do not find the said decision helping the case of the respondent, in the light of the discussion made on the scope of the relevant provisions, as leave to defend cannot be granted on mere asking. We can only reiterate that we do not find any perversity in the decision rendered by the learned Rent Controller and the High Court has not only certainly abdicated its jurisdiction, but also exceeded in a way. 28. We are constrained to note that the respondent continued to drop the names of persons holding high offices even before us. He proudly proclaimed during his argument that the proceedings under the Enemy Property Act, as amended, were initiated only at his instance on his personally meeting with an Honble Union Minister. We can only adopt the process undertaken by the learned Rent Controller by not letting the said statement come in the way of deciding the matter on merits, despite it being unconscionable and shockingly brazen. 29. Much reliance has been made on the documents indicating the re-creation of tenancy right in favour of the respondent by the authority constituted under the Amended Act. We do not wish to state anything on that, nor the said communication would have an impact on our order. Neither the said Authority is before us, nor its existence or viability can be gone into in these proceedings. The scope of the Enemy Property Act, as amended, vis a vis the proceedings for eviction was already dealt with by the learned Rent Controller, though not touched upon by the High Court. Further, the attempt of the respondent to implead himself in a pending case before the High Court of Delhi on a challenge made to the notices passed under the Amended Act got miserably failed with an observation by the High Court that it smacked of mala fides. We may further note, notwithstanding the earlier conclusion by way of a report dated 04.11.2015 wherein the Assistant Custodian of Enemy Property under the Enemy Property Act has observed that the predecessors of the appellant are non-evacuees and that the properties owned by them by no stretch of imagination can be termed as enemy property, there is another action initiated on which we dont wish to express any view. The decision of the High Court rejecting the respondents impleadment was not only confirmed by the dismissal of the intra-court appeal, but also that of the rejection of the special leave petition by this Court. On fact, the proceedings initiated under the Enemy Property Act, as amended, are also stayed by the High Court having considered the report dated 04.11.2015, by a reasoned order.
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limited purpose so as to ascertain whether the conclusion arrived at by the fact-finding court is wholly unreasonable.23. Again in Ram Narain Arora v. Asha Rani [(1999) 1 SCC 141] , this Court had an occasion to consider the aforesaid powers under the Delhi Rent Control Act, 1958. This Court observed thus: (SCC p. 148, para 12)12. It is no doubt true that the scope of a revision petition under Section 25-B(8) proviso of the Delhi Rent Control Act is a very limited one, but even so in examining the legality or propriety of the proceedings before the Rent Controller, the High Court could examine the facts available in order to find out whether he had correctly or on a firm legal basis approached the matters on record to decide the case. Pure findings of fact may not be open to be interfered with, but (sic if) in a given case, the finding of fact is given on a wrong premise of law, certainly it would be open to the Revisional Court to interfere with such a matter.It was thus held, that though the scope of revisional powers of the High Court was very limited one, but even so in examining the legality or propriety of the proceedings before the Rent Controller, the High Court could examine the facts available in order, to find out whether he had correctly or on a firm legal basis approached the matters on record to decide the case. It has also been held, that pure findings of fact may not be open to be interfered with, but in a given case, if the finding of fact is given on a wrong premise of law, it would be open to the Revisional Court to interfere with the same.24. The High Court, while ignoring the aforesaid conduct of the respondent, as noted by the learned Rent Controller, proceeded to allow the revision by treating it like an appeal. It did not even reverse the findings of the learned Rent Controller, but proceeded to hold that the denials of the appellant in his reply to the application seeking leave to defend are vague, qua the plea of alternative accommodation, notwithstanding the rejection of the contention of the respondent that he cannot question the title. This approach, in our considered view, cannot be sustained in the eye of law.25. Section 14(1)(e) deals with only the requirement of a bona fide purpose. The contention regarding alternative accommodation can at best be only an incidental one. Such a requirement has not been found to be incorrect by the High Court, though it is not even open to it to do so, in view of the limited jurisdiction which it was supposed to exercise. Therefore, the very basis upon which the revision was allowed is obviously wrong being contrary to the very provision contained in Section 14(1)(e) and Section 25B(8).26. We have already discussed the scope of Section 14(1)(e) vis a vis Section 25B(8) of the Act. Therefore, the mere existence of the other properties which are, in fact, denied by the appellant would not enure to the benefit of the respondent in the absence of any pleadings and supporting material before the learned Rent Controller to the effect that they are reasonably suitable for accommodation.27. The respondent made substantial claims on the judgment of this Court in Precision Steel (supra). We do not find the said decision helping the case of the respondent, in the light of the discussion made on the scope of the relevant provisions, as leave to defend cannot be granted on mere asking. We can only reiterate that we do not find any perversity in the decision rendered by the learned Rent Controller and the High Court has not only certainly abdicated its jurisdiction, but also exceeded in a way.28. We are constrained to note that the respondent continued to drop the names of persons holding high offices even before us. He proudly proclaimed during his argument that the proceedings under the Enemy Property Act, as amended, were initiated only at his instance on his personally meeting with an Honble Union Minister. We can only adopt the process undertaken by the learned Rent Controller by not letting the said statement come in the way of deciding the matter on merits, despite it being unconscionable and shockingly brazen.29. Much reliance has been made on the documents indicating the re-creation of tenancy right in favour of the respondent by the authority constituted under the Amended Act. We do not wish to state anything on that, nor the said communication would have an impact on our order. Neither the said Authority is before us, nor its existence or viability can be gone into in these proceedings. The scope of the Enemy Property Act, as amended, vis a vis the proceedings for eviction was already dealt with by the learned Rent Controller, though not touched upon by the High Court. Further, the attempt of the respondent to implead himself in a pending case before the High Court of Delhi on a challenge made to the notices passed under the Amended Act got miserably failed with an observation by the High Court that it smacked of mala fides. We may further note, notwithstanding the earlier conclusion by way of a report dated 04.11.2015 wherein the Assistant Custodian of Enemy Property under the Enemy Property Act has observed that the predecessors of the appellant are non-evacuees and that the properties owned by them by no stretch of imagination can be termed as enemy property, there is another action initiated on which we dont wish to express any view. The decision of the High Court rejecting the respondents impleadment was not only confirmed by the dismissal of the intra-court appeal, but also that of the rejection of the special leave petition by this Court. On fact, the proceedings initiated under the Enemy Property Act, as amended, are also stayed by the High Court having considered the report dated 04.11.2015, by a reasoned order.
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Collector of Lakhimpur Vs. Bhuban Chandra Dutta | Grover, J.1. This is an appeal by certificate from a judgment of the High Court of Assam and Nagaland in which the question involved is one of the quantum of compensation for certain land belonging to the respondent which had been acquired.2. A piece of land measuring 5 Bighas, 4 Kathas and 3 Lechas in Dibrugarh District belonging to the respondent was requisitioned on August 22, 1956 under the Assam Land Requisition and Acquisition Act, 1948, hereinafter called the "Act". By a notification dated September 21, 1962 the said land was compulsorily acquired under the provisions of the Act. The Collector awarded compensation at the rate of Rs. 4583/- per Bigha. The respondent had at first claimed compensation at the rate of Rs.10,000/- per Bigha but after a little over a month he raised his claim to Rs. 15,000/- per Bigha. A reference was sought by the respondent to the District Judge who modified the award of the Collector and held that compensation was payable at the rate of Rs. 5500/- per Bigha. The respondent preferred an appeal to the High Court which enhanced the compensation to Rs. 15,000/- per Bigha.3. The respondent had relied largely on four sale deeds Exhibits 1, 2, 3 and 4. By Exhibit 1 a plot of land measuring 1 katha, 7 lechas in the vicinity of the land which had been acquired was sold on February 10, 1962 for Rs. 3,888/-. By Exhibit 2 an area of 1 katha was sold for Rupees 2,880/- on January 5, 1962. By Exhibit 3 an area of 2 kathas was sold for Rs. 5,472/- on March 21, 1963. By Exhibit 4 an area of 2 kathas and 13.7/36 lechas was sold on July 26, 1962 for Rs. 9,100/-. The High Court was of the view that the market price of the land which had been acquired should be assessed on the basis of these four sale deeds, the average price of which came to about Rupees 15,000/- per Bigha. The District Judge had rejected these sale deeds and had based his decision mainly on a sale deed Exhibit-L by which the respondent had himself sold a piece of the land which originally formed part of the land which was the subject matter of acquisition. This had been sold on April 7, 1962 and its area was 1 Bigha and it was sold for Rs. 5,000/-. The respondent gave evidence that the land covered by the sale deed had been the subject matter of litigation with his brother and it was for that reason that the price got depressed and he sold that piece of land for inadequate consideration. The High Court was inclined to accept the evidence of the respondent relating to the circumstances in which the sale of 1 Bigha for Rs. 5,000/- was effected. The evidence which had been produced on behalf of the Collector related to the early part of the year 1960 and could hardly be regarded as relevant.4. In our opinion the High Court overlooked the fact that the plots which were the subject matter of the sale deeds Exhibits 1 to 4 were comparatively of small areas and it is well known that when a large area like the one which was the subject matter of acquisition has to be sold it cannot possibly fetch a price at the same rate at which small plots can be sold. It is significant that the respondent himself had originally claimed, before the Collector, compensation at the rate of Rs. 10,000/- per Bigha. We see no reason for the High Court awarding compensation at a rate higher than Rs. 10,000/- which would also be consistent with the evidence furnished by the four sale deeds. Although the average price of these sales came to Rs. 15,000/- per Bigha but when it is considered, as has already been observed, that they were of comparatively much smaller area they would constitute good evidence for fixing the rate at a figure which was originally claimed by the respondent namely, Rs. 10,000/- per Bhiga.In other words if the plots covered by the sale had been sold in larger parcels the price likely to be fetched would not have exceeded Rs. 10,000/- per Bigha. | 1[ds]4. In our opinion the High Court overlooked the fact that the plots which were the subject matter of the sale deeds Exhibits 1 to 4 were comparatively of small areas and it is well known that when a large area like the one which was the subject matter of acquisition has to be sold it cannot possibly fetch a price at the same rate at which small plots can be sold. It is significant that the respondent himself had originally claimed, before the Collector, compensation at the rate of Rs. 10,000/per Bigha. We see no reason for the High Court awarding compensation at a rate higher than Rs. 10,000/which would also be consistent with the evidence furnished by the four sale deeds. Although the average price of these sales came to Rs. 15,000/per Bigha but when it is considered, as has already been observed, that they were of comparatively much smaller area they would constitute good evidence for fixing the rate at a figure which was originally claimed by the respondent namely, Rs. 10,000/per Bhiga.In other words if the plots covered by the sale had been sold in larger parcels the price likely to be fetched would not have exceeded Rs. 10,000/ | 1 | 764 | 222 | ### Instruction:
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Grover, J.1. This is an appeal by certificate from a judgment of the High Court of Assam and Nagaland in which the question involved is one of the quantum of compensation for certain land belonging to the respondent which had been acquired.2. A piece of land measuring 5 Bighas, 4 Kathas and 3 Lechas in Dibrugarh District belonging to the respondent was requisitioned on August 22, 1956 under the Assam Land Requisition and Acquisition Act, 1948, hereinafter called the "Act". By a notification dated September 21, 1962 the said land was compulsorily acquired under the provisions of the Act. The Collector awarded compensation at the rate of Rs. 4583/- per Bigha. The respondent had at first claimed compensation at the rate of Rs.10,000/- per Bigha but after a little over a month he raised his claim to Rs. 15,000/- per Bigha. A reference was sought by the respondent to the District Judge who modified the award of the Collector and held that compensation was payable at the rate of Rs. 5500/- per Bigha. The respondent preferred an appeal to the High Court which enhanced the compensation to Rs. 15,000/- per Bigha.3. The respondent had relied largely on four sale deeds Exhibits 1, 2, 3 and 4. By Exhibit 1 a plot of land measuring 1 katha, 7 lechas in the vicinity of the land which had been acquired was sold on February 10, 1962 for Rs. 3,888/-. By Exhibit 2 an area of 1 katha was sold for Rupees 2,880/- on January 5, 1962. By Exhibit 3 an area of 2 kathas was sold for Rs. 5,472/- on March 21, 1963. By Exhibit 4 an area of 2 kathas and 13.7/36 lechas was sold on July 26, 1962 for Rs. 9,100/-. The High Court was of the view that the market price of the land which had been acquired should be assessed on the basis of these four sale deeds, the average price of which came to about Rupees 15,000/- per Bigha. The District Judge had rejected these sale deeds and had based his decision mainly on a sale deed Exhibit-L by which the respondent had himself sold a piece of the land which originally formed part of the land which was the subject matter of acquisition. This had been sold on April 7, 1962 and its area was 1 Bigha and it was sold for Rs. 5,000/-. The respondent gave evidence that the land covered by the sale deed had been the subject matter of litigation with his brother and it was for that reason that the price got depressed and he sold that piece of land for inadequate consideration. The High Court was inclined to accept the evidence of the respondent relating to the circumstances in which the sale of 1 Bigha for Rs. 5,000/- was effected. The evidence which had been produced on behalf of the Collector related to the early part of the year 1960 and could hardly be regarded as relevant.4. In our opinion the High Court overlooked the fact that the plots which were the subject matter of the sale deeds Exhibits 1 to 4 were comparatively of small areas and it is well known that when a large area like the one which was the subject matter of acquisition has to be sold it cannot possibly fetch a price at the same rate at which small plots can be sold. It is significant that the respondent himself had originally claimed, before the Collector, compensation at the rate of Rs. 10,000/- per Bigha. We see no reason for the High Court awarding compensation at a rate higher than Rs. 10,000/- which would also be consistent with the evidence furnished by the four sale deeds. Although the average price of these sales came to Rs. 15,000/- per Bigha but when it is considered, as has already been observed, that they were of comparatively much smaller area they would constitute good evidence for fixing the rate at a figure which was originally claimed by the respondent namely, Rs. 10,000/- per Bhiga.In other words if the plots covered by the sale had been sold in larger parcels the price likely to be fetched would not have exceeded Rs. 10,000/- per Bigha.
### Response:
1
### Explanation:
4. In our opinion the High Court overlooked the fact that the plots which were the subject matter of the sale deeds Exhibits 1 to 4 were comparatively of small areas and it is well known that when a large area like the one which was the subject matter of acquisition has to be sold it cannot possibly fetch a price at the same rate at which small plots can be sold. It is significant that the respondent himself had originally claimed, before the Collector, compensation at the rate of Rs. 10,000/per Bigha. We see no reason for the High Court awarding compensation at a rate higher than Rs. 10,000/which would also be consistent with the evidence furnished by the four sale deeds. Although the average price of these sales came to Rs. 15,000/per Bigha but when it is considered, as has already been observed, that they were of comparatively much smaller area they would constitute good evidence for fixing the rate at a figure which was originally claimed by the respondent namely, Rs. 10,000/per Bhiga.In other words if the plots covered by the sale had been sold in larger parcels the price likely to be fetched would not have exceeded Rs. 10,000/
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Bachcha and Another Vs. Chamru | Tulzapurkar, J.The only question raised in this appeal relates to the construction of a compromise decree passed in Suit 31 of 1941. It arises thus :2. A mortgage in respect of two houses (admittedly ancestral) was executed by Bachcha and Babu in favour of one Padmavati on December 14, 1933. The document was also executed by Bachcha as the guardian of his minor nephew Chamru. Padmavati, the mortgagee filed a suit to recover the mortgage-debt and obtained a decree on February 23, 1937. In execution the mortgaged property was sold and with permission of the court Padmavati purchased that property and obtained possession of it in 1940. In 1941 Chamru through another guardian filed a suit (being suit 31 of 1941) challenging the mortgage as being illegal and void. He also challenged the mortgage-decree as also the sale which took place in execution of that decree. His case was that the mortgage was without consideration, without legal necessity and not binding on him as Bachcha has no authority to act as his guardian. That suit ended in a compromise decree on May 8, 1941, whereunder the suit was decreed in respect of one house but dismissed in respect of the other house. It seems Babu in the meanwhile had died issueless with the result that Chamru had become entitled to 1/2 share in the two ancestral houses and Padmavati the mortgagee, agreed to release one of the two houses for the benefit of the minor Chamru, which presumably represented his half share in the interest of the minor Chamru. Pursuant to the decree, Chamru got possession of the house.3. The present suit was filed by Bachcha and his son Gopal as plaintiffs 1 and 2 against Chamru (defendant) seeking partition of the house claiming half share in it on the ground that the house continued to retain its ancestral character even after the compromise decree and that the benefit of the property recovered under the compromise decree enured to the joint family. The claim was resisted by Chamru contending that the compromise decree was for his benefit alone and there was no question of Bachcha and Gopal having any share in that property. The question whether the plaintiffs would be having any share in the suit house obviously depended on the construction of the compromise decree. The trial Court held that as a result of the compromise the mortgage must be regarded as having been declared illegal and not binding on Chamrus share in the ancestral houses and that in any case on construction of the compromise decree the suit house had been released in favour of Chamru for his benefit alone and there was no question of plaintiffs having any interest in that property. It, therefore, dismissed the suit. In appeal, the learned 4th Additional Civil Judge reversed that decree and granted a share to the plaintiffs. In second appeal preferred by Chamru the High Court reversed the appellate decree and restored that of the trial Court. In other words, the plaintiffs suit was dismissed and they have come up in appeal to this Court.4. In this appeal counsel for the plaintiffs contended that by the compromise decree the mortgage was held to be illegal and void so far as one house is concerned and if a coparceners retrieves an ancestral house it will retain its original character and the plaintiffs would be entitled to get a share in it. The principle enunciated by counsel will not avail because we, are only concerned with the question of proper construction of the compromise decree, and whether the benefit thereunder was intended to be given to Chamru alone or to the joint family. has taken us through the terms of the decree and all that the decree states is that the plaintiffs suit is decreed in respect of one house while it is dismissed in regard to the other house. The plaintiffs have based their claim to a share in the concerned house on the strength of this decree and hence its effect will have to be determined. Two or three aspects emerge in light of which the decree will have to be construed. First, though Bachcha and Babu were impleaded as party defendants to Suit 31 of 1941 nothing was said about any interest or benefit or relief being given to them in the decree - in fact they were discharged from the suit long before the compromise was made between Chamru and Padmavati. Secondly, the compromise terms show that Padmavati was prepared to release one of the two houses in favour of Chamru so that the minor should receive some benefit. Thirdly, because the compromise was for the benefit of the minor the court sanctioned it. It does appear that the parties to that suit intended to release the share for Chamru alone, which had become half and in lieu of such share in both the houses one house was completely released in his favour. In our view, in light of these facts the High Court has rightly construed the terms of the compromise decree as conferring the benefit thereunder to Chamru alone. | 0[ds]The principle enunciated by counsel will not avail because we, are only concerned with the question of proper construction of the compromise decree, and whether the benefit thereunder was intended to be given to Chamru alone or to the joint family. has taken us through the terms of the decree and all that the decree states is that the plaintiffs suit is decreed in respect of one house while it is dismissed in regard to the other house. The plaintiffs have based their claim to a share in the concerned house on the strength of this decree and hence its effect will have to be determined. Two or three aspects emerge in light of which the decree will have to be construed. First, though Bachcha and Babu were impleaded as party defendants to Suit 31 of 1941 nothing was said about any interest or benefit or relief being given to them in the decreein fact they were discharged from the suit long before the compromise was made between Chamru and Padmavati. Secondly, the compromise terms show that Padmavati was prepared to release one of the two houses in favour of Chamru so that the minor should receive some benefit. Thirdly, because the compromise was for the benefit of the minor the court sanctioned it. It does appear that the parties to that suit intended to release the share for Chamru alone, which had become half and in lieu of such share in both the houses one house was completely released in his favour. In our view, in light of these facts the High Court has rightly construed the terms of the compromise decree as conferring the benefit thereunder to Chamru alone. | 0 | 911 | 301 | ### Instruction:
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Tulzapurkar, J.The only question raised in this appeal relates to the construction of a compromise decree passed in Suit 31 of 1941. It arises thus :2. A mortgage in respect of two houses (admittedly ancestral) was executed by Bachcha and Babu in favour of one Padmavati on December 14, 1933. The document was also executed by Bachcha as the guardian of his minor nephew Chamru. Padmavati, the mortgagee filed a suit to recover the mortgage-debt and obtained a decree on February 23, 1937. In execution the mortgaged property was sold and with permission of the court Padmavati purchased that property and obtained possession of it in 1940. In 1941 Chamru through another guardian filed a suit (being suit 31 of 1941) challenging the mortgage as being illegal and void. He also challenged the mortgage-decree as also the sale which took place in execution of that decree. His case was that the mortgage was without consideration, without legal necessity and not binding on him as Bachcha has no authority to act as his guardian. That suit ended in a compromise decree on May 8, 1941, whereunder the suit was decreed in respect of one house but dismissed in respect of the other house. It seems Babu in the meanwhile had died issueless with the result that Chamru had become entitled to 1/2 share in the two ancestral houses and Padmavati the mortgagee, agreed to release one of the two houses for the benefit of the minor Chamru, which presumably represented his half share in the interest of the minor Chamru. Pursuant to the decree, Chamru got possession of the house.3. The present suit was filed by Bachcha and his son Gopal as plaintiffs 1 and 2 against Chamru (defendant) seeking partition of the house claiming half share in it on the ground that the house continued to retain its ancestral character even after the compromise decree and that the benefit of the property recovered under the compromise decree enured to the joint family. The claim was resisted by Chamru contending that the compromise decree was for his benefit alone and there was no question of Bachcha and Gopal having any share in that property. The question whether the plaintiffs would be having any share in the suit house obviously depended on the construction of the compromise decree. The trial Court held that as a result of the compromise the mortgage must be regarded as having been declared illegal and not binding on Chamrus share in the ancestral houses and that in any case on construction of the compromise decree the suit house had been released in favour of Chamru for his benefit alone and there was no question of plaintiffs having any interest in that property. It, therefore, dismissed the suit. In appeal, the learned 4th Additional Civil Judge reversed that decree and granted a share to the plaintiffs. In second appeal preferred by Chamru the High Court reversed the appellate decree and restored that of the trial Court. In other words, the plaintiffs suit was dismissed and they have come up in appeal to this Court.4. In this appeal counsel for the plaintiffs contended that by the compromise decree the mortgage was held to be illegal and void so far as one house is concerned and if a coparceners retrieves an ancestral house it will retain its original character and the plaintiffs would be entitled to get a share in it. The principle enunciated by counsel will not avail because we, are only concerned with the question of proper construction of the compromise decree, and whether the benefit thereunder was intended to be given to Chamru alone or to the joint family. has taken us through the terms of the decree and all that the decree states is that the plaintiffs suit is decreed in respect of one house while it is dismissed in regard to the other house. The plaintiffs have based their claim to a share in the concerned house on the strength of this decree and hence its effect will have to be determined. Two or three aspects emerge in light of which the decree will have to be construed. First, though Bachcha and Babu were impleaded as party defendants to Suit 31 of 1941 nothing was said about any interest or benefit or relief being given to them in the decree - in fact they were discharged from the suit long before the compromise was made between Chamru and Padmavati. Secondly, the compromise terms show that Padmavati was prepared to release one of the two houses in favour of Chamru so that the minor should receive some benefit. Thirdly, because the compromise was for the benefit of the minor the court sanctioned it. It does appear that the parties to that suit intended to release the share for Chamru alone, which had become half and in lieu of such share in both the houses one house was completely released in his favour. In our view, in light of these facts the High Court has rightly construed the terms of the compromise decree as conferring the benefit thereunder to Chamru alone.
### Response:
0
### Explanation:
The principle enunciated by counsel will not avail because we, are only concerned with the question of proper construction of the compromise decree, and whether the benefit thereunder was intended to be given to Chamru alone or to the joint family. has taken us through the terms of the decree and all that the decree states is that the plaintiffs suit is decreed in respect of one house while it is dismissed in regard to the other house. The plaintiffs have based their claim to a share in the concerned house on the strength of this decree and hence its effect will have to be determined. Two or three aspects emerge in light of which the decree will have to be construed. First, though Bachcha and Babu were impleaded as party defendants to Suit 31 of 1941 nothing was said about any interest or benefit or relief being given to them in the decreein fact they were discharged from the suit long before the compromise was made between Chamru and Padmavati. Secondly, the compromise terms show that Padmavati was prepared to release one of the two houses in favour of Chamru so that the minor should receive some benefit. Thirdly, because the compromise was for the benefit of the minor the court sanctioned it. It does appear that the parties to that suit intended to release the share for Chamru alone, which had become half and in lieu of such share in both the houses one house was completely released in his favour. In our view, in light of these facts the High Court has rightly construed the terms of the compromise decree as conferring the benefit thereunder to Chamru alone.
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Narayanamma and Ors Vs. Govindappa and Ors | * *. Section 78 provides: (1) Any person who in contravention of the provisions of this Act, obtains possession of any land by virtue of a bequest, gift sale, mortgage or sub-lease, or of any agreement purporting to be a bequest, gift, sale, mortgage or sub-lease shall be deemed to be a trespasser and shall be liable to ejectment in accordance with the provisions of Section 58. In the said case, the Plaintiff/Appellant before the Supreme Court was a recorded pattedar tenant and had granted a sublease of land to Respondent Nos. 1 and 2 for five years. The suit was filed on the ground that sub-lease was in contravention of Section 73 of the Revenue Administration and Ryotwari Land Revenue and Tenancy Act, Samvat 2007 (Act No. 66 of 1950) and that the said Respondents had trespassed in the land. The trial court had decreed the suit. The first appellate court had also confirmed the same. However, the same was reversed by the High Court in the second appeal. Allowing the appeal and reversing the judgment of the High Court, this Court held that a person inducted as a sub-lessee contrary to the provisions of Section 78 of the Tenancy Act did not acquire any right under a contract of sub-letting and his possession was not protected. 22. We have to apply the principles of law as deduced by this Court in the case of Kedar Nath and Immani Appa Rao (supra), to the facts of the present case. 23. The transaction between the late Bale Venkataramanappa and the Plaintiff is not disputed. Initially the said Bale Venkataramanappa had executed a registered mortgage deed in favour of the Plaintiff. Within a month, he entered into an agreement to sell wherein, the entire consideration for the transfer as well as handing over of the possession was acknowledged. It could thus be seen, that the transaction was nothing short of a transfer of property. Under Section 61 of the Reforms Act, there is a complete prohibition on such mortgage or transfer for a period of 15 years from the date of grant. Sub-section (1) of Section 61 of the Reforms Act begins with a non-obstante clause. It is thus clear that, the unambiguous legislative intent is that no such mortgage, transfer, sale etc. would be permitted for a period of 15 years from the date of grant. Undisputedly, even according to the Plaintiff, the grant is of the year 1983, as such, the transfer in question in the year 1990 is beyond any doubt within the prohibited period of 15 years. Sub-section (3) of Section 61 of the Reforms Act makes the legislative intent very clear. It provides, that any transfer in violation of Sub-section (1) shall be invalid and it also provides for the consequence for such invalid transaction. 24. Undisputedly, both, the predecessor-in-title of the Defendant(s) as well as the Plaintiff, are confederates in this illegality. Both, the Plaintiff and the predecessor-in-title of the Defendant(s) can be said to be equally responsible for violation of law. 25. However, the ticklish question that arises in such a situation is: the decision of this Court would weigh in side of which party? As held by Hidayatullah, J. in Kedar Nath Motani (supra), the question that would arise for consideration is as to whether the Plaintiff can rest his claim without relying upon the illegal transaction or as to whether the Plaintiff can rest his claim on something else without relying on the illegal transaction. Undisputedly, in the present case, the claim of the Plaintiff is entirely based upon the agreement to sell dated 15.05.1990, which is clearly hit by Section 61 of the Reforms Act. There is no other foundation for the claim of the Plaintiff except the one based on the agreement to sell, which is hit by Section 61 of the Act. In such a case, as observed by Taylor, in his Law of Evidence which has been approved by Gajendragadkar, J. in Immani Appa Rao (supra), although illegality is not pleaded by the Defendant nor sought to be relied upon him by way of defence, yet the Court itself, upon the illegality appearing upon the evidence, will take notice of it, and will dismiss the action ex turpi causa non oritur actio i.e. No polluted hand shall touch the pure fountain of justice. Equally, as observed in Storys Equity Jurisprudence, which again is approved in Immani Appa Rao (supra), where the parties are concerned with illegal agreements or other transactions, courts of equity following the Rule of law as to participators in a common crime will not interpose to grant any relief, acting upon the maxim in pari delicto potior est conditio defendentis et possidentis. 26. It could thus be seen that, the trial Judge upon finding that the agreement of sale was hit by Section 61 of the Reforms Act, had rightly dismissed the suit of the Plaintiff. 27. Now, let us apply the another test laid down in the case of Immani Appa Rao (supra). At the cost of repetition, both the parties are common participator in the illegality. In such a situation, the balance of justice would tilt in whose favour is the question. As held in Immani Appa Rao (supra), if the decree is granted in favour of the Plaintiff on the basis of an illegal agreement which is hit by a statute, it will be rendering an active assistance of the court in enforcing an agreement which is contrary to law. As against this, if the balance is tilted towards the Defendants, no doubt that they would stand benefited even in spite of their predecessor-in-title committing an illegality. However, what the court would be doing is only rendering an assistance which is purely of a passive character. As held by Gajendragadkar, J. in Immani Appa Rao (supra), the first course would be clearly and patently inconsistent with the public interest whereas, the latter course is lesser injurious to public interest than the former. | 1[ds]13. A perusal of the said provision would clearly show that, notwithstanding anything contained in any law, no land of which the occupancy has been granted to any person under the said Chapter shall, within 15 years from the date of the final order passed by the Tribunal Under Sub-section (4) or Sub-section (5) or Sub-section (5-A) of Section 48-A of the Reforms Act be transferred by sale, gift, exchange, mortgage, lease or assignment. However, the land may be partitioned among members of the holders of the joint family. No doubt, that Sub-section (2) of Section 61 of the Reforms Act permits the registered occupant or his successor-in-title, to take a loan and mortgage or create a charge on his interest in the land in favour of the State Government, a financial institution, a co-operative land development bank, a co-operative society or a company as defined in Section 3 of the Companies Act, 1956 in which not less than 51% of the paid-up share capital is held by the State Government or a Corporation owned or controlled by the Central Government or the State Government or both. However, such a loan can be taken only for the purpose of development of land or improvement of agricultural practices or for raising educational loan to prosecute higher studies of the children of such person. It further provides that, in the event of such a person making default in payment of such loan in accordance with the terms and conditions on which such loan was granted, it shall be lawful to cause his interest in the land be attached and sold and the proceeds to be utilised in the payment of such loan. Sub-section (3) of the said Section specifically provides that any transfer or partition of land in contravention of Sub-section (1) shall be invalid and such land shall vest in the State Government free, from all encumbrances and shall be disposed in accordance with the provisions of Section 77 of the Reforms Act22. We have to apply the principles of law as deduced by this Court in the case of Kedar Nath and Immani Appa Rao (supra), to the facts of the present case23. The transaction between the late Bale Venkataramanappa and the Plaintiff is not disputed. Initially the said Bale Venkataramanappa had executed a registered mortgage deed in favour of the Plaintiff. Within a month, he entered into an agreement to sell wherein, the entire consideration for the transfer as well as handing over of the possession was acknowledged. It could thus be seen, that the transaction was nothing short of a transfer of property. Under Section 61 of the Reforms Act, there is a complete prohibition on such mortgage or transfer for a period of 15 years from the date of grant. Sub-section (1) of Section 61 of the Reforms Act begins with a non-obstante clause. It is thus clear that, the unambiguous legislative intent is that no such mortgage, transfer, sale etc. would be permitted for a period of 15 years from the date of grant. Undisputedly, even according to the Plaintiff, the grant is of the year 1983, as such, the transfer in question in the year 1990 is beyond any doubt within the prohibited period of 15 years. Sub-section (3) of Section 61 of the Reforms Act makes the legislative intent very clear. It provides, that any transfer in violation of Sub-section (1) shall be invalid and it also provides for the consequence for such invalid transaction24. Undisputedly, both, the predecessor-in-title of the Defendant(s) as well as the Plaintiff, are confederates in this illegality. Both, the Plaintiff and the predecessor-in-title of the Defendant(s) can be said to be equally responsible for violation of law26. It could thus be seen that, the trial Judge upon finding that the agreement of sale was hit by Section 61 of the Reforms Act, had rightly dismissed the suit of the Plaintiff27. Now, let us apply the another test laid down in the case of Immani Appa Rao (supra). At the cost of repetition, both the parties are common participator in the illegality. In such a situation, the balance of justice would tilt in whose favour is the question. As held in Immani Appa Rao (supra), if the decree is granted in favour of the Plaintiff on the basis of an illegal agreement which is hit by a statute, it will be rendering an active assistance of the court in enforcing an agreement which is contrary to law. As against this, if the balance is tilted towards the Defendants, no doubt that they would stand benefited even in spite of their predecessor-in-title committing an illegality. However, what the court would be doing is only rendering an assistance which is purely of a passive character. As held by Gajendragadkar, J. in Immani Appa Rao (supra), the first course would be clearly and patently inconsistent with the public interest whereas, the latter course is lesser injurious to public interest than the former. | 1 | 7,948 | 943 | ### Instruction:
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* *. Section 78 provides: (1) Any person who in contravention of the provisions of this Act, obtains possession of any land by virtue of a bequest, gift sale, mortgage or sub-lease, or of any agreement purporting to be a bequest, gift, sale, mortgage or sub-lease shall be deemed to be a trespasser and shall be liable to ejectment in accordance with the provisions of Section 58. In the said case, the Plaintiff/Appellant before the Supreme Court was a recorded pattedar tenant and had granted a sublease of land to Respondent Nos. 1 and 2 for five years. The suit was filed on the ground that sub-lease was in contravention of Section 73 of the Revenue Administration and Ryotwari Land Revenue and Tenancy Act, Samvat 2007 (Act No. 66 of 1950) and that the said Respondents had trespassed in the land. The trial court had decreed the suit. The first appellate court had also confirmed the same. However, the same was reversed by the High Court in the second appeal. Allowing the appeal and reversing the judgment of the High Court, this Court held that a person inducted as a sub-lessee contrary to the provisions of Section 78 of the Tenancy Act did not acquire any right under a contract of sub-letting and his possession was not protected. 22. We have to apply the principles of law as deduced by this Court in the case of Kedar Nath and Immani Appa Rao (supra), to the facts of the present case. 23. The transaction between the late Bale Venkataramanappa and the Plaintiff is not disputed. Initially the said Bale Venkataramanappa had executed a registered mortgage deed in favour of the Plaintiff. Within a month, he entered into an agreement to sell wherein, the entire consideration for the transfer as well as handing over of the possession was acknowledged. It could thus be seen, that the transaction was nothing short of a transfer of property. Under Section 61 of the Reforms Act, there is a complete prohibition on such mortgage or transfer for a period of 15 years from the date of grant. Sub-section (1) of Section 61 of the Reforms Act begins with a non-obstante clause. It is thus clear that, the unambiguous legislative intent is that no such mortgage, transfer, sale etc. would be permitted for a period of 15 years from the date of grant. Undisputedly, even according to the Plaintiff, the grant is of the year 1983, as such, the transfer in question in the year 1990 is beyond any doubt within the prohibited period of 15 years. Sub-section (3) of Section 61 of the Reforms Act makes the legislative intent very clear. It provides, that any transfer in violation of Sub-section (1) shall be invalid and it also provides for the consequence for such invalid transaction. 24. Undisputedly, both, the predecessor-in-title of the Defendant(s) as well as the Plaintiff, are confederates in this illegality. Both, the Plaintiff and the predecessor-in-title of the Defendant(s) can be said to be equally responsible for violation of law. 25. However, the ticklish question that arises in such a situation is: the decision of this Court would weigh in side of which party? As held by Hidayatullah, J. in Kedar Nath Motani (supra), the question that would arise for consideration is as to whether the Plaintiff can rest his claim without relying upon the illegal transaction or as to whether the Plaintiff can rest his claim on something else without relying on the illegal transaction. Undisputedly, in the present case, the claim of the Plaintiff is entirely based upon the agreement to sell dated 15.05.1990, which is clearly hit by Section 61 of the Reforms Act. There is no other foundation for the claim of the Plaintiff except the one based on the agreement to sell, which is hit by Section 61 of the Act. In such a case, as observed by Taylor, in his Law of Evidence which has been approved by Gajendragadkar, J. in Immani Appa Rao (supra), although illegality is not pleaded by the Defendant nor sought to be relied upon him by way of defence, yet the Court itself, upon the illegality appearing upon the evidence, will take notice of it, and will dismiss the action ex turpi causa non oritur actio i.e. No polluted hand shall touch the pure fountain of justice. Equally, as observed in Storys Equity Jurisprudence, which again is approved in Immani Appa Rao (supra), where the parties are concerned with illegal agreements or other transactions, courts of equity following the Rule of law as to participators in a common crime will not interpose to grant any relief, acting upon the maxim in pari delicto potior est conditio defendentis et possidentis. 26. It could thus be seen that, the trial Judge upon finding that the agreement of sale was hit by Section 61 of the Reforms Act, had rightly dismissed the suit of the Plaintiff. 27. Now, let us apply the another test laid down in the case of Immani Appa Rao (supra). At the cost of repetition, both the parties are common participator in the illegality. In such a situation, the balance of justice would tilt in whose favour is the question. As held in Immani Appa Rao (supra), if the decree is granted in favour of the Plaintiff on the basis of an illegal agreement which is hit by a statute, it will be rendering an active assistance of the court in enforcing an agreement which is contrary to law. As against this, if the balance is tilted towards the Defendants, no doubt that they would stand benefited even in spite of their predecessor-in-title committing an illegality. However, what the court would be doing is only rendering an assistance which is purely of a passive character. As held by Gajendragadkar, J. in Immani Appa Rao (supra), the first course would be clearly and patently inconsistent with the public interest whereas, the latter course is lesser injurious to public interest than the former.
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### Explanation:
13. A perusal of the said provision would clearly show that, notwithstanding anything contained in any law, no land of which the occupancy has been granted to any person under the said Chapter shall, within 15 years from the date of the final order passed by the Tribunal Under Sub-section (4) or Sub-section (5) or Sub-section (5-A) of Section 48-A of the Reforms Act be transferred by sale, gift, exchange, mortgage, lease or assignment. However, the land may be partitioned among members of the holders of the joint family. No doubt, that Sub-section (2) of Section 61 of the Reforms Act permits the registered occupant or his successor-in-title, to take a loan and mortgage or create a charge on his interest in the land in favour of the State Government, a financial institution, a co-operative land development bank, a co-operative society or a company as defined in Section 3 of the Companies Act, 1956 in which not less than 51% of the paid-up share capital is held by the State Government or a Corporation owned or controlled by the Central Government or the State Government or both. However, such a loan can be taken only for the purpose of development of land or improvement of agricultural practices or for raising educational loan to prosecute higher studies of the children of such person. It further provides that, in the event of such a person making default in payment of such loan in accordance with the terms and conditions on which such loan was granted, it shall be lawful to cause his interest in the land be attached and sold and the proceeds to be utilised in the payment of such loan. Sub-section (3) of the said Section specifically provides that any transfer or partition of land in contravention of Sub-section (1) shall be invalid and such land shall vest in the State Government free, from all encumbrances and shall be disposed in accordance with the provisions of Section 77 of the Reforms Act22. We have to apply the principles of law as deduced by this Court in the case of Kedar Nath and Immani Appa Rao (supra), to the facts of the present case23. The transaction between the late Bale Venkataramanappa and the Plaintiff is not disputed. Initially the said Bale Venkataramanappa had executed a registered mortgage deed in favour of the Plaintiff. Within a month, he entered into an agreement to sell wherein, the entire consideration for the transfer as well as handing over of the possession was acknowledged. It could thus be seen, that the transaction was nothing short of a transfer of property. Under Section 61 of the Reforms Act, there is a complete prohibition on such mortgage or transfer for a period of 15 years from the date of grant. Sub-section (1) of Section 61 of the Reforms Act begins with a non-obstante clause. It is thus clear that, the unambiguous legislative intent is that no such mortgage, transfer, sale etc. would be permitted for a period of 15 years from the date of grant. Undisputedly, even according to the Plaintiff, the grant is of the year 1983, as such, the transfer in question in the year 1990 is beyond any doubt within the prohibited period of 15 years. Sub-section (3) of Section 61 of the Reforms Act makes the legislative intent very clear. It provides, that any transfer in violation of Sub-section (1) shall be invalid and it also provides for the consequence for such invalid transaction24. Undisputedly, both, the predecessor-in-title of the Defendant(s) as well as the Plaintiff, are confederates in this illegality. Both, the Plaintiff and the predecessor-in-title of the Defendant(s) can be said to be equally responsible for violation of law26. It could thus be seen that, the trial Judge upon finding that the agreement of sale was hit by Section 61 of the Reforms Act, had rightly dismissed the suit of the Plaintiff27. Now, let us apply the another test laid down in the case of Immani Appa Rao (supra). At the cost of repetition, both the parties are common participator in the illegality. In such a situation, the balance of justice would tilt in whose favour is the question. As held in Immani Appa Rao (supra), if the decree is granted in favour of the Plaintiff on the basis of an illegal agreement which is hit by a statute, it will be rendering an active assistance of the court in enforcing an agreement which is contrary to law. As against this, if the balance is tilted towards the Defendants, no doubt that they would stand benefited even in spite of their predecessor-in-title committing an illegality. However, what the court would be doing is only rendering an assistance which is purely of a passive character. As held by Gajendragadkar, J. in Immani Appa Rao (supra), the first course would be clearly and patently inconsistent with the public interest whereas, the latter course is lesser injurious to public interest than the former.
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Gharda Chemicals Limited & Others Vs. Jer Rutton Kavasmaneck & Others | Judge. As we have held that the votes cast under both the power of attorneys are valid, it is not necessary to consider the issue as to whether the power of attorney is a proxy or not. However, the above issue being raised and decided by the company Judge and the counsel on both sides have also canvassed respective arguments before us, we deem it proper to deal with the said issue as well. 30. In our opinion, a shareholder may execute an instrument of power of attorney or an instrument of proxy empowering a specified person to vote on his behalf at the meeting of the company. If the instrument is in conformity with the proxy form set out in the schedule IX of the Act, then the company would register it and issue voting slip to such authorized person. Thus, a person authorised to vote under a validly executed power of attorney under The Powers of Attorney Act, 1882 may not be entitled to vote if the instrument of power of attorney is not in conformity with the proxy form set out in Schedule IX of the Act. In other words, only such an instrument of power of attorney which is in conformity with the proxy form set out in Schedule IX of the Act will entitle the authorised person to vote. 31. Section 176 of the Companies Act provides that any member of a company entitled to attend and vote at a meeting of the company shall be entitled to appoint any person (where a member of not) as his proxy to attend and vote instead of himself. Although, Schedule IX of the Companies Act sets out the general form of proxy, Article 62 of the Schedule I to the Companies Act provides as follows :-"62. An instrument appointing a proxy shall be in either of the forms in Schedule IX to the Act or a form as near thereto as circumstances admit." Similarly, Article 109 of the Articles of Association of the applicant No.1 company reads as under :-109. The instrument of proxy shall be as near as practicable in the form set out in the schedule ix of the Act. Therefore, even though Schedule IX of the Act sets out the form of proxy, it may be varied if the circumstances so require. In other words, the proxy form as set out in Schedule IX is not mandatory. So long as any instrument contains all the requisite particulars set out in the form in Schedule IX it can be treated as a proxy. If an instrument like power of attorney contains all the requisite particulars, such as the name of the company, the name of the person executing the instrument, the name of the person empowered to vote as a proxy, etc. as set out in the form in Schedule IX to the Companies Act then such an instrument can be treated as a proxy. As stated earlier, the instrument of proxy is executed to empower a third person to vote at the meeting of the company for and on behalf of the person executing the instrument of proxy. Proxy is one acting for another. It is an authority or power to do a certain thing. A proxy is a lawfully constituted agent. A power of attorney is an authority given by a formal instrument whereby one person, who is called the donor or principal, authorises another person, who is called the donee, attorney or agent, to act on his behalf. In the absence of any specific bar, a power of attorney that substantially complies with the requirement of Schedule IX can be considered as proxy. In the present case, it is not dispute that the power of attorney executed by the applicant Nos.4 & 5 contains all the particulars set out in the form in Schedule IX and on being satisfied, the company has issued the voting slips in favour of the power of attorney holder. The fact that clause 2 of the power of attorney empowers the power of attorney holder to vote himself or appoint a proxy, it does not mean that the power of attorney holder cannot vote without executing a deed of proxy in his own favour. Where the power of attorney holder himself decides to vote, then he has to forward the deed of power to attorney to the company and if the same is in conformity with the proxy form set out in Schedule IX, then the company would register it and issue voting slip to the power of attorney holder. In the present case, on registration of power of attorney, voting slips have been issued by the company to the power of attorney holder. Therefore, in the facts of the present case, the learned company Judge was justified in holding that the power of attorney constituted a proxy.32. The contention of the appellants that the words "power of attorney" and "proxy" being different, the power of attorney cannot be considered as proxy is without any merit because, as stated earlier, the object of both the instrument of power of attorney as well as the instrument of proxy is to empower a third person to act for and on behalf of the person executing such instrument. So long as a document is in conformity with the form in Schedule IX of the Act, there is no impediment to consider that document as proxy. Similarly, the fact that the instrument itself does not purport to be a proxy and the same is not registered as proxy makes no difference because, admittedly the voting slips issued by the company empowers both the power of attorney holder as well as the proxy holder to vote at the meeting of the company. In this view of the matter, we are of the opinion that in the facts of the present case, no fault can be found with the findings of the learned company Judge that the power of attorney is a proxy. | 0[ds]26. On perusal of the aforesaid provisions of Companies Act and the articles of association of the company, it is seen that at the meeting of the company not only the shareholder and the proxy holder but some other duly authorised person is also entitled to vote. In other words, at the meeting of the company the vote can be cast by the shareholder and in his absence his proxy or other person entitled to vote for him. As rightly contended by the learned counsel for the applicants, it is not the nomenclature but it is a substance of the document which is relevant. In the absence of the member, a person seeking to attend and vote at the meeting of the company must be duly authorised to do so by a valid document. Such a document may not be in the proxy form set out in Schedule IX of the Act, but shall meet the requirement of the company law i.e. the document contains all necessary particulars set out in form in Schedule IX of the Act. In the present case, both the power of attorneys have been found to be substantially complying with the requirement and contain necessary details and particulars and the appellant No.1 company after duly registering the said power of attorneys has issued voting slips to the power of attorney holder. In fact, the voting slips issued by the company specifically provides that the power of attorney holder is entitled to vote at the 28th Annual General Meeting of the company. Even at the meeting all the parties proceeded on the footing that the power of attorney holder is entitled to vote at the meeting and the dispute raised was regarding the validity of the power of attorneys executed by the first holder instead of all the joint holders. Therefore, the question to be considered is, whether the first holder alone could execute a power of attorney in respect of shares held jointly 27. Article 101 of the articles of association framed by the company provides that where the shares are held jointly and more than one of such joint holders remain present at any meeting personally or by proxy, then, the person whose name stands first on the register ("first holder" for short) shall alone be entitled to vote in respect of the shares held jointly. The words "personally or by proxy" used in Article 101 cannot be construed to mean that the right to vote at the meeting of the company is restricted to shareholder or to the proxy holder only. Article 109 framed by the company clearly provides that apart from shareholder and proxy holder, some other person can also be empowered to vote by executing a valid document. In other words, the first holder can himself vote or validly execute a power of attorney authorising some third person to vote for and on his behalf. As the first holder is entitled to vote in respect of the shares held jointly, the power of attorney executed by the first holder in respect of the shares held jointly would be valid and in that event it would not be necessary for all the joint holders to sign the power of attorney. In other words, a power of attorney executed by the first holder authorising a specified person to vote for and on his behalf in respect of shares held jointly is valid. To be more specific, the power of attorney executed by the first holder in respect of the shares held jointly need not be signed by all the joint holders and it would suffice if the deed is signed by the first holder only. In this view of the matter, the Chairman of the company was clearly in error in ruling that the votes cast by the power of attorney holder are invalid on the ground that the power of attorneys were signed by the first holder only and the learned company Judge was justified in reversing the said ruling of the Chairman. 28. The second ground on which the votes were rejected by the Chairman was that the votes cast by the power of attorney holder were in excess of the number of shares mentioned in the power of attorneys. From the records it is seen that after the execution of the power of attorneys, the applicant Nos.45 individually and jointly had acquired additional shares which were recorded in the register maintained by the company. When the said power of attorneys were submitted for registration, the company found the same to be in order and after registering the power of attorneys issued the voting slips to the power of attorney holder. In the voting slips issued by the company, the power of attorney was authorised to vote in respect of 4301 shares as per the register maintained by the company and not in respect of 4208 shares authorised under the power of attorneys. Accordingly, Mrs.Hirji cast her votes in respect of 4301 shares as per the voting slip. Thus, the votes cast by the power of attorney holder were in excess of the number of shares mentioned in the power of attorneys. The Chairman, instead of declaring the excess votes as invalid declared all the votes cast by the power of attorney to be invalid. In our opinion, the learned company Judge has rightly held that the Chairman of the company was in error in rejecting all the votes cast by the power of attorney holder. Since the votes cast by the power of attorney holder were otherwise valid, the Chairman ought to have held that the votes cast to the extent of the shares mentioned in the power of attorneys were valid. The learned company Judge was justified in holding that even if the 960 votes cast by the power of attorney holder in respect of the shares held individually by applicant No.4 were taken into consideration, the special resolution Nos.6,78 were liable to be declared as defeated. 29. It is true that the issue as to whether the power of attorney can be treated as a proxy was not considered by the Chairman of the company while deciding the validity of the votes cast by the power of attorney holder. That issue was raised by the applicants for the first time before the learned company Judge. As we have held that the votes cast under both the power of attorneys are valid, it is not necessary to consider the issue as to whether the power of attorney is a proxy or not. However, the above issue being raised and decided by the company Judge and the counsel on both sides have also canvassed respective arguments before us, we deem it proper to deal with the said issue as well. 30. In our opinion, a shareholder may execute an instrument of power of attorney or an instrument of proxy empowering a specified person to vote on his behalf at the meeting of the company. If the instrument is in conformity with the proxy form set out in the schedule IX of the Act, then the company would register it and issue voting slip to such authorized person. Thus, a person authorised to vote under a validly executed power of attorney under The Powers of Attorney Act, 1882 may not be entitled to vote if the instrument of power of attorney is not in conformity with the proxy form set out in Schedule IX of the Act. In other words, only such an instrument of power of attorney which is in conformity with the proxy form set out in Schedule IX of the Act will entitle the authorised person to vote. 31. Section 176 of the Companies Act provides that any member of a company entitled to attend and vote at a meeting of the company shall be entitled to appoint any person (where a member of not) as his proxy to attend and vote instead of himself. Although, Schedule IX of the Companies Act sets out the general form of proxy, Article 62 of the Schedule I to the Companies Act provides as followsAn instrument appointing a proxy shall be in either of the forms in Schedule IX to the Act or a form as near thereto as circumstances admit." Similarly, Article 109 of the Articles of Association of the applicant No.1 company reads as underThe instrument of proxy shall be as near as practicable in the form set out in the schedule ix of the Act. Therefore, even though Schedule IX of the Act sets out the form of proxy, it may be varied if the circumstances so require. In other words, the proxy form as set out in Schedule IX is not mandatory. So long as any instrument contains all the requisite particulars set out in the form in Schedule IX it can be treated as a proxy. If an instrument like power of attorney contains all the requisite particulars, such as the name of the company, the name of the person executing the instrument, the name of the person empowered to vote as a proxy, etc. as set out in the form in Schedule IX to the Companies Act then such an instrument can be treated as a proxy. As stated earlier, the instrument of proxy is executed to empower a third person to vote at the meeting of the company for and on behalf of the person executing the instrument of proxy. Proxy is one acting for another. It is an authority or power to do a certain thing. A proxy is a lawfully constituted agent. A power of attorney is an authority given by a formal instrument whereby one person, who is called the donor or principal, authorises another person, who is called the donee, attorney or agent, to act on his behalf. In the absence of any specific bar, a power of attorney that substantially complies with the requirement of Schedule IX can be considered as proxy. In the present case, it is not dispute that the power of attorney executed by the applicant Nos.45 contains all the particulars set out in the form in Schedule IX and on being satisfied, the company has issued the voting slips in favour of the power of attorney holder. The fact that clause 2 of the power of attorney empowers the power of attorney holder to vote himself or appoint a proxy, it does not mean that the power of attorney holder cannot vote without executing a deed of proxy in his own favour. Where the power of attorney holder himself decides to vote, then he has to forward the deed of power to attorney to the company and if the same is in conformity with the proxy form set out in Schedule IX, then the company would register it and issue voting slip to the power of attorney holder. In the present case, on registration of power of attorney, voting slips have been issued by the company to the power of attorney holder. Therefore, in the facts of the present case, the learned company Judge was justified in holding that the power of attorney constituted a proxy.32. The contention of the appellants that the words "power of attorney" and "proxy" being different, the power of attorney cannot be considered as proxy is without any merit because, as stated earlier, the object of both the instrument of power of attorney as well as the instrument of proxy is to empower a third person to act for and on behalf of the person executing such instrument. So long as a document is in conformity with the form in Schedule IX of the Act, there is no impediment to consider that document as proxy. Similarly, the fact that the instrument itself does not purport to be a proxy and the same is not registered as proxy makes no difference because, admittedly the voting slips issued by the company empowers both the power of attorney holder as well as the proxy holder to vote at the meeting of the company. In this view of the matter, we are of the opinion that in the facts of the present case, no fault can be found with the findings of the learned company Judge that the power of attorney is a proxy. | 0 | 6,067 | 2,202 | ### 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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Judge. As we have held that the votes cast under both the power of attorneys are valid, it is not necessary to consider the issue as to whether the power of attorney is a proxy or not. However, the above issue being raised and decided by the company Judge and the counsel on both sides have also canvassed respective arguments before us, we deem it proper to deal with the said issue as well. 30. In our opinion, a shareholder may execute an instrument of power of attorney or an instrument of proxy empowering a specified person to vote on his behalf at the meeting of the company. If the instrument is in conformity with the proxy form set out in the schedule IX of the Act, then the company would register it and issue voting slip to such authorized person. Thus, a person authorised to vote under a validly executed power of attorney under The Powers of Attorney Act, 1882 may not be entitled to vote if the instrument of power of attorney is not in conformity with the proxy form set out in Schedule IX of the Act. In other words, only such an instrument of power of attorney which is in conformity with the proxy form set out in Schedule IX of the Act will entitle the authorised person to vote. 31. Section 176 of the Companies Act provides that any member of a company entitled to attend and vote at a meeting of the company shall be entitled to appoint any person (where a member of not) as his proxy to attend and vote instead of himself. Although, Schedule IX of the Companies Act sets out the general form of proxy, Article 62 of the Schedule I to the Companies Act provides as follows :-"62. An instrument appointing a proxy shall be in either of the forms in Schedule IX to the Act or a form as near thereto as circumstances admit." Similarly, Article 109 of the Articles of Association of the applicant No.1 company reads as under :-109. The instrument of proxy shall be as near as practicable in the form set out in the schedule ix of the Act. Therefore, even though Schedule IX of the Act sets out the form of proxy, it may be varied if the circumstances so require. In other words, the proxy form as set out in Schedule IX is not mandatory. So long as any instrument contains all the requisite particulars set out in the form in Schedule IX it can be treated as a proxy. If an instrument like power of attorney contains all the requisite particulars, such as the name of the company, the name of the person executing the instrument, the name of the person empowered to vote as a proxy, etc. as set out in the form in Schedule IX to the Companies Act then such an instrument can be treated as a proxy. As stated earlier, the instrument of proxy is executed to empower a third person to vote at the meeting of the company for and on behalf of the person executing the instrument of proxy. Proxy is one acting for another. It is an authority or power to do a certain thing. A proxy is a lawfully constituted agent. A power of attorney is an authority given by a formal instrument whereby one person, who is called the donor or principal, authorises another person, who is called the donee, attorney or agent, to act on his behalf. In the absence of any specific bar, a power of attorney that substantially complies with the requirement of Schedule IX can be considered as proxy. In the present case, it is not dispute that the power of attorney executed by the applicant Nos.4 & 5 contains all the particulars set out in the form in Schedule IX and on being satisfied, the company has issued the voting slips in favour of the power of attorney holder. The fact that clause 2 of the power of attorney empowers the power of attorney holder to vote himself or appoint a proxy, it does not mean that the power of attorney holder cannot vote without executing a deed of proxy in his own favour. Where the power of attorney holder himself decides to vote, then he has to forward the deed of power to attorney to the company and if the same is in conformity with the proxy form set out in Schedule IX, then the company would register it and issue voting slip to the power of attorney holder. In the present case, on registration of power of attorney, voting slips have been issued by the company to the power of attorney holder. Therefore, in the facts of the present case, the learned company Judge was justified in holding that the power of attorney constituted a proxy.32. The contention of the appellants that the words "power of attorney" and "proxy" being different, the power of attorney cannot be considered as proxy is without any merit because, as stated earlier, the object of both the instrument of power of attorney as well as the instrument of proxy is to empower a third person to act for and on behalf of the person executing such instrument. So long as a document is in conformity with the form in Schedule IX of the Act, there is no impediment to consider that document as proxy. Similarly, the fact that the instrument itself does not purport to be a proxy and the same is not registered as proxy makes no difference because, admittedly the voting slips issued by the company empowers both the power of attorney holder as well as the proxy holder to vote at the meeting of the company. In this view of the matter, we are of the opinion that in the facts of the present case, no fault can be found with the findings of the learned company Judge that the power of attorney is a proxy.
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first time before the learned company Judge. As we have held that the votes cast under both the power of attorneys are valid, it is not necessary to consider the issue as to whether the power of attorney is a proxy or not. However, the above issue being raised and decided by the company Judge and the counsel on both sides have also canvassed respective arguments before us, we deem it proper to deal with the said issue as well. 30. In our opinion, a shareholder may execute an instrument of power of attorney or an instrument of proxy empowering a specified person to vote on his behalf at the meeting of the company. If the instrument is in conformity with the proxy form set out in the schedule IX of the Act, then the company would register it and issue voting slip to such authorized person. Thus, a person authorised to vote under a validly executed power of attorney under The Powers of Attorney Act, 1882 may not be entitled to vote if the instrument of power of attorney is not in conformity with the proxy form set out in Schedule IX of the Act. In other words, only such an instrument of power of attorney which is in conformity with the proxy form set out in Schedule IX of the Act will entitle the authorised person to vote. 31. Section 176 of the Companies Act provides that any member of a company entitled to attend and vote at a meeting of the company shall be entitled to appoint any person (where a member of not) as his proxy to attend and vote instead of himself. Although, Schedule IX of the Companies Act sets out the general form of proxy, Article 62 of the Schedule I to the Companies Act provides as followsAn instrument appointing a proxy shall be in either of the forms in Schedule IX to the Act or a form as near thereto as circumstances admit." Similarly, Article 109 of the Articles of Association of the applicant No.1 company reads as underThe instrument of proxy shall be as near as practicable in the form set out in the schedule ix of the Act. Therefore, even though Schedule IX of the Act sets out the form of proxy, it may be varied if the circumstances so require. In other words, the proxy form as set out in Schedule IX is not mandatory. So long as any instrument contains all the requisite particulars set out in the form in Schedule IX it can be treated as a proxy. If an instrument like power of attorney contains all the requisite particulars, such as the name of the company, the name of the person executing the instrument, the name of the person empowered to vote as a proxy, etc. as set out in the form in Schedule IX to the Companies Act then such an instrument can be treated as a proxy. As stated earlier, the instrument of proxy is executed to empower a third person to vote at the meeting of the company for and on behalf of the person executing the instrument of proxy. Proxy is one acting for another. It is an authority or power to do a certain thing. A proxy is a lawfully constituted agent. A power of attorney is an authority given by a formal instrument whereby one person, who is called the donor or principal, authorises another person, who is called the donee, attorney or agent, to act on his behalf. In the absence of any specific bar, a power of attorney that substantially complies with the requirement of Schedule IX can be considered as proxy. In the present case, it is not dispute that the power of attorney executed by the applicant Nos.45 contains all the particulars set out in the form in Schedule IX and on being satisfied, the company has issued the voting slips in favour of the power of attorney holder. The fact that clause 2 of the power of attorney empowers the power of attorney holder to vote himself or appoint a proxy, it does not mean that the power of attorney holder cannot vote without executing a deed of proxy in his own favour. Where the power of attorney holder himself decides to vote, then he has to forward the deed of power to attorney to the company and if the same is in conformity with the proxy form set out in Schedule IX, then the company would register it and issue voting slip to the power of attorney holder. In the present case, on registration of power of attorney, voting slips have been issued by the company to the power of attorney holder. Therefore, in the facts of the present case, the learned company Judge was justified in holding that the power of attorney constituted a proxy.32. The contention of the appellants that the words "power of attorney" and "proxy" being different, the power of attorney cannot be considered as proxy is without any merit because, as stated earlier, the object of both the instrument of power of attorney as well as the instrument of proxy is to empower a third person to act for and on behalf of the person executing such instrument. So long as a document is in conformity with the form in Schedule IX of the Act, there is no impediment to consider that document as proxy. Similarly, the fact that the instrument itself does not purport to be a proxy and the same is not registered as proxy makes no difference because, admittedly the voting slips issued by the company empowers both the power of attorney holder as well as the proxy holder to vote at the meeting of the company. In this view of the matter, we are of the opinion that in the facts of the present case, no fault can be found with the findings of the learned company Judge that the power of attorney is a proxy.
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State Of Haryana Vs. Bharti Teletech Ltd | to be tested on a different anvil, for it grants freedom from liability. In the case at hand, as we understand, it is ‘unit’ specific. The term ‘unit’ has not been defined. The grant of exemption unit wise can be best understood by way of example. An entrepreneur can get an exemption of a unit and thereafter establish number of units and try to club together the production of all of them to get the benefit for all. It would be well nigh unacceptable, for what is required is that each unit must meet the condition to avail the benefit.19. We will be failing in our duty if we do not address to a submission, albeit the last straw, of Mr. Jain that any provision relating to grant of exemption, be it under a rule or notification, should be considered liberally. In this regard, we may profitably refer to the decision in Hansraj Gordhanadas v. H.H. Dave, Assistant Collector of Central Excise and Customs, Surat and others [AIR 1970 SC 755 ] wherein it has been held as follows:- “...It is well established that in a taxing statute there is no room for any intendment but regard must be had to the clear meaning of the words. The entire matter is governed wholly by the language of the notification. If the tax-payer is within the plain terms of the exemption it cannot be denied its benefit by calling in aid any supposed intention of the exempting authority. If such intention can be gathered from the construction of the words of the notification or by necessary implication therefrom, the matter is different...” 20. In Commissioner of Sales Tax v. Industrial Coal Enterprises [(1999) 2 SCC 607] , after referring to CIT v. Straw Board Mfg. Co. Ltd. [(1989) Supp (2) SCC 523] and Bajaj Tempo Ltd. v. CIT [(1992) 3 SCC 78] , the Court ruled that an exemption notification, as is well known, should be construed liberally once it is found that the entrepreneur fulfills all the eligibility criteria. In reading an exemption notification, no condition should be read into it when there is none. If an entrepreneur is entitled to the benefit thereof, the same should not be denied. 21. In this context, reference to Tamil Nadu Electricity Board and Another v. Status Spinning Mills Limited and another [(2008) 7 SCC 353] would be fruitful. It has been held therein :- “It may be true that the exemption notification should receive a strict construction as has been held by this Court in Novopan India Ltd. v. CCE and Customs [1994 Supp (3) SCC 606], but it is also true that once it is found that the industry is entitled to the benefit of exemption notification, it would received a broad construction. (See Tata Iron & Steel Co. Ltd. v. State of Jharkhand [(2005) 4 SCC 272] and A.P. Steel Re-Rolling Mill Ltd. v. State of Kerala [(2007) 2 SCC 725]) . A notification granting exemption can be withdrawn in public interest. What would be the public interest would, however, depend upon the facts of each case.” 22. From the aforesaid authorities, it is clear as crystal that a statutory rule or an exemption notification which confers benefit to the assessee on certain conditions should be liberally construed but the beneficiary should fall within the ambit of the rule or notification and further if there are conditions and violation thereof are provided, then the concept of liberal construction would not arise. Exemption being an exception has to be respected regard being had to its nature and purpose. There can be cases where liberal interpretation or understanding would be permissible, but in the present case, the rule position being clear, the same does not arise.23. At this juncture, it is apposite to refer to the pronouncement in State of Haryana and others v. A.S. Fuels Private Limited and another [(2008) 9 SCC 230] . In the said case, the State of Haryana had approached this Court as the High Court had construed the effect of sub-rule 10 (v) of Rule 28A of the Rules which authorises the department to withdraw the tax exemption certificate but had granted liberty to the State to scrutinize if it was a case for withdrawal of the eligibility certificate under sub-rule (8) of Rule 28A of the Rules and, thereafter, to proceed in accordance with the law. This Court, scanning the anatomy of Rule 28A, opined that under sub-rule (8)(b), when the eligibility certificate is withdrawn, the exemption/entitlement certificate is also deemed to have been withdrawn from the first day of its validity and the unit shall be liable to payment of tax, interest or penalty under the Act as if no entitlement certificate had ever been granted to it. Thereafter, the Court adverted to sub-rule 11 (a) and, in that context, it observed thus:- “...there are several conditions which are relevant; firstly, there is a requirement of continuing the production for at least next five years; secondly, consequences flowing in case of violation of the conditions laid down in clause (a). In other words, in case of non continuance of production for next five years, the result is that it shall be deemed as if there was no tax exemption/entitlement available to it. The proviso permits to the dealers to explain satisfactorily to the DETC that the loss in production was because of the reasons beyond the control of the unit. The materials have to be placed in this regard by the party. The High Court seems to have completely lost sight of sub-rule (11)(b).” 24. In the case at hand, as we have already held, clubbing is not permissible. It amounts to a violation of the conditions stipulated under Rule 11(a)(i) of Rule 28A and, therefore, the consequences have to follow and as a result, the assessee has to pay the full amount of tax benefit and interest. The approach of the High Court is absolutely erroneous and it really cannot withstand close scrutiny. | 1[ds]22. From the aforesaid authorities, it is clear as crystal that a statutory rule or an exemption notification which confers benefit to the assessee on certain conditions should be liberally construed but the beneficiary should fall within the ambit of the rule or notification and further if there are conditions and violation thereof are provided, then the concept of liberal construction would not arise. Exemption being an exception has to be respected regard being had to its nature and purpose. There can be cases where liberal interpretation or understanding would be permissible, but in the present case, the rule position being clear, the same does not arise.23. At this juncture, it is apposite to refer to the pronouncement in State of Haryana and others v. A.S. Fuels Private Limited and another [(2008) 9 SCC 230] . In the said case, the State of Haryana had approached this Court as the High Court had construed the effect of sub-rule 10 (v) of Rule 28A of the Rules which authorises the department to withdraw the tax exemption certificate but had granted liberty to the State to scrutinize if it was a case for withdrawal of the eligibility certificate under sub-rule (8) of Rule 28A of the Rules and, thereafter, to proceed in accordance with the law. This Court, scanning the anatomy of Rule 28A, opined that under sub-rule (8)(b), when the eligibility certificate is withdrawn, the exemption/entitlement certificate is also deemed to have been withdrawn from the first day of its validity and the unit shall be liable to payment of tax, interest or penalty under the Act as if no entitlement certificate had ever been granted to it. Thereafter, the Court adverted to sub-rule 11 (a) and, in that context, it observedare several conditions which are relevant; firstly, there is a requirement of continuing the production for at least next five years; secondly, consequences flowing in case of violation of the conditions laid down in clause (a). In other words, in case of non continuance of production for next five years, the result is that it shall be deemed as if there was no tax exemption/entitlement available to it. The proviso permits to the dealers to explain satisfactorily to the DETC that the loss in production was because of the reasons beyond the control of the unit. The materials have to be placed in this regard by the party. The High Court seems to have completely lost sight of sub-rule (11)(b).In the case at hand, as we have already held, clubbing is not permissible. It amounts to a violation of the conditions stipulated under Rule 11(a)(i) of Rule 28A and, therefore, the consequences have to follow and as a result, the assessee has to pay the full amount of tax benefit and interest. The approach of the High Court is absolutely erroneous and it really cannot withstand close scrutiny.On a bare reading of the said Rule, it is evincible that the conditions which are imposed have been enumerated in clause I (ii) of the said11 (a) of Rule 28A to the effect that in the event ofof the quality of production after the expiry of the exemption, the assessee has to pay the tax benefit availed with interest. In the case at hand, the revenue has pressed clause I (ii) into service. The Division Bench has relied on the decision in R.K. Mittal Woolen Mills (supra) wherein the High Court was dealing with the withdrawal of eligibility of certificate as provided in8 and 9 of Rule 28A. After referring to8 of Rule 28A that deals with the withdrawal of eligibility certificate under certain circumstances. Analysing the said Rule, it was stated thusperusal of the aforesaidwould show that the grounds on which the eligibility certificate and be withdrawn are mentioned therein but the ground ofof the change of land use permission from the Town and Country Planning Department is not one of the grounds mentioned therein. Subrule (8) of Rule 28A being a part of a taxing statute has, in the nature of things, to be construed very strictly and, therefore, the eligibility certificate can be withdrawn only on the grounds mentioned therein and on no other grounds. The authorities cannot add any other ground to the saidWe are, therefore, satisfied that the eligibility certificate granted to the petitioner could not be withdrawn only on the ground ofof the change of land use permission by the Town and Country PlanningThe said decision, as we perceive, was rendered in a totally different context. In the present case, we are not concerned with the withdrawal of eligibility certificate. We are concerned with the consequences that have been enumerated in clause (b) of11 of Rule 28A which clearly stipulates that in case of violation of clause 11 (a) (i) of Rule 11, the assessee shall be liable for making, in addition to the full amount ofavailed of by it during the period of exemption/deferment, with interest chargeable under the Act. Thus, reliance placed by the High Court on the said decision is misconceived and inappropriate.16. The hub of the matter is whether production of two different units can be combined together to meet the requirement of the postulate enshrined under the Rule. The production of the beneficiary unit had failed to fulfil the stipulation incorporated in11 (a)(i) of Rule 28A of the Rules. It is also the undisputed position that the production of the expanded unit has been computed and clubbed with the first unit to reflect the meeting of the criterion. The competent authority has come to a definite conclusion that the expanded capacity had been created to show that the rate of production is maintained but it is fundamentally a subterfuge. The authority has also taken into consideration the different items produced and how there has been loss of production of EPBT in the first unit. The High Court has failed to appreciate the relevant facts and, without noticing that thehad clubbed the production of the units, lancinated the orders passed by the forums below.He has laid immense emphasis on the termof the existing unit. The termhas been defined in clause (d) of(2) of Rule 28A which reads"expansion/diversification of industrial unit" means a capacity set up or installed during the operative period which creates additional productions/manufacturing facilities for manufacture of the same product/products as of the existing unit (expansion) or different products (diversification) at the same or new location –(i) in which the additional fixedcapital investment made during the operative period exceeds 25% of the fixed capital investment of the existing unit, and(ii) which results into increase in annual production by 25% of the installed capacity of the Existing Unit in case ofa careful reading of the aforesaid provisions, it is quite clear as day that they deal with the eligibility to get the benefit of exemption/deferment from the payment of tax. On a studied scrutiny of clause (f) (i) (I), it is manifest that it is incumbent on the unit to obtain certificate of registration under the Act. The submission of Mr. Jain is that the second unit has obtained the registration certificate under the Act and, hence, the production of the said unit, being eligible, is permitted to be included. Needless to say, obtainment of registration certificate is a condition precedent to become eligible but that does not mean that the production of the said unit will be taken into account for sustaining the benefit of the first unit. They are independent of each other as far as11 of the Rule 28A is concerned. We are disposed to think so as the grant of exemption has a sacrosanct purpose. The concept of exemption has been introduced for development of industrial activity and it is granted for a certain purpose to a unit for certain types of good. Exemption can be granted under the Rules or under a notification with certain conditions and also ensure payment of taxes post the exemption period. The concept of exemption is required to be tested on a different anvil, for it grants freedom from liability. In the case at hand, as we understand, it isspecific. The termhas not been defined. The grant of exemption unit wise can be best understood by way of example. An entrepreneur can get an exemption of a unit and thereafter establish number of units and try to club together the production of all of them to get the benefit for all. It would be well nigh unacceptable, for what is required is that each unit must meet the condition to avail the benefit.19. We will be failing in our duty if we do not address to a submission, albeit the last straw, of Mr. Jain that any provision relating to grant of exemption, be it under a rule or notification, should be considered liberally. In this regard, we may profitably refer to the decision in Hansraj Gordhanadas v. H.H. Dave, Assistant Collector of Central Excise and Customs, Surat and others [AIR 1970 SC 755 ] wherein it has been held asis well established that in a taxing statute there is no room for any intendment but regard must be had to the clear meaning of the words. The entire matter is governed wholly by the language of the notification. If theis within the plain terms of the exemption it cannot be denied its benefit by calling in aid any supposed intention of the exempting authority. If such intention can be gathered from the construction of the words of the notification or by necessary implication therefrom, the matter is different...In Commissioner of Sales Tax v. Industrial Coal Enterprises [(1999) 2 SCC 607] , after referring to CIT v. Straw Board Mfg. Co. Ltd. [(1989) Supp (2) SCC 523] and Bajaj Tempo Ltd. v. CIT [(1992) 3 SCC 78] , the Court ruled that an exemption notification, as is well known, should be construed liberally once it is found that the entrepreneur fulfills all the eligibility criteria. In reading an exemption notification, no condition should be read into it when there is none. If an entrepreneur is entitled to the benefit thereof, the same should not be denied. | 1 | 4,988 | 1,908 | ### Instruction:
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to be tested on a different anvil, for it grants freedom from liability. In the case at hand, as we understand, it is ‘unit’ specific. The term ‘unit’ has not been defined. The grant of exemption unit wise can be best understood by way of example. An entrepreneur can get an exemption of a unit and thereafter establish number of units and try to club together the production of all of them to get the benefit for all. It would be well nigh unacceptable, for what is required is that each unit must meet the condition to avail the benefit.19. We will be failing in our duty if we do not address to a submission, albeit the last straw, of Mr. Jain that any provision relating to grant of exemption, be it under a rule or notification, should be considered liberally. In this regard, we may profitably refer to the decision in Hansraj Gordhanadas v. H.H. Dave, Assistant Collector of Central Excise and Customs, Surat and others [AIR 1970 SC 755 ] wherein it has been held as follows:- “...It is well established that in a taxing statute there is no room for any intendment but regard must be had to the clear meaning of the words. The entire matter is governed wholly by the language of the notification. If the tax-payer is within the plain terms of the exemption it cannot be denied its benefit by calling in aid any supposed intention of the exempting authority. If such intention can be gathered from the construction of the words of the notification or by necessary implication therefrom, the matter is different...” 20. In Commissioner of Sales Tax v. Industrial Coal Enterprises [(1999) 2 SCC 607] , after referring to CIT v. Straw Board Mfg. Co. Ltd. [(1989) Supp (2) SCC 523] and Bajaj Tempo Ltd. v. CIT [(1992) 3 SCC 78] , the Court ruled that an exemption notification, as is well known, should be construed liberally once it is found that the entrepreneur fulfills all the eligibility criteria. In reading an exemption notification, no condition should be read into it when there is none. If an entrepreneur is entitled to the benefit thereof, the same should not be denied. 21. In this context, reference to Tamil Nadu Electricity Board and Another v. Status Spinning Mills Limited and another [(2008) 7 SCC 353] would be fruitful. It has been held therein :- “It may be true that the exemption notification should receive a strict construction as has been held by this Court in Novopan India Ltd. v. CCE and Customs [1994 Supp (3) SCC 606], but it is also true that once it is found that the industry is entitled to the benefit of exemption notification, it would received a broad construction. (See Tata Iron & Steel Co. Ltd. v. State of Jharkhand [(2005) 4 SCC 272] and A.P. Steel Re-Rolling Mill Ltd. v. State of Kerala [(2007) 2 SCC 725]) . A notification granting exemption can be withdrawn in public interest. What would be the public interest would, however, depend upon the facts of each case.” 22. From the aforesaid authorities, it is clear as crystal that a statutory rule or an exemption notification which confers benefit to the assessee on certain conditions should be liberally construed but the beneficiary should fall within the ambit of the rule or notification and further if there are conditions and violation thereof are provided, then the concept of liberal construction would not arise. Exemption being an exception has to be respected regard being had to its nature and purpose. There can be cases where liberal interpretation or understanding would be permissible, but in the present case, the rule position being clear, the same does not arise.23. At this juncture, it is apposite to refer to the pronouncement in State of Haryana and others v. A.S. Fuels Private Limited and another [(2008) 9 SCC 230] . In the said case, the State of Haryana had approached this Court as the High Court had construed the effect of sub-rule 10 (v) of Rule 28A of the Rules which authorises the department to withdraw the tax exemption certificate but had granted liberty to the State to scrutinize if it was a case for withdrawal of the eligibility certificate under sub-rule (8) of Rule 28A of the Rules and, thereafter, to proceed in accordance with the law. This Court, scanning the anatomy of Rule 28A, opined that under sub-rule (8)(b), when the eligibility certificate is withdrawn, the exemption/entitlement certificate is also deemed to have been withdrawn from the first day of its validity and the unit shall be liable to payment of tax, interest or penalty under the Act as if no entitlement certificate had ever been granted to it. Thereafter, the Court adverted to sub-rule 11 (a) and, in that context, it observed thus:- “...there are several conditions which are relevant; firstly, there is a requirement of continuing the production for at least next five years; secondly, consequences flowing in case of violation of the conditions laid down in clause (a). In other words, in case of non continuance of production for next five years, the result is that it shall be deemed as if there was no tax exemption/entitlement available to it. The proviso permits to the dealers to explain satisfactorily to the DETC that the loss in production was because of the reasons beyond the control of the unit. The materials have to be placed in this regard by the party. The High Court seems to have completely lost sight of sub-rule (11)(b).” 24. In the case at hand, as we have already held, clubbing is not permissible. It amounts to a violation of the conditions stipulated under Rule 11(a)(i) of Rule 28A and, therefore, the consequences have to follow and as a result, the assessee has to pay the full amount of tax benefit and interest. The approach of the High Court is absolutely erroneous and it really cannot withstand close scrutiny.
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only on the grounds mentioned therein and on no other grounds. The authorities cannot add any other ground to the saidWe are, therefore, satisfied that the eligibility certificate granted to the petitioner could not be withdrawn only on the ground ofof the change of land use permission by the Town and Country PlanningThe said decision, as we perceive, was rendered in a totally different context. In the present case, we are not concerned with the withdrawal of eligibility certificate. We are concerned with the consequences that have been enumerated in clause (b) of11 of Rule 28A which clearly stipulates that in case of violation of clause 11 (a) (i) of Rule 11, the assessee shall be liable for making, in addition to the full amount ofavailed of by it during the period of exemption/deferment, with interest chargeable under the Act. Thus, reliance placed by the High Court on the said decision is misconceived and inappropriate.16. The hub of the matter is whether production of two different units can be combined together to meet the requirement of the postulate enshrined under the Rule. The production of the beneficiary unit had failed to fulfil the stipulation incorporated in11 (a)(i) of Rule 28A of the Rules. It is also the undisputed position that the production of the expanded unit has been computed and clubbed with the first unit to reflect the meeting of the criterion. The competent authority has come to a definite conclusion that the expanded capacity had been created to show that the rate of production is maintained but it is fundamentally a subterfuge. The authority has also taken into consideration the different items produced and how there has been loss of production of EPBT in the first unit. The High Court has failed to appreciate the relevant facts and, without noticing that thehad clubbed the production of the units, lancinated the orders passed by the forums below.He has laid immense emphasis on the termof the existing unit. The termhas been defined in clause (d) of(2) of Rule 28A which reads"expansion/diversification of industrial unit" means a capacity set up or installed during the operative period which creates additional productions/manufacturing facilities for manufacture of the same product/products as of the existing unit (expansion) or different products (diversification) at the same or new location –(i) in which the additional fixedcapital investment made during the operative period exceeds 25% of the fixed capital investment of the existing unit, and(ii) which results into increase in annual production by 25% of the installed capacity of the Existing Unit in case ofa careful reading of the aforesaid provisions, it is quite clear as day that they deal with the eligibility to get the benefit of exemption/deferment from the payment of tax. On a studied scrutiny of clause (f) (i) (I), it is manifest that it is incumbent on the unit to obtain certificate of registration under the Act. The submission of Mr. Jain is that the second unit has obtained the registration certificate under the Act and, hence, the production of the said unit, being eligible, is permitted to be included. Needless to say, obtainment of registration certificate is a condition precedent to become eligible but that does not mean that the production of the said unit will be taken into account for sustaining the benefit of the first unit. They are independent of each other as far as11 of the Rule 28A is concerned. We are disposed to think so as the grant of exemption has a sacrosanct purpose. The concept of exemption has been introduced for development of industrial activity and it is granted for a certain purpose to a unit for certain types of good. Exemption can be granted under the Rules or under a notification with certain conditions and also ensure payment of taxes post the exemption period. The concept of exemption is required to be tested on a different anvil, for it grants freedom from liability. In the case at hand, as we understand, it isspecific. The termhas not been defined. The grant of exemption unit wise can be best understood by way of example. An entrepreneur can get an exemption of a unit and thereafter establish number of units and try to club together the production of all of them to get the benefit for all. It would be well nigh unacceptable, for what is required is that each unit must meet the condition to avail the benefit.19. We will be failing in our duty if we do not address to a submission, albeit the last straw, of Mr. Jain that any provision relating to grant of exemption, be it under a rule or notification, should be considered liberally. In this regard, we may profitably refer to the decision in Hansraj Gordhanadas v. H.H. Dave, Assistant Collector of Central Excise and Customs, Surat and others [AIR 1970 SC 755 ] wherein it has been held asis well established that in a taxing statute there is no room for any intendment but regard must be had to the clear meaning of the words. The entire matter is governed wholly by the language of the notification. If theis within the plain terms of the exemption it cannot be denied its benefit by calling in aid any supposed intention of the exempting authority. If such intention can be gathered from the construction of the words of the notification or by necessary implication therefrom, the matter is different...In Commissioner of Sales Tax v. Industrial Coal Enterprises [(1999) 2 SCC 607] , after referring to CIT v. Straw Board Mfg. Co. Ltd. [(1989) Supp (2) SCC 523] and Bajaj Tempo Ltd. v. CIT [(1992) 3 SCC 78] , the Court ruled that an exemption notification, as is well known, should be construed liberally once it is found that the entrepreneur fulfills all the eligibility criteria. In reading an exemption notification, no condition should be read into it when there is none. If an entrepreneur is entitled to the benefit thereof, the same should not be denied.
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COUNCIL OF ARCHITECTURE Vs. MR. MUKESH GOYAL & ORS | a phenomenal scale. A large variety of buildings, many of extreme complexity and magnitude like multi-storeyed office buildings, factory buildings, residential houses, are being constructed each year. With this increase in the building activity, many unqualified persons calling themselves as Architects are undertaking the construction of buildings which are uneconomical and quite frequently are unsafe, thus bringing into disrepute the profession of architects. Various organisations, including the Indian Institute of Architects, have repeatedly emphasised the need for statutory regulation to protect the general public from unqualified persons working as architects. With the passing of this legislation, it will be unlawful for any person to designate himself as „architect unless he has the requisite qualifications and experience and is registered under the Act. … 3. The legislation protects the title architects but does not make the design, supervision and construction of buildings as an exclusive responsibility of architects. Other professions like engineers will be free to engage themselves in their normal vocation in respect of building construction work provided that they do not style themselves as architects. (Emphasis supplied) The Statement of Objects and Reasons of the Architects Act makes it evident that the legislature was undoubtedly concerned with the risk of unqualified persons undertaking the construction of buildings leading to costly and dangerous buildings. In guarding against this risk, the legislature first set out a minimum standard of statutorily recognised qualifications to be met before an individual is designated as an architect under the Architects Act. This is done by Sections 14, 15 and 17 of the Act. Next, the legislature created two classes of individuals: the first class consisted of registered architects satisfying these minimum qualifications and a second class of unregistered individuals who did not satisfy these minimum qualifications. This is the effect of Sections 2(a), 17, 23 and 35 of the Architects Act. Crucially, the legislature chose to define an architect as an individual registered under the Architects Act and not as an individual practicing architecture or any cognate activities. Thus, the legislature limited the regulatory regime created by the Architects Act to the first class of individuals. In protecting the public from the risk of the second class, untrained individuals, the legislature had two options: first it could bar this second class of individuals from engaging in the profession altogether (as it had done with physicians and advocates); or alternatively it could prevent this second class of individuals from calling themselves Architects. The Statement of Objects and Reasons makes it clear that the legislature chose the second option and in fact went to great lengths to clarify that choice. The legislature stated that with the passing of the legislation, it shall be unlawful for an unregistered individual to designate himself as an architect. Further, it is expressly stated that the legislation protects the title of architect but does not grant registered architects an exclusive right to undertake the design, supervision and construction of buildings. Other cognate professions or unregistered individuals may continue to carry out these activities provided that they do not refer to themselves as A rchitects. 30. It is evident that the legislature did not intend to create a prohibition on the practice of architecture and associated activities by unregistered individuals. As opposed to the case of physicians or surgeons under the Indian Medical Council Act or advocates under the Advocates Act, the legislature consciously chose to employ a less stringent measure in the case of architects, merely prohibiting unregistered individuals from using the title and style of architect. It is not for this Court to delve into why the legislature made this choice. However, during the course of these proceedings a cogent and pragmatic reason for this choice has been placed before this Court, by the learned Attorney General of India and by way of the erudite opinion of Chief Justice Raveendran in the decision in Mukhesh Kumar Manhar to which we may briefly advert. 31. The profession of architecture involves a wide range of activities including inter alia: (i) Taking instructions from clients and preparing designs; (ii) Site evaluation and analysis; (iii) Site design and development; (iv) Structural design; (v) Design of sanitary, plumbing, sewage, drainage, and water supply structures; (vi) Design and structural integration of electrical and communications systems; (vii) Incorporation of heating, air-conditioning, ventilation and other mechanical systems including fire detection and prevention systems; and (viii) Periodic inspection and evaluation of construction work. These activities are undertaken by architects but are also carried out by architects in concert with a range of other actors including draughtspersons, builders, engineers, and designers. If the legislature were to impose an absolute prohibition against unregistered individuals from =practicing architecture there would be considerable confusion as to what activities formed the practice of architecture and what did not. It may have resulted in a host of other legitimate professionals being barred from engaging in the design, supervision and construction of buildings merely because they were not registered under the Architects Act. Further, as the learned Attorney General of India brought to our attention, these varied professions form essential cogs in the overall machinery of construction in India and the design, supervision and construction of new structures cannot be done by architects alone. It would be unreasonable from a regulatory perspective to ask all professions touching upon the construction of new structures to obtain a degree in architecture. 32. Architecture undoubtedly constitutes a highly specialised profession requiring the possession of minimum educational qualifications. However, architects are by and large engaged by means of a contract for services. In other words, architects provide a set of specialised services towards the larger goal of construction. Architects are not embarking on construction independently of other actors. By virtue of the Architects Act, anybody engaging the services of an individual calling themselves an A rchitect is assured that such an individual possesses statutorily recognised educational qualifications and is competent to complete the task at hand. It is in this manner that the legislature protects the common person from untrained individuals. | 1[ds]21. The order of this Court dated 14 February 2017 states that the High Court was in error in rejecting the contention of the appellant that practice under the Architects Act, 1972 is not restricted only to the architects.The appellant was the Council of Architecture. The order is based on the premise that the contention of the Council of Architecture before the High Court of Bombay was that the practice under the Architects Act, 1972 is not restricted only to architects.The order stated that the High Court was wrong in rejecting this contention. Therefore, the order of this Court dated 14 February 2017 clearly sought to lay down the proposition that the practice under the Architects Act, 1972 is not restricted only to architects.Having laid down this proposition, it would appear that the use of the word not in the next line is inadvertent . In the previous sentence the court expounded the position that the practice of architecture cannot be restricted to registered architects under the Architects Act. Hence, it would be an incorrect interpretation of the order to hold that in the very next line, the court would have laid down a contrary proposition. Therefore, the effect of the order as a whole is to lay down the principle that individuals can practice as architects even if they are not registered under the Architects Act. The subsequent order of this Court dated 11 September 2017 which quotes and follows the earlier order should also be read in this light. Therefore, the two orders of this Court do not further the case urged by the appellant but support the position set out by the Union of India, succinctly advanced in the submissions of the learned Attorney GeneralTherefore, a plain reading of Section 37 clearly supports the proposition that the Architects Act prohibits individuals not registered with the Council of Architecture from using the title and style of Architect and does not prohibit unregistered individuals from practicing the activities undertaken by architects such as the design, supervision and construction of buildingsThese submissions are ultimately premised on the argument that even if a plain reading of Section 37 does not support the argument of a prohibition on practice this Court must nonetheless read the provision to include a prohibition on practice in order to avoid defeating the object and purpose of the Architects Act28. It is well settled that the first and best method of determining the intention of the legislature is the very words chosen by the legislature to have the force of law. In other words, the intention of the legislature is best evidenced by the text of the statute itself. However, where a plain reading of the text of the statute leads to an absurd or unreasonable meaning, the text of the statute must be construed in light of the object and purpose with which the legislature enacted the statute as a whole. Where it is contended that a particular interpretation would lead to defeating the very object of a legislation, such an interpretative outcome would clearly be absurd or unreasonableThe Statement of Objects and Reasons of the Architects Act makes it evident that the legislature was undoubtedly concerned with the risk of unqualified persons undertaking the construction of buildings leading to costly and dangerous buildings. In guarding against this risk, the legislature first set out a minimum standard of statutorily recognised qualifications to be met before an individual is designated as an architect under the Architects Act. This is done by Sections 14, 15 and 17 of the Act. Next, the legislature created two classes of individuals: the first class consisted of registered architects satisfying these minimum qualifications and a second class of unregistered individuals who did not satisfy these minimum qualifications. This is the effect of Sections 2(a), 17, 23 and 35 of the Architects Act. Crucially, the legislature chose to define an architect as an individual registered under the Architects Act and not as an individual practicing architecture or any cognate activities. Thus, the legislature limited the regulatory regime created by the Architects Act to the first class of individuals. In protecting the public from the risk of the second class, untrained individuals, the legislature had two options: first it could bar this second class of individuals from engaging in the profession altogether (as it had done with physicians and advocates); or alternatively it could prevent this second class of individuals from calling themselves Architects. The Statement of Objects and Reasons makes it clear that the legislature chose the second option and in fact went to great lengths to clarify that choice. The legislature stated that with the passing of the legislation, it shall be unlawful for an unregistered individual to designate himself as an architect. Further, it is expressly stated that the legislation protects the title of architect but does not grant registered architects an exclusive right to undertake the design, supervision and construction of buildings. Other cognate professions or unregistered individuals may continue to carry out these activities provided that they do not refer to themselves as A rchitects30. It is evident that the legislature did not intend to create a prohibition on the practice of architecture and associated activities by unregistered individuals. As opposed to the case of physicians or surgeons under the Indian Medical Council Act or advocates under the Advocates Act, the legislature consciously chose to employ a less stringent measure in the case of architects, merely prohibiting unregistered individuals from using the title and style of architect. It is not for this Court to delve into why the legislature made this choice. However, during the course of these proceedings a cogent and pragmatic reason for this choice has been placed before this Court, by the learned Attorney General of India and by way of the erudite opinion of Chief Justice Raveendran in the decision in Mukhesh Kumar Manhar to which we may briefly advertIf the legislature were to impose an absolute prohibition against unregistered individuals from =practicing architecture there would be considerable confusion as to what activities formed the practice of architecture and what did not. It may have resulted in a host of other legitimate professionals being barred from engaging in the design, supervision and construction of buildings merely because they were not registered under the Architects Act. Further, as the learned Attorney General of India brought to our attention, these varied professions form essential cogs in the overall machinery of construction in India and the design, supervision and construction of new structures cannot be done by architects alone. It would be unreasonable from a regulatory perspective to ask all professions touching upon the construction of new structures to obtain a degree in architecture32. Architecture undoubtedly constitutes a highly specialised profession requiring the possession of minimum educational qualifications. However, architects are by and large engaged by means of a contract for services. In other words, architects provide a set of specialised services towards the larger goal of construction. Architects are not embarking on construction independently of other actors. By virtue of the Architects Act, anybody engaging the services of an individual calling themselves an A rchitect is assured that such an individual possesses statutorily recognised educational qualifications and is competent to complete the task at hand. It is in this manner that the legislature protects the common person from untrained individuals33. For the above reasons, we affirm the decision of the High Court of Allahabad on the first question and hold that Section 37 of the Architects Act does not prohibit individuals not registered under the Architects Act from undertaking the practice of architecture and its cognate activities35. While we have held that Section 37 does not prohibit the practice of architecture by unregistered individuals, it certainly does prohibit unregistered individuals from using the title and style of architect. Under the scheme of the Architects Act, only individuals possessing the statutorily recognised minimum educational qualifications can apply for registration as an Architect under the Act. Registration as an architect under the statute is thus a guarantee of possessing certain minimum educational qualifications. Section 37 prohibits unregistered individuals from designating themselves or referring to themselves as architects. The consequence of this regulatory regime is that when an individual is called an Architect a reasonable person would assume that they are a registered architect under the Architects Act and as a consequence possess the requisite educational qualifications and specialised knowledge associated with architects36. If an individual is appointed to a post titled Associate Architect, Architect or Senior Architect, they undoubtedly refer to themselves and are referred to by others as Architects. Holding a post using the term Architect has the real-world consequence of being referred to as an architect. This is not a matter of mere nomenclature. As noted above, architecture is a specialised field of study. Crucially, the scheme of the Architects Act provides a direct nexus between the minimum educational qualifications required to be obtained, registration as an architect under the Act and the prohibition against the use of the title of A rchitect by those not registered under the Act. If a government post is titled Architect or Associate Architect, such a person certainly use s the title and style of architect and consequently there is a reasonable assumption that such a person is registered under the Architects Act and holds a degree in architecture recognised by the Act. This assumption finds statutory backing in Section 35 of the Architects Act which provides that any reference to an architect in any other law shall be deemed to mean an architect registered under the Architects Act. To promote an individual who does not possess a degree in architecture recognised by the Act to a post titled Architect, Associate Architect or of a similar style using the title or style of architect would effectively violate the prohibition on the use of title contained in Section 37 of the Architects Act37. In the present case, we recognise the power of NOIDA to provide and modify the minimum eligibility criteria for promotion of candidates to the posts of Associate Town Planner and Associate Architect. We further recognise that the authority has significant discretion in how it chooses to title the various posts under its supervision. However, to permit NOIDA to continue to title a post that includes individuals who are not registered architects under the Architects Act as Associat e Architect would result in a violation of Section 37 of the Architects Act. In the case of Tulya Gogoi the High Court of Gauhati expressly held that the prohibition on the use of title and style of architect contained in Section 37 of the Architects Act applies to both private individuals and government employees. The reasoning of the High Court on this issue commends itself for our acceptance. The text of Section 37 makes no distinction between government employees and private individualsThe distinction made by the Allahabad High Court, that the Promotion Policy 2005 was passed under a state legislation, namely the U.P. Industrial Area Development Act, and thus did not need to comport with the terms of the Architects Act as a central legislation is incorrect38. The U.P. Industrial Area Development Act provides NOIDA with the power to make rules for the management of its internal affairs. In exercise of this power, NOIDA formulated the Service Regulations of 1981. Rule 16 of the Service Regulations sets out thefor posts under NOIDAs authority. By clause (iv) of Rule 16 NOIDA has the power to modify the sources of recruitment for posts under its supervision. It is in exercise of this power that NOIDA formulated the Promotion Policy of 2005 which sets out the sources and qualifications for recruitment in its various departments. It is well established that delegated legislation is susceptible to invalidity on the grounds of being ultra vires its parent legislation but also ultra vires other primary legislation. Where the provisions of a primary legislation (the Architects Act) are contradictory to the provisions of a delegated legislation (the Promotion Policy 2005), the provisions of the primary legislation must prevail. This principle is well established and has received articulation by this Court on several occasions. In Indian Express Newspapers v Union of India (1985) 1 SCC 641 Justice Venkataramiah speaking for a three- judge Bench of this Court stated:75. A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent Legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition, it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. This is because subordinate legislation must yield to plenary legislation. It may also be question on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary. …The distinction made by the Allahabad High Court, that the Promotion Policy 2005 was passed under a state legislation, namely the U.P. Industrial Area Development Act, and thus did not need to comport with the terms of the Architects Act as a central legislation is | 1 | 10,447 | 2,371 | ### 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:
a phenomenal scale. A large variety of buildings, many of extreme complexity and magnitude like multi-storeyed office buildings, factory buildings, residential houses, are being constructed each year. With this increase in the building activity, many unqualified persons calling themselves as Architects are undertaking the construction of buildings which are uneconomical and quite frequently are unsafe, thus bringing into disrepute the profession of architects. Various organisations, including the Indian Institute of Architects, have repeatedly emphasised the need for statutory regulation to protect the general public from unqualified persons working as architects. With the passing of this legislation, it will be unlawful for any person to designate himself as „architect unless he has the requisite qualifications and experience and is registered under the Act. … 3. The legislation protects the title architects but does not make the design, supervision and construction of buildings as an exclusive responsibility of architects. Other professions like engineers will be free to engage themselves in their normal vocation in respect of building construction work provided that they do not style themselves as architects. (Emphasis supplied) The Statement of Objects and Reasons of the Architects Act makes it evident that the legislature was undoubtedly concerned with the risk of unqualified persons undertaking the construction of buildings leading to costly and dangerous buildings. In guarding against this risk, the legislature first set out a minimum standard of statutorily recognised qualifications to be met before an individual is designated as an architect under the Architects Act. This is done by Sections 14, 15 and 17 of the Act. Next, the legislature created two classes of individuals: the first class consisted of registered architects satisfying these minimum qualifications and a second class of unregistered individuals who did not satisfy these minimum qualifications. This is the effect of Sections 2(a), 17, 23 and 35 of the Architects Act. Crucially, the legislature chose to define an architect as an individual registered under the Architects Act and not as an individual practicing architecture or any cognate activities. Thus, the legislature limited the regulatory regime created by the Architects Act to the first class of individuals. In protecting the public from the risk of the second class, untrained individuals, the legislature had two options: first it could bar this second class of individuals from engaging in the profession altogether (as it had done with physicians and advocates); or alternatively it could prevent this second class of individuals from calling themselves Architects. The Statement of Objects and Reasons makes it clear that the legislature chose the second option and in fact went to great lengths to clarify that choice. The legislature stated that with the passing of the legislation, it shall be unlawful for an unregistered individual to designate himself as an architect. Further, it is expressly stated that the legislation protects the title of architect but does not grant registered architects an exclusive right to undertake the design, supervision and construction of buildings. Other cognate professions or unregistered individuals may continue to carry out these activities provided that they do not refer to themselves as A rchitects. 30. It is evident that the legislature did not intend to create a prohibition on the practice of architecture and associated activities by unregistered individuals. As opposed to the case of physicians or surgeons under the Indian Medical Council Act or advocates under the Advocates Act, the legislature consciously chose to employ a less stringent measure in the case of architects, merely prohibiting unregistered individuals from using the title and style of architect. It is not for this Court to delve into why the legislature made this choice. However, during the course of these proceedings a cogent and pragmatic reason for this choice has been placed before this Court, by the learned Attorney General of India and by way of the erudite opinion of Chief Justice Raveendran in the decision in Mukhesh Kumar Manhar to which we may briefly advert. 31. The profession of architecture involves a wide range of activities including inter alia: (i) Taking instructions from clients and preparing designs; (ii) Site evaluation and analysis; (iii) Site design and development; (iv) Structural design; (v) Design of sanitary, plumbing, sewage, drainage, and water supply structures; (vi) Design and structural integration of electrical and communications systems; (vii) Incorporation of heating, air-conditioning, ventilation and other mechanical systems including fire detection and prevention systems; and (viii) Periodic inspection and evaluation of construction work. These activities are undertaken by architects but are also carried out by architects in concert with a range of other actors including draughtspersons, builders, engineers, and designers. If the legislature were to impose an absolute prohibition against unregistered individuals from =practicing architecture there would be considerable confusion as to what activities formed the practice of architecture and what did not. It may have resulted in a host of other legitimate professionals being barred from engaging in the design, supervision and construction of buildings merely because they were not registered under the Architects Act. Further, as the learned Attorney General of India brought to our attention, these varied professions form essential cogs in the overall machinery of construction in India and the design, supervision and construction of new structures cannot be done by architects alone. It would be unreasonable from a regulatory perspective to ask all professions touching upon the construction of new structures to obtain a degree in architecture. 32. Architecture undoubtedly constitutes a highly specialised profession requiring the possession of minimum educational qualifications. However, architects are by and large engaged by means of a contract for services. In other words, architects provide a set of specialised services towards the larger goal of construction. Architects are not embarking on construction independently of other actors. By virtue of the Architects Act, anybody engaging the services of an individual calling themselves an A rchitect is assured that such an individual possesses statutorily recognised educational qualifications and is competent to complete the task at hand. It is in this manner that the legislature protects the common person from untrained individuals.
### Response:
1
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that the legislature protects the common person from untrained individuals33. For the above reasons, we affirm the decision of the High Court of Allahabad on the first question and hold that Section 37 of the Architects Act does not prohibit individuals not registered under the Architects Act from undertaking the practice of architecture and its cognate activities35. While we have held that Section 37 does not prohibit the practice of architecture by unregistered individuals, it certainly does prohibit unregistered individuals from using the title and style of architect. Under the scheme of the Architects Act, only individuals possessing the statutorily recognised minimum educational qualifications can apply for registration as an Architect under the Act. Registration as an architect under the statute is thus a guarantee of possessing certain minimum educational qualifications. Section 37 prohibits unregistered individuals from designating themselves or referring to themselves as architects. The consequence of this regulatory regime is that when an individual is called an Architect a reasonable person would assume that they are a registered architect under the Architects Act and as a consequence possess the requisite educational qualifications and specialised knowledge associated with architects36. If an individual is appointed to a post titled Associate Architect, Architect or Senior Architect, they undoubtedly refer to themselves and are referred to by others as Architects. Holding a post using the term Architect has the real-world consequence of being referred to as an architect. This is not a matter of mere nomenclature. As noted above, architecture is a specialised field of study. Crucially, the scheme of the Architects Act provides a direct nexus between the minimum educational qualifications required to be obtained, registration as an architect under the Act and the prohibition against the use of the title of A rchitect by those not registered under the Act. If a government post is titled Architect or Associate Architect, such a person certainly use s the title and style of architect and consequently there is a reasonable assumption that such a person is registered under the Architects Act and holds a degree in architecture recognised by the Act. This assumption finds statutory backing in Section 35 of the Architects Act which provides that any reference to an architect in any other law shall be deemed to mean an architect registered under the Architects Act. To promote an individual who does not possess a degree in architecture recognised by the Act to a post titled Architect, Associate Architect or of a similar style using the title or style of architect would effectively violate the prohibition on the use of title contained in Section 37 of the Architects Act37. In the present case, we recognise the power of NOIDA to provide and modify the minimum eligibility criteria for promotion of candidates to the posts of Associate Town Planner and Associate Architect. We further recognise that the authority has significant discretion in how it chooses to title the various posts under its supervision. However, to permit NOIDA to continue to title a post that includes individuals who are not registered architects under the Architects Act as Associat e Architect would result in a violation of Section 37 of the Architects Act. In the case of Tulya Gogoi the High Court of Gauhati expressly held that the prohibition on the use of title and style of architect contained in Section 37 of the Architects Act applies to both private individuals and government employees. The reasoning of the High Court on this issue commends itself for our acceptance. The text of Section 37 makes no distinction between government employees and private individualsThe distinction made by the Allahabad High Court, that the Promotion Policy 2005 was passed under a state legislation, namely the U.P. Industrial Area Development Act, and thus did not need to comport with the terms of the Architects Act as a central legislation is incorrect38. The U.P. Industrial Area Development Act provides NOIDA with the power to make rules for the management of its internal affairs. In exercise of this power, NOIDA formulated the Service Regulations of 1981. Rule 16 of the Service Regulations sets out thefor posts under NOIDAs authority. By clause (iv) of Rule 16 NOIDA has the power to modify the sources of recruitment for posts under its supervision. It is in exercise of this power that NOIDA formulated the Promotion Policy of 2005 which sets out the sources and qualifications for recruitment in its various departments. It is well established that delegated legislation is susceptible to invalidity on the grounds of being ultra vires its parent legislation but also ultra vires other primary legislation. Where the provisions of a primary legislation (the Architects Act) are contradictory to the provisions of a delegated legislation (the Promotion Policy 2005), the provisions of the primary legislation must prevail. This principle is well established and has received articulation by this Court on several occasions. In Indian Express Newspapers v Union of India (1985) 1 SCC 641 Justice Venkataramiah speaking for a three- judge Bench of this Court stated:75. A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent Legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition, it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. This is because subordinate legislation must yield to plenary legislation. It may also be question on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary. …The distinction made by the Allahabad High Court, that the Promotion Policy 2005 was passed under a state legislation, namely the U.P. Industrial Area Development Act, and thus did not need to comport with the terms of the Architects Act as a central legislation is
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State Of J & K Vs. Vichar Kranti International | been extracted above, proceeded on the basis that the circular also regulated government medical doctors engaging in self-employment or other activities. It was urged that the rules governing private practice by government doctors were not placed before the Court. Hence, without considering those rules, the High Court has issued a blanket direction erroneously on the basis that the circular of 11 August 2005 also covered the services of medical doctors.4. Section 13 of the Jammu and Kashmir Public Men and Public Servants Declaration of Assets and Other Provisions Act 1983 stipulates that no public servant, whether on leave or in active service, shall practice any profession or carry on any trade or business, directly or indirectly or undertake any other employment without the previous permission in writing of the Prescribed Authority. In exercise of powers conferred by Section 16(2)(b) of the Act, the State Government issued a notification, bearing SRO-156 dated 23 April 1984 permitting private practice by government doctors, subject to its terms. The permission granted by the above notification for government doctors, engaging in private practice was withdrawn by government orders dated 31 May 1986 and 05 June 1986 (Government order no. 340-GR-HME of 1986). Subsequently, on 23 January 1987, the State Government issued SRO-42 to regulate the conduct of private practice by government doctors. The above rules were challenged before the Jammu and Kashmir High Court in Sukesh Chander Khajuria v. State and Ors. By a judgment and order dated 14 February 1994, a Division Bench of the High Court dismissed the Writ Petition, observing as follows:“27…..Whether private medical practice should be allowed to doctors in Government service or not is a policy matter. Policy decisions have to be taken by the Executive and not by Courts. Courts can only indicate the legal position. The legal position is that the State has power to ban private practice as well to allow it.When it will allow and when it will ban it is for the Government to decide and not for the Courts. “Subsequently, by a notification dated 04 August 1995, the Jammu and Kashmir Government Doctors (relaxation of restrictions on private practice) Rules 1987 were rescinded. Once again on 23 April 1998, a fresh government order – SRO 132 was issued by the State Government formulating rules for regulating private practice by government doctors.5. There is merit in the contention which has been urged on behalf of the State Government that the High Court proceeded erroneously on the basis that the circular dated 11 August 2005 which was impugned before the High Court, dealt with the issue of whether government doctors should be permitted to engage in private practice. Plainly, the circular dated 11 August 2005 was issued by the Education Department and applied exclusively to officials in schools engaging in private assignments outside school hours. The circular had no application to government doctors. The regulation of private practice by government doctors is the subject matter of separate rules framed by the State Government. Neither were those rules under challenge before the High Court nor did the High Court had the benefit of evaluating the rules before it proceeded to decide the case.6. In the circumstances, we are of the view that there is merit in the grievance of the State Government in regard to the correctness of the view which has been formulated by the High Court. The High Court was not apprised of the relevant statutory rules which govern the field. An order of remand would hence be necessitated to enable a fresh consideration of the issue by the High Court.7. Quite apart from the issue of whether government doctors should be allowed to engage in private practice, there are other and, perhaps more fundamental aspects which would arise from the Public Interest Litigation that was instituted before the High Court. The basic issue which requires to be addressed is the availability of infrastructure and facilities in government hospitals across the state of Jammu and Kashmir and the facilities for the treatment of patients. The respondents would be at liberty to move an appropriate application before the High Court for amending the Writ Petition to adduce pleadings and for claiming appropriate reliefs in that regard. However, independent of that, we are of the view that the quality of medical care in government hospitals across the state of Jammu and Kashmir is a matter which should receive attention and oversight in the exercise of the jurisdiction under Article 226. In particular, we emphasise the following issues which would require careful scrutiny and such remedial directions as may be necessitated on the basis of the material which may become available to the High Court. The areas of concern include:(i) The availability of adequate infrastructure in government hospitals;(ii) The availability of essential equipment for treatment;(iii) The availability of staff-medical, para medical and of a supporting nature;(iv) Enforcement of conditions of hygiene to secure proper medical treatment facilities; and(v) The availability of essential medicines.8. The Respondents have placed on the record a report of the Estimates Committee of the Jammu and Kashmir Legislative Assembly on unprecedented neonatal/infant deaths which took place in January-May 2012 in GB Pant (Children) Hospital, Srinagar. We would commend to the High Court the need for constituting a Committee of Experts to scrutinize the conditions in public-government hospitals in the state. The High Court would be at liberty to constitute a Committee of medical experts and administrators. The Committee shall submit a report on the state of public - government hospitals in the state and covering among other things, the areas which have been emphasised above. The High Court would be at liberty, after scrutinizing the report of the Expert Committee and upon hearing the relevant stakeholders including the state, to issue appropriate directions and monitor compliance. The hospitals which are conducted by the state and by public agencies cater to medical needs of the poorest strata of society. The need for ensuring proper medical care of a requisite standard has to be duly addressed. | 1[ds]6. In the circumstances, we are of the view that there is merit in the grievance of the State Government in regard to the correctness of the view which has been formulated by the High Court. The High Court was not apprised of the relevant statutory rules which govern the field. An order of remand would hence be necessitated to enable a fresh consideration of the issue by the Highrespondents would be at liberty to move an appropriate application before the High Court for amending the Writ Petition to adduce pleadings and for claiming appropriate reliefs in that regard. However, independent of that, we are of the view that the quality of medical care in government hospitals across the state of Jammu and Kashmir is a matter which should receive attention and oversight in the exercise of the jurisdiction under Article 226. In particular, we emphasise the following issues which would require careful scrutiny and such remedial directions as may be necessitated on the basis of the material which may become available to the High Court.would commend to the High Court the need for constituting a Committee of Experts to scrutinize the conditions in public-government hospitals in the state. The High Court would be at liberty to constitute a Committee of medical experts and administrators. The Committee shall submit a report on the state of public - government hospitals in the state and covering among other things, the areas which have been emphasised above. The High Court would be at liberty, after scrutinizing the report of the Expert Committee and upon hearing the relevant stakeholders including the state, to issue appropriate directions and monitor compliance. The hospitals which are conducted by the state and by public agencies cater to medical needs of the poorest strata of society. The need for ensuring proper medical care of a requisite standard has to be duly | 1 | 1,925 | 333 | ### 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:
been extracted above, proceeded on the basis that the circular also regulated government medical doctors engaging in self-employment or other activities. It was urged that the rules governing private practice by government doctors were not placed before the Court. Hence, without considering those rules, the High Court has issued a blanket direction erroneously on the basis that the circular of 11 August 2005 also covered the services of medical doctors.4. Section 13 of the Jammu and Kashmir Public Men and Public Servants Declaration of Assets and Other Provisions Act 1983 stipulates that no public servant, whether on leave or in active service, shall practice any profession or carry on any trade or business, directly or indirectly or undertake any other employment without the previous permission in writing of the Prescribed Authority. In exercise of powers conferred by Section 16(2)(b) of the Act, the State Government issued a notification, bearing SRO-156 dated 23 April 1984 permitting private practice by government doctors, subject to its terms. The permission granted by the above notification for government doctors, engaging in private practice was withdrawn by government orders dated 31 May 1986 and 05 June 1986 (Government order no. 340-GR-HME of 1986). Subsequently, on 23 January 1987, the State Government issued SRO-42 to regulate the conduct of private practice by government doctors. The above rules were challenged before the Jammu and Kashmir High Court in Sukesh Chander Khajuria v. State and Ors. By a judgment and order dated 14 February 1994, a Division Bench of the High Court dismissed the Writ Petition, observing as follows:“27…..Whether private medical practice should be allowed to doctors in Government service or not is a policy matter. Policy decisions have to be taken by the Executive and not by Courts. Courts can only indicate the legal position. The legal position is that the State has power to ban private practice as well to allow it.When it will allow and when it will ban it is for the Government to decide and not for the Courts. “Subsequently, by a notification dated 04 August 1995, the Jammu and Kashmir Government Doctors (relaxation of restrictions on private practice) Rules 1987 were rescinded. Once again on 23 April 1998, a fresh government order – SRO 132 was issued by the State Government formulating rules for regulating private practice by government doctors.5. There is merit in the contention which has been urged on behalf of the State Government that the High Court proceeded erroneously on the basis that the circular dated 11 August 2005 which was impugned before the High Court, dealt with the issue of whether government doctors should be permitted to engage in private practice. Plainly, the circular dated 11 August 2005 was issued by the Education Department and applied exclusively to officials in schools engaging in private assignments outside school hours. The circular had no application to government doctors. The regulation of private practice by government doctors is the subject matter of separate rules framed by the State Government. Neither were those rules under challenge before the High Court nor did the High Court had the benefit of evaluating the rules before it proceeded to decide the case.6. In the circumstances, we are of the view that there is merit in the grievance of the State Government in regard to the correctness of the view which has been formulated by the High Court. The High Court was not apprised of the relevant statutory rules which govern the field. An order of remand would hence be necessitated to enable a fresh consideration of the issue by the High Court.7. Quite apart from the issue of whether government doctors should be allowed to engage in private practice, there are other and, perhaps more fundamental aspects which would arise from the Public Interest Litigation that was instituted before the High Court. The basic issue which requires to be addressed is the availability of infrastructure and facilities in government hospitals across the state of Jammu and Kashmir and the facilities for the treatment of patients. The respondents would be at liberty to move an appropriate application before the High Court for amending the Writ Petition to adduce pleadings and for claiming appropriate reliefs in that regard. However, independent of that, we are of the view that the quality of medical care in government hospitals across the state of Jammu and Kashmir is a matter which should receive attention and oversight in the exercise of the jurisdiction under Article 226. In particular, we emphasise the following issues which would require careful scrutiny and such remedial directions as may be necessitated on the basis of the material which may become available to the High Court. The areas of concern include:(i) The availability of adequate infrastructure in government hospitals;(ii) The availability of essential equipment for treatment;(iii) The availability of staff-medical, para medical and of a supporting nature;(iv) Enforcement of conditions of hygiene to secure proper medical treatment facilities; and(v) The availability of essential medicines.8. The Respondents have placed on the record a report of the Estimates Committee of the Jammu and Kashmir Legislative Assembly on unprecedented neonatal/infant deaths which took place in January-May 2012 in GB Pant (Children) Hospital, Srinagar. We would commend to the High Court the need for constituting a Committee of Experts to scrutinize the conditions in public-government hospitals in the state. The High Court would be at liberty to constitute a Committee of medical experts and administrators. The Committee shall submit a report on the state of public - government hospitals in the state and covering among other things, the areas which have been emphasised above. The High Court would be at liberty, after scrutinizing the report of the Expert Committee and upon hearing the relevant stakeholders including the state, to issue appropriate directions and monitor compliance. The hospitals which are conducted by the state and by public agencies cater to medical needs of the poorest strata of society. The need for ensuring proper medical care of a requisite standard has to be duly addressed.
### Response:
1
### Explanation:
6. In the circumstances, we are of the view that there is merit in the grievance of the State Government in regard to the correctness of the view which has been formulated by the High Court. The High Court was not apprised of the relevant statutory rules which govern the field. An order of remand would hence be necessitated to enable a fresh consideration of the issue by the Highrespondents would be at liberty to move an appropriate application before the High Court for amending the Writ Petition to adduce pleadings and for claiming appropriate reliefs in that regard. However, independent of that, we are of the view that the quality of medical care in government hospitals across the state of Jammu and Kashmir is a matter which should receive attention and oversight in the exercise of the jurisdiction under Article 226. In particular, we emphasise the following issues which would require careful scrutiny and such remedial directions as may be necessitated on the basis of the material which may become available to the High Court.would commend to the High Court the need for constituting a Committee of Experts to scrutinize the conditions in public-government hospitals in the state. The High Court would be at liberty to constitute a Committee of medical experts and administrators. The Committee shall submit a report on the state of public - government hospitals in the state and covering among other things, the areas which have been emphasised above. The High Court would be at liberty, after scrutinizing the report of the Expert Committee and upon hearing the relevant stakeholders including the state, to issue appropriate directions and monitor compliance. The hospitals which are conducted by the state and by public agencies cater to medical needs of the poorest strata of society. The need for ensuring proper medical care of a requisite standard has to be duly
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State of Mysore Vs. H.L. Chablani | be urged that the High Court wrongly held that there was a contravention of Art. 311 (2) of the Constitution in this case. Mr. N. C. Chatterji appearing on behalf of the respondent has raised a preliminary objection that in view of the terms of the certificate stated in the order of the High Court dated February 18, 1955, it is not open to the appellant to press the appeal on the ground that Art. 311 was wrongly interpreted by the High Court, without first obtaining leave of this Court under Cl. (3) of Art. 132 to urge that ground, and the appeal must be confined to the ground on which the certificate was granted, namely, if under Art. 226 of the Constitution it is open to the High Court to issue a writ of mandamus against the State Government directing reinstatement of the respondent in the post which he held before dismissal.6. We are of the view that in the facts and circumstances of this case no. substantial question of law as to the interpretation of Art. 311 really arises. It is clear that the High Court in granting a certificate under Art. 132 (1) held, rightly or wrongly, that the case involved a substantial question of law to the interpretation of Art. 226 and not Art. 311 of the Constitution. The effect of that certificate was to enable the appellant to appeal to this Court on the ground that the question of the interpretation of Art. 226 had been wrongly decided by the High Court, and if the appellant wished to appeal on any other ground, he could have moved this Court for necessary leave as required by Cl. (3) of Art. 132. That clause is in these terms :"3. Where such a certificate is given, or such leave is granted, any party in the case may appeal to the Supreme Court on the ground that any such question as aforesaid has been wrongly decided and, with the leave of the Supreme Court, on any other ground."It is true that Cl. (1) of Art. 132 states, inter alia, that an appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court, if the High Court certifies that the case involved a substantial question of law as to the interpretation of the Constitution, and normally leave of this Court is asked for under Cl. (3) to urge a point relating to the merits of the case, that is, a point other than a constitutional point. In this case both the points relating to Arts. 311 and 226 are constitutional points; but the High Court proceeded on the footing that in the present case there was really no. substantial question of law as to the interpretation of Art. 311, that interpretation having been settled by decisions of this Court and the only substantial question of law related to the power of the High Court to direct re-instatement. Indeed, Mr. Chatterji has submitted that on the decision of the Federal Court in Krishnaswami Pillai v. Governor General-in-Council, AIR 1947 FC 37 (C), the question whether in a particular case a reasonable opportunity of showing cause against the action proposed to be taken has been given or not must always be a question of fact. We do not think that it is necessary to go as far as Mr. Chatterji wishes us to go; nor is it necessary to decide in this case if Cl. (3) of Art. 132 stands in the way of the appellant. It is conceivable that in a particular case the question of reasonable opportunity of showing cause against the action proposed to be taken may be so inextricably mixed up with the nature and content of the constitutional guarantee under Art. 311 (2) as to be a substantial question of law regarding the interpretation of that Article. The case before us, however, stands on a different footing. Admittedly, the respondent was not asked to show any cause apart from what was stated in the first letter of Government dated August 22, 1951; after the respondent had submitted his explanation and given documentary evidence in proof of his correct age received no. communication from Government except his order of dismissal; at one stage at least Government was inclined to reconsider his case and the Public Service Commission, though they expressed disagreement with the views of Government, do not appear to have considered the entire evidence which the respondent gave in proof of his age. In these circumstances, it is clear to us that there is no. substantial question of law regarding the interpretation of Art. 311, and on the facts the High Court found that the respondent had no. reasonable opportunity of showing cause against the action proposed to be taken in regard to him. We find no. good or compelling reasons for expressing dissent from that view.7. This brings us to the second ground. That ground again has become academic. It is admitted that the respondent was re-instated pursuant to the order of the High Court. On behalf of the appellant it has been submitted that the respondent was merely officiating as Assistant Superintendent of Jails and the order directing his re-instatement in that post would prejudicially affect the right of the State Government to revert the respondent to his substantive post. It was, however, stated on behalf of the respondent that he had already been reverted to his substantive post. It is, therefore, unnecessary to make any pronouncement in this case on the question which is now merely academic, as to what power the High Court has of directing restoration to office on a prayer for a writ of mandamus against Government under Art. 226 of the Constitution; nor do we think that any useful purpose will be served by examining the various decisions and authorities to which Mr. Chatterji has invited our attention on this question, which must be left to be decided on a more appropriate occasion. | 0[ds]6. We are of the view that in the facts and circumstances of this case no. substantial question of law as to the interpretation of Art. 311 really arises. It is clear that the High Court in granting a certificate under Art. 132 (1) held, rightly or wrongly, that the case involved a substantial question of law to the interpretation of Art. 226 and not Art. 311 of the Constitution. The effect of that certificate was to enable the appellant to appeal to this Court on the ground that the question of the interpretation of Art. 226 had been wrongly decided by the High Court, and if the appellant wished to appeal on any other ground, he could have moved this Court for necessary leave as required by Cl. (3) of Art. 132.It is true that Cl. (1) of Art. 132 states, inter alia, that an appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court, if the High Court certifies that the case involved a substantial question of law as to the interpretation of the Constitution, and normally leave of this Court is asked for under Cl. (3) to urge a point relating to the merits of the case, that is, a point other than a constitutional point. In this case both the points relating to Arts. 311 and 226 are constitutional points; but the High Court proceeded on the footing that in the present case there was really no. substantial question of law as to the interpretation of Art. 311, that interpretation having been settled by decisions of this Court and the only substantial question of law related to the power of the High Court to direct re-instatement. Indeed, Mr. Chatterji has submitted that on the decision of the Federal Court in Krishnaswami Pillai v. Governor General-in-Council, AIR 1947 FC 37 (C), the question whether in a particular case a reasonable opportunity of showing cause against the action proposed to be taken has been given or not must always be a question of fact. We do not think that it is necessary to go as far as Mr. Chatterji wishes us to go; nor is it necessary to decide in this case if Cl. (3) of Art. 132 stands in the way of the appellant. It is conceivable that in a particular case the question of reasonable opportunity of showing cause against the action proposed to be taken may be so inextricably mixed up with the nature and content of the constitutional guarantee under Art. 311 (2) as to be a substantial question of law regarding the interpretation of that Article. The case before us, however, stands on a different footing. Admittedly, the respondent was not asked to show any cause apart from what was stated in the first letter of Government dated August 22, 1951; after the respondent had submitted his explanation and given documentary evidence in proof of his correct age received no. communication from Government except his order of dismissal; at one stage at least Government was inclined to reconsider his case and the Public Service Commission, though they expressed disagreement with the views of Government, do not appear to have considered the entire evidence which the respondent gave in proof of his age. In these circumstances, it is clear to us that there is no. substantial question of law regarding the interpretation of Art. 311, and on the facts the High Court found that the respondent had no. reasonable opportunity of showing cause against the action proposed to be taken in regard to him. We find no. good or compelling reasons for expressing dissent from that view.7. This brings us to the second ground. That ground again has become academic. It is admitted that the respondent was re-instated pursuant to the order of the High Court.It is, therefore, unnecessary to make any pronouncement in this case on the question which is now merely academic, as to what power the High Court has of directing restoration to office on a prayer for a writ of mandamus against Government under Art. 226 of the Constitution; nor do we think that any useful purpose will be served by examining the various decisions and authorities to which Mr. Chatterji has invited our attention on this question, which must be left to be decided on a more appropriate occasion. | 0 | 3,019 | 816 | ### 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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be urged that the High Court wrongly held that there was a contravention of Art. 311 (2) of the Constitution in this case. Mr. N. C. Chatterji appearing on behalf of the respondent has raised a preliminary objection that in view of the terms of the certificate stated in the order of the High Court dated February 18, 1955, it is not open to the appellant to press the appeal on the ground that Art. 311 was wrongly interpreted by the High Court, without first obtaining leave of this Court under Cl. (3) of Art. 132 to urge that ground, and the appeal must be confined to the ground on which the certificate was granted, namely, if under Art. 226 of the Constitution it is open to the High Court to issue a writ of mandamus against the State Government directing reinstatement of the respondent in the post which he held before dismissal.6. We are of the view that in the facts and circumstances of this case no. substantial question of law as to the interpretation of Art. 311 really arises. It is clear that the High Court in granting a certificate under Art. 132 (1) held, rightly or wrongly, that the case involved a substantial question of law to the interpretation of Art. 226 and not Art. 311 of the Constitution. The effect of that certificate was to enable the appellant to appeal to this Court on the ground that the question of the interpretation of Art. 226 had been wrongly decided by the High Court, and if the appellant wished to appeal on any other ground, he could have moved this Court for necessary leave as required by Cl. (3) of Art. 132. That clause is in these terms :"3. Where such a certificate is given, or such leave is granted, any party in the case may appeal to the Supreme Court on the ground that any such question as aforesaid has been wrongly decided and, with the leave of the Supreme Court, on any other ground."It is true that Cl. (1) of Art. 132 states, inter alia, that an appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court, if the High Court certifies that the case involved a substantial question of law as to the interpretation of the Constitution, and normally leave of this Court is asked for under Cl. (3) to urge a point relating to the merits of the case, that is, a point other than a constitutional point. In this case both the points relating to Arts. 311 and 226 are constitutional points; but the High Court proceeded on the footing that in the present case there was really no. substantial question of law as to the interpretation of Art. 311, that interpretation having been settled by decisions of this Court and the only substantial question of law related to the power of the High Court to direct re-instatement. Indeed, Mr. Chatterji has submitted that on the decision of the Federal Court in Krishnaswami Pillai v. Governor General-in-Council, AIR 1947 FC 37 (C), the question whether in a particular case a reasonable opportunity of showing cause against the action proposed to be taken has been given or not must always be a question of fact. We do not think that it is necessary to go as far as Mr. Chatterji wishes us to go; nor is it necessary to decide in this case if Cl. (3) of Art. 132 stands in the way of the appellant. It is conceivable that in a particular case the question of reasonable opportunity of showing cause against the action proposed to be taken may be so inextricably mixed up with the nature and content of the constitutional guarantee under Art. 311 (2) as to be a substantial question of law regarding the interpretation of that Article. The case before us, however, stands on a different footing. Admittedly, the respondent was not asked to show any cause apart from what was stated in the first letter of Government dated August 22, 1951; after the respondent had submitted his explanation and given documentary evidence in proof of his correct age received no. communication from Government except his order of dismissal; at one stage at least Government was inclined to reconsider his case and the Public Service Commission, though they expressed disagreement with the views of Government, do not appear to have considered the entire evidence which the respondent gave in proof of his age. In these circumstances, it is clear to us that there is no. substantial question of law regarding the interpretation of Art. 311, and on the facts the High Court found that the respondent had no. reasonable opportunity of showing cause against the action proposed to be taken in regard to him. We find no. good or compelling reasons for expressing dissent from that view.7. This brings us to the second ground. That ground again has become academic. It is admitted that the respondent was re-instated pursuant to the order of the High Court. On behalf of the appellant it has been submitted that the respondent was merely officiating as Assistant Superintendent of Jails and the order directing his re-instatement in that post would prejudicially affect the right of the State Government to revert the respondent to his substantive post. It was, however, stated on behalf of the respondent that he had already been reverted to his substantive post. It is, therefore, unnecessary to make any pronouncement in this case on the question which is now merely academic, as to what power the High Court has of directing restoration to office on a prayer for a writ of mandamus against Government under Art. 226 of the Constitution; nor do we think that any useful purpose will be served by examining the various decisions and authorities to which Mr. Chatterji has invited our attention on this question, which must be left to be decided on a more appropriate occasion.
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0
### Explanation:
6. We are of the view that in the facts and circumstances of this case no. substantial question of law as to the interpretation of Art. 311 really arises. It is clear that the High Court in granting a certificate under Art. 132 (1) held, rightly or wrongly, that the case involved a substantial question of law to the interpretation of Art. 226 and not Art. 311 of the Constitution. The effect of that certificate was to enable the appellant to appeal to this Court on the ground that the question of the interpretation of Art. 226 had been wrongly decided by the High Court, and if the appellant wished to appeal on any other ground, he could have moved this Court for necessary leave as required by Cl. (3) of Art. 132.It is true that Cl. (1) of Art. 132 states, inter alia, that an appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court, if the High Court certifies that the case involved a substantial question of law as to the interpretation of the Constitution, and normally leave of this Court is asked for under Cl. (3) to urge a point relating to the merits of the case, that is, a point other than a constitutional point. In this case both the points relating to Arts. 311 and 226 are constitutional points; but the High Court proceeded on the footing that in the present case there was really no. substantial question of law as to the interpretation of Art. 311, that interpretation having been settled by decisions of this Court and the only substantial question of law related to the power of the High Court to direct re-instatement. Indeed, Mr. Chatterji has submitted that on the decision of the Federal Court in Krishnaswami Pillai v. Governor General-in-Council, AIR 1947 FC 37 (C), the question whether in a particular case a reasonable opportunity of showing cause against the action proposed to be taken has been given or not must always be a question of fact. We do not think that it is necessary to go as far as Mr. Chatterji wishes us to go; nor is it necessary to decide in this case if Cl. (3) of Art. 132 stands in the way of the appellant. It is conceivable that in a particular case the question of reasonable opportunity of showing cause against the action proposed to be taken may be so inextricably mixed up with the nature and content of the constitutional guarantee under Art. 311 (2) as to be a substantial question of law regarding the interpretation of that Article. The case before us, however, stands on a different footing. Admittedly, the respondent was not asked to show any cause apart from what was stated in the first letter of Government dated August 22, 1951; after the respondent had submitted his explanation and given documentary evidence in proof of his correct age received no. communication from Government except his order of dismissal; at one stage at least Government was inclined to reconsider his case and the Public Service Commission, though they expressed disagreement with the views of Government, do not appear to have considered the entire evidence which the respondent gave in proof of his age. In these circumstances, it is clear to us that there is no. substantial question of law regarding the interpretation of Art. 311, and on the facts the High Court found that the respondent had no. reasonable opportunity of showing cause against the action proposed to be taken in regard to him. We find no. good or compelling reasons for expressing dissent from that view.7. This brings us to the second ground. That ground again has become academic. It is admitted that the respondent was re-instated pursuant to the order of the High Court.It is, therefore, unnecessary to make any pronouncement in this case on the question which is now merely academic, as to what power the High Court has of directing restoration to office on a prayer for a writ of mandamus against Government under Art. 226 of the Constitution; nor do we think that any useful purpose will be served by examining the various decisions and authorities to which Mr. Chatterji has invited our attention on this question, which must be left to be decided on a more appropriate occasion.
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Commissioner of Income Tax, Madras Vs. M/s. Southern Roadways Private Limited | operator, replaced the petrol engine in two of his buses incurring expenditure in that connection during the year of account ending with March 31, 1950, relevant to the assessment year 1950-51. This Court by a majority held that the same meaning ought to be given to the word "machinery" in all the clauses, namely, clauses (iv), (v), (vi) and (vi-a) of Section 10 (2) of the Income-Tax Act, 1922 as then in force, that a diesel engine was clearly machinery, and that when an engine was fixed in a vehicle it was installed within the meaning of the expression in clauses (vi) and (vi-a) of Section 10 (2) as it then stood.This Court accordingly held that the assessee was entitled to the extra depreciation allowances under the second paragraph of cl.. (vi) and clause (vi-a) of Section 10 (2) as in force at the relevant time.4. Section 10 (2) as in force on April 1, 1950 which governed Mir Mohammads case is not quite the same as the section as it stood on April 1, 1961 which is the law to be considered in Civil Appeal No. 211 of 1970 which relates to the assessment Year 1961-62. The section had undergone several changes in the meantime. Clause (vi-b) which governs the case of the assessee as regards the assessment year 1961-62 was inserted in Sec. 10 (2) with effect from April 1,1955 and that clause as originally introduced was again substituted by a new one in 1958. The provisions of Section 10 of Income-Tax Act, 1922 applicable to the assessees claim in the assessment year 1961-62 are as follows:"10. BUSINESS - (1) The tax shall be Payable by an assessee under the head "Profits and gains of business, profession or vocation" in respect of the profits or gains of any business, profession or vocation carried on by him.(2) Such profits or gains shall be computed after making the following allowances, namely:x x x x(vi-b) in respect of a new ship acquired or new machinery or plant installed after the 31st day of March 1954, which is wholly used for the purposes of the business carried on by the assessee, a sum by way of development rebate in respect of the year of acquisition of the ship or of the installation of the machinery or plant, equivalent to, -(i) xx xx xx(ii) in the case of machinery or plant installed before the 1st day of April. 1961, twenty-five per cent, and in the case of machinery or plant installed after the 31st day of March, 1961, twenty per cent of the actual cost of the machinery or plant to the assessee;Explanation 1. x x x xExplanation 2. x x x xProvided that no allowance under this clause shall be made unless -(a) x x x(b) x x xProvided further that no allowance under this clause shall be made in respect of any machinery or plant which consists of office appliances or road transport vehicles;x x x x."Clause (vi-b) allowing development rebate on the cost of a new ship acquired or new machinery or plant installed after March 31, 1954, as already stated, was not in S. 10 (2) as applied to Mir Mohammads case. It is of course possible to argue on the authority of Mir Mohammads case that the diesel engines fitted by the assessee to its vehicles were machinery " installed" within the meaning of clause. (vi-b) but the second proviso to the clause says that "no allowance under this clause shall be made in respect of any machinery or plant which consists of office appliances or road transport vehicles." In view of this proviso which was inserted in the clause with effect from April. 1960, no development rebate could be claimed in respect of road transport vehicles in the assessment year 1961-62. Counsel for the assessee contended that the diesel engines in regard to which development rebate had been claimed retained their character as machinery though they were fitted to the transport vehicles and accordingly, the argument proceeded, the proviso taking away the right to development rebate in respect of road transport vehicles had no application. We do not consider the argument sound.Clause (vi-b) allows development rebate respect of new machinery or plant which was used for the purpose of the business carried on by the assessee. In this case it is not claimed that the diesel engines as such were used by the assessee for its business; admittedly the vehicles in which the engines were fixed were what the assessee used for the purpose of its business. Clearly therefore the proviso is attracted to bar the claim for development rebate in assessment year 1961-62.5. As regards the assessment year 1962-63 the claim for development rebate was made under S. 33 of the Income-tax Act. 1961. This section so far as it is relevant for the present purpose is as follows:" 33. (1) (a) In respect of a new ship or new machinery or plant (other than office appliances or road transport vehicles) which is owned by the assessee and is wholly used for the purposes of the business carried on by him there shall in accordance with and subject to the provisions of this section and of Sec. 34, be allowed a deduction, in respect of the previous year in which the ship was acquired or the machinery or plant was installed or, if the ship, machinery of plant is first put to use in the immediately. succeeding previous year, then in respect of that previous year a sum by way of development rebate as specified in clause (b).x x x x."6. Here the provision allowing development rebate itself leaves out office appliances and road transport vehicles from its scope. Sec. 33 of the Income-tax Act, 1961 is materially different from the provision of law on which the decision in Mir Mohammads case was based. The High Court was therefore in error in answering the questions referred to it in these cases in favour of the assessee. | 1[ds]In Mir Mohammads case on which the High Court based its decisions, the assessee, aand transport operator, replaced the petrol engine in two of his buses incurring expenditure in that connection during the year of account ending with March 31, 1950, relevant to the assessment yearThis Court by a majority held that the same meaning ought to be given to the word "machinery" in all the clauses, namely, clauses (iv), (v), (vi) andof Section 10 (2) of theAct, 1922 as then in force, that a diesel engine was clearly machinery, and that when an engine was fixed in a vehicle it was installed within the meaning of the expression in clauses (vi) andof Section 10 (2) as it then stood.This Court accordingly held that the assessee was entitled to the extra depreciation allowances under the second paragraph of cl.. (vi) and clauseof Section 10 (2) as in force at the relevant time.4. Section 10 (2) as in force on April 1, 1950 which governed Mir Mohammads case is not quite the same as the section as it stood on April 1, 1961 which is the law to be considered in Civil Appeal No. 211 of 1970 which relates to the assessment YearThe section had undergone several changes in the meantime. Clausewhich governs the case of the assessee as regards the assessment yearwas inserted in Sec. 10 (2) with effect from April 1,1955 and that clause as originally introduced was again substituted by a new one in) allowing development rebate on the cost of a new ship acquired or new machinery or plant installed after March 31, 1954, as already stated, was not in S. 10 (2) as applied to Mir Mohammads case. It is of course possible to argue on the authority of Mir Mohammads case that the diesel engines fitted by the assessee to its vehicles were machinery " installed" within the meaning of clause.but the second proviso to the clause says that "no allowance under this clause shall be made in respect of any machinery or plant which consists of office appliances or road transport vehicles." In view of this proviso which was inserted in the clause with effect from April. 1960, no development rebate could be claimed in respect of road transport vehicles in the assessment yearCounsel for the assessee contended that the diesel engines in regard to which development rebate had been claimed retained their character as machinery though they were fitted to the transport vehicles and accordingly, the argument proceeded, the proviso taking away the right to development rebate in respect of road transport vehicles had no application. We do not consider the argument sound.ClauseHere the provision allowing development rebate itself leaves out office appliances and road transport vehicles from its scope. Sec. 33 of theAct, 1961 is materially different from the provision of law on which the decision in Mir Mohammads case was based. The High Court was therefore in error in answering the questions referred to it in these cases in favour of the assessee. | 1 | 1,871 | 568 | ### 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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operator, replaced the petrol engine in two of his buses incurring expenditure in that connection during the year of account ending with March 31, 1950, relevant to the assessment year 1950-51. This Court by a majority held that the same meaning ought to be given to the word "machinery" in all the clauses, namely, clauses (iv), (v), (vi) and (vi-a) of Section 10 (2) of the Income-Tax Act, 1922 as then in force, that a diesel engine was clearly machinery, and that when an engine was fixed in a vehicle it was installed within the meaning of the expression in clauses (vi) and (vi-a) of Section 10 (2) as it then stood.This Court accordingly held that the assessee was entitled to the extra depreciation allowances under the second paragraph of cl.. (vi) and clause (vi-a) of Section 10 (2) as in force at the relevant time.4. Section 10 (2) as in force on April 1, 1950 which governed Mir Mohammads case is not quite the same as the section as it stood on April 1, 1961 which is the law to be considered in Civil Appeal No. 211 of 1970 which relates to the assessment Year 1961-62. The section had undergone several changes in the meantime. Clause (vi-b) which governs the case of the assessee as regards the assessment year 1961-62 was inserted in Sec. 10 (2) with effect from April 1,1955 and that clause as originally introduced was again substituted by a new one in 1958. The provisions of Section 10 of Income-Tax Act, 1922 applicable to the assessees claim in the assessment year 1961-62 are as follows:"10. BUSINESS - (1) The tax shall be Payable by an assessee under the head "Profits and gains of business, profession or vocation" in respect of the profits or gains of any business, profession or vocation carried on by him.(2) Such profits or gains shall be computed after making the following allowances, namely:x x x x(vi-b) in respect of a new ship acquired or new machinery or plant installed after the 31st day of March 1954, which is wholly used for the purposes of the business carried on by the assessee, a sum by way of development rebate in respect of the year of acquisition of the ship or of the installation of the machinery or plant, equivalent to, -(i) xx xx xx(ii) in the case of machinery or plant installed before the 1st day of April. 1961, twenty-five per cent, and in the case of machinery or plant installed after the 31st day of March, 1961, twenty per cent of the actual cost of the machinery or plant to the assessee;Explanation 1. x x x xExplanation 2. x x x xProvided that no allowance under this clause shall be made unless -(a) x x x(b) x x xProvided further that no allowance under this clause shall be made in respect of any machinery or plant which consists of office appliances or road transport vehicles;x x x x."Clause (vi-b) allowing development rebate on the cost of a new ship acquired or new machinery or plant installed after March 31, 1954, as already stated, was not in S. 10 (2) as applied to Mir Mohammads case. It is of course possible to argue on the authority of Mir Mohammads case that the diesel engines fitted by the assessee to its vehicles were machinery " installed" within the meaning of clause. (vi-b) but the second proviso to the clause says that "no allowance under this clause shall be made in respect of any machinery or plant which consists of office appliances or road transport vehicles." In view of this proviso which was inserted in the clause with effect from April. 1960, no development rebate could be claimed in respect of road transport vehicles in the assessment year 1961-62. Counsel for the assessee contended that the diesel engines in regard to which development rebate had been claimed retained their character as machinery though they were fitted to the transport vehicles and accordingly, the argument proceeded, the proviso taking away the right to development rebate in respect of road transport vehicles had no application. We do not consider the argument sound.Clause (vi-b) allows development rebate respect of new machinery or plant which was used for the purpose of the business carried on by the assessee. In this case it is not claimed that the diesel engines as such were used by the assessee for its business; admittedly the vehicles in which the engines were fixed were what the assessee used for the purpose of its business. Clearly therefore the proviso is attracted to bar the claim for development rebate in assessment year 1961-62.5. As regards the assessment year 1962-63 the claim for development rebate was made under S. 33 of the Income-tax Act. 1961. This section so far as it is relevant for the present purpose is as follows:" 33. (1) (a) In respect of a new ship or new machinery or plant (other than office appliances or road transport vehicles) which is owned by the assessee and is wholly used for the purposes of the business carried on by him there shall in accordance with and subject to the provisions of this section and of Sec. 34, be allowed a deduction, in respect of the previous year in which the ship was acquired or the machinery or plant was installed or, if the ship, machinery of plant is first put to use in the immediately. succeeding previous year, then in respect of that previous year a sum by way of development rebate as specified in clause (b).x x x x."6. Here the provision allowing development rebate itself leaves out office appliances and road transport vehicles from its scope. Sec. 33 of the Income-tax Act, 1961 is materially different from the provision of law on which the decision in Mir Mohammads case was based. The High Court was therefore in error in answering the questions referred to it in these cases in favour of the assessee.
### Response:
1
### Explanation:
In Mir Mohammads case on which the High Court based its decisions, the assessee, aand transport operator, replaced the petrol engine in two of his buses incurring expenditure in that connection during the year of account ending with March 31, 1950, relevant to the assessment yearThis Court by a majority held that the same meaning ought to be given to the word "machinery" in all the clauses, namely, clauses (iv), (v), (vi) andof Section 10 (2) of theAct, 1922 as then in force, that a diesel engine was clearly machinery, and that when an engine was fixed in a vehicle it was installed within the meaning of the expression in clauses (vi) andof Section 10 (2) as it then stood.This Court accordingly held that the assessee was entitled to the extra depreciation allowances under the second paragraph of cl.. (vi) and clauseof Section 10 (2) as in force at the relevant time.4. Section 10 (2) as in force on April 1, 1950 which governed Mir Mohammads case is not quite the same as the section as it stood on April 1, 1961 which is the law to be considered in Civil Appeal No. 211 of 1970 which relates to the assessment YearThe section had undergone several changes in the meantime. Clausewhich governs the case of the assessee as regards the assessment yearwas inserted in Sec. 10 (2) with effect from April 1,1955 and that clause as originally introduced was again substituted by a new one in) allowing development rebate on the cost of a new ship acquired or new machinery or plant installed after March 31, 1954, as already stated, was not in S. 10 (2) as applied to Mir Mohammads case. It is of course possible to argue on the authority of Mir Mohammads case that the diesel engines fitted by the assessee to its vehicles were machinery " installed" within the meaning of clause.but the second proviso to the clause says that "no allowance under this clause shall be made in respect of any machinery or plant which consists of office appliances or road transport vehicles." In view of this proviso which was inserted in the clause with effect from April. 1960, no development rebate could be claimed in respect of road transport vehicles in the assessment yearCounsel for the assessee contended that the diesel engines in regard to which development rebate had been claimed retained their character as machinery though they were fitted to the transport vehicles and accordingly, the argument proceeded, the proviso taking away the right to development rebate in respect of road transport vehicles had no application. We do not consider the argument sound.ClauseHere the provision allowing development rebate itself leaves out office appliances and road transport vehicles from its scope. Sec. 33 of theAct, 1961 is materially different from the provision of law on which the decision in Mir Mohammads case was based. The High Court was therefore in error in answering the questions referred to it in these cases in favour of the assessee.
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Kalumiya Karimmiya Vs. State of Gujarat and Others | 9 of the Act was served on the appellant but he did not submit any claims with regard to compensation under that section. On Septem- ber 22, 1970, the appellant filed an application under Article 226 of the Constitution before the High Court of Gujarat challenging the aforesaid notifications under the Act. The High Court by its order of November 30, 1970, rejected the petition. The High Court, however, by its order of October 21, 1972, granted certificate under Article 133(1)(b) and (c) of the Constitution on the ques- tion of vires of sections 4, 5A and 6 of the Land Acquisi- tion Act. 5. Mr. Dave confines his submissions before us only to, the following points, which we will deal with seriatim:"First, that in spite of the appellants request for furnishing a copy of the report under section 5A the Collector did not grant him a copy. He complains that there was no proper and adequate heating under section 5A(2) of the Act. According to the learned counsel a proper hearing would include furnishing of a copy of the report under section 5A. We are unable to accept this submission. Although, ordinarily, t here should be no difficulty in furnishing a copy of the report under section 5A to an objector, when he asks for! the same, it is not a correct proposition that bearing under section 5A is invalid because of failure to furnish a copy of the report at the conclusion of the hearing under the said section. Unless there are weighty reasons, a report in public enquiry like this, should be available to the persons who take part in the enquiry. But failure to furnish a copy of the report of such an enquiry cannot vitiate the enquiry if it is otherwise not open to any valid objection. Apart from this solitary ground, our attention has not been drawn to any infirmity in the hearing under section 5A. We are, there- fore unable to hold that the said enquiry under section 5A was invalid.The matter would have been different if a second enquiry were essential under the law at the stage when the State Government was considering the report under section 5A for issuing its declaration under section 6 of the Act. We are, however, clearly of opinion that there is no reason to hold that a second hearing by the State Government at that stage is necessary under section 6 of the Act, (See Abdul Husein Tayabali &Ors. v. State of Gujarat &Ors.([1968] 1 S.C.R. 597.) Since that is the position in law, failure to fur- nish a copy, of the report under section 8A is innocuous. The matter, again, may be different if there is a proper allegation of mala fide against the Collector or the S tate Government. There is no such allegation in this case. The first submission of the learned counsel is, therefore, devoid of substance." 6. The learned counsel next contends that there was considerable delay between the notification under section 4 which was issued on June 7, 1966, and the declaration under section 6 made on January 13, 1969. Since numerous dags of land belonging to a number of persons were the subject m atter of acquisition and individual objections had to. be heard, we do not think that there has been any inordinate delay in making the notification. Even. the appellant has not submitted before the High Court a copy of hi s written objection nor is the same produced before us to indicate when his objections were actually filed and whether he was not also responsible for some delay in the conclusion of the enquiry. The delay in this case is only about 21/2 years and, as we have said, there is not even a clear statement of the responsibility for delay which may be attributable to the Government. The second submission of the learned counsel is also of no avail.Mr. Dave lastly submits that the notification under section 4 did not contain the public purpose as the requirement for "fire station". The notification, says counsel, mentioned station, work shop and parking purpose. He is able to make this submission from a copy of the notification in the Paper Book at page 20 (Ex. A). We are, however, unable to agree with counsel that the notification under section 4 did not in fact contain the purpose as fire station. Even in the statement of case of the appellant which we have set out earlier, no objection was ever taken against the so-called vague description of the requirement in the notification. On the other hand, it was conceded, therein, that the purpose was fire station, workshop and parking purpose and the objection was that the appellants land was not "suited for the construction of fire station". There is, therefore, no substance in this submission. 7. This Court rather liberally grants prayers for dispens- ing with statement of case when such requests are made by parties. Indeed, the form in vogue, in which statements of case are submitted in this Court, has perhaps outlived its practical utility in hearings before this Court. If anything, besides being expensive, it causes delay in making appeals ready for hearing. 8. We, however, feel, instead of the usual statements of case by both the parties, a very succinct statement of case and a list of dates submitted by the appellant alone. with material facts necessary for deciding the questions of law together with the findings of fact of the court below and pinpointing the only legal issues to be raised in this Court will be of advantage in expeditious disposal of appeals before this Court. 9. For once, on occasion, we are able to; say that the statement of case in this appeal is of use to us in visiting the appellant with the forfeiture of his right to make his last submission with regard to the vagueness or ambiguity of the purpose mentioned in the notification under section 4 of the Act. | 0[ds]Although, ordinarily, t here should be no difficulty in furnishing a copy of the report under section 5A to an objector, when he asks for! the same, it is not a correct proposition that bearing under section 5A is invalid because of failure to furnish a copy of the report at the conclusion of the hearing under the said section. Unless there are weighty reasons, a report in public enquiry like this, should be available to the persons who take part in the enquiry. But failure to furnish a copy of the report of such an enquiry cannot vitiate the enquiry if it is otherwise not open to any valid objection. Apart from this solitary ground, our attention has not been drawn to any infirmity in the hearing under section 5A. We are, there- fore unable to hold that the said enquiry under section 5A was invalid.The matter would have been different if a second enquiry were essential under the law at the stage when the State Government was considering the report under section 5A for issuing its declaration under section 6 of the Act. We are, however, clearly of opinion that there is no reason to hold that a second hearing by the State Government at that stage is necessary under section 6 of the Act, (See Abdul Husein Tayabali &Ors. v. State of Gujarat &Ors.([1968] 1 S.C.R. 597.) Since that is the position in law, failure to fur- nish a copy, of the report under section 8A is innocuous. The matter, again, may be different if there is a proper allegation of mala fide against the Collector or the S tate Government. There is no such allegation in this case. The first submission of the learned counsel is, therefore, devoid of substanceSince numerous dags of land belonging to a number of persons were the subject m atter of acquisition and individual objections had to. be heard, we do not think that there has been any inordinate delay in making the notification. Even. the appellant has not submitted before the High Court a copy of hi s written objection nor is the same produced before us to indicate when his objections were actually filed and whether he was not also responsible for some delay in the conclusion of the enquiry. The delay in this case is only about 21/2 years and, as we have said, there is not even a clear statement of the responsibility for delay which may be attributable to the Government. The second submission of the learned counsel is also of no avail.Mr. Dave lastly submits that the notification under section 4 did not contain the public purpose as the requirement for "fire station". The notification, says counsel, mentioned station, work shop and parking purpose. He is able to make this submission from a copy of the notification in the Paper Book at page 20 (Ex. A). We are, however, unable to agree with counsel that the notification under section 4 did not in fact contain the purpose as fire station. Even in the statement of case of the appellant which we have set out earlier, no objection was ever taken against the so-called vague description of the requirement in the notification. On the other hand, it was conceded, therein, that the purpose was fire station, workshop and parking purpose and the objection was that the appellants land was not "suited for the construction of fire station". There is, therefore, no substance in this submissionThis Court rather liberally grants prayers for dispens- ing with statement of case when such requests are made by parties. Indeed, the form in vogue, in which statements of case are submitted in this Court, has perhaps outlived its practical utility in hearings before this Court. If anything, besides being expensive, it causes delay in making appeals ready for hearingWe, however, feel, instead of the usual statements of case by both the parties, a very succinct statement of case and a list of dates submitted by the appellant alone. with material facts necessary for deciding the questions of law together with the findings of fact of the court below and pinpointing the only legal issues to be raised in this Court will be of advantage in expeditious disposal of appeals before this CourtFor once, on occasion, we are able to; say that the statement of case in this appeal is of use to us in visiting the appellant with the forfeiture of his right to make his last submission with regard to the vagueness or ambiguity of the purpose mentioned in the notification under section 4 of the Act. | 0 | 1,572 | 860 | ### Instruction:
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9 of the Act was served on the appellant but he did not submit any claims with regard to compensation under that section. On Septem- ber 22, 1970, the appellant filed an application under Article 226 of the Constitution before the High Court of Gujarat challenging the aforesaid notifications under the Act. The High Court by its order of November 30, 1970, rejected the petition. The High Court, however, by its order of October 21, 1972, granted certificate under Article 133(1)(b) and (c) of the Constitution on the ques- tion of vires of sections 4, 5A and 6 of the Land Acquisi- tion Act. 5. Mr. Dave confines his submissions before us only to, the following points, which we will deal with seriatim:"First, that in spite of the appellants request for furnishing a copy of the report under section 5A the Collector did not grant him a copy. He complains that there was no proper and adequate heating under section 5A(2) of the Act. According to the learned counsel a proper hearing would include furnishing of a copy of the report under section 5A. We are unable to accept this submission. Although, ordinarily, t here should be no difficulty in furnishing a copy of the report under section 5A to an objector, when he asks for! the same, it is not a correct proposition that bearing under section 5A is invalid because of failure to furnish a copy of the report at the conclusion of the hearing under the said section. Unless there are weighty reasons, a report in public enquiry like this, should be available to the persons who take part in the enquiry. But failure to furnish a copy of the report of such an enquiry cannot vitiate the enquiry if it is otherwise not open to any valid objection. Apart from this solitary ground, our attention has not been drawn to any infirmity in the hearing under section 5A. We are, there- fore unable to hold that the said enquiry under section 5A was invalid.The matter would have been different if a second enquiry were essential under the law at the stage when the State Government was considering the report under section 5A for issuing its declaration under section 6 of the Act. We are, however, clearly of opinion that there is no reason to hold that a second hearing by the State Government at that stage is necessary under section 6 of the Act, (See Abdul Husein Tayabali &Ors. v. State of Gujarat &Ors.([1968] 1 S.C.R. 597.) Since that is the position in law, failure to fur- nish a copy, of the report under section 8A is innocuous. The matter, again, may be different if there is a proper allegation of mala fide against the Collector or the S tate Government. There is no such allegation in this case. The first submission of the learned counsel is, therefore, devoid of substance." 6. The learned counsel next contends that there was considerable delay between the notification under section 4 which was issued on June 7, 1966, and the declaration under section 6 made on January 13, 1969. Since numerous dags of land belonging to a number of persons were the subject m atter of acquisition and individual objections had to. be heard, we do not think that there has been any inordinate delay in making the notification. Even. the appellant has not submitted before the High Court a copy of hi s written objection nor is the same produced before us to indicate when his objections were actually filed and whether he was not also responsible for some delay in the conclusion of the enquiry. The delay in this case is only about 21/2 years and, as we have said, there is not even a clear statement of the responsibility for delay which may be attributable to the Government. The second submission of the learned counsel is also of no avail.Mr. Dave lastly submits that the notification under section 4 did not contain the public purpose as the requirement for "fire station". The notification, says counsel, mentioned station, work shop and parking purpose. He is able to make this submission from a copy of the notification in the Paper Book at page 20 (Ex. A). We are, however, unable to agree with counsel that the notification under section 4 did not in fact contain the purpose as fire station. Even in the statement of case of the appellant which we have set out earlier, no objection was ever taken against the so-called vague description of the requirement in the notification. On the other hand, it was conceded, therein, that the purpose was fire station, workshop and parking purpose and the objection was that the appellants land was not "suited for the construction of fire station". There is, therefore, no substance in this submission. 7. This Court rather liberally grants prayers for dispens- ing with statement of case when such requests are made by parties. Indeed, the form in vogue, in which statements of case are submitted in this Court, has perhaps outlived its practical utility in hearings before this Court. If anything, besides being expensive, it causes delay in making appeals ready for hearing. 8. We, however, feel, instead of the usual statements of case by both the parties, a very succinct statement of case and a list of dates submitted by the appellant alone. with material facts necessary for deciding the questions of law together with the findings of fact of the court below and pinpointing the only legal issues to be raised in this Court will be of advantage in expeditious disposal of appeals before this Court. 9. For once, on occasion, we are able to; say that the statement of case in this appeal is of use to us in visiting the appellant with the forfeiture of his right to make his last submission with regard to the vagueness or ambiguity of the purpose mentioned in the notification under section 4 of the Act.
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Although, ordinarily, t here should be no difficulty in furnishing a copy of the report under section 5A to an objector, when he asks for! the same, it is not a correct proposition that bearing under section 5A is invalid because of failure to furnish a copy of the report at the conclusion of the hearing under the said section. Unless there are weighty reasons, a report in public enquiry like this, should be available to the persons who take part in the enquiry. But failure to furnish a copy of the report of such an enquiry cannot vitiate the enquiry if it is otherwise not open to any valid objection. Apart from this solitary ground, our attention has not been drawn to any infirmity in the hearing under section 5A. We are, there- fore unable to hold that the said enquiry under section 5A was invalid.The matter would have been different if a second enquiry were essential under the law at the stage when the State Government was considering the report under section 5A for issuing its declaration under section 6 of the Act. We are, however, clearly of opinion that there is no reason to hold that a second hearing by the State Government at that stage is necessary under section 6 of the Act, (See Abdul Husein Tayabali &Ors. v. State of Gujarat &Ors.([1968] 1 S.C.R. 597.) Since that is the position in law, failure to fur- nish a copy, of the report under section 8A is innocuous. The matter, again, may be different if there is a proper allegation of mala fide against the Collector or the S tate Government. There is no such allegation in this case. The first submission of the learned counsel is, therefore, devoid of substanceSince numerous dags of land belonging to a number of persons were the subject m atter of acquisition and individual objections had to. be heard, we do not think that there has been any inordinate delay in making the notification. Even. the appellant has not submitted before the High Court a copy of hi s written objection nor is the same produced before us to indicate when his objections were actually filed and whether he was not also responsible for some delay in the conclusion of the enquiry. The delay in this case is only about 21/2 years and, as we have said, there is not even a clear statement of the responsibility for delay which may be attributable to the Government. The second submission of the learned counsel is also of no avail.Mr. Dave lastly submits that the notification under section 4 did not contain the public purpose as the requirement for "fire station". The notification, says counsel, mentioned station, work shop and parking purpose. He is able to make this submission from a copy of the notification in the Paper Book at page 20 (Ex. A). We are, however, unable to agree with counsel that the notification under section 4 did not in fact contain the purpose as fire station. Even in the statement of case of the appellant which we have set out earlier, no objection was ever taken against the so-called vague description of the requirement in the notification. On the other hand, it was conceded, therein, that the purpose was fire station, workshop and parking purpose and the objection was that the appellants land was not "suited for the construction of fire station". There is, therefore, no substance in this submissionThis Court rather liberally grants prayers for dispens- ing with statement of case when such requests are made by parties. Indeed, the form in vogue, in which statements of case are submitted in this Court, has perhaps outlived its practical utility in hearings before this Court. If anything, besides being expensive, it causes delay in making appeals ready for hearingWe, however, feel, instead of the usual statements of case by both the parties, a very succinct statement of case and a list of dates submitted by the appellant alone. with material facts necessary for deciding the questions of law together with the findings of fact of the court below and pinpointing the only legal issues to be raised in this Court will be of advantage in expeditious disposal of appeals before this CourtFor once, on occasion, we are able to; say that the statement of case in this appeal is of use to us in visiting the appellant with the forfeiture of his right to make his last submission with regard to the vagueness or ambiguity of the purpose mentioned in the notification under section 4 of the Act.
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Khazan Singh Etc. Etc Vs. State Of U.P. & Ors | which we are concerned was inserted in the Act by the Union Parliament.The State Government in approving a scheme in respect of an inter-State route under sub-section (3) of Section 68-D of the Act exercises a statutory power which has been vested in it by a law made by the Parliament. The said law relates to the creation of a State monopoly in the matter of transport service. The executive power of the Union and each State under Article 298 of the Constitution extends, inter alia, to the carrying on of any trade or business. There is nothing in Article 298 to show that the trade or business carried on by a State must be restricted to the area within its territorial limits. On the contrary, the article envisages the carrying on of the trade and business by a State without any territorial limitations. The only restriction on the executive power of the State in this respect is contained in clause (b) of the proviso to that article.According to that clause, the executive power of the State shall, in so far as such trade or business is not one with respect to which the State Legislature may make laws, be subject to legislation by Parliament.13. Entry 35 in List III of Seventh Schedule to the Constitution relates to mechanically propelled vehicles including the principles on which taxes on such vehicles are to be levied. Under Entry 21 in List III of the Seventh Schedule, the Parliament can make laws for commercial and industrial monopolies. The expression "commercial and industrial monopolies", as held by this Court in the case of H. C. Narayanappa v. State of Mysore, (1960) 3 SCR 742 = (AIR 1960 Sc 1073 ),is wide enough to include grant or creation of commercial or industrial monopolies to the State and citizens as well as control of monopolies. Dealing with the question of State monopoly in the matter of transport service as envisaged by Chapter IV A of the Act, Shah J. speaking for the Court observed in the above mentioned case:"The amplitude of the powers under the entry in the concurrent list expressly dealing with commercial and industrial monopolies cannot be presumed to be restricted by the generality of the expression trade and commerce in the State List. If the argument of the petitioners and the intervener that legislation relating to monopoly in respect of trade and industry is within the exclusive competence of the State be accepted, the Union Parliament cannot legislate to create monopolies in the Union Government in respect of any commercial or trading venture even though power to carry on any trade or business under a monopoly is reserved to the Union by the combined operation of Art. 298, and the law which is protected from the attack that it infringes the fundamental freedom to carry on business by Art. 19 (6). We are therefore of the view that Chapter IVA could competently be enacted by the Parliament under Entry No. 21 read with Entry No. 35 of the Concurrent List".A scheme approved by the State Government under sub-section (3) of Section 68-D of the Act effectuates the object of State monopoly in the matter of transport service. Such a scheme, in our opinion, does not entail encroachment by one State Government upon the executive sphere of another State Government.The action taken by the Uttar Pradesh Government in furtherance of the objective of a State monopoly in accordance with the statute made by Parliament cannot, in our opinion, be struck down on the ground of encroachment upon the executive power of the Rajasthan Government. In any case, there is no question of encroachment upon the executive domain of the State of Rajasthan in the present case as the whole thing is being done by the Uttar Paradesh Government with the concurrence of the Government of Rajasthan and the two Governments are acting in concert.14. In view of the above, it is not necessary to go into the question as to whether the validity of the action of the Uttar Pradesh Government in according approval to the scheme can be sustained under clause (2) of Article 258 of the Constitution.15. The appellants have not challenged the constitutional validity of the proviso to sub-section (3) of Section 68-D of the Act. It has, however, been urged on their behalf that the proviso should be construed in such a manner so as not to contravene the articles of the Constitution. In our opinion, the construction which we have placed upon the aforesaid proviso entails no contravention of the articles of Constitution.16. We may now deal with some of the cases which have been cited on behalf of the appellants. The case of King-Emperor v. Sibnath Banerji, 72 Ind App 241= (AIR 1945 PC 156 ), related to the validity of Rule 26 of the Defence of India Rules framed under the Defence of India Act, 1939. The rule was held to be valid. It was also held that it was not necessary for the Governor to be personally satisfied before an order under the above Rule could be made. Dealing with the term "executive", the Judicial Committee held that it includes both a decision as to action and the carrying out of such a decision. Their Lord-ships further expressed disagreement with the view which sought narrow reading of Sections 49 (2) and 124 (2) of the Government of India Act, 1935. The case of In re The Delhi Laws Act, 1912, 1951 SCR 747 = (AIR 1951 SC 332 ) related to the delegation of legislative power and the difference between delegation of legislative power and conditional legislation. Gullapalli Nageswara Rao v. Andhra Pradesh State Road Transport Corporation, 1959 Supp (1) SCR 319 = (AIR 1959 SC 308 ) dealt with the procedure to be followed for nationalising transport service. None of the above cited cases, in our opinion, are of any real assistance to the appellants because the question involved in these appeals is materially different.17. | 0[ds]This contention, in our opinion, cannot be accepted as it runs counter to the plain language of the proviso to sub-section (3) of Section 68-D of the Act. According to the proviso, no scheme which relates to an inter-State route shall be deemed to be an approved scheme unless it has been published in the Official Gazette with the previous approval of the Central Government. The proviso manifestly contemplates that the State Government, can in accordance with the procedure laid down in Chapter IVA of the Act approve a scheme relating to an inter-State route and publish the same.The only limitation on the power of the State Government in this respect is that it should before publishing the scheme obtain the prior approval of the Central Government. Such previous approval of the Central Government was admittedly obtained in respect of the inter-State route with which we are concerned, as per letter dated February 19, 1963. An inter-State route is one of which one of the termini falls in one State and the other in another State. Agra-Dholpur route is admittedly an inter-State route as the termini of the route are situated in two different States. In the face of the proviso to sub-section (3) of Section 68-D of the Act, we find it difficult to accede to the submission that the Uttar Pradesh Government was not competent to approve and publish the impugned scheme relating to Agra-DholpurState Government is competent to approve a scheme for a nationalisation of transport service on a route within its own territory if it complies with the other necessary formalities prescribed by law. There is in such an event no necessity to obtain any approval of the Central Government. The necessity of obtaining prior approval of the Central Government arises because the scheme envisages nationalisation of transport service not only for that part of the inter-State route which is within the territorial limits of the State Government approving the scheme but also for the remaining part of the route which is outside the said territorial limits. Inter-State route would normally cover the entire route and not merely the portion of the route which is within the territorial limits of the State Government which accordsState Government in approving a scheme does not legislate in the sense the Legislature of a State makes law under Article 245 of the Constitution for the whole or any part of the State. The limitation on the power of a State Legislature to make laws for the whole or any part of the State and not for areas outside the territorial limits of the State cannot be invoked for the purpose of placing a restriction on the power conferred upon the State Government by Parliamentary legislation to approve a scheme relating to an inter-Statescheme approved by the State Government under sub-section (3) of Section 68-D of the Act effectuates the object of State monopoly in the matter of transport service. Such a scheme, in our opinion, does not entail encroachment by one State Government upon the executive sphere of another State Government.The action taken by the Uttar Pradesh Government in furtherance of the objective of a State monopoly in accordance with the statute made by Parliament cannot, in our opinion, be struck down on the ground of encroachment upon the executive power of the Rajasthan Government. In any case, there is no question of encroachment upon the executive domain of the State of Rajasthan in the present case as the whole thing is being done by the Uttar Paradesh Government with the concurrence of the Government of Rajasthan and the two Governments are acting in concert.In view of the above, it is not necessary to go into the question as to whether the validity of the action of the Uttar Pradesh Government in according approval to the scheme can be sustained under clause (2) of Article 258 of the Constitution.The appellants have not challenged the constitutional validity of the proviso to sub-section (3) of Section 68-D of the Act. It has, however, been urged on their behalf that the proviso should be construed in such a manner so as not to contravene the articles of the Constitution. In our opinion, the construction which we have placed upon the aforesaid proviso entails no contravention of the articles ofof the above cited cases, in our opinion, are of any real assistance to the appellants because the question involved in these appeals is materially different. | 0 | 4,364 | 791 | ### Instruction:
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which we are concerned was inserted in the Act by the Union Parliament.The State Government in approving a scheme in respect of an inter-State route under sub-section (3) of Section 68-D of the Act exercises a statutory power which has been vested in it by a law made by the Parliament. The said law relates to the creation of a State monopoly in the matter of transport service. The executive power of the Union and each State under Article 298 of the Constitution extends, inter alia, to the carrying on of any trade or business. There is nothing in Article 298 to show that the trade or business carried on by a State must be restricted to the area within its territorial limits. On the contrary, the article envisages the carrying on of the trade and business by a State without any territorial limitations. The only restriction on the executive power of the State in this respect is contained in clause (b) of the proviso to that article.According to that clause, the executive power of the State shall, in so far as such trade or business is not one with respect to which the State Legislature may make laws, be subject to legislation by Parliament.13. Entry 35 in List III of Seventh Schedule to the Constitution relates to mechanically propelled vehicles including the principles on which taxes on such vehicles are to be levied. Under Entry 21 in List III of the Seventh Schedule, the Parliament can make laws for commercial and industrial monopolies. The expression "commercial and industrial monopolies", as held by this Court in the case of H. C. Narayanappa v. State of Mysore, (1960) 3 SCR 742 = (AIR 1960 Sc 1073 ),is wide enough to include grant or creation of commercial or industrial monopolies to the State and citizens as well as control of monopolies. Dealing with the question of State monopoly in the matter of transport service as envisaged by Chapter IV A of the Act, Shah J. speaking for the Court observed in the above mentioned case:"The amplitude of the powers under the entry in the concurrent list expressly dealing with commercial and industrial monopolies cannot be presumed to be restricted by the generality of the expression trade and commerce in the State List. If the argument of the petitioners and the intervener that legislation relating to monopoly in respect of trade and industry is within the exclusive competence of the State be accepted, the Union Parliament cannot legislate to create monopolies in the Union Government in respect of any commercial or trading venture even though power to carry on any trade or business under a monopoly is reserved to the Union by the combined operation of Art. 298, and the law which is protected from the attack that it infringes the fundamental freedom to carry on business by Art. 19 (6). We are therefore of the view that Chapter IVA could competently be enacted by the Parliament under Entry No. 21 read with Entry No. 35 of the Concurrent List".A scheme approved by the State Government under sub-section (3) of Section 68-D of the Act effectuates the object of State monopoly in the matter of transport service. Such a scheme, in our opinion, does not entail encroachment by one State Government upon the executive sphere of another State Government.The action taken by the Uttar Pradesh Government in furtherance of the objective of a State monopoly in accordance with the statute made by Parliament cannot, in our opinion, be struck down on the ground of encroachment upon the executive power of the Rajasthan Government. In any case, there is no question of encroachment upon the executive domain of the State of Rajasthan in the present case as the whole thing is being done by the Uttar Paradesh Government with the concurrence of the Government of Rajasthan and the two Governments are acting in concert.14. In view of the above, it is not necessary to go into the question as to whether the validity of the action of the Uttar Pradesh Government in according approval to the scheme can be sustained under clause (2) of Article 258 of the Constitution.15. The appellants have not challenged the constitutional validity of the proviso to sub-section (3) of Section 68-D of the Act. It has, however, been urged on their behalf that the proviso should be construed in such a manner so as not to contravene the articles of the Constitution. In our opinion, the construction which we have placed upon the aforesaid proviso entails no contravention of the articles of Constitution.16. We may now deal with some of the cases which have been cited on behalf of the appellants. The case of King-Emperor v. Sibnath Banerji, 72 Ind App 241= (AIR 1945 PC 156 ), related to the validity of Rule 26 of the Defence of India Rules framed under the Defence of India Act, 1939. The rule was held to be valid. It was also held that it was not necessary for the Governor to be personally satisfied before an order under the above Rule could be made. Dealing with the term "executive", the Judicial Committee held that it includes both a decision as to action and the carrying out of such a decision. Their Lord-ships further expressed disagreement with the view which sought narrow reading of Sections 49 (2) and 124 (2) of the Government of India Act, 1935. The case of In re The Delhi Laws Act, 1912, 1951 SCR 747 = (AIR 1951 SC 332 ) related to the delegation of legislative power and the difference between delegation of legislative power and conditional legislation. Gullapalli Nageswara Rao v. Andhra Pradesh State Road Transport Corporation, 1959 Supp (1) SCR 319 = (AIR 1959 SC 308 ) dealt with the procedure to be followed for nationalising transport service. None of the above cited cases, in our opinion, are of any real assistance to the appellants because the question involved in these appeals is materially different.17.
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This contention, in our opinion, cannot be accepted as it runs counter to the plain language of the proviso to sub-section (3) of Section 68-D of the Act. According to the proviso, no scheme which relates to an inter-State route shall be deemed to be an approved scheme unless it has been published in the Official Gazette with the previous approval of the Central Government. The proviso manifestly contemplates that the State Government, can in accordance with the procedure laid down in Chapter IVA of the Act approve a scheme relating to an inter-State route and publish the same.The only limitation on the power of the State Government in this respect is that it should before publishing the scheme obtain the prior approval of the Central Government. Such previous approval of the Central Government was admittedly obtained in respect of the inter-State route with which we are concerned, as per letter dated February 19, 1963. An inter-State route is one of which one of the termini falls in one State and the other in another State. Agra-Dholpur route is admittedly an inter-State route as the termini of the route are situated in two different States. In the face of the proviso to sub-section (3) of Section 68-D of the Act, we find it difficult to accede to the submission that the Uttar Pradesh Government was not competent to approve and publish the impugned scheme relating to Agra-DholpurState Government is competent to approve a scheme for a nationalisation of transport service on a route within its own territory if it complies with the other necessary formalities prescribed by law. There is in such an event no necessity to obtain any approval of the Central Government. The necessity of obtaining prior approval of the Central Government arises because the scheme envisages nationalisation of transport service not only for that part of the inter-State route which is within the territorial limits of the State Government approving the scheme but also for the remaining part of the route which is outside the said territorial limits. Inter-State route would normally cover the entire route and not merely the portion of the route which is within the territorial limits of the State Government which accordsState Government in approving a scheme does not legislate in the sense the Legislature of a State makes law under Article 245 of the Constitution for the whole or any part of the State. The limitation on the power of a State Legislature to make laws for the whole or any part of the State and not for areas outside the territorial limits of the State cannot be invoked for the purpose of placing a restriction on the power conferred upon the State Government by Parliamentary legislation to approve a scheme relating to an inter-Statescheme approved by the State Government under sub-section (3) of Section 68-D of the Act effectuates the object of State monopoly in the matter of transport service. Such a scheme, in our opinion, does not entail encroachment by one State Government upon the executive sphere of another State Government.The action taken by the Uttar Pradesh Government in furtherance of the objective of a State monopoly in accordance with the statute made by Parliament cannot, in our opinion, be struck down on the ground of encroachment upon the executive power of the Rajasthan Government. In any case, there is no question of encroachment upon the executive domain of the State of Rajasthan in the present case as the whole thing is being done by the Uttar Paradesh Government with the concurrence of the Government of Rajasthan and the two Governments are acting in concert.In view of the above, it is not necessary to go into the question as to whether the validity of the action of the Uttar Pradesh Government in according approval to the scheme can be sustained under clause (2) of Article 258 of the Constitution.The appellants have not challenged the constitutional validity of the proviso to sub-section (3) of Section 68-D of the Act. It has, however, been urged on their behalf that the proviso should be construed in such a manner so as not to contravene the articles of the Constitution. In our opinion, the construction which we have placed upon the aforesaid proviso entails no contravention of the articles ofof the above cited cases, in our opinion, are of any real assistance to the appellants because the question involved in these appeals is materially different.
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Anglo American Direct Tea Trading Co.Ltd Vs. Commissioner Of Agricultural Income-Tax,Kerala State, Triv | within the State is determined under S. 6 of the Kerala Agricultural Income-tax Act read with R. 15 of the Kerala Agricultural Income-tax Rules. 5. Our attention was drawn to the provisions of (a) Ss. 8 (2), 24 (1) proviso 24 (2) proviso; 25 (4) and 25, (5) of the Bengal Agricultural Income-tax Act, 1944 and Rules 7 and 8 of the Bengal Agricultural Income-tax Rules 1944, (b) S. 8 of the Mysore Agricultural Income-tax. Act, 1957 and Rule 6 of the Mysore Agricultural Income-tax Rules, 1957, (c) S. 8 of the Coorg Agricultural Income-tax Act, 1951, (d) the second proviso to S. 8 of the Assam Agricultural Income-tax Act, 1939 and Rule 5 of the Assam Agricultural Income-tax Rules, 1939 (e) Explanation 1 to S. 2 (a) (2) of the Madras Plantations Agricultural Income-tax Act, 1955 and R 7 (1) of the Madras Plantations Agricultural Income-tax Rules, 1955 and (f) R 5 of the Bihar Agricultural Income-tax Rules. 1949. Under some Acts and Rules, the Agricultural Income-tax Officer is bound to adopt the assessment of the tea income made by the Central Income-tax authorities. But under some other Acts and Rules he is authorised in special cases to disregard this assessment and to make a fresh computation of the tea income.We express no opinion on the construction of these Acts and Rules. For the purpose of these appeals, it is sufficient to say that the Kerala Agricultural Income-tax Act and Rules do not confer upon the Agricultural Income-tax Officer the power to disregard the assessment of the tea income already made by the Central income-tax authorities. We are unable to introduce by way of implication in a taxing statute a provision which requires explicit statement. 6. Difficulties may arise in making an assessment of agricultural income under the Kerala Agricultural Income-tax Act on the basis of the Assessment of the tea income made by the Central income-tax authorities. The previous year under S. 2 (o) (i) of the Kerala Act may be different from the previous year under the Indian Income-tax Act. This difficulty may be resolved by fixing the previous year for this class of income under S. 2 (o) (ii) in conformity with the previous year under the Indian Income-tax Act. But the artificial previous year under S. 2-A is not subject to the provisions of S. 2 (o) (ii). Moreover, S. 22 authorises the assessment of income for the period from the expiry of a previous year to the probable date of the departure of the assessee from the State. It may be difficult to make an assessment under S. 22 or on the basis of the previous year under S. 2-A in the absence of any rule fixing the income for a broken part of the year with reference to an assessment made under the Indian Income-tax Act. In spite of these and other difficulties in the working of the Act, we are unable to agree with the decision in (1965) 56 ITR 193 (Ker) or to hold that the Agricultural income-tax Officer can ignore the assessment of the tea income already made by the Central income-tax authorities. 7. On behalf of the appellants, it was argued that the power to compute business income under R. 24 read with S. 10 of the Indian Income-tax Act having regard particularly to proviso (a) to sub-s. (2) (vi), the proviso to sub-s. 2 (vi-b), sub-clause (g) of the second proviso to sub-s. 2 (xiv), sub-s. (4-A) and the first proviso to sub-s. 5 (a) of S. 10 must be exercised by the Central Income-tax Officer alone, that there is no provision in the Kerala Act conferring this power on the Agricultural Income-tax Officer and that therefore the assessment of agricultural income must wait until the assessments by the Central Income-tax Officer under R. 24 read with S 10. This wider question does not arise for decision and is left open. In all the cases before us, the assessments by the Central income-tax Officer were completed before the Agricultural Income-tax Officer proceeded to assess the agricultural income.For the purpose of these appeals, it is sufficient to say that the Agricultural Income-tax Officer acting under the Kerala Agricultural Income-tax Act 1950 is bound to follow the assessment of income by the Central Income-tax Officer under R. 24 of the income-tax Rules, 1922 and R 8 of the Income-tax Rules 1962 where such assessment has been made before the Agricultural Income-tax Officer proceeds to make the assessment under the Kerala Act.The question referred to the High Court is answered accordingly. We must not be understood to say that the assessment made by the Central Income- tax Officer under R 23 of the Income tax Rules, 1962 or R 7 of the Income-tax Rules, 1962 is in any way binding on the Agricultural Income-tax Officer. 8. In Civil Appeals Nos. 585 to 588 of 1966 and 589 to 591 of 1966, the Agricultural Income-tax Officer made a surcharge of 5 per cent for the assessment year 1957-58 under the Kerala Surcharge on Taxes Act, 1957. On appeal, the Deputy Commissioner held that the surcharge was rightly made. On further appeal, the Appellate Tribunal held that the levy of the surcharge was illegal. On the application of the respondent, the Appellate Tribunal referred the following additional question of law to the High Court. "Whether on the facts and circumstances of the case the Tribunal is justified in holding that surcharge on agricultural Income-tax cannot be levied for the assessment year 1957-58?" The High Court answered this question in favour of the Revenue and against the assessee. This decision must be set aside.In Karimtharuvi Tea Estate Ltd. v. State of Kerala, (1966) 60 ITR 262 = (AIR 1966 SC 1385 ) this Court held that no surcharge on agricultural income can be levied under the Kerala Surcharge on Taxes Act, 1957 in respect of the assessment year 1957-58. The second question is answered accordingly in favour of the assessee and against the Revenue. | 1[ds]We think that this question should be answered in the affirmative. Income from sale of tea grown and manufactured by the seller is derived partly from business and partly from agriculture. This income has to be computed as if it were income from business under the Central Income-tax Act and Rules, 40 per cent of the income so computed is deemed to be income derived from business and assessable to non-agricultural income-tax. Having regard to the decision in 1963 Supp 1 SCR 823 = (AIR 1963 SC 760 ), we are bound to hold that (a) the Explanation to S. 2 (a) (2) of the Kerala Agricultural Income-tax Act adopts this rule of computation and (b) the balance 60 per cent of the income so computed is agricultural income within the meaning of the Central Income-tax Act and the Constitution. The agricultural income taxable under the Kerala Act is 60 per cent of the income so computed after deducting therefrom the allowances authorised by S. 5 of the Kerala Act in so far as the same has not already been allowed in the assessment under the Central Income-tax Act. There is no provision in the Kerala Act authorising the Agricultural Income-tax Officer to disregard the computation of the tea income made by the income-tax authorities acting under the Central Income-tax Acts. The Agricultural Income-tax Officer in making an assessment of agricultural income is bound to accept the computation of the tea income already made by the Central Income-tax authorities and to assess only 60 per cent of the income so computed less allowable deductions as agricultural income taxable under the Kerala Act. Where the agricultural income is derived from lands partly within the State of Kerala and partly outside the State, the portion of the income attributable to lands within the State is determined under S. 6 of the Kerala Agricultural Income-tax Act read with R. 15 of the Kerala Agricultural Income-tax Rules. Under some Acts and Rules, the Agricultural Income-tax Officer is bound to adopt the assessment of the tea income made by the Central Income-tax authorities. But under some other Acts and Rules he is authorised in special cases to disregard this assessment and to make a fresh computation of the tea income.We express no opinion on the construction of these Acts and Rules. For the purpose of these appeals, it is sufficient to say that the Kerala Agricultural Income-tax Act and Rules do not confer upon the Agricultural Income-tax Officer the power to disregard the assessment of the tea income already made by the Central income-tax authorities. We are unable to introduce by way of implication in a taxing statute a provision which requires explicit statement6. Difficulties may arise in making an assessment of agricultural income under the Kerala Agricultural Income-tax Act on the basis of the Assessment of the tea income made by the Central income-tax authorities. The previous year under S. 2 (o) (i) of the Kerala Act may be different from the previous year under the Indian Income-tax Act. This difficulty may be resolved by fixing the previous year for this class of income under S. 2 (o) (ii) in conformity with the previous year under the Indian Income-tax Act. But the artificial previous year under S. 2-A is not subject to the provisions of S. 2 (o) (ii). Moreover, S. 22 authorises the assessment of income for the period from the expiry of a previous year to the probable date of the departure of the assessee from the State. It may be difficult to make an assessment under S. 22 or on the basis of the previous year under S. 2-A in the absence of any rule fixing the income for a broken part of the year with reference to an assessment made under the Indian Income-tax Act. In spite of these and other difficulties in the working of the Act, we are unable to agree with the decision in (1965) 56 ITR 193 (Ker) or to hold that the Agricultural income-tax Officer can ignore the assessment of the tea income already made by the Central income-tax authoritiesThis wider question does not arise for decision and is left open. In all the cases before us, the assessments by the Central income-tax Officer were completed before the Agricultural Income-tax Officer proceeded to assess the agricultural income.For the purpose of these appeals, it is sufficient to say that the Agricultural Income-tax Officer acting under the Kerala Agricultural Income-tax Act 1950 is bound to follow the assessment of income by the Central Income-tax Officer under R. 24 of the income-tax Rules, 1922 and R 8 of the Income-tax Rules 1962 where such assessment has been made before the Agricultural Income-tax Officer proceeds to make the assessment under the Kerala Act.The question referred to the High Court is answered accordingly. We must not be understood to say that the assessment made by the Central Income- tax Officer under R 23 of the Income tax Rules, 1962 or R 7 of the Income-tax Rules, 1962 is in any way binding on the Agricultural Income-tax Officer8. In Civil Appeals Nos. 585 to 588 of 1966 and 589 to 591 of 1966, the Agricultural Income-tax Officer made a surcharge of 5 per cent for the assessment year 1957-58 under the Kerala Surcharge on Taxes Act, 1957. On appeal, the Deputy Commissioner held that the surcharge was rightly made. On further appeal, the Appellate Tribunal held that the levy of the surcharge was illegal. On the application of the respondent, the Appellate Tribunal referred the following additional question of law to the High Court. "Whether on the facts and circumstances of the case the Tribunal is justified in holding that surcharge on agricultural Income-tax cannot be levied for the assessment year 1957-58?" The High Court answered this question in favour of the Revenue and against the assessee. This decision must be set aside.In Karimtharuvi Tea Estate Ltd. v. State of Kerala, (1966) 60 ITR 262 = (AIR 1966 SC 1385 ) this Court held that no surcharge on agricultural income can be levied under the Kerala Surcharge on Taxes Act, 1957 in respect of the assessment year 1957-58. The second question is answered accordingly in favour of the assessee and against the Revenue. | 1 | 3,146 | 1,126 | ### 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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within the State is determined under S. 6 of the Kerala Agricultural Income-tax Act read with R. 15 of the Kerala Agricultural Income-tax Rules. 5. Our attention was drawn to the provisions of (a) Ss. 8 (2), 24 (1) proviso 24 (2) proviso; 25 (4) and 25, (5) of the Bengal Agricultural Income-tax Act, 1944 and Rules 7 and 8 of the Bengal Agricultural Income-tax Rules 1944, (b) S. 8 of the Mysore Agricultural Income-tax. Act, 1957 and Rule 6 of the Mysore Agricultural Income-tax Rules, 1957, (c) S. 8 of the Coorg Agricultural Income-tax Act, 1951, (d) the second proviso to S. 8 of the Assam Agricultural Income-tax Act, 1939 and Rule 5 of the Assam Agricultural Income-tax Rules, 1939 (e) Explanation 1 to S. 2 (a) (2) of the Madras Plantations Agricultural Income-tax Act, 1955 and R 7 (1) of the Madras Plantations Agricultural Income-tax Rules, 1955 and (f) R 5 of the Bihar Agricultural Income-tax Rules. 1949. Under some Acts and Rules, the Agricultural Income-tax Officer is bound to adopt the assessment of the tea income made by the Central Income-tax authorities. But under some other Acts and Rules he is authorised in special cases to disregard this assessment and to make a fresh computation of the tea income.We express no opinion on the construction of these Acts and Rules. For the purpose of these appeals, it is sufficient to say that the Kerala Agricultural Income-tax Act and Rules do not confer upon the Agricultural Income-tax Officer the power to disregard the assessment of the tea income already made by the Central income-tax authorities. We are unable to introduce by way of implication in a taxing statute a provision which requires explicit statement. 6. Difficulties may arise in making an assessment of agricultural income under the Kerala Agricultural Income-tax Act on the basis of the Assessment of the tea income made by the Central income-tax authorities. The previous year under S. 2 (o) (i) of the Kerala Act may be different from the previous year under the Indian Income-tax Act. This difficulty may be resolved by fixing the previous year for this class of income under S. 2 (o) (ii) in conformity with the previous year under the Indian Income-tax Act. But the artificial previous year under S. 2-A is not subject to the provisions of S. 2 (o) (ii). Moreover, S. 22 authorises the assessment of income for the period from the expiry of a previous year to the probable date of the departure of the assessee from the State. It may be difficult to make an assessment under S. 22 or on the basis of the previous year under S. 2-A in the absence of any rule fixing the income for a broken part of the year with reference to an assessment made under the Indian Income-tax Act. In spite of these and other difficulties in the working of the Act, we are unable to agree with the decision in (1965) 56 ITR 193 (Ker) or to hold that the Agricultural income-tax Officer can ignore the assessment of the tea income already made by the Central income-tax authorities. 7. On behalf of the appellants, it was argued that the power to compute business income under R. 24 read with S. 10 of the Indian Income-tax Act having regard particularly to proviso (a) to sub-s. (2) (vi), the proviso to sub-s. 2 (vi-b), sub-clause (g) of the second proviso to sub-s. 2 (xiv), sub-s. (4-A) and the first proviso to sub-s. 5 (a) of S. 10 must be exercised by the Central Income-tax Officer alone, that there is no provision in the Kerala Act conferring this power on the Agricultural Income-tax Officer and that therefore the assessment of agricultural income must wait until the assessments by the Central Income-tax Officer under R. 24 read with S 10. This wider question does not arise for decision and is left open. In all the cases before us, the assessments by the Central income-tax Officer were completed before the Agricultural Income-tax Officer proceeded to assess the agricultural income.For the purpose of these appeals, it is sufficient to say that the Agricultural Income-tax Officer acting under the Kerala Agricultural Income-tax Act 1950 is bound to follow the assessment of income by the Central Income-tax Officer under R. 24 of the income-tax Rules, 1922 and R 8 of the Income-tax Rules 1962 where such assessment has been made before the Agricultural Income-tax Officer proceeds to make the assessment under the Kerala Act.The question referred to the High Court is answered accordingly. We must not be understood to say that the assessment made by the Central Income- tax Officer under R 23 of the Income tax Rules, 1962 or R 7 of the Income-tax Rules, 1962 is in any way binding on the Agricultural Income-tax Officer. 8. In Civil Appeals Nos. 585 to 588 of 1966 and 589 to 591 of 1966, the Agricultural Income-tax Officer made a surcharge of 5 per cent for the assessment year 1957-58 under the Kerala Surcharge on Taxes Act, 1957. On appeal, the Deputy Commissioner held that the surcharge was rightly made. On further appeal, the Appellate Tribunal held that the levy of the surcharge was illegal. On the application of the respondent, the Appellate Tribunal referred the following additional question of law to the High Court. "Whether on the facts and circumstances of the case the Tribunal is justified in holding that surcharge on agricultural Income-tax cannot be levied for the assessment year 1957-58?" The High Court answered this question in favour of the Revenue and against the assessee. This decision must be set aside.In Karimtharuvi Tea Estate Ltd. v. State of Kerala, (1966) 60 ITR 262 = (AIR 1966 SC 1385 ) this Court held that no surcharge on agricultural income can be levied under the Kerala Surcharge on Taxes Act, 1957 in respect of the assessment year 1957-58. The second question is answered accordingly in favour of the assessee and against the Revenue.
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### Explanation:
Central Income-tax Act and Rules, 40 per cent of the income so computed is deemed to be income derived from business and assessable to non-agricultural income-tax. Having regard to the decision in 1963 Supp 1 SCR 823 = (AIR 1963 SC 760 ), we are bound to hold that (a) the Explanation to S. 2 (a) (2) of the Kerala Agricultural Income-tax Act adopts this rule of computation and (b) the balance 60 per cent of the income so computed is agricultural income within the meaning of the Central Income-tax Act and the Constitution. The agricultural income taxable under the Kerala Act is 60 per cent of the income so computed after deducting therefrom the allowances authorised by S. 5 of the Kerala Act in so far as the same has not already been allowed in the assessment under the Central Income-tax Act. There is no provision in the Kerala Act authorising the Agricultural Income-tax Officer to disregard the computation of the tea income made by the income-tax authorities acting under the Central Income-tax Acts. The Agricultural Income-tax Officer in making an assessment of agricultural income is bound to accept the computation of the tea income already made by the Central Income-tax authorities and to assess only 60 per cent of the income so computed less allowable deductions as agricultural income taxable under the Kerala Act. Where the agricultural income is derived from lands partly within the State of Kerala and partly outside the State, the portion of the income attributable to lands within the State is determined under S. 6 of the Kerala Agricultural Income-tax Act read with R. 15 of the Kerala Agricultural Income-tax Rules. Under some Acts and Rules, the Agricultural Income-tax Officer is bound to adopt the assessment of the tea income made by the Central Income-tax authorities. But under some other Acts and Rules he is authorised in special cases to disregard this assessment and to make a fresh computation of the tea income.We express no opinion on the construction of these Acts and Rules. For the purpose of these appeals, it is sufficient to say that the Kerala Agricultural Income-tax Act and Rules do not confer upon the Agricultural Income-tax Officer the power to disregard the assessment of the tea income already made by the Central income-tax authorities. We are unable to introduce by way of implication in a taxing statute a provision which requires explicit statement6. Difficulties may arise in making an assessment of agricultural income under the Kerala Agricultural Income-tax Act on the basis of the Assessment of the tea income made by the Central income-tax authorities. The previous year under S. 2 (o) (i) of the Kerala Act may be different from the previous year under the Indian Income-tax Act. This difficulty may be resolved by fixing the previous year for this class of income under S. 2 (o) (ii) in conformity with the previous year under the Indian Income-tax Act. But the artificial previous year under S. 2-A is not subject to the provisions of S. 2 (o) (ii). Moreover, S. 22 authorises the assessment of income for the period from the expiry of a previous year to the probable date of the departure of the assessee from the State. It may be difficult to make an assessment under S. 22 or on the basis of the previous year under S. 2-A in the absence of any rule fixing the income for a broken part of the year with reference to an assessment made under the Indian Income-tax Act. In spite of these and other difficulties in the working of the Act, we are unable to agree with the decision in (1965) 56 ITR 193 (Ker) or to hold that the Agricultural income-tax Officer can ignore the assessment of the tea income already made by the Central income-tax authoritiesThis wider question does not arise for decision and is left open. In all the cases before us, the assessments by the Central income-tax Officer were completed before the Agricultural Income-tax Officer proceeded to assess the agricultural income.For the purpose of these appeals, it is sufficient to say that the Agricultural Income-tax Officer acting under the Kerala Agricultural Income-tax Act 1950 is bound to follow the assessment of income by the Central Income-tax Officer under R. 24 of the income-tax Rules, 1922 and R 8 of the Income-tax Rules 1962 where such assessment has been made before the Agricultural Income-tax Officer proceeds to make the assessment under the Kerala Act.The question referred to the High Court is answered accordingly. We must not be understood to say that the assessment made by the Central Income- tax Officer under R 23 of the Income tax Rules, 1962 or R 7 of the Income-tax Rules, 1962 is in any way binding on the Agricultural Income-tax Officer8. In Civil Appeals Nos. 585 to 588 of 1966 and 589 to 591 of 1966, the Agricultural Income-tax Officer made a surcharge of 5 per cent for the assessment year 1957-58 under the Kerala Surcharge on Taxes Act, 1957. On appeal, the Deputy Commissioner held that the surcharge was rightly made. On further appeal, the Appellate Tribunal held that the levy of the surcharge was illegal. On the application of the respondent, the Appellate Tribunal referred the following additional question of law to the High Court. "Whether on the facts and circumstances of the case the Tribunal is justified in holding that surcharge on agricultural Income-tax cannot be levied for the assessment year 1957-58?" The High Court answered this question in favour of the Revenue and against the assessee. This decision must be set aside.In Karimtharuvi Tea Estate Ltd. v. State of Kerala, (1966) 60 ITR 262 = (AIR 1966 SC 1385 ) this Court held that no surcharge on agricultural income can be levied under the Kerala Surcharge on Taxes Act, 1957 in respect of the assessment year 1957-58. The second question is answered accordingly in favour of the assessee and against the Revenue.
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Pandian @ Veerapandian Vs. State of Tamil Nadu | the progress of the case. Accused no.2 surrendered on 11.6.1986. PW.1 was arrested on 27.5.1987. He made a confession on 1.6.1987. Ultimately he has turned Approver and was pardoned on 14.7.1987. The judicial confession of accused no.2 was recorded on 6.6.1987 which he has alter on retracted. Five charges were framed against the accused. The first charge indicted both the accused for having conspired in the company of PW.1 to commit the murder of Kodandapani deceased no.1 in pursuance of which conspiracy accused no.2 did commit his murder by driving the car bearing registration No. TNJ 69 and hitting the car against him at about 11.30. p.m. on 22.5.1986 on Bhvanagiri-Kodalore main road. Conspiracy was allegedly hatched between 25.4.1986 and 22.5.1986. The first charge also states that in the process of dashing against deceased no.1, A2 dashed the car against Sundaram deceased no.2, Vellaian @ Arumukum deceased no.3 and Harikrishnan PW.3 resulting in the death of D2 and D3 and causing grievous injuries to PW.3. The second charge was framed against A2 alone under Section 302 Indian Penal Code for having caused the death of D1 by dashing the car bearing No.TNJ 69 against him resulting in his death. The third and fourth charges indicted A2 similarly for having caused the death of D2 and D3 and the fifth charge was also framed against A2 under Section 307 Part II Indian Penal Code for having attempted to murder PW.3. in the course of the same transaction by dashing the car against him. On conclusion of the trial the Learned Sessions Judge acquitted both the accused of the first charge framed under Section 120-B I.P.C. A2, however, was found guilty of charges 2, 3 and 4 and was sentenced to undergo imprisonment for life on each count. He as also found guilty under the fifth charge and was sentenced to undergo rigorous imprisonment for five years; sentences to run concurrently. The State appealed before the High Court.The High Court, in a detailed judgment, has re-examined the entire evidence which was led before the Sessions Court. The two important pieces of evidence before the High Court, namely the evidence of PW.1 who has turned Approver and the judicial confession of A2 which was later retracted by him, have been considered by the High Court in the light of other evidence which materially corroborates these two pieces of evidence. The High Court has held the evidence of PW.1 as reliable. It has also relied upon the evidence of PW.13, the owner of the tea shop who has deposed to the presence of both the accused and PW.1 in his tea shop at about 5.30 p.m. two or three days prior to the incident. The High Court has held this meeting to be significant since accused no.2 was a resident of a village 40 kilometres away and the unusual visit of the accused no.2 in the company of accused no.2 and PW.1 in the tea shop of PW.13, has been taken note of as corroborative material. The High Court has also relied upon the evidence of PW.3 who has spoken about the presence of PW.1 at the shop of PW.24 at about 10.30. p.m. on the night of the incident. This witness has also spoken his leaving in the company of deceased no.1 and other for his village since it was nearing 11.00 p.m. The High Court has also noted the evidence of PW.2 who was present at the workshop of accused no.2 on that particular evening. He has deposed that PW.1 came to the workshop and stated that accused no.1 had asked for the car after which accused no.2 and PW.1 left with the car. PW.15 who is an Attendant at the petrol pump where PW.1 and A2 stopped the car to fill it up with petrol has also deposed to their presence at the petrol pump. The High Court has also referred to the testimony of PW.17 relating to the damage to the car which was involved in the incident, which fits in with the nature of the damage spoken of by PW.1.The High Court has also dealt at length on the motive for the commission of the crime and has come to the conclusion that the strongest motive was that of accused no.1. The High Court has come to the conclusion that it is the machinations of accused no.1 which led to the commission of the offences alleged. The High Court has gone into the question of delay at length regarding the initial report which indicated accidental death and the subsequent developments which ultimately led to the framing of the present charges. After a detailed reasoning the High Court has come to the conclusion that the view taken by the Sessions Judge is not a plausible view at all and consequently there has been miscarriage of justice. The High Court has reversed the order of acquittal of accused no.1 passed by the Session Judge. On the nature of the offence, the High Court has looked to the nature of the evidence and convicted accused no.1 for conspiracy. It has, however, held that though the evidence of the Approver is that the conspiracy was for commission of murder of deceased no.1, the court could not close its eyes to the judicial confession of accused no.2 which indicated that the offence expected to be committed was limited to breakage of hands and legs of deceased no.1. The High Court said that the benefit that arises out of the confession of accused no.2 cannot be denied to accused no.1. Hence the High Court has convicted accused no.1 under Section 120-B read with Section 304 Part I of the I.P.C. Similarly accused no.2 has also been convicted by the High Court under Section 120-B read with Section 304 Part I of the I.P.C. The detailed reasoning given by the High Court in its judgment in exhaustive and convincing. There is not reason to take a view different from the view taken by the High Court. | 0[ds]On the nature of the offence, the High Court has looked to the nature of the evidence and convicted accused no.1 for conspiracy. It has, however, held that though the evidence of the Approver is that the conspiracy was for commission of murder of deceased no.1, the court could not close its eyes to the judicial confession of accused no.2 which indicated that the offence expected to be committed was limited to breakage of hands and legs of deceased no.1. The High Court said that the benefit that arises out of the confession of accused no.2 cannot be denied to accused no.1. Hence the High Court has convicted accused no.1 under SectionB read with Section 304 Part I of the I.P.C. Similarly accused no.2 has also been convicted by the High Court under SectionB read with Section 304 Part I of the I.P.C. The detailed reasoning given by the High Court in its judgment in exhaustive and convincing. There is not reason to take a view different from the view taken by the High Court. | 0 | 1,865 | 191 | ### Instruction:
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the progress of the case. Accused no.2 surrendered on 11.6.1986. PW.1 was arrested on 27.5.1987. He made a confession on 1.6.1987. Ultimately he has turned Approver and was pardoned on 14.7.1987. The judicial confession of accused no.2 was recorded on 6.6.1987 which he has alter on retracted. Five charges were framed against the accused. The first charge indicted both the accused for having conspired in the company of PW.1 to commit the murder of Kodandapani deceased no.1 in pursuance of which conspiracy accused no.2 did commit his murder by driving the car bearing registration No. TNJ 69 and hitting the car against him at about 11.30. p.m. on 22.5.1986 on Bhvanagiri-Kodalore main road. Conspiracy was allegedly hatched between 25.4.1986 and 22.5.1986. The first charge also states that in the process of dashing against deceased no.1, A2 dashed the car against Sundaram deceased no.2, Vellaian @ Arumukum deceased no.3 and Harikrishnan PW.3 resulting in the death of D2 and D3 and causing grievous injuries to PW.3. The second charge was framed against A2 alone under Section 302 Indian Penal Code for having caused the death of D1 by dashing the car bearing No.TNJ 69 against him resulting in his death. The third and fourth charges indicted A2 similarly for having caused the death of D2 and D3 and the fifth charge was also framed against A2 under Section 307 Part II Indian Penal Code for having attempted to murder PW.3. in the course of the same transaction by dashing the car against him. On conclusion of the trial the Learned Sessions Judge acquitted both the accused of the first charge framed under Section 120-B I.P.C. A2, however, was found guilty of charges 2, 3 and 4 and was sentenced to undergo imprisonment for life on each count. He as also found guilty under the fifth charge and was sentenced to undergo rigorous imprisonment for five years; sentences to run concurrently. The State appealed before the High Court.The High Court, in a detailed judgment, has re-examined the entire evidence which was led before the Sessions Court. The two important pieces of evidence before the High Court, namely the evidence of PW.1 who has turned Approver and the judicial confession of A2 which was later retracted by him, have been considered by the High Court in the light of other evidence which materially corroborates these two pieces of evidence. The High Court has held the evidence of PW.1 as reliable. It has also relied upon the evidence of PW.13, the owner of the tea shop who has deposed to the presence of both the accused and PW.1 in his tea shop at about 5.30 p.m. two or three days prior to the incident. The High Court has held this meeting to be significant since accused no.2 was a resident of a village 40 kilometres away and the unusual visit of the accused no.2 in the company of accused no.2 and PW.1 in the tea shop of PW.13, has been taken note of as corroborative material. The High Court has also relied upon the evidence of PW.3 who has spoken about the presence of PW.1 at the shop of PW.24 at about 10.30. p.m. on the night of the incident. This witness has also spoken his leaving in the company of deceased no.1 and other for his village since it was nearing 11.00 p.m. The High Court has also noted the evidence of PW.2 who was present at the workshop of accused no.2 on that particular evening. He has deposed that PW.1 came to the workshop and stated that accused no.1 had asked for the car after which accused no.2 and PW.1 left with the car. PW.15 who is an Attendant at the petrol pump where PW.1 and A2 stopped the car to fill it up with petrol has also deposed to their presence at the petrol pump. The High Court has also referred to the testimony of PW.17 relating to the damage to the car which was involved in the incident, which fits in with the nature of the damage spoken of by PW.1.The High Court has also dealt at length on the motive for the commission of the crime and has come to the conclusion that the strongest motive was that of accused no.1. The High Court has come to the conclusion that it is the machinations of accused no.1 which led to the commission of the offences alleged. The High Court has gone into the question of delay at length regarding the initial report which indicated accidental death and the subsequent developments which ultimately led to the framing of the present charges. After a detailed reasoning the High Court has come to the conclusion that the view taken by the Sessions Judge is not a plausible view at all and consequently there has been miscarriage of justice. The High Court has reversed the order of acquittal of accused no.1 passed by the Session Judge. On the nature of the offence, the High Court has looked to the nature of the evidence and convicted accused no.1 for conspiracy. It has, however, held that though the evidence of the Approver is that the conspiracy was for commission of murder of deceased no.1, the court could not close its eyes to the judicial confession of accused no.2 which indicated that the offence expected to be committed was limited to breakage of hands and legs of deceased no.1. The High Court said that the benefit that arises out of the confession of accused no.2 cannot be denied to accused no.1. Hence the High Court has convicted accused no.1 under Section 120-B read with Section 304 Part I of the I.P.C. Similarly accused no.2 has also been convicted by the High Court under Section 120-B read with Section 304 Part I of the I.P.C. The detailed reasoning given by the High Court in its judgment in exhaustive and convincing. There is not reason to take a view different from the view taken by the High Court.
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On the nature of the offence, the High Court has looked to the nature of the evidence and convicted accused no.1 for conspiracy. It has, however, held that though the evidence of the Approver is that the conspiracy was for commission of murder of deceased no.1, the court could not close its eyes to the judicial confession of accused no.2 which indicated that the offence expected to be committed was limited to breakage of hands and legs of deceased no.1. The High Court said that the benefit that arises out of the confession of accused no.2 cannot be denied to accused no.1. Hence the High Court has convicted accused no.1 under SectionB read with Section 304 Part I of the I.P.C. Similarly accused no.2 has also been convicted by the High Court under SectionB read with Section 304 Part I of the I.P.C. The detailed reasoning given by the High Court in its judgment in exhaustive and convincing. There is not reason to take a view different from the view taken by the High Court.
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B.S. MURTHY & ORS Vs. A. RAVINDER SINGH & ORS | an application of the 1986 OM. Now, as a matter of fact the materials on record establish that there were promotee vacancies at a time when the ban on direct recruitment was in force (during 1984-1990). To the query dated 11-06-2007, the Commissionerate concerned, at Hyderabad stated, in its reply dated 30-08-2007, as follows: In this Commissionerate whatever vacancies occurred in a year, the same were divided in the ratio 3:1 during the period 1986 to 1990 and the share of vacancy which comes for direct recruit were reported to SSC and the promotee quota vacancies were filled up by holding DPC. The same letter also stated that: ..the 25% promotee quota vacancies were washed (sic worked) out on the basis of actual vacancies available in each year. The reply further stated that all the promotions were made on regular basis. The rationale for the argument that promotions are to be treated in excess of the promotee quota, is that the requisite number of vacancies falling to the share of direct recruitment were not reported to the SSC. For this logic, Para 4 and Para 5 of the 1986 OM were relied upon. 57. As is apparent, Para 4 is procedural, and talks of a vacancy register, which would contain a running account of the vacancies arising and being filled from year to year. This was deemed necessary, because of the Para 3 of the same OM which entails the procedure of bunching rule. 58. Hence, it is essential to keep in mind that Para 5, (which has been the basis of the High Court judgment, to hold that the PRIs were in excess of their quota) was meant to cater to a contingency that is of underreporting direct recruit vacancies to the public service commission (in this case, the SSC) which resulted in an unfair advantage to promotees who would steal a march over such direct recruits, appointed later. It was in such contingencies, that is, of under-reporting vacancies, that the consequence of deeming promotions to be ad-hoc could be resorted to. If one keeps this perspective in mind, the correct direction of inquiry, (which in this courts opinion was undertaken by CAT) was to see what were the number of regular vacancies relative to the quotas, with specific reference to the vacancy register. This approach, however, was discredited by the High Court, which held that the vacancy register at the most indicates the vacancy position in DRI/PRI cadre and it is not intended to confer the benefit of promotion on in-service candidates more especially when the promotions are to be effected with reference to the vacancies indented for D.R.ls. Therefore, the observation of the tribunal that only in case of detection of under, reporting/suppression the bunching process had to be adopted and in other cases the vacancies position vis- a-vis the promotion has to be identified from the vacancy register is untenable. 59. As discussed, the materials on record indicate that promotional vacancies did exist, at the relevant period. There was a ban on direct recruitment. The reasons for the ban are now obscure; but the fact remains that it was in force for six years (1984-90). During this period, undoubtedly, no requisitions were made to the SSC for filling direct recruit vacancies. However, the linear logic, applied by the High Court, to conclude that by virtue of Para 5 of the OM of 1986, the promotions made during the same period had to be treated as in excess of the quota, because they were not in proportion to the requisitions for direct recruitment. This view is plainly fallacious, because it equates executive policy - of not filling vacancies, due to financial or other compulsions with deliberate underreporting, meant to result in unfair advantage to the PRIs. In the present case, direct recruitment through the SSC was not resorted to because of a ban, and not due to under-reporting. Thus, the contingency visualized in Para 5 never arose. Not only were promotions made within the quota, and were regular (as they were preceded by proceedings of the Departmental Promotion Committee, and culminated in regularization, in 1988), there were in fact regular vacancies, within the promotee quota. 60. The existence of PRI vacancies is a matter of objective fact – as can be seen from the replies to the RTI queries (see f.n.10-12 supra). Those vacancies fell to the share of PRIs, in terms of the 25% quota earmarked for them, under statutory rules. In such circumstances, to say that those promoted, by resort to DPCs and regularized later, should be treated as ad-hoc promotees, would be contrary to express rules. In other words, by giving effect to Para 5 of the 1986 OM, (and treating the promotions as ad-hoc for purposes of inter se seniority), the statutory rules are virtually given a go bye. It is also contrary to the stated objective sought to be achieved by Para 3 of the 1986 OM, which is to present practice of keeping vacant slots for being filled up by direct recruits of later years, thereby giving them unintended seniority over promotees who are already in position, would be dispensed with. The promotions of the PRIs before this court therefore, have to be treated as regular. This court is of the opinion, that the reasoning of the High Court, in overlooking these aspects, is clearly in error. 61. The other aspect – which the High Court ignored, is that a number of vacancies were filled from amongst the quota for compassionate appointment, and the sports quota. They were not reported to the SSC. In such circumstances, to treat the promotees as exceeding the quota set apart for them (though as a matter of fact, they were accommodated within the quota) is not warranted. Furthermore, the materials on record also show that though there was a ban on direct recruitment, it did not apply to vacancies which were to be filled up by way of promotion in terms of the Recruitment Rules. | 1[ds]31. The rules in question, that is, 1979 Rules prescribes that recruitment to the post of Inspectors is from two sources: direct recruitment (to the extent of 75% of the cadre) and promotions (to the extent of 25% of the cadre). Promotions are made from seven feeder grade cadre posts: Upper Division Clerks (UDCs)/Steno Grade III; UDCs with a total of 13 years combined experience as UDCs and Lower Division Clerks (LDCs); Stenographers Grade II; Stenographers Grade II or Grade III with combined experience of 12 years; Woman Searcher with 7 years experience; Draftsman with seven years service in the grade. The rules are silent about the principle on which inter se seniority of DRIs and PRIs is to be fixed.In terms of the rules, ratio for the two sources is three candidates from the direct recruitment channel and one candidate from the promotional channel has to be resorted to. As mentioned earlier there is no governing rule meant to guide the fixing of inter-se seniority between the DRIs and PRs. That was done in accordance with the executive Office Memorandums.41. The record in the present discloses that the Central Board of Excise and Customs had issued three directions, with reference to filling up vacancies in the cadre of Inspectors. The first letter dated 9.3.1988 (F.No.12034/19/SCC 87 -Ad.111,B, dated 9.3.1988) directed the department to fill up only 12 vacancies as on 1.2.1988 out of 20 vacancies available for direct recruitment. The second letter dated 4.7.1988 (F.No. A.12034/ SR/ 18/ SCC 88 Ad.III B dated 4.7.1988) directed the respondents to fill up only 18 posts by direct recruitment out of 37 posts available as on 28.2.1989. The last, and third letter (F. No. A. 12034/SR I 181 SCC 88 Ad. III B) dated 29.3.1989 directed the department to fill up only 15 vacancies by direct recruitment against 27 anticipated vacancies up to 28.02.1989. A cumulative reading of these three letters would indicate that for the relative period, though 84 vacancies arose (were available) during the period (1988-89), only 45 were permitted to be filled up.42. The other important aspect is that at the relevant time, only 10% of the direct recruit vacancies could be filled by compassionate appointment, in terms of the extant policies. However, during the same period 50 compassionate appointments were made. Similarly, 24 vacancies were filled by appointments under the sports quota. 39 vacancies were filled by inter Commissionerate transfers. Thus, in all 123 vacancies earmarked for DRIs were filled through these modes (i.e. compassionate appointment, sports quota and inter Commissionerate transfers).43. From the above facts it is clear that for some of the years, there was a partial ban on filling up of vacancies by DRIs and in addition to those, appointments were also made through different modes but the same were not reported. The department position in adopting such practices is not of an unbiased employer; it is clearly erroneous. On one hand the department contends that the PRIs vacancies were to be in proportion to those reported vacancies of the DRIs- to the SSC and on the other hand, it did not report the correct number of vacancies recruited against the DRI quota, such as those appointed under the compassionate appointment quota and the sports quota. It is nobodys case, nor can it be,that such vacancies were filled from the PRIs quota. The appointments had to be adjusted against the DRI quotas.48. The decision in Aghore Nath Dey was one where the claim was by persons granted ad- hoc, temporary appointments for a fixed period, which was extended from time to time till their regularisation on 26-2-1980, by relaxation of the condition of selection by the Public Service Commission, which was an express condition of their ad hoc appointment and a requirement for regular appointment under the 1979 Rules. The court held that assuming the relaxation was valid, they could be treated as regularly appointed only with effect from 26-02-1980 upon relaxation of conditions, and their resultant absorption in the cadre of Assistant Engineers, based on a rule framed at the same time under Article 309 providing for fixation of their seniority from that date. In such circumstances, this court, held that there was no foundation for the claim that they could be treated at par with the direct recruits, regularly appointed prior to 26-2-1980.49. In Devindra Prasad Sharma the rules governed the situation, instructing that inter se seniority was to be fixed in accordance with the ratio applicable, under the rules, for the two channels, from the date of appointment. This court held thatThe statutory rule 25(iii), as indicated above, clearly postulates that the inter se seniority of the direct recruits and the promotees has to be determined in accordance with quota and rotation. Accordingly, seniority was rightly determined as per the respective dates of appointment. Therefore, the rotation has to be considered as per the date of appointment and in accordance with the vacancy under the rules. Otherwise, the rule of rota- quota unduly gets disturbed.50. Suraj Prakash Gupta was a case, where the government relaxed the conditions, and regularized the services of ad-hoc promotees who were given appointment, against the vacancies that had to be filled by direct recruits. This court held, in such circumstances that:..the Government was merely carried away by sympathy to the promotees. By not making direct recruitment after 1984, by restricting direct recruits to 10% rather than permitting 20% and by deliberately promoting the Junior Engineers to the other 10% quota of the direct recruits, the State Government had definitely acted in a biased manner. There is any amount of justification for the grievance of the direct recruits that the State had passed an omnibus order on 2.1.98 regularising all ad hoc promotees (Electrical Wing) without consulting the Commission, by way of deemed relaxation, in a wholly arbitrary manner, counting the entire ad hoc service of promotion. Their illegal occupation of direct recruitment quota was not even noticed. Their eligibility or suitability was not considered. It is probable that even those who had bad ACRs were regularly promoted. The requirement of following quota for each year was not respected. The regularisations order dated 2.1.98 was therefore bad and was therefore rightly quashed by the High Court. (This declaration is confined to Assistant Engineers and Assistant Executive Engineers (Electrical Wing) - as stated under Point No. 2 of the High Court Courts judgment). We confirm the view of the High Court on this point. The result is that the promotees have to go through the Service Commission for getting into the gazetted category of Assistant Engineers. The Assistant Engineers have to go through DPC for promotion as Assistant Executive Engineers.51. Clearly in two judgments (Aghore Nath Dey and Suraj Prakash Gupta) the promotions were made in disregard of the rules; even in excess of their quota, and against direct recruit quota. In Aghore Nath Dey, the promotees claim was to seniority prior to their regularization – which was achieved through a special rule, inserted by way of amendment. The claim was that seniority should be given to the promotees, over the direct recruits, who had been appointed earlier. In Suraj Prakash Gupta, promotions were made in excess of the quota and as against posts that should have fallen due to direct recruits, in their quota. The ratio in these decisions is inapplicable, because there is nothing to indicate that the promotees (who were regularized in 1988) exceeded their quota. Furthermore, the departments pleading, specifically admits that the promotees were appointed against vacancies available to the PRI quota.52. This court, in K.V. Subba Rao & Ors. v. Government of Andhra Pradesh 1988 (2) SCR 1118 held that, promotion and seniority shall be reckoned from the date of appointment, not retrospectively from the date when the vacancy arose. M. Nirmala v State of AP 1986 (3) SCR 507 is a judgment, where the government issued an order, banning recruitment. Stop gap, ad-hoc promotions were given, to many employees, in 1974; they were eligible to be considered for regular promotion only after two years, subject to passing a test. Many of them sought relaxation, which was granted; they were ultimately regularized in 1978 without the test. They sought shifting of the date of promotion, to an earlier date, which this court held, was inadmissible:In 1973, the ban on recruitment through Public Service Commission was partially lifted. By G.O. Ms. No. 725 dated December 28, 1973, the Government of Andhra Pradesh directed the Public Service Commission to conduct a special qualifying test for recruitment in. Group IV services with a view to regularising the temporary appointments made during the ban period. One of the conditions of eligibility for appearing at the said qualifying test was, as fixed by the Public Service Commission, two years of service as on 1.1.1973. As the petitioners were appointed after April, 1974, the question of their appearing at the said qualifying test did not arise. It appears that those who appeared at the said test were all absorbed in the regular service. On the representation of the temporary employees who were not absorbed, the Public Service Commission conducted another special qualifying test as directed by the Government by G.O. Ms. No. 787 dated November 9, 1976. The petitioners could not avail themselves of the said test as they had not put in two years of service as on 1.1.1976 as fixed by the Public Service Commission.54. State of Uttaranchal & Ors. v Dinesh Kumar Sharma 2006 Supp (10) SCR 1 was a decision, where this court held that the seniority is to be reckoned not from the date when the vacancy arose, but from the date on which the appointment is made to the post. The judgment in AFHQ/ISOs SOs (DP) Association & Ors. V. Union of India (UOI) & Ors 2008 (3) SCC 331 distinguished Subba Reddy (supra) specifically in the context of periods when a ban in recruitment exists28. In M. Subba Reddy and Anr., etc. v. A. P. State Road Transport Corporation and Ors. AIR 2004 SC 3517 , relied upon by Mr. L. N. Rao, learned senior Advocate appearing on behalf of AFHQ Civil Service (Direct Recruits-Gazetted) Officers Association, this Court while dealing with inter se seniority between direct recruits and promotees to the posts of Assistant Traffic Manager (for short ATM) and Assistant Mechanical Engineer (for short AME) in A.P. State Road Transport Corporation, held that rota rule is inbuilt in the quota prescribed in Item 3, Annexure A (Section B) to A.P. SRTC Employees (Recruitment) Regulations, 1966 and could not be deviated from. In that case, the appellant promotees were promoted to the posts of ATMs/AMEs temporarily under Regulation 30 as there were no direct recruits available. They were promoted subject to being reverted to substantive posts on approved candidates becoming available. Regulation 34(6) states that the revertees shall subsequently be considered for repromotion against the quota of vacancies reserved for promotees. Therefore, one has to read Regulation 3 of the A.P. SRTC Employees (Service) Regulations, 1964 with Regulations 30 and 34 of the Recruitment Regulations. It is only when such revertees are repromoted as per Regulation 34, they can be deemed to have been appointed to the posts of ATM or AME. Therefore, when the appellants were tentatively appointed to the post of ATMs/AMEs originally for want of direct recruits and to the posts reserved for direct recruits, it cannot be said that they were first appointed to that category within the meaning of Regulation 3 of the Service Regulations. Therefore, seniority had to be fixed between the direct recruits and the promotees strictly in accordance with the quota provided for in Item 3 of Annexure A (Section B). The said Regulations prescribe a quota of 1:1, which leads to rota for confirmation. The contention of the appellants before this Court was that they had a right to be promoted within their quota during the years 1981 to 1987, when vacancies for promotees quota became available. M. Subba Reddy, appellant in that case, was regularized from 27.12.1986 vide order dated 9.9.1988, when no direct recruits were available and, therefore, it was improper for the Corporation to place direct recruits above the promotees. The appellant submitted that in such a case the quota in Item 3(1) of Annexure A to the Recruitment Rules would not apply; that the said item prescribed only quota and not rota for seniority and that the direct recruits could not claim appointment from the date of vacancy in their quota before their selection . They added that seniority was dealt with only by Regulation 3 of the Service Regulations, 1964 and not by Regulation 34 of the Recruitment Regulations, 1966. That in view of the 15.9.1995 amendment, Regulation 34 referred to only allocation of vacancy and not for determination of seniority. A total ban for direct recruitment was imposed by the State from the year 1977 to 1988 and, thus, the purported quota-and-rota rule contained in Item 3 of Annexure A could not have been given effect to. The majority view of this Court was that where there is inaction on the part of the Government or employer or imposed ban on direct recruitment in filling up the posts meant for direct recruits, it cannot be held that the quota has broken down. We, with respect, do not support the view of the learned Judges that in the facts and circumstances of the case the quota has not broken down because of inaction on the part of the Government in imposing ban in filling up the posts meant for direct recruits. The appellants in the said case were promoted in a regular manner having been regularized in service with retrospective effect. Their services were not regularized from the date of their initial ad hoc promotion but with effect from the date when the vacancies became available. Their services after regularization would not be by way of a stop- gap arrangement. The direct recruits who were appointed in the years 1990 and 1991, in terms of Item 3 of Annexure A would be considered to have been appointed only after their successful completion of training. They were borne in the cadre in the years 1990-91 and, thus, prior thereto they cannot claim seniority. The learned third Judge, dissenting with the learned two Judges, has held that the direct recruit can claim seniority from the date of his regular appointment, he cannot claim seniority from a date when he was not borne in the service. Thus, the direct recruits of 1990 and 1991, by reason of the impugned seniority list, could not have been placed over and above the appellants-promotees because the purported quota and rota rule contained in Item 3 of Annexure A could not have been given effect to because the State Government had imposed total ban for direct recruitment from the year 1977 to 1988. In such a situation, the said quota rule became inoperative. We agree with the dissenting view of the learned Judge that in the facts of the case, the quota rule became inoperative because the direct recruits were borne in the cadre when they were appointed against the vacancies meant for them.The judgment in Pawan Pratap Singh v. Reevan Singh [2011 (2) SCR 831 - a view followed later, in State of U.P. v. Ashok Kumar Srivastava, (2014) 14 SCC 720 and, more recently, endorsed in K. Meghachandra Singh v. Ningam Siro (2020) 5 SCC 689 that seniority should not be reckoned retrospectively unless it is so expressly provided by the relevant Service Rules. The Supreme Court held that seniority cannot be given to an employee who is yet to be borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime. Also Dinesh Kumar Gupta & Ots v High Court of Judicature, Rajasthan 2020 SCC OnLine (SC) 420] considered several previous precedents, on the issue, including the Constitution Bench decision in Direct Recruit Class II Engg. Officers Assn. v. State of Maharashtra (1990) 2 SCR 900. The correct position was summarized by Lodha, J. in the following manner:(i) The effective date of selection has to be understood in the context of the service rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be.(ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution.(iii) Ordinarily, notional seniority may not be granted from the backdate and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules.(iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.55. In a concurring opinion, Aftab Alam, J. reiterated the position and alluded to additional authorities on the subject and said:To the decisions referred to on this point in the main judgment I may add just one more in Suraj Parkash Gupta v. State of J and K (2000) 7 SCC 561] . The decision relates to a dispute of seniority between direct recruits and promotees but in that case the Court considered the question of antedating the date of recruitment on the ground that the vacancy against which the appointment was made had arisen long ago. In para 18 of the decision the Court framed one of the points arising for consideration in the case as follows:18. ... (4) Whether the direct recruits could claim a retrospective date of recruitment from the date on which the post in direct recruitment was available, even though the direct recruit was not appointed by that date and was appointed long thereafter?This Court answered the question in the following terms: (Suraj Parkash Gupta case)Direct recruits cannot claim appointment from the date of vacancy in quota before their selection80. We have next to refer to one other contention raised by the Respondent direct recruits. They claimed that the direct recruitment appointment can be antedated from the date of occurrence of a vacancy in the direct recruitment quota, even if on that date the said person was not directly recruited. It was submitted that if the promotees occupied the quota belonging to direct recruits they had to be pushed down, whenever direct recruitment was made. Once they were so pushed down, even if the direct recruit came later, he should be put in the direct recruit slot from the date on which such a slot was available under the direct recruitment quota.These decisions were reiterated, and followed in a three-judge bench judgment in P. Sudhakar Rao & Ors. v U. Govinda Rao & Ors (2013) 8 SCC 693 which ruled that seniority cannot be given to any appointee from a date anterior to his or her appointment, in the cadre.56. From the above discussion, it is clear that no appointee from any one channel (direct recruits or promotees) can lay claim to seniority from a date before her or his appointment. That being the position in law, it would be now necessary to consider the reasons which weighed with the High Court to hold that the promotees (in regular and substantive capacity from 1988) had to make way for direct recruits, who were appointed in 1991-92. Simply stated, the High Court was of the opinion that promotees had to be treated as occupying posts in excess of the quota allocated to them, on an application of the 1986 OM. Now, as a matter of fact the materials on record establish that there were promotee vacancies at a time when the ban on direct recruitment was in force (during 1984-1990). To the query dated 11-06-2007, the Commissionerate concerned, at Hyderabad stated, in its reply dated 30-08-2007, as follows:In this Commissionerate whatever vacancies occurred in a year, the same were divided in the ratio 3:1 during the period 1986 to 1990 and the share of vacancy which comes for direct recruit were reported to SSC and the promotee quota vacancies were filled up by holding DPC.The same letter also stated that:..the 25% promotee quota vacancies were washed (sic worked) out on the basis of actual vacancies available in each year.The reply further stated that all the promotions were made on regular basis. The rationale for the argument that promotions are to be treated in excess of the promotee quota, is that the requisite number of vacancies falling to the share of direct recruitment were not reported to the SSC. For this logic, Para 4 and Para 5 of the 1986 OM were relied upon.57. As is apparent, Para 4 is procedural, and talks of a vacancy register, which would contain a running account of the vacancies arising and being filled from year to year. This was deemed necessary, because of the Para 3 of the same OM which entails the procedure of bunching rule.58. Hence, it is essential to keep in mind that Para 5, (which has been the basis of the High Court judgment, to hold that the PRIs were in excess of their quota) was meant to cater to a contingency that is of underreporting direct recruit vacancies to the public service commission (in this case, the SSC) which resulted in an unfair advantage to promotees who would steal a march over such direct recruits, appointed later. It was in such contingencies, that is, of under-reporting vacancies, that the consequence of deeming promotions to be ad-hoc could be resorted to. If one keeps this perspective in mind, the correct direction of inquiry, (which in this courts opinion was undertaken by CAT) was to see what were the number of regular vacancies relative to the quotas, with specific reference to the vacancy register. This approach, however, was discredited by the High Court, which held that the vacancy registerat the most indicates the vacancy position in DRI/PRI cadre and it is not intended to confer the benefit of promotion on in-service candidates more especially when the promotions are to be effected with reference to the vacancies indented for D.R.ls. Therefore, the observation of the tribunal that only in case of detection of under, reporting/suppression the bunching process had to be adopted and in other cases the vacancies position vis- a-vis the promotion has to be identified from the vacancy register is untenable.59. As discussed, the materials on record indicate that promotional vacancies did exist, at the relevant period. There was a ban on direct recruitment. The reasons for the ban are now obscure; but the fact remains that it was in force for six years (1984-90). During this period, undoubtedly, no requisitions were made to the SSC for filling direct recruit vacancies. However, the linear logic, applied by the High Court, to conclude that by virtue of Para 5 of the OM of 1986, the promotions made during the same period had to be treated as in excess of the quota, because they were not in proportion to the requisitions for direct recruitment. This view is plainly fallacious, because it equates executive policy - of not filling vacancies, due to financial or other compulsions with deliberate underreporting, meant to result in unfair advantage to the PRIs. In the present case, direct recruitment through the SSC was not resorted to because of a ban, and not due to under-reporting. Thus, the contingency visualized in Para 5 never arose. Not only were promotions made within the quota, and were regular (as they were preceded by proceedings of the Departmental Promotion Committee, and culminated in regularization, in 1988), there were in fact regular vacancies, within the promotee quota.60. The existence of PRI vacancies is a matter of objective fact – as can be seen from the replies to the RTI queries (see f.n.10-12 supra). Those vacancies fell to the share of PRIs, in terms of the 25% quota earmarked for them, under statutory rules. In such circumstances, to say that those promoted, by resort to DPCs and regularized later, should be treated as ad-hoc promotees, would be contrary to express rules. In other words, by giving effect to Para 5 of the 1986 OM, (and treating the promotions as ad-hoc for purposes of inter se seniority), the statutory rules are virtually given a go bye. It is also contrary to the stated objective sought to be achieved by Para 3 of the 1986 OM, which is to present practice of keeping vacant slots for being filled up by direct recruits of later years, thereby giving them unintended seniority over promotees who are already in position, would be dispensed with. The promotions of the PRIs before this court therefore, have to be treated as regular. This court is of the opinion, that the reasoning of the High Court, in overlooking these aspects, is clearly in error.61. The other aspect – which the High Court ignored, is that a number of vacancies were filled from amongst the quota for compassionate appointment, and the sports quota. They were not reported to the SSC. In such circumstances, to treat the promotees as exceeding the quota set apart for them (though as a matter of fact, they were accommodated within the quota) is not warranted. Furthermore, the materials on record also show that though there was a ban on direct recruitment, it did not apply to vacancies which were to be filled up by way of promotion in terms of the Recruitment Rules. | 1 | 13,548 | 4,924 | ### 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:
an application of the 1986 OM. Now, as a matter of fact the materials on record establish that there were promotee vacancies at a time when the ban on direct recruitment was in force (during 1984-1990). To the query dated 11-06-2007, the Commissionerate concerned, at Hyderabad stated, in its reply dated 30-08-2007, as follows: In this Commissionerate whatever vacancies occurred in a year, the same were divided in the ratio 3:1 during the period 1986 to 1990 and the share of vacancy which comes for direct recruit were reported to SSC and the promotee quota vacancies were filled up by holding DPC. The same letter also stated that: ..the 25% promotee quota vacancies were washed (sic worked) out on the basis of actual vacancies available in each year. The reply further stated that all the promotions were made on regular basis. The rationale for the argument that promotions are to be treated in excess of the promotee quota, is that the requisite number of vacancies falling to the share of direct recruitment were not reported to the SSC. For this logic, Para 4 and Para 5 of the 1986 OM were relied upon. 57. As is apparent, Para 4 is procedural, and talks of a vacancy register, which would contain a running account of the vacancies arising and being filled from year to year. This was deemed necessary, because of the Para 3 of the same OM which entails the procedure of bunching rule. 58. Hence, it is essential to keep in mind that Para 5, (which has been the basis of the High Court judgment, to hold that the PRIs were in excess of their quota) was meant to cater to a contingency that is of underreporting direct recruit vacancies to the public service commission (in this case, the SSC) which resulted in an unfair advantage to promotees who would steal a march over such direct recruits, appointed later. It was in such contingencies, that is, of under-reporting vacancies, that the consequence of deeming promotions to be ad-hoc could be resorted to. If one keeps this perspective in mind, the correct direction of inquiry, (which in this courts opinion was undertaken by CAT) was to see what were the number of regular vacancies relative to the quotas, with specific reference to the vacancy register. This approach, however, was discredited by the High Court, which held that the vacancy register at the most indicates the vacancy position in DRI/PRI cadre and it is not intended to confer the benefit of promotion on in-service candidates more especially when the promotions are to be effected with reference to the vacancies indented for D.R.ls. Therefore, the observation of the tribunal that only in case of detection of under, reporting/suppression the bunching process had to be adopted and in other cases the vacancies position vis- a-vis the promotion has to be identified from the vacancy register is untenable. 59. As discussed, the materials on record indicate that promotional vacancies did exist, at the relevant period. There was a ban on direct recruitment. The reasons for the ban are now obscure; but the fact remains that it was in force for six years (1984-90). During this period, undoubtedly, no requisitions were made to the SSC for filling direct recruit vacancies. However, the linear logic, applied by the High Court, to conclude that by virtue of Para 5 of the OM of 1986, the promotions made during the same period had to be treated as in excess of the quota, because they were not in proportion to the requisitions for direct recruitment. This view is plainly fallacious, because it equates executive policy - of not filling vacancies, due to financial or other compulsions with deliberate underreporting, meant to result in unfair advantage to the PRIs. In the present case, direct recruitment through the SSC was not resorted to because of a ban, and not due to under-reporting. Thus, the contingency visualized in Para 5 never arose. Not only were promotions made within the quota, and were regular (as they were preceded by proceedings of the Departmental Promotion Committee, and culminated in regularization, in 1988), there were in fact regular vacancies, within the promotee quota. 60. The existence of PRI vacancies is a matter of objective fact – as can be seen from the replies to the RTI queries (see f.n.10-12 supra). Those vacancies fell to the share of PRIs, in terms of the 25% quota earmarked for them, under statutory rules. In such circumstances, to say that those promoted, by resort to DPCs and regularized later, should be treated as ad-hoc promotees, would be contrary to express rules. In other words, by giving effect to Para 5 of the 1986 OM, (and treating the promotions as ad-hoc for purposes of inter se seniority), the statutory rules are virtually given a go bye. It is also contrary to the stated objective sought to be achieved by Para 3 of the 1986 OM, which is to present practice of keeping vacant slots for being filled up by direct recruits of later years, thereby giving them unintended seniority over promotees who are already in position, would be dispensed with. The promotions of the PRIs before this court therefore, have to be treated as regular. This court is of the opinion, that the reasoning of the High Court, in overlooking these aspects, is clearly in error. 61. The other aspect – which the High Court ignored, is that a number of vacancies were filled from amongst the quota for compassionate appointment, and the sports quota. They were not reported to the SSC. In such circumstances, to treat the promotees as exceeding the quota set apart for them (though as a matter of fact, they were accommodated within the quota) is not warranted. Furthermore, the materials on record also show that though there was a ban on direct recruitment, it did not apply to vacancies which were to be filled up by way of promotion in terms of the Recruitment Rules.
### Response:
1
### Explanation:
posts in excess of the quota allocated to them, on an application of the 1986 OM. Now, as a matter of fact the materials on record establish that there were promotee vacancies at a time when the ban on direct recruitment was in force (during 1984-1990). To the query dated 11-06-2007, the Commissionerate concerned, at Hyderabad stated, in its reply dated 30-08-2007, as follows:In this Commissionerate whatever vacancies occurred in a year, the same were divided in the ratio 3:1 during the period 1986 to 1990 and the share of vacancy which comes for direct recruit were reported to SSC and the promotee quota vacancies were filled up by holding DPC.The same letter also stated that:..the 25% promotee quota vacancies were washed (sic worked) out on the basis of actual vacancies available in each year.The reply further stated that all the promotions were made on regular basis. The rationale for the argument that promotions are to be treated in excess of the promotee quota, is that the requisite number of vacancies falling to the share of direct recruitment were not reported to the SSC. For this logic, Para 4 and Para 5 of the 1986 OM were relied upon.57. As is apparent, Para 4 is procedural, and talks of a vacancy register, which would contain a running account of the vacancies arising and being filled from year to year. This was deemed necessary, because of the Para 3 of the same OM which entails the procedure of bunching rule.58. Hence, it is essential to keep in mind that Para 5, (which has been the basis of the High Court judgment, to hold that the PRIs were in excess of their quota) was meant to cater to a contingency that is of underreporting direct recruit vacancies to the public service commission (in this case, the SSC) which resulted in an unfair advantage to promotees who would steal a march over such direct recruits, appointed later. It was in such contingencies, that is, of under-reporting vacancies, that the consequence of deeming promotions to be ad-hoc could be resorted to. If one keeps this perspective in mind, the correct direction of inquiry, (which in this courts opinion was undertaken by CAT) was to see what were the number of regular vacancies relative to the quotas, with specific reference to the vacancy register. This approach, however, was discredited by the High Court, which held that the vacancy registerat the most indicates the vacancy position in DRI/PRI cadre and it is not intended to confer the benefit of promotion on in-service candidates more especially when the promotions are to be effected with reference to the vacancies indented for D.R.ls. Therefore, the observation of the tribunal that only in case of detection of under, reporting/suppression the bunching process had to be adopted and in other cases the vacancies position vis- a-vis the promotion has to be identified from the vacancy register is untenable.59. As discussed, the materials on record indicate that promotional vacancies did exist, at the relevant period. There was a ban on direct recruitment. The reasons for the ban are now obscure; but the fact remains that it was in force for six years (1984-90). During this period, undoubtedly, no requisitions were made to the SSC for filling direct recruit vacancies. However, the linear logic, applied by the High Court, to conclude that by virtue of Para 5 of the OM of 1986, the promotions made during the same period had to be treated as in excess of the quota, because they were not in proportion to the requisitions for direct recruitment. This view is plainly fallacious, because it equates executive policy - of not filling vacancies, due to financial or other compulsions with deliberate underreporting, meant to result in unfair advantage to the PRIs. In the present case, direct recruitment through the SSC was not resorted to because of a ban, and not due to under-reporting. Thus, the contingency visualized in Para 5 never arose. Not only were promotions made within the quota, and were regular (as they were preceded by proceedings of the Departmental Promotion Committee, and culminated in regularization, in 1988), there were in fact regular vacancies, within the promotee quota.60. The existence of PRI vacancies is a matter of objective fact – as can be seen from the replies to the RTI queries (see f.n.10-12 supra). Those vacancies fell to the share of PRIs, in terms of the 25% quota earmarked for them, under statutory rules. In such circumstances, to say that those promoted, by resort to DPCs and regularized later, should be treated as ad-hoc promotees, would be contrary to express rules. In other words, by giving effect to Para 5 of the 1986 OM, (and treating the promotions as ad-hoc for purposes of inter se seniority), the statutory rules are virtually given a go bye. It is also contrary to the stated objective sought to be achieved by Para 3 of the 1986 OM, which is to present practice of keeping vacant slots for being filled up by direct recruits of later years, thereby giving them unintended seniority over promotees who are already in position, would be dispensed with. The promotions of the PRIs before this court therefore, have to be treated as regular. This court is of the opinion, that the reasoning of the High Court, in overlooking these aspects, is clearly in error.61. The other aspect – which the High Court ignored, is that a number of vacancies were filled from amongst the quota for compassionate appointment, and the sports quota. They were not reported to the SSC. In such circumstances, to treat the promotees as exceeding the quota set apart for them (though as a matter of fact, they were accommodated within the quota) is not warranted. Furthermore, the materials on record also show that though there was a ban on direct recruitment, it did not apply to vacancies which were to be filled up by way of promotion in terms of the Recruitment Rules.
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Assam Bengal Cement Co. Ltd Vs. The Commissioner Of Income-Tax,West Bengal | purchase that he will pay a sum annually to a third party, irrespective of whether the business yields any profits or not, it would be difficult to say that the annual payments were made solely for the purpose of earning the profits of the business."The expression "once and for all" is used to denote an expenditure which is made once and for all for procuring an enduring benefit to the business as distinguished from a recurring expenditure in the nature of operational expenses.14. The expression "enduring benefit" also has been judicially interpreted. Romer, L.J., in Anglo-Persian Oil Company, Limited v. Dale ([1932] 1 K.B. 124, 146) agreed with Rowlatt, J. that by enduring benefit is meant enduring in the way that fixed capital endures :"An expenditure on acquiring floating capital is not made with a view to acquiring an enduring asset. It is made with a view to acquiring an asset that may be turned over in the course of trade at a comparatively early date."15. Latham, C.J., observed in Sun Newspapers Ltd. & Associated Newspapers Ltd. v. Federal Commissioner of Taxation ((1938) 61 C.L.R. 337, 355) :"When the words permanent or enduring are used in this connection it is not meant that the advantage which will be obtained will last for ever. The distinction which is drawn is that between more or less recurrent expenses involved in running a business and an expenditure for the benefit of the business as a whole"...... e.g. ...... - "enlargement of the goodwill of a company." - "permanent improvement in the material or immaterial assets of the concern."16. To the same effect are the observations of Lord Greene, M. R. in Henriksen (H. M. Inspector of Taxes) v. Grafton Hotel Ltd. ((1942) 24 T. C. 453) above referred to.17. These are the principles which have to be applied in order to determine whether in the present case the expenditure incurred by the company was capital expenditure or revenue expenditure. Under clause 4 of the deed the lessors undertook not to grant any lease, permit or prospecting licence regarding limestone to any other party in respect of the group of quarries called the Durgasil area without a condition therein that no limestone shall be used for the manufacture of cement. The consideration of Rs. 5, 000 per annum was to be paid by the company to the lessor during the whole period of the lease and this advantage or benefit was to endure for the whole period of the lease. It was an enduring benefit for the benefit of the whole of the business of the company and came well within the test laid down by Viscount Cave. It was not a lump sum payment but was spread over the whole period of the lease and it could be urged that it was recurring payment. The fact however that it was a recurring payment was immaterial, because one had got to look to the nature of the payment which in its turn was determined by the nature of the asset which the company had acquire. The asset which the company had acquired in consideration of this recurring payment was in the nature of a capital asset, the right to carry on its business unfettered by any competition from outsiders within the area. It was a protection acquired by the company for its business as a whole. It was not a part of the working of the business but went to appreciate the whole of the capital asset and make it more profit yielding. The expenditure made by the company in acquiring this advantage which was certainly an enduring advantage was thus of the nature of capital expenditure and was not an allowable deduction under section 10(2)(xv) of the Income-tax Act.The further protection fee which was paid by the company to the lessor under clause 5 of the deed was also of a similar nature. It was no doubt spread over a period of 5 years, but the advantage which the company got as a result of the payment was to enure for its benefit for the whole of the period of the lease unless determined in the manner provided in the last part of the clause. It provided protection to the company against all competitors in the whole of the Khasi and Jaintia Hills District and the capital asset which the company acquired under the lease was thereby appreciated to a considerable extent. The sum of Rs. 35, 000 agreed to be paid by the company to the lessor for the period of 5 years was not a revenue expenditure which was made by the company for working the capital asset which it had acquired. It was no part of the working or operational expenses of the company. It was an expenditure made for the purpose of acquiring an appreciated capital asset which would not doubt by reason of the undertaking given by the lessor make the capital asset more profit yielding. The period of 5 years over which the payments were spread did not make any difference to the nature of the acquisition. It was none the less an acquisition of an advantage of an enduring nature which endured for the benefit of the whole of the business for the full period of the lease unless terminated by the lessor by notice as prescribed in the last part of the clause. This again was the acquisition of an asset or advantage of an enduring nature for the whole of the business and was of the nature of capital expenditure and thus was not an allowable deduction under section 10(2)(xv) of the Act.18. We are therefore of the opinion that the conclusion reached by the Income-tax authorities as well as the High Court in regard to the nature of the payments was correct and the sums of Rs. 40, 000 paid by the company to the lessors during the accounting years 1944-45 and 1945-46 were not allowable deductions under section 10(2)(xv) of the Act. | 0[ds]This synthesis attempted by the Full Bench of the Lahore High Court truly enunciates the principles which emerge from the authorities. In cases where the expenditure is made for the initial outlay or for extension of a business or a substantial replacement of the equipment, there is no doubt that it is capital expenditure. A capital asset of the business is either acquired or extended or substantially replaced and that outlay whatever be its source whether it is drawn from the capital or the income of the concern is certainly in the nature of capital expenditure. Thequestion however arises for consideration where expenditure is incurred while the business is going on and is not incurred either for extension of the business of for the substantial replacement of itsequipment. Such expenditure can be looked at either from the point of view of what is acquired or from the point of view of what is the source from which the expenditure is incurred. If the expenditure is made for acquiring or bringing into existence an asset or advantage for the enduring benefit of the business it is properly attributable to capital and is of the nature of capital expenditure. If on the other hand it is made not for the purpose of bringing into existence any such asset of advantage but for running the business or working it with a view to produce the profits it is a revenue expenditure. If any such asset or advantage for the enduring benefit of the business is thus acquired or brought into existence it would be immaterial whether the source of the payment was the capital or the income of the concern or whether the payment was made once and for all or was made periodically. The aim and object of the expenditure would determine the character of the expenditure whether it is a capital expenditure or a revenue expenditure. The source or the manner of the payment would then be of no consequence. It is only in those cases where this test is of no avail that one may go to the test of fixed or circulating capital and consider whether the expenditure incurred was part of the fixed capital of the business or part of its circulating capital. It is was part of the fixed capital of the business it would be of the nature of capital expenditure and if it was part of its circulating capital it would be of the nature of revenue expenditure. These tests are thus mutually exclusive and have to be applied to the facts of each particular case in the manner above indicated. It has been rightly observed that in the great diversity of human affairs and the complicated nature of business operations it is difficult to lay down a test which would apply to all situations. One has therefore got to apply these criteria, one after the other from the business point of view and come to the conclusion whether on a fair appreciation of the whole situation the expenditure incurred in a particular case is of the nature of capital expenditure or revenue expenditure in which latter event only it would be a deductable allowance under section 10(2)(xv) of the Income-tax Act.These are the principles which have to be applied in order to determine whetherin the present case the expenditure incurred by the company was capital expenditure or revenue expenditure.Under clause 4 of the deed the lessors undertook not to grant any lease, permit or prospecting licence regarding limestone to any other party in respect of the group of quarries called the Durgasil area without a condition therein that no limestone shall be used for the manufacture of cement. The consideration of Rs. 5, 000 per annum was to be paid by the company to the lessor during the whole period of the lease and this advantage or benefit was to endure for the whole period of the lease. It was an enduring benefit for the benefit of the whole of the business of the company and came well within the test laid down by Viscount Cave. It was not a lump sum payment but was spread over the whole period of the lease and it could be urged that it was recurring payment. The fact however that it was a recurring payment was immaterial, because one had got to look to the nature of the payment which in its turn was determined by the nature of the asset which the company had acquire. The asset which the company had acquired in consideration of this recurring payment was in the nature of a capital asset, the right to carry on its business unfettered by any competition from outsiders within the area. It was a protection acquired by the company for its business as a whole. It was not a part of the working of the business but went to appreciate the whole of the capital asset and make it more profit yielding. The expenditure made by the company in acquiring this advantage which was certainly an enduring advantage was thus of the nature of capital expenditure and was not an allowable deduction under section 10(2)(xv) of the Income-tax Act.The further protection fee which was paid by the company to the lessor under clause 5 of the deed was also of a similar nature. It was no doubt spread over a period of 5 years, but the advantage which the company got as a result of the payment was to enure for its benefit for the whole of the period of the lease unless determined in the manner provided in the last part of the clause. It provided protection to the company against all competitors in the whole of the Khasi and Jaintia Hills District and the capital asset which the company acquired under the lease was thereby appreciated to a considerable extent. The sum of Rs. 35, 000 agreed to be paid by the company to the lessor for the period of 5 years was not a revenue expenditure which was made by the company for working the capital asset which it had acquired. It was no part of the working or operational expenses of the company. It was an expenditure made for the purpose of acquiring an appreciated capital asset which would not doubt by reason of the undertaking given by the lessor make the capital asset more profit yielding. The period of 5 years over which the payments were spread did not make any difference to the nature of the acquisition. It was none the less an acquisition of an advantage of an enduring nature which endured for the benefit of the whole of the business for the full period of the lease unless terminated by the lessor by notice as prescribed in the last part of the clause. This again was the acquisition of an asset or advantage of an enduring nature for the whole of the business and was of the nature of capital expenditure and thus was not an allowable deduction under section 10(2)(xv) of the Act.18. We are therefore of the opinion that the conclusion reached by the Income-tax authorities as well as the High Court in regard to the nature of the payments was correct and the sums of Rs. 40, 000 paid by the company to the lessors during the accounting years 1944-45 and 1945-46 were not allowable deductions under section 10(2)(xv) of the | 0 | 6,676 | 1,308 | ### 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:
purchase that he will pay a sum annually to a third party, irrespective of whether the business yields any profits or not, it would be difficult to say that the annual payments were made solely for the purpose of earning the profits of the business."The expression "once and for all" is used to denote an expenditure which is made once and for all for procuring an enduring benefit to the business as distinguished from a recurring expenditure in the nature of operational expenses.14. The expression "enduring benefit" also has been judicially interpreted. Romer, L.J., in Anglo-Persian Oil Company, Limited v. Dale ([1932] 1 K.B. 124, 146) agreed with Rowlatt, J. that by enduring benefit is meant enduring in the way that fixed capital endures :"An expenditure on acquiring floating capital is not made with a view to acquiring an enduring asset. It is made with a view to acquiring an asset that may be turned over in the course of trade at a comparatively early date."15. Latham, C.J., observed in Sun Newspapers Ltd. & Associated Newspapers Ltd. v. Federal Commissioner of Taxation ((1938) 61 C.L.R. 337, 355) :"When the words permanent or enduring are used in this connection it is not meant that the advantage which will be obtained will last for ever. The distinction which is drawn is that between more or less recurrent expenses involved in running a business and an expenditure for the benefit of the business as a whole"...... e.g. ...... - "enlargement of the goodwill of a company." - "permanent improvement in the material or immaterial assets of the concern."16. To the same effect are the observations of Lord Greene, M. R. in Henriksen (H. M. Inspector of Taxes) v. Grafton Hotel Ltd. ((1942) 24 T. C. 453) above referred to.17. These are the principles which have to be applied in order to determine whether in the present case the expenditure incurred by the company was capital expenditure or revenue expenditure. Under clause 4 of the deed the lessors undertook not to grant any lease, permit or prospecting licence regarding limestone to any other party in respect of the group of quarries called the Durgasil area without a condition therein that no limestone shall be used for the manufacture of cement. The consideration of Rs. 5, 000 per annum was to be paid by the company to the lessor during the whole period of the lease and this advantage or benefit was to endure for the whole period of the lease. It was an enduring benefit for the benefit of the whole of the business of the company and came well within the test laid down by Viscount Cave. It was not a lump sum payment but was spread over the whole period of the lease and it could be urged that it was recurring payment. The fact however that it was a recurring payment was immaterial, because one had got to look to the nature of the payment which in its turn was determined by the nature of the asset which the company had acquire. The asset which the company had acquired in consideration of this recurring payment was in the nature of a capital asset, the right to carry on its business unfettered by any competition from outsiders within the area. It was a protection acquired by the company for its business as a whole. It was not a part of the working of the business but went to appreciate the whole of the capital asset and make it more profit yielding. The expenditure made by the company in acquiring this advantage which was certainly an enduring advantage was thus of the nature of capital expenditure and was not an allowable deduction under section 10(2)(xv) of the Income-tax Act.The further protection fee which was paid by the company to the lessor under clause 5 of the deed was also of a similar nature. It was no doubt spread over a period of 5 years, but the advantage which the company got as a result of the payment was to enure for its benefit for the whole of the period of the lease unless determined in the manner provided in the last part of the clause. It provided protection to the company against all competitors in the whole of the Khasi and Jaintia Hills District and the capital asset which the company acquired under the lease was thereby appreciated to a considerable extent. The sum of Rs. 35, 000 agreed to be paid by the company to the lessor for the period of 5 years was not a revenue expenditure which was made by the company for working the capital asset which it had acquired. It was no part of the working or operational expenses of the company. It was an expenditure made for the purpose of acquiring an appreciated capital asset which would not doubt by reason of the undertaking given by the lessor make the capital asset more profit yielding. The period of 5 years over which the payments were spread did not make any difference to the nature of the acquisition. It was none the less an acquisition of an advantage of an enduring nature which endured for the benefit of the whole of the business for the full period of the lease unless terminated by the lessor by notice as prescribed in the last part of the clause. This again was the acquisition of an asset or advantage of an enduring nature for the whole of the business and was of the nature of capital expenditure and thus was not an allowable deduction under section 10(2)(xv) of the Act.18. We are therefore of the opinion that the conclusion reached by the Income-tax authorities as well as the High Court in regard to the nature of the payments was correct and the sums of Rs. 40, 000 paid by the company to the lessors during the accounting years 1944-45 and 1945-46 were not allowable deductions under section 10(2)(xv) of the Act.
### Response:
0
### Explanation:
expenditure. If any such asset or advantage for the enduring benefit of the business is thus acquired or brought into existence it would be immaterial whether the source of the payment was the capital or the income of the concern or whether the payment was made once and for all or was made periodically. The aim and object of the expenditure would determine the character of the expenditure whether it is a capital expenditure or a revenue expenditure. The source or the manner of the payment would then be of no consequence. It is only in those cases where this test is of no avail that one may go to the test of fixed or circulating capital and consider whether the expenditure incurred was part of the fixed capital of the business or part of its circulating capital. It is was part of the fixed capital of the business it would be of the nature of capital expenditure and if it was part of its circulating capital it would be of the nature of revenue expenditure. These tests are thus mutually exclusive and have to be applied to the facts of each particular case in the manner above indicated. It has been rightly observed that in the great diversity of human affairs and the complicated nature of business operations it is difficult to lay down a test which would apply to all situations. One has therefore got to apply these criteria, one after the other from the business point of view and come to the conclusion whether on a fair appreciation of the whole situation the expenditure incurred in a particular case is of the nature of capital expenditure or revenue expenditure in which latter event only it would be a deductable allowance under section 10(2)(xv) of the Income-tax Act.These are the principles which have to be applied in order to determine whetherin the present case the expenditure incurred by the company was capital expenditure or revenue expenditure.Under clause 4 of the deed the lessors undertook not to grant any lease, permit or prospecting licence regarding limestone to any other party in respect of the group of quarries called the Durgasil area without a condition therein that no limestone shall be used for the manufacture of cement. The consideration of Rs. 5, 000 per annum was to be paid by the company to the lessor during the whole period of the lease and this advantage or benefit was to endure for the whole period of the lease. It was an enduring benefit for the benefit of the whole of the business of the company and came well within the test laid down by Viscount Cave. It was not a lump sum payment but was spread over the whole period of the lease and it could be urged that it was recurring payment. The fact however that it was a recurring payment was immaterial, because one had got to look to the nature of the payment which in its turn was determined by the nature of the asset which the company had acquire. The asset which the company had acquired in consideration of this recurring payment was in the nature of a capital asset, the right to carry on its business unfettered by any competition from outsiders within the area. It was a protection acquired by the company for its business as a whole. It was not a part of the working of the business but went to appreciate the whole of the capital asset and make it more profit yielding. The expenditure made by the company in acquiring this advantage which was certainly an enduring advantage was thus of the nature of capital expenditure and was not an allowable deduction under section 10(2)(xv) of the Income-tax Act.The further protection fee which was paid by the company to the lessor under clause 5 of the deed was also of a similar nature. It was no doubt spread over a period of 5 years, but the advantage which the company got as a result of the payment was to enure for its benefit for the whole of the period of the lease unless determined in the manner provided in the last part of the clause. It provided protection to the company against all competitors in the whole of the Khasi and Jaintia Hills District and the capital asset which the company acquired under the lease was thereby appreciated to a considerable extent. The sum of Rs. 35, 000 agreed to be paid by the company to the lessor for the period of 5 years was not a revenue expenditure which was made by the company for working the capital asset which it had acquired. It was no part of the working or operational expenses of the company. It was an expenditure made for the purpose of acquiring an appreciated capital asset which would not doubt by reason of the undertaking given by the lessor make the capital asset more profit yielding. The period of 5 years over which the payments were spread did not make any difference to the nature of the acquisition. It was none the less an acquisition of an advantage of an enduring nature which endured for the benefit of the whole of the business for the full period of the lease unless terminated by the lessor by notice as prescribed in the last part of the clause. This again was the acquisition of an asset or advantage of an enduring nature for the whole of the business and was of the nature of capital expenditure and thus was not an allowable deduction under section 10(2)(xv) of the Act.18. We are therefore of the opinion that the conclusion reached by the Income-tax authorities as well as the High Court in regard to the nature of the payments was correct and the sums of Rs. 40, 000 paid by the company to the lessors during the accounting years 1944-45 and 1945-46 were not allowable deductions under section 10(2)(xv) of the
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Talkeshwari Devi Vs. Ram Ran Bikat Prasad Singh & Another | of her share of the properties. 4. Immediately after the death of Sheorani Kuer, the appellant instituted a suit for possession of the properties that fell to the share of Sheorani Kuer purporting to base her claim on Clause 5 of the will to which we have earlier made reference. That suit was resisted by the first defendant, the husband of Sheorani. He claimed that he was entitled to those properties as the heir of his wife. The Trial Court dismissed the plaintiffs suit and the decision of the Trial Court was upheld by the High Court. 5. It was contended on behalf of the appellant that in view of Clause 5 of the will, the appellant is entitled to the suit properties as Sheorani Kuer had died issueless. This contention, as mentioned earlier, did not find favour either with the Trial Court or with the Appellate Court. They have held that on a proper reading of the will as a whole, it is clear that Clause 5 ceased to be operative on the death of Jageshwar Kuer. Thereafter Clause 4 of the will was the only operative clause so far as the right of the appellant and Sheorani were concerned. 6. It is undisputed that the duty of the Court is to find out the intention of the testator but that intention has to be gathered from the language of the will read as a whole. It is clear from Clause 4 of the will that the testator wanted to give to his grand-daughters an absolute right in the properties that were to devolve on them after the death of his wife, Jageshwar Kuer. The estate bequeathed under Clause 4 of the will is not a conditional estate. Clause 5 of the will relates to devolution and it does not provide for any divestment of an estate which had vested. The estate that vested on Sheorani was an absolute one. The will does not provide for the divestment of that estate. It is plain from the language of Clause 5 of the will that it refers to the devolution, which means when the properties devolved on the two sisters on the death of Jageshwar Kuer. We are unable to accept the contention of Mr. M. C. Chagla, learned for the appellant that there is any conflict between Clause 4 and Clause 5 of the will. Clause 5 in our judgment would have come into force if the contingency mentioned therein had happened before the properties absolutely devolved on the two sisters. Clause 5 cannot be considered as a defeasance clause. If the testator wanted that the bequest made to any of his grand-daughters should stand divested on the happening of any contingency, then he would have said so in the will, assuming that he could have made such a provision. But the will nowhere says that the properties bequeathed to the appellant and her sister should cease to be their properties on their dying issueless. Obviously what the testator intended was that if any of his grand-daughters dies issueless before the devolution took place then the entire property should go to the other grand-daughter. To our mind the intention of the testator is plain from the language of the will. 7. To find out the effect of the will before us we have to look to Section 124 and 131 of the Indian Succession Act, 1925. Section 124 says :"Where a legacy is given if a specified uncertain event shall happen and no time is mentioned in the will for the occurrence of that event, the legacy cannot take effect, unless such event happens before the period when the fund bequeathed is payable or distributable." Illustration (ii) to that section says :"A legacy is bequeathed to A, and in the case death without children, to B. If A survives the testator or dies in his lifetime leaving a child, the legacy to B does not take effect." 8. If Section 124 applies to the facts of the case, as we think it does, then it is clear that the legacy claimed by the appellant is unavailable as the contemplated contingency did not occur before the fund bequeathed was payable or distributable. Section 124 deals with devolution. But as we shall presently see Section 131 deals with divestment of an estate that had vested. Mr. Chagla contends that the governing provision is Section 131. That section says :"A bequest may be made to any person with the condition superadded that, in case a specified uncertain even shall happen, the thing bequeathed shall go to another person, or that in case a specified uncertain event shall not happen, the thing bequeathed shall go over to another person." 9. This section provides for the divestment of an estate which had already vested. It speaks of an estate going over to another person. As seen earlier Clause 5 of the will is not a defeasance clause. 10. A case somewhat similar to the one before us came up for consideration before the Judicial Committee of the Privy Council in Norendra Nath Sircar and Another v. Kamal Basini Dasi. [ILR 23 Cal 563]. Therein a Hindu at his death left three sons, the eldest of full age and the other two minors. In his will were the directions "My three sons shall be entitled to enjoy all the movable and immovable properties left by me equally. Any one of the sons dying sonless, the surviving son shall be entitled to all the properties equally." Interpreting this clause the Judicial Committee held that those words gave a legacy to the survivors contingently on the happening of a specified uncertain event, which had not happened before the period when the property bequeathed was distributable, that period of distribution being the time of the testators death. In arriving at this conclusion, the Judicial Committee relied on Section 111 of the Indian Succession Act, 1865. That provision is similar to Section 124 of the Indian Succession Act, 1925. | 0[ds]6. It is undisputed that the duty of the Court is to find out the intention of the testator but that intention has to be gathered from the language of the will read as a whole. It is clear from Clause 4 of the will that the testator wanted to give to his grand-daughters an absolute right in the properties that were to devolve on them after the death of his wife, Jageshwar Kuer. The estate bequeathed under Clause 4 of the will is not a conditional estate. Clause 5 of the will relates to devolution and it does not provide for any divestment of an estate which had vested. The estate that vested on Sheorani was an absolute one. The will does not provide for the divestment of that estate. It is plain from the language of Clause 5 of the will that it refers to the devolution, which means when the properties devolved on the two sisters on the death of Jageshwar Kuer. We are unable to accept the contention of Mr. M. C. Chagla, learned for the appellant that there is any conflict between Clause 4 and Clause 5 of the will. Clause 5 in our judgment would have come into force if the contingency mentioned therein had happened before the properties absolutely devolved on the two sisters. Clause 5 cannot be considered as a defeasance clause. If the testator wanted that the bequest made to any of his grand-daughters should stand divested on the happening of any contingency, then he would have said so in the will, assuming that he could have made such a provision. But the will nowhere says that the properties bequeathed to the appellant and her sister should cease to be their properties on their dying issueless. Obviously what the testator intended was that if any of his grand-daughters dies issueless before the devolution took place then the entire property should go to the other grand-daughter. To our mind the intention of the testator is plain from the language of the will7. To find out the effect of the will before us we have to look to Section 124 and 131 ofthe Indian Succession Act, 1925. Section 124 says :"Where a legacy is given if a specified uncertain event shall happen and no time is mentioned in the will for the occurrence of that event, the legacy cannot take effect, unless such event happens before the period when the fund bequeathed is payable or distributable."Illustration (ii) to that section says :"A legacy is bequeathed to A, and in the case death without children, to B. If A survives the testator or dies in his lifetime leaving a child, the legacy to B does not take effect."8. If Section 124 applies to the facts of the case, as we think it does, then it is clear that the legacy claimed by the appellant is unavailable as the contemplated contingency did not occur before the fund bequeathed was payable or distributable. Section 124 deals with devolution. But as we shall presently see Section 131 deals with divestment of an estate that had vested. Mr. Chagla contends that the governing provision is Section 131. That section says :"A bequest may be made to any person with the condition superadded that, in case a specified uncertain even shall happen, the thing bequeathed shall go to another person, or that in case a specified uncertain event shall not happen, the thing bequeathed shall go over to another person."9. This section provides for the divestment of an estate which had already vested. It speaks of an estate going over to another person. As seen earlier Clause 5 of the will is not a defeasance clause10. A case somewhat similar to the one before us came up for consideration before the Judicial Committee of the Privy Council in Norendra Nath Sircar and Another v. Kamal Basini Dasi. [ILR 23 Cal 563]. Therein a Hindu at his death left three sons, the eldest of full age and the other two minors. In his will were the directions "My three sons shall be entitled to enjoy all the movable and immovable properties left by me equally. Any one of the sons dying sonless, the surviving son shall be entitled to all the properties equally." Interpreting this clause the Judicial Committee held that those words gave a legacy to the survivors contingently on the happening of a specified uncertain event, which had not happened before the period when the property bequeathed was distributable, that period of distribution being the time of the testators death. In arriving at this conclusion, the Judicial Committee relied on Section 111 of the Indian Succession Act, 1865. That provision is similar to Section 124 ofthe Indian Succession Act, 1925. | 0 | 1,540 | 875 | ### 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:
of her share of the properties. 4. Immediately after the death of Sheorani Kuer, the appellant instituted a suit for possession of the properties that fell to the share of Sheorani Kuer purporting to base her claim on Clause 5 of the will to which we have earlier made reference. That suit was resisted by the first defendant, the husband of Sheorani. He claimed that he was entitled to those properties as the heir of his wife. The Trial Court dismissed the plaintiffs suit and the decision of the Trial Court was upheld by the High Court. 5. It was contended on behalf of the appellant that in view of Clause 5 of the will, the appellant is entitled to the suit properties as Sheorani Kuer had died issueless. This contention, as mentioned earlier, did not find favour either with the Trial Court or with the Appellate Court. They have held that on a proper reading of the will as a whole, it is clear that Clause 5 ceased to be operative on the death of Jageshwar Kuer. Thereafter Clause 4 of the will was the only operative clause so far as the right of the appellant and Sheorani were concerned. 6. It is undisputed that the duty of the Court is to find out the intention of the testator but that intention has to be gathered from the language of the will read as a whole. It is clear from Clause 4 of the will that the testator wanted to give to his grand-daughters an absolute right in the properties that were to devolve on them after the death of his wife, Jageshwar Kuer. The estate bequeathed under Clause 4 of the will is not a conditional estate. Clause 5 of the will relates to devolution and it does not provide for any divestment of an estate which had vested. The estate that vested on Sheorani was an absolute one. The will does not provide for the divestment of that estate. It is plain from the language of Clause 5 of the will that it refers to the devolution, which means when the properties devolved on the two sisters on the death of Jageshwar Kuer. We are unable to accept the contention of Mr. M. C. Chagla, learned for the appellant that there is any conflict between Clause 4 and Clause 5 of the will. Clause 5 in our judgment would have come into force if the contingency mentioned therein had happened before the properties absolutely devolved on the two sisters. Clause 5 cannot be considered as a defeasance clause. If the testator wanted that the bequest made to any of his grand-daughters should stand divested on the happening of any contingency, then he would have said so in the will, assuming that he could have made such a provision. But the will nowhere says that the properties bequeathed to the appellant and her sister should cease to be their properties on their dying issueless. Obviously what the testator intended was that if any of his grand-daughters dies issueless before the devolution took place then the entire property should go to the other grand-daughter. To our mind the intention of the testator is plain from the language of the will. 7. To find out the effect of the will before us we have to look to Section 124 and 131 of the Indian Succession Act, 1925. Section 124 says :"Where a legacy is given if a specified uncertain event shall happen and no time is mentioned in the will for the occurrence of that event, the legacy cannot take effect, unless such event happens before the period when the fund bequeathed is payable or distributable." Illustration (ii) to that section says :"A legacy is bequeathed to A, and in the case death without children, to B. If A survives the testator or dies in his lifetime leaving a child, the legacy to B does not take effect." 8. If Section 124 applies to the facts of the case, as we think it does, then it is clear that the legacy claimed by the appellant is unavailable as the contemplated contingency did not occur before the fund bequeathed was payable or distributable. Section 124 deals with devolution. But as we shall presently see Section 131 deals with divestment of an estate that had vested. Mr. Chagla contends that the governing provision is Section 131. That section says :"A bequest may be made to any person with the condition superadded that, in case a specified uncertain even shall happen, the thing bequeathed shall go to another person, or that in case a specified uncertain event shall not happen, the thing bequeathed shall go over to another person." 9. This section provides for the divestment of an estate which had already vested. It speaks of an estate going over to another person. As seen earlier Clause 5 of the will is not a defeasance clause. 10. A case somewhat similar to the one before us came up for consideration before the Judicial Committee of the Privy Council in Norendra Nath Sircar and Another v. Kamal Basini Dasi. [ILR 23 Cal 563]. Therein a Hindu at his death left three sons, the eldest of full age and the other two minors. In his will were the directions "My three sons shall be entitled to enjoy all the movable and immovable properties left by me equally. Any one of the sons dying sonless, the surviving son shall be entitled to all the properties equally." Interpreting this clause the Judicial Committee held that those words gave a legacy to the survivors contingently on the happening of a specified uncertain event, which had not happened before the period when the property bequeathed was distributable, that period of distribution being the time of the testators death. In arriving at this conclusion, the Judicial Committee relied on Section 111 of the Indian Succession Act, 1865. That provision is similar to Section 124 of the Indian Succession Act, 1925.
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0
### Explanation:
6. It is undisputed that the duty of the Court is to find out the intention of the testator but that intention has to be gathered from the language of the will read as a whole. It is clear from Clause 4 of the will that the testator wanted to give to his grand-daughters an absolute right in the properties that were to devolve on them after the death of his wife, Jageshwar Kuer. The estate bequeathed under Clause 4 of the will is not a conditional estate. Clause 5 of the will relates to devolution and it does not provide for any divestment of an estate which had vested. The estate that vested on Sheorani was an absolute one. The will does not provide for the divestment of that estate. It is plain from the language of Clause 5 of the will that it refers to the devolution, which means when the properties devolved on the two sisters on the death of Jageshwar Kuer. We are unable to accept the contention of Mr. M. C. Chagla, learned for the appellant that there is any conflict between Clause 4 and Clause 5 of the will. Clause 5 in our judgment would have come into force if the contingency mentioned therein had happened before the properties absolutely devolved on the two sisters. Clause 5 cannot be considered as a defeasance clause. If the testator wanted that the bequest made to any of his grand-daughters should stand divested on the happening of any contingency, then he would have said so in the will, assuming that he could have made such a provision. But the will nowhere says that the properties bequeathed to the appellant and her sister should cease to be their properties on their dying issueless. Obviously what the testator intended was that if any of his grand-daughters dies issueless before the devolution took place then the entire property should go to the other grand-daughter. To our mind the intention of the testator is plain from the language of the will7. To find out the effect of the will before us we have to look to Section 124 and 131 ofthe Indian Succession Act, 1925. Section 124 says :"Where a legacy is given if a specified uncertain event shall happen and no time is mentioned in the will for the occurrence of that event, the legacy cannot take effect, unless such event happens before the period when the fund bequeathed is payable or distributable."Illustration (ii) to that section says :"A legacy is bequeathed to A, and in the case death without children, to B. If A survives the testator or dies in his lifetime leaving a child, the legacy to B does not take effect."8. If Section 124 applies to the facts of the case, as we think it does, then it is clear that the legacy claimed by the appellant is unavailable as the contemplated contingency did not occur before the fund bequeathed was payable or distributable. Section 124 deals with devolution. But as we shall presently see Section 131 deals with divestment of an estate that had vested. Mr. Chagla contends that the governing provision is Section 131. That section says :"A bequest may be made to any person with the condition superadded that, in case a specified uncertain even shall happen, the thing bequeathed shall go to another person, or that in case a specified uncertain event shall not happen, the thing bequeathed shall go over to another person."9. This section provides for the divestment of an estate which had already vested. It speaks of an estate going over to another person. As seen earlier Clause 5 of the will is not a defeasance clause10. A case somewhat similar to the one before us came up for consideration before the Judicial Committee of the Privy Council in Norendra Nath Sircar and Another v. Kamal Basini Dasi. [ILR 23 Cal 563]. Therein a Hindu at his death left three sons, the eldest of full age and the other two minors. In his will were the directions "My three sons shall be entitled to enjoy all the movable and immovable properties left by me equally. Any one of the sons dying sonless, the surviving son shall be entitled to all the properties equally." Interpreting this clause the Judicial Committee held that those words gave a legacy to the survivors contingently on the happening of a specified uncertain event, which had not happened before the period when the property bequeathed was distributable, that period of distribution being the time of the testators death. In arriving at this conclusion, the Judicial Committee relied on Section 111 of the Indian Succession Act, 1865. That provision is similar to Section 124 ofthe Indian Succession Act, 1925.
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M/s. Kelkar & Kelkar Vs. M/s. Hotel Pride Executive Pvt. Ltd | M. R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 06.08.2015 passed by the High Court of Judicature at Bombay in Writ Petition No.4442 of 1999 by which the High Court, in exercise of Articles 226 and 227 of the Constitution of India, has allowed the said writ petition preferred by the respondent herein and has quashed and set aside the award passed by the learned Arbitrator and has remanded the matter for de novo consideration, the original claimant has preferred the present appeal. 1.1 The dispute arose between the parties which was the subject matter of arbitration before the learned Arbitrator. On the learned Arbitrator declaring the award, on an application filed by the original claimant – original plaintiff vide order passed in Exhibit 10 in Regular Civil Suit No.1022/1996, passed a decree in terms of the award made by the learned Arbitrator. By the said award the original respondents were directed to pay to the original claimants Rs.12,46,663/-. 1.2 Feeling aggrieved and dissatisfied with the award made by the learned Arbitrator as well as the order passed by the learned trial Court passed as per Exhibit 10 in making the award a decree, instead of preferring appeals under the Arbitration Act, 1940 (hereinafter referred to as the Act), preferred a writ petition before the High Court under Articles 226 and 227 of the Constitution of India mainly on the ground that, before the learned Arbitrator was appointed, there was non-compliance of Clause 56 of the Articles of Agreement and the procedure as required under Clause 56 was not followed. By the impugned judgment and order the High Court has set aside the award made by the learned Arbitrator on the ground that the procedure as required under Clause 56 had not been followed. Consequently, the High Court has remanded the matter for de novo consideration. 1.3 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, the original claimant has preferred the present appeal. 2. Having heard learned counsel appearing on behalf of the respective parties and considering the impugned judgment and order passed by the High Court, we are of the opinion that against the award made by the learned Arbitrator made under the Act and against an order passed by the learned trial Court making the award a decree and without availing the alternative statutory remedy available by way of appeal under the provisions of the Act, the High Court ought not to have entertained the writ petition under Articles 226 and 227 of the Constitution of India. When the statute provides a further remedy by way of appeal against the award and even against the order passed by the learned trial Court making the award a decree of the court, the High Court ought not to have entertained the writ petition and ought not to have set aside the award, in a writ petition under Articles 226 and 227 of the Constitution of India. In that view of the matter the impugned judgment and order passed by the High Court is unsustainable and the same deserves to be quashed and set aside. 3. At this stage, learned counsel appearing on behalf of the respondent has prayed that in that view of the matter, liberty be reserved in favour of the respondent to take further recourse to law under the provisions of the Act which might have been available against the award made by the learned Arbitrator as well as the order passed by the learned trial Court as per Exhibit 10 making the award a decree. It is further prayed to make a suitable observation that whatever amount is already paid to the appellant – original claimant may be adjusted subject to the ultimate outcome and the further order that may be passed in future. | 1[ds]2. Having heard learned counsel appearing on behalf of the respective parties and considering the impugned judgment and order passed by the High Court, we are of the opinion that against the award made by the learned Arbitrator made under the Act and against an order passed by the learned trial Court making the award a decree and without availing the alternative statutory remedy available by way of appeal under the provisions of the Act, the High Court ought not to have entertained the writ petition under Articles 226 and 227 of the Constitution of India. When the statute provides a further remedy by way of appeal against the award and even against the order passed by the learned trial Court making the award a decree of the court, the High Court ought not to have entertained the writ petition and ought not to have set aside the award, in a writ petition under Articles 226 and 227 of the Constitution of India. In that view of the matter the impugned judgment and order passed by the High Court is unsustainable and the same deserves to be quashed and set aside. | 1 | 679 | 203 | ### 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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M. R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 06.08.2015 passed by the High Court of Judicature at Bombay in Writ Petition No.4442 of 1999 by which the High Court, in exercise of Articles 226 and 227 of the Constitution of India, has allowed the said writ petition preferred by the respondent herein and has quashed and set aside the award passed by the learned Arbitrator and has remanded the matter for de novo consideration, the original claimant has preferred the present appeal. 1.1 The dispute arose between the parties which was the subject matter of arbitration before the learned Arbitrator. On the learned Arbitrator declaring the award, on an application filed by the original claimant – original plaintiff vide order passed in Exhibit 10 in Regular Civil Suit No.1022/1996, passed a decree in terms of the award made by the learned Arbitrator. By the said award the original respondents were directed to pay to the original claimants Rs.12,46,663/-. 1.2 Feeling aggrieved and dissatisfied with the award made by the learned Arbitrator as well as the order passed by the learned trial Court passed as per Exhibit 10 in making the award a decree, instead of preferring appeals under the Arbitration Act, 1940 (hereinafter referred to as the Act), preferred a writ petition before the High Court under Articles 226 and 227 of the Constitution of India mainly on the ground that, before the learned Arbitrator was appointed, there was non-compliance of Clause 56 of the Articles of Agreement and the procedure as required under Clause 56 was not followed. By the impugned judgment and order the High Court has set aside the award made by the learned Arbitrator on the ground that the procedure as required under Clause 56 had not been followed. Consequently, the High Court has remanded the matter for de novo consideration. 1.3 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, the original claimant has preferred the present appeal. 2. Having heard learned counsel appearing on behalf of the respective parties and considering the impugned judgment and order passed by the High Court, we are of the opinion that against the award made by the learned Arbitrator made under the Act and against an order passed by the learned trial Court making the award a decree and without availing the alternative statutory remedy available by way of appeal under the provisions of the Act, the High Court ought not to have entertained the writ petition under Articles 226 and 227 of the Constitution of India. When the statute provides a further remedy by way of appeal against the award and even against the order passed by the learned trial Court making the award a decree of the court, the High Court ought not to have entertained the writ petition and ought not to have set aside the award, in a writ petition under Articles 226 and 227 of the Constitution of India. In that view of the matter the impugned judgment and order passed by the High Court is unsustainable and the same deserves to be quashed and set aside. 3. At this stage, learned counsel appearing on behalf of the respondent has prayed that in that view of the matter, liberty be reserved in favour of the respondent to take further recourse to law under the provisions of the Act which might have been available against the award made by the learned Arbitrator as well as the order passed by the learned trial Court as per Exhibit 10 making the award a decree. It is further prayed to make a suitable observation that whatever amount is already paid to the appellant – original claimant may be adjusted subject to the ultimate outcome and the further order that may be passed in future.
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1
### Explanation:
2. Having heard learned counsel appearing on behalf of the respective parties and considering the impugned judgment and order passed by the High Court, we are of the opinion that against the award made by the learned Arbitrator made under the Act and against an order passed by the learned trial Court making the award a decree and without availing the alternative statutory remedy available by way of appeal under the provisions of the Act, the High Court ought not to have entertained the writ petition under Articles 226 and 227 of the Constitution of India. When the statute provides a further remedy by way of appeal against the award and even against the order passed by the learned trial Court making the award a decree of the court, the High Court ought not to have entertained the writ petition and ought not to have set aside the award, in a writ petition under Articles 226 and 227 of the Constitution of India. In that view of the matter the impugned judgment and order passed by the High Court is unsustainable and the same deserves to be quashed and set aside.
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Haryana State Electricity Board Vs. The State of Punjab & Others | effect from September 1, 1956. The case of the writ petitioners confirmation in Class II was taken up in 1968 on receipt of his report for the period ending March 31, 1956 from the Himachal Pradesh Government and he was then confirmed. It was admitted that the post in Class I fell vacant with effect from September 1, 1956 due to the confirmation of T.S. Madan as Executive Engineer on June 13, 1961. Another plea that was taken was that the writ petitioner was confirmed with effect from April 7, 1957 on completion of is period of probation for one year in place of T. S. Madan. It was denied that Rule 7-A was applicable to the writ petitioner. As the writ petitioner had been confirmed in Class I on June 27, 1963 with effect from April 7, 1957 respondents 3 to 9 had become senior to him under the provisions of Rule 7-A. In the class of Executive Engineers also the writ petitioner became junior to respondents 3 to 9 since they had been confirmed with effect from earlier dates. 4. The High Court was of the view that when B. K. Puri the writ petitioner was confirmed in Class II with effect from October 1, 1955 by the order dated August 18, 1958 he indisputably became senior to respondents 3 to 9 in Class II. It was found that there was a vacancy in Class I with effect from September 1, 1956 and the writ petitioner could have been easily confirmed from that date. But the reason given by the appellant for not confirming him earlier than April 7, 1957 was that he could ot be as confirmed unless he had completed one years probation with effect from 6-4-1956 when he had been promoted to Class I in an officiating capacity. It was, however, conceded by counsel for the appellant that there was no rule fixing this probationary period and that in the case of some of the other respondents no such rule was followed of completing a period of probation after promotion i.e. in the case of M/s. S. L. Sood and Pritam Singh who were confirmed with effect from September 1, 1956 when they had been promoted to Class 1 in an officiating capacity in April 1956. In other words they had been confirmed in less than five months period from the date of their officiating appointment after promotion. On this the High Court held that the reason given by the appellant for not confirming B.K. Puri with effect from September 1, 1956 from which date respondents 3 to 9 had been confirmed had no basis, and was extraneous and irrelevant. For these reasons the order confirming B. K. Puri with effect from April 7, 1957 was considered to be illegal. Another matter pointed out by the High Court was that B. K. Puri had passed the Safety Code Examination on October 8, 1956. There was no reason, therefore, for making an order relating to his confirmation in Class II on August 18, 1958 whereas the other respondents were confirmed in May 1956. This is what the High Court proceeded to observe: Be that as it may, when the petitioner was admittedly confirmed in that Class (II) on 18-8-1958, his case for confirmation in Class I should have been immediately taken up. In this connection, it would be pertinent to observe that K. B. Bhatia was confirmed in Class II on 13-1-1960 and on the same date he was confirmed in Class I also. 5. On the question of laches various representation and petitions which B. K. Puri had been making consistently were referred to by the High Court and it was considered that it was not a case where relief could be declined on the ground of laches or delay. The High Court quashed the order dated June 27, 1963 confirming B. K. Puri in Class I with effect from April 7, 1957 and issued a writ of Mandamus to consider the case for confirmation in Class I with effect from September 1, 1956 or a date earlier than that and refix his seniority vis-a-vis respondents 3 to 9 in Class I and that of Executive Engineers in the light of interpretation of Rule 7-A as given in the judgment. It may be mentioned that this interpretation was the same as has been accepted by us as correct in the connected appeal i.e. C.A. 456 of 1970. 6. It appears to us that the judgment of the High Court in this case does not call for any interference. The main stress that was laid by the learned counsel for the State was on the laches and delay on the part of B. K. Puri in filing the petition in the High Court. From the resume of the various dates which has already been given it is apparent that he kept on making representations and moving the appropriate authorities at all stages and the only reason which has been suggested for confirming him in Class I subsequent to respondents 3 to 9 is that he had been passed over on the ground which has already been mentioned. The High Court has dealt with that aspect fully and in view of the interpretation of the proviso to Rule 7-A which has already been discussed in the connected appeal by us it is difficult to disagree with the High Court that there was no justification for not confirming B. K. Puri in Class I from the same date on which the other respondents (3 to 9) were confirmed, namely, September 1, 1956. There are several distinguishing features in this case from the connected appeal (C.A. 456/70) for not applying the rule in S. G. Jaisinghani v. Union of India, (1967) 2 SCR 703 = (AIR 1967 SC 1427 ) about not disturbing the seniority of those Executive Engineers who were confirmed by orders made some years prior to the filing of the writ petition by B. K. Puri. | 0[ds]6. It appears to us that the judgment of the High Court in this case does not call for any interference.The main stress that was laid by the learned counsel for the State was on the laches and delay on the part of B. K. Puri in filing the petition in the High Court.From the resume of the various dates which has already been given it is apparent that he kept on making representations and moving the appropriate authorities at all stages and the only reason which has been suggested for confirming him in Class I subsequent to respondents 3 to 9 is that he had been passed over on the ground which has already been mentioned. The High Court has dealt with that aspect fully and in view of the interpretation of the proviso to RuleA which has already been discussed in the connected appeal by us it is difficult to disagree with the High Court that there was no justification for not confirming B. K. Puri in Class I from the same date on which the other respondents (3 to 9) were confirmed, namely, September 1, 1956. There are several distinguishing features in this case from the connected appeal (C.A. 456/70) for not applying the rule in S. G. Jaisinghani v. Union of India, (1967) 2 SCR 703 = (AIR 1967 SC 1427 ) about not disturbing the seniority of those Executive Engineers who were confirmed by orders made some years prior to the filing of the writ petition by B. K. Puri. | 0 | 2,363 | 275 | ### Instruction:
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effect from September 1, 1956. The case of the writ petitioners confirmation in Class II was taken up in 1968 on receipt of his report for the period ending March 31, 1956 from the Himachal Pradesh Government and he was then confirmed. It was admitted that the post in Class I fell vacant with effect from September 1, 1956 due to the confirmation of T.S. Madan as Executive Engineer on June 13, 1961. Another plea that was taken was that the writ petitioner was confirmed with effect from April 7, 1957 on completion of is period of probation for one year in place of T. S. Madan. It was denied that Rule 7-A was applicable to the writ petitioner. As the writ petitioner had been confirmed in Class I on June 27, 1963 with effect from April 7, 1957 respondents 3 to 9 had become senior to him under the provisions of Rule 7-A. In the class of Executive Engineers also the writ petitioner became junior to respondents 3 to 9 since they had been confirmed with effect from earlier dates. 4. The High Court was of the view that when B. K. Puri the writ petitioner was confirmed in Class II with effect from October 1, 1955 by the order dated August 18, 1958 he indisputably became senior to respondents 3 to 9 in Class II. It was found that there was a vacancy in Class I with effect from September 1, 1956 and the writ petitioner could have been easily confirmed from that date. But the reason given by the appellant for not confirming him earlier than April 7, 1957 was that he could ot be as confirmed unless he had completed one years probation with effect from 6-4-1956 when he had been promoted to Class I in an officiating capacity. It was, however, conceded by counsel for the appellant that there was no rule fixing this probationary period and that in the case of some of the other respondents no such rule was followed of completing a period of probation after promotion i.e. in the case of M/s. S. L. Sood and Pritam Singh who were confirmed with effect from September 1, 1956 when they had been promoted to Class 1 in an officiating capacity in April 1956. In other words they had been confirmed in less than five months period from the date of their officiating appointment after promotion. On this the High Court held that the reason given by the appellant for not confirming B.K. Puri with effect from September 1, 1956 from which date respondents 3 to 9 had been confirmed had no basis, and was extraneous and irrelevant. For these reasons the order confirming B. K. Puri with effect from April 7, 1957 was considered to be illegal. Another matter pointed out by the High Court was that B. K. Puri had passed the Safety Code Examination on October 8, 1956. There was no reason, therefore, for making an order relating to his confirmation in Class II on August 18, 1958 whereas the other respondents were confirmed in May 1956. This is what the High Court proceeded to observe: Be that as it may, when the petitioner was admittedly confirmed in that Class (II) on 18-8-1958, his case for confirmation in Class I should have been immediately taken up. In this connection, it would be pertinent to observe that K. B. Bhatia was confirmed in Class II on 13-1-1960 and on the same date he was confirmed in Class I also. 5. On the question of laches various representation and petitions which B. K. Puri had been making consistently were referred to by the High Court and it was considered that it was not a case where relief could be declined on the ground of laches or delay. The High Court quashed the order dated June 27, 1963 confirming B. K. Puri in Class I with effect from April 7, 1957 and issued a writ of Mandamus to consider the case for confirmation in Class I with effect from September 1, 1956 or a date earlier than that and refix his seniority vis-a-vis respondents 3 to 9 in Class I and that of Executive Engineers in the light of interpretation of Rule 7-A as given in the judgment. It may be mentioned that this interpretation was the same as has been accepted by us as correct in the connected appeal i.e. C.A. 456 of 1970. 6. It appears to us that the judgment of the High Court in this case does not call for any interference. The main stress that was laid by the learned counsel for the State was on the laches and delay on the part of B. K. Puri in filing the petition in the High Court. From the resume of the various dates which has already been given it is apparent that he kept on making representations and moving the appropriate authorities at all stages and the only reason which has been suggested for confirming him in Class I subsequent to respondents 3 to 9 is that he had been passed over on the ground which has already been mentioned. The High Court has dealt with that aspect fully and in view of the interpretation of the proviso to Rule 7-A which has already been discussed in the connected appeal by us it is difficult to disagree with the High Court that there was no justification for not confirming B. K. Puri in Class I from the same date on which the other respondents (3 to 9) were confirmed, namely, September 1, 1956. There are several distinguishing features in this case from the connected appeal (C.A. 456/70) for not applying the rule in S. G. Jaisinghani v. Union of India, (1967) 2 SCR 703 = (AIR 1967 SC 1427 ) about not disturbing the seniority of those Executive Engineers who were confirmed by orders made some years prior to the filing of the writ petition by B. K. Puri.
### Response:
0
### Explanation:
6. It appears to us that the judgment of the High Court in this case does not call for any interference.The main stress that was laid by the learned counsel for the State was on the laches and delay on the part of B. K. Puri in filing the petition in the High Court.From the resume of the various dates which has already been given it is apparent that he kept on making representations and moving the appropriate authorities at all stages and the only reason which has been suggested for confirming him in Class I subsequent to respondents 3 to 9 is that he had been passed over on the ground which has already been mentioned. The High Court has dealt with that aspect fully and in view of the interpretation of the proviso to RuleA which has already been discussed in the connected appeal by us it is difficult to disagree with the High Court that there was no justification for not confirming B. K. Puri in Class I from the same date on which the other respondents (3 to 9) were confirmed, namely, September 1, 1956. There are several distinguishing features in this case from the connected appeal (C.A. 456/70) for not applying the rule in S. G. Jaisinghani v. Union of India, (1967) 2 SCR 703 = (AIR 1967 SC 1427 ) about not disturbing the seniority of those Executive Engineers who were confirmed by orders made some years prior to the filing of the writ petition by B. K. Puri.
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H. Dear and Company Private Limited Vs. Commissioner of Income Tax, Calcutta | the company did not purchase standing timber, but it was given " a right to extract sleepers ". According to the High Court, the company had " to enter the forests, to wait for certain trees to be marked, and then to cut such trees according to its requirements for the supply of sleepers to the railways and others, as and when it liked, within the specified period of three years, " and that what was acquired under the agreement was not stock-in-trade, but the right to acquire it and, upon the principle laid down by the House of Lords in Hood-Barrs v. Inland Revenue, Commissioners, the company acquired a capital asset of an enduring nature. In the alternative, the High Court observed, the additional amounts agreed to be paid in respect of the period under the original agreements which had expired were in consideration of the Estate granting extension of the agreement which came to an end in the month of June, 1950. Had the agreement not been extended, observed the High Court, the " business of the company would have been greatly affected and there could be no doubt that by the payment the company acquired a benefit of an enduring nature ", and since by the payment of the amounts the company got the benefit of a contract whereby it could continue its business activities for a sufficiently long period to come, it was a benefit of an enduring nature and, therefore, the payments were of a capital natureUnder section 10(2) of the Act in the computation of the profits of a business carried on by an assessee certain allowances are permitted to be deducted and one such allowance is " expenditure not being an allowance of the nature described in clauses (i) to (xiv) inclusive, and not being in the nature of capital expenditure or personal expenses of the assessee laid out or expended wholly and exclusively for the purpose of such business, profession or vocation. " The expenditure in question was, it is common ground, laid out wholly and exclusively for the purpose of the business, and it was not an allowance of the nature described in clauses (i) to (xiv) of sub-section (2) of section 10. It was still not admissible as an allowance, if it was in the nature of capital expenditure4. In our view the High Court was not right in assuming that the royalty agreed to be paid under the terms of the agreement dated June 13, 1952, and the additional payments annually made were of the same character. The High Court was also not right in holding that the royalty paid under the agreement was of the nature of capital expenditure. Under the terms of the agreement dated June 13, 1952, the company had made an arrangement for obtaining what was its stock-in-trade, and money spent for acquiring stock-in-trade of the business is revenue expenditure. The Income-tax Officer did not disallow the royalty stipulated to be paid under the terms of the agreement dated June 13, 1952 : he only disallowed the additional amounts which related to what was called " back royalty " for the period July 1, 1948, to June 30, 1950. The question referred by the Tribunal also related to the amount of Rs. 83, 157 which was paid as an additional amount over and above the royalty agreed to be paid5. But we are of the view that the answer recorded on the alternative ground which appealed to the High Court must be sustained. The additional payments were worked out on the basis of total royalty paid during the period of two years under the earlier agreements, i.e., from June 1, 1948, to June 30, 1950, and were offered to be paid in consideration of the Estate agreeing to grant renewal of those agreementsUnder the original agreements of the year 1944, certain payments were stipulated to be made for acquiring the " sleepers and scantlings " and payments were made accordingly by the company. Before the period of the agreements came to an end, the company offered to pay for the last two years royalty at an enhanced rate. The offer was conditional : it was binding only if renewal of the agreement was granted as proposed. The offer apparently fell through, when the Collector of Koraput sanctioned renewal only for one year. Before the expiry of the year for which renewal was granted, the company made a fresh offer to pay an additional amount of Rs. 78, 000 annually. That again was a conditional offer. Finally, by letter dated June 10, 1952, the company agreed to make additional payments at the rate of Rs. 83, 000 annually provided " a lease " was "signed and registered in terms of the draft enclosed" with the companys letter dated June 9, 1951. It is in the light of these persistent efforts made by the company to secure renewal of the agreements for what the High Court called a " sufficiently large period " that the nature of the payment has to be determined. It was only with a view to persuade the State authorities to " grant a new lease for a period of four or five years " that an offer to pay those amounts in addition to the stipulated royalty was made. There was no legal obligation to pay those amounts under the terms of the original agreements, and the company offered " as a special case to pay " those additional amounts " on the understanding that the Government will give approval " for renewal of the agreement. The amounts agreed to be paid did not form part of the price of the companys stock-in-trade, right to collect which was conferred by the agreement dated June 13, 1952. There is no doubt that payment of premium in consideration of the owner of property agreeing to grant a right to take and remove the stock-in-trade of the taxpayer is in the nature of capital expenditure. | 0[ds]In our view the High Court was not right in assuming that the royalty agreed to be paid under the terms of the agreement dated June 13, 1952, and the additional payments annually made were of the same character. The High Court was also not right in holding that the royalty paid under the agreement was of the nature of capital expenditure. Under the terms of the agreement dated June 13, 1952, the company had made an arrangement for obtaining what was itsand money spent for acquiringof the business is revenue expenditure. TheOfficer did not disallow the royalty stipulated to be paid under the terms of the agreement dated June 13, 1952 : he only disallowed the additional amounts which related to what was called " back royalty " for the period July 1, 1948, to June 30, 1950. The question referred by the Tribunal also related to the amount of Rs. 83, 157 which was paid as an additional amount over and above the royalty agreed to bewe are of the view that the answer recorded on the alternative ground which appealed to the High Court must be sustained. The additional payments were worked out on the basis of total royalty paid during the period of two years under the earlier agreements, i.e., from June 1, 1948, to June 30, 1950, and were offered to be paid in consideration of the Estate agreeing to grant renewal of those agreementsUnder the original agreements of the year 1944, certain payments were stipulated to be made for acquiring the " sleepers and scantlings " and payments were made accordingly by theis in the light of these persistent efforts made by the company to secure renewal of the agreements for what the High Court called a " sufficiently large period " that the nature of the payment has to be determined. It was only with a view to persuade the State authorities to " grant a new lease for a period of four or five years " that an offer to pay those amounts in addition to the stipulated royalty was made. There was no legal obligation to pay those amounts under the terms of the original agreements, and the company offered " as a special case to pay " those additional amounts " on the understanding that the Government will give approval " for renewal of the agreement. The amounts agreed to be paid did not form part of the price of the companysright to collect which was conferred by the agreement dated June 13, 1952. There is no doubt that payment of premium in consideration of the owner of property agreeing to grant a right to take and remove theof the taxpayer is in the nature of capital expenditure. | 0 | 1,978 | 491 | ### Instruction:
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the company did not purchase standing timber, but it was given " a right to extract sleepers ". According to the High Court, the company had " to enter the forests, to wait for certain trees to be marked, and then to cut such trees according to its requirements for the supply of sleepers to the railways and others, as and when it liked, within the specified period of three years, " and that what was acquired under the agreement was not stock-in-trade, but the right to acquire it and, upon the principle laid down by the House of Lords in Hood-Barrs v. Inland Revenue, Commissioners, the company acquired a capital asset of an enduring nature. In the alternative, the High Court observed, the additional amounts agreed to be paid in respect of the period under the original agreements which had expired were in consideration of the Estate granting extension of the agreement which came to an end in the month of June, 1950. Had the agreement not been extended, observed the High Court, the " business of the company would have been greatly affected and there could be no doubt that by the payment the company acquired a benefit of an enduring nature ", and since by the payment of the amounts the company got the benefit of a contract whereby it could continue its business activities for a sufficiently long period to come, it was a benefit of an enduring nature and, therefore, the payments were of a capital natureUnder section 10(2) of the Act in the computation of the profits of a business carried on by an assessee certain allowances are permitted to be deducted and one such allowance is " expenditure not being an allowance of the nature described in clauses (i) to (xiv) inclusive, and not being in the nature of capital expenditure or personal expenses of the assessee laid out or expended wholly and exclusively for the purpose of such business, profession or vocation. " The expenditure in question was, it is common ground, laid out wholly and exclusively for the purpose of the business, and it was not an allowance of the nature described in clauses (i) to (xiv) of sub-section (2) of section 10. It was still not admissible as an allowance, if it was in the nature of capital expenditure4. In our view the High Court was not right in assuming that the royalty agreed to be paid under the terms of the agreement dated June 13, 1952, and the additional payments annually made were of the same character. The High Court was also not right in holding that the royalty paid under the agreement was of the nature of capital expenditure. Under the terms of the agreement dated June 13, 1952, the company had made an arrangement for obtaining what was its stock-in-trade, and money spent for acquiring stock-in-trade of the business is revenue expenditure. The Income-tax Officer did not disallow the royalty stipulated to be paid under the terms of the agreement dated June 13, 1952 : he only disallowed the additional amounts which related to what was called " back royalty " for the period July 1, 1948, to June 30, 1950. The question referred by the Tribunal also related to the amount of Rs. 83, 157 which was paid as an additional amount over and above the royalty agreed to be paid5. But we are of the view that the answer recorded on the alternative ground which appealed to the High Court must be sustained. The additional payments were worked out on the basis of total royalty paid during the period of two years under the earlier agreements, i.e., from June 1, 1948, to June 30, 1950, and were offered to be paid in consideration of the Estate agreeing to grant renewal of those agreementsUnder the original agreements of the year 1944, certain payments were stipulated to be made for acquiring the " sleepers and scantlings " and payments were made accordingly by the company. Before the period of the agreements came to an end, the company offered to pay for the last two years royalty at an enhanced rate. The offer was conditional : it was binding only if renewal of the agreement was granted as proposed. The offer apparently fell through, when the Collector of Koraput sanctioned renewal only for one year. Before the expiry of the year for which renewal was granted, the company made a fresh offer to pay an additional amount of Rs. 78, 000 annually. That again was a conditional offer. Finally, by letter dated June 10, 1952, the company agreed to make additional payments at the rate of Rs. 83, 000 annually provided " a lease " was "signed and registered in terms of the draft enclosed" with the companys letter dated June 9, 1951. It is in the light of these persistent efforts made by the company to secure renewal of the agreements for what the High Court called a " sufficiently large period " that the nature of the payment has to be determined. It was only with a view to persuade the State authorities to " grant a new lease for a period of four or five years " that an offer to pay those amounts in addition to the stipulated royalty was made. There was no legal obligation to pay those amounts under the terms of the original agreements, and the company offered " as a special case to pay " those additional amounts " on the understanding that the Government will give approval " for renewal of the agreement. The amounts agreed to be paid did not form part of the price of the companys stock-in-trade, right to collect which was conferred by the agreement dated June 13, 1952. There is no doubt that payment of premium in consideration of the owner of property agreeing to grant a right to take and remove the stock-in-trade of the taxpayer is in the nature of capital expenditure.
### Response:
0
### Explanation:
In our view the High Court was not right in assuming that the royalty agreed to be paid under the terms of the agreement dated June 13, 1952, and the additional payments annually made were of the same character. The High Court was also not right in holding that the royalty paid under the agreement was of the nature of capital expenditure. Under the terms of the agreement dated June 13, 1952, the company had made an arrangement for obtaining what was itsand money spent for acquiringof the business is revenue expenditure. TheOfficer did not disallow the royalty stipulated to be paid under the terms of the agreement dated June 13, 1952 : he only disallowed the additional amounts which related to what was called " back royalty " for the period July 1, 1948, to June 30, 1950. The question referred by the Tribunal also related to the amount of Rs. 83, 157 which was paid as an additional amount over and above the royalty agreed to bewe are of the view that the answer recorded on the alternative ground which appealed to the High Court must be sustained. The additional payments were worked out on the basis of total royalty paid during the period of two years under the earlier agreements, i.e., from June 1, 1948, to June 30, 1950, and were offered to be paid in consideration of the Estate agreeing to grant renewal of those agreementsUnder the original agreements of the year 1944, certain payments were stipulated to be made for acquiring the " sleepers and scantlings " and payments were made accordingly by theis in the light of these persistent efforts made by the company to secure renewal of the agreements for what the High Court called a " sufficiently large period " that the nature of the payment has to be determined. It was only with a view to persuade the State authorities to " grant a new lease for a period of four or five years " that an offer to pay those amounts in addition to the stipulated royalty was made. There was no legal obligation to pay those amounts under the terms of the original agreements, and the company offered " as a special case to pay " those additional amounts " on the understanding that the Government will give approval " for renewal of the agreement. The amounts agreed to be paid did not form part of the price of the companysright to collect which was conferred by the agreement dated June 13, 1952. There is no doubt that payment of premium in consideration of the owner of property agreeing to grant a right to take and remove theof the taxpayer is in the nature of capital expenditure.
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C.P.C. Motor Service, Mysore Vs. State of Mysore & Another | State Transport Undertaking. The exclusive operation of routes within the District meant that no other omnibus belonging to a private operator could run on that sector. The direction, therefore clearly said that the route left to the private operators would be open to them beyond the borders of the District, but they were excluded from that portion of the route which lay within the District. In Civil Appeals Nos. 534 to 539 and 434 of 1961, in which we have delivered judgment today, we have explained what is meant by a route and a portion of a route, and we need not cover the same ground. In our opinion, there is no contradiction between the order of the Chief Minister and the directions included by him in the concluding part of his order. Indeed the directions carry out the order, if the order is to be read in the manner indicated by us.9. It was next contended that the inter-District routes, which the appellants were operating, could not be said to be affected by the scheme at all, because "route" means a notional line running between two termini and following a distinct course. This meaning was given to the word "route" by the Privy Council in a case from Ceylon reported in Kelani Valley Motor Transit Co. Ltd. v. Colombo-Ratnapura Omnibus Co. Ltd., 1946 AC 338 : (AIR 1946 PC 137). It is said that the ruling applies in the present case, where what is notified as for exclusive running by the State Transport Under-taking is not a definite portion of a route of a private operator but is a different route altogether. This may be illustrated by algebraic notations. If the route of the private operator was ABPQR, AB lying within the District of Mysore and PQR outside it, it is submitted that a route ABCDE may overlap the other route up to the point B but is not the same route, and, therefore cannot be said to be notified. What is meant by a route in the Act has been elaborately discussed by us in the other judgment delivered to-day (Reported in AIR 1962 SC 1136-Ed.). The only difference between this case and the other cases is that, whereas in the latter the notified route was only AB, here the notified route is ABCDE.10. The notification of the Government must be read in two parts. The first is that part of the notification referring to the whole of the route which is taken over, and the second part is with respect to the portion of the route lying within the District of Mysore. The portion lying within the District of Mysore has been notified separately as within the exclusive operation of the State Transport Undertaking. The natural result of it is that private operators would not be able to ply their omnibuses on that sector, and by "route" is meant, as already stated, not only the notional line but also the actual road over which the omnibuses run. We have shown in the other appeals that the scheme of the Ceylon Ordinance was different. There, the word "route" was contrasted with the word "highway". In the Motor Vehicles Act, the words used are "route or area", and it has been held by this Court that these words mean the same thing; Kondala Rao v. Andhra Pradesh State Road Transport Corporation, AIR 1961 SC 82 .11. The scheme of the Act in S. 68-F (2) (c) (iii) also shows that the Regional Transport Authority, in giving effect to the approved scheme, may "curtail the area or route covered by the permit in so far as such permit relates to the notified area or notified route". This makes the route or area stand for the road on which the omnibuses run or portions thereof, and in view of the fact that the scheme reserved all the routes within the Mysore District to the State Transport Undertaking, even those routes which were inter-District open to the private operators would stand pro tanto cut down to only that portion, which lies outside the 1Mysore District. The result, therefore, is that no distinction can be made between the notification of a portion of the route of the private operators lying within the Mysore District and the notification of a different route, in which the portion within the Mysore District is also included. What we have said in the other case applies equally here.12. It was suggested during the arguments that there were certain routes which did not cover any portion of the notified route but met that route at certain point or points. Reverting to the algebraic notations given above, it was said that route APBQR would not cover any portion of the notified route ABCDE and must at least, therefore, be outside the scheme. No such route, however, was pointed out to us, and we need not express any opinion on this part of the case or as to what would happen if such a route existed.13. Lastly, it was contended that the minimum number of trips and the minimum number of vehicles to be put on the road with respect to any route has not been indicated, and that this is not a proper scheme, because a scheme must show how comparatively more efficient service is to be provided by the State Transport Undertaking. The earlier Rules required a statement as to the minimum and maximum number of vehicles to be put on a route, as also the minimum and maximum trips. It was, however, held by this Court that a departure from the minimum number would mean the alteration of the scheme, necessitating the observance of all the formalities for framing a scheme. In view of this, the Rules were amended, obviating the necessity of indicating the minimum number. The Rule, as it now stands, has been complied with, and there being no challenge to the Rule as such, one cannot say that the scheme is defective on this account. | 0[ds]This in our opinion, is the direct result of taking over of certain routes, because if those routes are taken away, then the private operators would not be running their omnibuses on those routes, and the appropriate entry would be as shown there, "Nil. The rest of the particulars have been given in the scheme itself, including the kind of vehicles which would be run, and their seating capacity, equipment, etc. No doubt, the fares and the timings have been left out, and the State Transport Authority has been given the power to fix them. But that is a matter for the determination of the transport authorities under the Motor Vehicles Act.It is too much to expect fares and timings to be indicated in the scheme, because each route requires elaborate enquiry for fixing the fares as well as the timings of service. The scheme is not required, under the law, to deal with these matters, and we are satisfied that the omission of these details from the scheme does not militate against it.6. Similarly, the argument that the scheme is destructive ofis not valid. No doubt, the private operators cannot run in the Mysore District, but can ply their omnibuses from the border of the Mysore District on routes, which were saved to them, and there is likelihood of transhipment frombuses to private omnibuses at the border, where the routes operated by the State Transport Undertaking and the private operators bifurcate. The transhipment, by itself, would not connote a lack ofthe State Transport Undertaking may take over whole routes or whole areas or part of the routes or part of the areas, and if the scheme operates partially, some transhipment would obviously be necessary, butwould still exist, because where the State omnibuses come to a halt, the private omnibuses would take the passengers set down. In our opinion, these grounds have no validity, in view of the partial nationalisation of the routes involved in the State.In our opinion, the error lies in not properly reading the order of the Chief Minister. In the sentence, "it was contended by the Objectors that if the Mysore Government Road Transport Department was to operate certain notified routes to the complete exclusion of other operators, it would adversely affect the passenger transport system on certain portions ofct routes which are not notified", the words "which are not notified" qualify not the word "routes" but the word "portions". The direction which was given, effectuates the latter reading, which was really meant and not the former, which is urged; because the qualifying phrase "which are not notified" has been unhappily put later. It is no doubt true that the other reading is also open, and is more in accord with a grammatical construction. Where two constructions are open it is proper to read the order harmoniously with the directions, because it could not have been intended that the Chief Minister would express his opinion in one way and include a contradictory direction in another way. Indeed, the intention was to take over routes or parts of the routes lying in Mysore District and to notify them as within the exclusive operation of the State Transport Undertaking. The exclusive operation of routes within the District meant that no other omnibus belonging to a private operator could run on that sector. The direction, therefore clearly said that the route left to the private operators would be open to them beyond the borders of the District, but they were excluded from that portion of the route which lay within the District. In Civil Appeals Nos. 534 to 539 and 434 of 1961, in which we have delivered judgment today, we have explained what is meant by a route and a portion of a route, and we need not cover the same ground. In our opinion, there is no contradiction between the order of the Chief Minister and the directions included by him in the concluding part of his order. Indeed the directions carry out the order, if the order is to be read in the manner indicated byis meant by a route in the Act has been elaborately discussed by us in the other judgment deliveredThe only difference between this case and the other cases is that, whereas in the latter the notified route was only AB, here the notified route is ABCDE.10. The notification of the Government must be read in two parts. The first is that part of the notification referring to the whole of the route which is taken over, and the second part is with respect to the portion of the route lying within the District of Mysore. The portion lying within the District of Mysore has been notified separately as within the exclusive operation of the State Transport Undertaking. The natural result of it is that private operators would not be able to ply their omnibuses on that sector, and by "route" is meant, as already stated, not only the notional line but also the actual road over which the omnibuses run. We have shown in the other appeals that the scheme of the Ceylon Ordinance was different. There, the word "route" was contrasted with the word "highway". In the Motor Vehicles Act, the words used are "route or area", and it has been held by this Court that these words mean the same thing; Kondala Rao v. Andhra Pradesh State Road Transport Corporation, AIR 1961 SC 82 .11. The scheme of the Act in S.(2) (c) (iii) also shows that the Regional Transport Authority, in giving effect to the approved scheme, may "curtail the area or route covered by the permit in so far as such permit relates to the notified area or notified route". This makes the route or area stand for the road on which the omnibuses run or portions thereof, and in view of the fact that the scheme reserved all the routes within the Mysore District to the State Transport Undertaking, even those routes which wereopen to the private operators would stand pro tanto cut down to only that portion, which lies outside the 1Mysore District. The result, therefore, is that no distinction can be made between the notification of a portion of the route of the private operators lying within the Mysore District and the notification of a different route, in which the portion within the Mysore District is also included. What we have said in the other case applies equallysuch route, however, was pointed out to us, and we need not express any opinion on this part of the case or as to what would happen if such a routewas, however, held by this Court that a departure from the minimum number would mean the alteration of the scheme, necessitating the observance of all the formalities for framing a scheme. In view of this, the Rules were amended, obviating the necessity of indicating the minimum number. The Rule, as it now stands, has been complied with, and there being no challenge to the Rule as such, one cannot say that the scheme is defective on this account. | 0 | 3,122 | 1,327 | ### 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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State Transport Undertaking. The exclusive operation of routes within the District meant that no other omnibus belonging to a private operator could run on that sector. The direction, therefore clearly said that the route left to the private operators would be open to them beyond the borders of the District, but they were excluded from that portion of the route which lay within the District. In Civil Appeals Nos. 534 to 539 and 434 of 1961, in which we have delivered judgment today, we have explained what is meant by a route and a portion of a route, and we need not cover the same ground. In our opinion, there is no contradiction between the order of the Chief Minister and the directions included by him in the concluding part of his order. Indeed the directions carry out the order, if the order is to be read in the manner indicated by us.9. It was next contended that the inter-District routes, which the appellants were operating, could not be said to be affected by the scheme at all, because "route" means a notional line running between two termini and following a distinct course. This meaning was given to the word "route" by the Privy Council in a case from Ceylon reported in Kelani Valley Motor Transit Co. Ltd. v. Colombo-Ratnapura Omnibus Co. Ltd., 1946 AC 338 : (AIR 1946 PC 137). It is said that the ruling applies in the present case, where what is notified as for exclusive running by the State Transport Under-taking is not a definite portion of a route of a private operator but is a different route altogether. This may be illustrated by algebraic notations. If the route of the private operator was ABPQR, AB lying within the District of Mysore and PQR outside it, it is submitted that a route ABCDE may overlap the other route up to the point B but is not the same route, and, therefore cannot be said to be notified. What is meant by a route in the Act has been elaborately discussed by us in the other judgment delivered to-day (Reported in AIR 1962 SC 1136-Ed.). The only difference between this case and the other cases is that, whereas in the latter the notified route was only AB, here the notified route is ABCDE.10. The notification of the Government must be read in two parts. The first is that part of the notification referring to the whole of the route which is taken over, and the second part is with respect to the portion of the route lying within the District of Mysore. The portion lying within the District of Mysore has been notified separately as within the exclusive operation of the State Transport Undertaking. The natural result of it is that private operators would not be able to ply their omnibuses on that sector, and by "route" is meant, as already stated, not only the notional line but also the actual road over which the omnibuses run. We have shown in the other appeals that the scheme of the Ceylon Ordinance was different. There, the word "route" was contrasted with the word "highway". In the Motor Vehicles Act, the words used are "route or area", and it has been held by this Court that these words mean the same thing; Kondala Rao v. Andhra Pradesh State Road Transport Corporation, AIR 1961 SC 82 .11. The scheme of the Act in S. 68-F (2) (c) (iii) also shows that the Regional Transport Authority, in giving effect to the approved scheme, may "curtail the area or route covered by the permit in so far as such permit relates to the notified area or notified route". This makes the route or area stand for the road on which the omnibuses run or portions thereof, and in view of the fact that the scheme reserved all the routes within the Mysore District to the State Transport Undertaking, even those routes which were inter-District open to the private operators would stand pro tanto cut down to only that portion, which lies outside the 1Mysore District. The result, therefore, is that no distinction can be made between the notification of a portion of the route of the private operators lying within the Mysore District and the notification of a different route, in which the portion within the Mysore District is also included. What we have said in the other case applies equally here.12. It was suggested during the arguments that there were certain routes which did not cover any portion of the notified route but met that route at certain point or points. Reverting to the algebraic notations given above, it was said that route APBQR would not cover any portion of the notified route ABCDE and must at least, therefore, be outside the scheme. No such route, however, was pointed out to us, and we need not express any opinion on this part of the case or as to what would happen if such a route existed.13. Lastly, it was contended that the minimum number of trips and the minimum number of vehicles to be put on the road with respect to any route has not been indicated, and that this is not a proper scheme, because a scheme must show how comparatively more efficient service is to be provided by the State Transport Undertaking. The earlier Rules required a statement as to the minimum and maximum number of vehicles to be put on a route, as also the minimum and maximum trips. It was, however, held by this Court that a departure from the minimum number would mean the alteration of the scheme, necessitating the observance of all the formalities for framing a scheme. In view of this, the Rules were amended, obviating the necessity of indicating the minimum number. The Rule, as it now stands, has been complied with, and there being no challenge to the Rule as such, one cannot say that the scheme is defective on this account.
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0
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ofis not valid. No doubt, the private operators cannot run in the Mysore District, but can ply their omnibuses from the border of the Mysore District on routes, which were saved to them, and there is likelihood of transhipment frombuses to private omnibuses at the border, where the routes operated by the State Transport Undertaking and the private operators bifurcate. The transhipment, by itself, would not connote a lack ofthe State Transport Undertaking may take over whole routes or whole areas or part of the routes or part of the areas, and if the scheme operates partially, some transhipment would obviously be necessary, butwould still exist, because where the State omnibuses come to a halt, the private omnibuses would take the passengers set down. In our opinion, these grounds have no validity, in view of the partial nationalisation of the routes involved in the State.In our opinion, the error lies in not properly reading the order of the Chief Minister. In the sentence, "it was contended by the Objectors that if the Mysore Government Road Transport Department was to operate certain notified routes to the complete exclusion of other operators, it would adversely affect the passenger transport system on certain portions ofct routes which are not notified", the words "which are not notified" qualify not the word "routes" but the word "portions". The direction which was given, effectuates the latter reading, which was really meant and not the former, which is urged; because the qualifying phrase "which are not notified" has been unhappily put later. It is no doubt true that the other reading is also open, and is more in accord with a grammatical construction. Where two constructions are open it is proper to read the order harmoniously with the directions, because it could not have been intended that the Chief Minister would express his opinion in one way and include a contradictory direction in another way. Indeed, the intention was to take over routes or parts of the routes lying in Mysore District and to notify them as within the exclusive operation of the State Transport Undertaking. The exclusive operation of routes within the District meant that no other omnibus belonging to a private operator could run on that sector. The direction, therefore clearly said that the route left to the private operators would be open to them beyond the borders of the District, but they were excluded from that portion of the route which lay within the District. In Civil Appeals Nos. 534 to 539 and 434 of 1961, in which we have delivered judgment today, we have explained what is meant by a route and a portion of a route, and we need not cover the same ground. In our opinion, there is no contradiction between the order of the Chief Minister and the directions included by him in the concluding part of his order. Indeed the directions carry out the order, if the order is to be read in the manner indicated byis meant by a route in the Act has been elaborately discussed by us in the other judgment deliveredThe only difference between this case and the other cases is that, whereas in the latter the notified route was only AB, here the notified route is ABCDE.10. The notification of the Government must be read in two parts. The first is that part of the notification referring to the whole of the route which is taken over, and the second part is with respect to the portion of the route lying within the District of Mysore. The portion lying within the District of Mysore has been notified separately as within the exclusive operation of the State Transport Undertaking. The natural result of it is that private operators would not be able to ply their omnibuses on that sector, and by "route" is meant, as already stated, not only the notional line but also the actual road over which the omnibuses run. We have shown in the other appeals that the scheme of the Ceylon Ordinance was different. There, the word "route" was contrasted with the word "highway". In the Motor Vehicles Act, the words used are "route or area", and it has been held by this Court that these words mean the same thing; Kondala Rao v. Andhra Pradesh State Road Transport Corporation, AIR 1961 SC 82 .11. The scheme of the Act in S.(2) (c) (iii) also shows that the Regional Transport Authority, in giving effect to the approved scheme, may "curtail the area or route covered by the permit in so far as such permit relates to the notified area or notified route". This makes the route or area stand for the road on which the omnibuses run or portions thereof, and in view of the fact that the scheme reserved all the routes within the Mysore District to the State Transport Undertaking, even those routes which wereopen to the private operators would stand pro tanto cut down to only that portion, which lies outside the 1Mysore District. The result, therefore, is that no distinction can be made between the notification of a portion of the route of the private operators lying within the Mysore District and the notification of a different route, in which the portion within the Mysore District is also included. What we have said in the other case applies equallysuch route, however, was pointed out to us, and we need not express any opinion on this part of the case or as to what would happen if such a routewas, however, held by this Court that a departure from the minimum number would mean the alteration of the scheme, necessitating the observance of all the formalities for framing a scheme. In view of this, the Rules were amended, obviating the necessity of indicating the minimum number. The Rule, as it now stands, has been complied with, and there being no challenge to the Rule as such, one cannot say that the scheme is defective on this account.
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AARIFABEN YUNUSBHAI PATEL & ORS. Vs. MUKUL THAKOREBHAI AMIN & ORS. | set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up. 9. The limitation for filing an application to set aside a sale in execution of decree is 60 days in terms of Article 127 of Third Division, Part-1 of the Limitation Act, 1963 (for short the Act). Reference may also be made to Section 5 of the Act which reads as follows:- 5. Extension of prescribed period in certain cases.— Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation.—The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section. A bare reading of this provision clearly shows that Section 5 of the Act which deals with extension of time or condonation of delay is not applicable to proceedings under Order XXI Rule 90 of the CPC. Therefore, the delay, if any, cannot be condoned under Section 5 of the Act. 10. That takes us to Section 14 of the Act, which reads as follows:- 14. Exclusion of time of proceeding bona fide in court without jurisdiction.—(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature. Explanation.—For the purposes of this section,— (a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted; (b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding; (c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction. In terms of this Section the time spent by the applicant for prosecuting with due diligence other civil proceedings may be excluded if such proceedings are prosecuted in good faith in a court which, from defect of jurisdiction or other cause, is unable to entertain it. 11. As far as the present case is concerned it is not even disputed by R-1 that it had knowledge about the sales on 18.12.2007 when counsel appearing for R-3, had sought permission to file the objection application under Order XXI Rule 90 of the CPC. The writ petition was filed on 26.12.2007. On 21.04.2008, R-1 withdrew the SLP before this Court on the ground that an application has been filed by R-2 before the executing court on 18.03.2008. The writ petition itself was dismissed on 17.07.2008. On behalf of R-1 it is urged that since the writ petition was disposed of on 17.07.2008 and the objection to the execution petition was filed on 20.06.2008, the same is within limitation. 12. We are unable to accept this proposition. Any person claiming benefit of Section 14 of the Act can only claim exclusion of time of that period for which it had been prosecuting another remedy with due diligence and in good faith. We are prima facie of the view that it cannot be said that the writ petition was filed in good faith or by due diligence because on 18.12.2007 the counsel for R-3 had made a statement that he would file objections to the execution petition. However, assuming that these proceedings were filed in good faith, after a statement was made before this court on 21.04.2008, R-1 should have immediately filed the application before the executing court. The continuance of the proceedings before the High Court can neither be said to have been done in good faith nor in exercise of due diligence. 13. Even if we accept the case of R-1, at best, the period from 26.12.2007 to 21.04.2008 can be excluded. If we exclude that period then we have 7 days in December, 9 days in April, 31 days in May and 19 days in June. Thus, by giving benefit of all days of passing of the orders then also R-1 & R-3, would be barred by limitation for filing the application under Order XXI Rule 90 of the CPC by 6 days. Since there is no power to condone such delay, the petitions had to be dismissed as being time barred. Therefore, the appeals have to be allowed on this short ground. | 1[ds]We are constrained to observe that the High Court totally ignored the order of this Court quoted hereinabove. This Court had specifically directed the executing court to decide both, the issue of limitation and objections on merits. This was obviously done with the purpose that in case later if the issue of limitation is decided in favour of the objectors, R-1 and R-3, then the matter again should not be remanded for decision on merits of the case. The issue of limitation could not have been ignored and should have been decided by the High Court7. We may note thatit has been strenuously urged by Mr. Nikhil Goel, learned counsel for the Respondents that the sale is fraudulent without following the procedure prescribed by law,but we are clearly of the view that first we have to decidewhether the objections filed by the respondents were filed within time or. In case the petition is filed beyond the period of limitation it is not necessary for the Court to go into other issuesA bare reading of this provision clearly shows that Section 5 of the Act which deals with extension of time or condonation of delay is not applicable to proceedings under Order XXI Rule 90 of the CPC. Therefore, the delay, if any, cannot be condoned under Section 5 of the Act11. As far as the present case is concerned it is not even disputed by R-1 that it had knowledge about the sales on 18.12.2007 when counsel appearing for R-3, had sought permission to file the objection application under Order XXI Rule 90 of the CPC. The writ petition was filed on 26.12.2007. On 21.04.2008, R-1 withdrew the SLP before this Court on the ground that an application has been filed by R-2 before the executing court on 18.03.2008. The writ petition itself was dismissed on 17.07.200812. We are unable to accept this proposition. Any person claiming benefit of Section 14 of the Act can only claim exclusion of time of that period for which it had been prosecuting another remedy with due diligence and in good faith. We are prima facie of the view that it cannot be said that the writ petition was filed in good faith or by due diligence because on 18.12.2007 the counsel for R-3 had made a statement that he would file objections to the execution petition. However, assuming that these proceedings were filed in good faith, after a statement was made before this court on 21.04.2008, R-1 should have immediately filed the application before the executing court. The continuance of the proceedings before the High Court can neither be said to have been done in good faith nor in exercise of due diligence13. Even if we accept the case of R-1, at best, the period from 26.12.2007 to 21.04.2008 can be excluded. If we exclude that period then we have 7 days in December, 9 days in April, 31 days in May and 19 days in June. Thus, by giving benefit of all days of passing of the orders then also R-1 & R-3, would be barred by limitation for filing the application under Order XXI Rule 90 of the CPC by 6 days. Since there is no power to condone such delay, the petitions had to be dismissed as being time barred. Therefore, the appeals have to be allowed on this short ground. | 1 | 2,961 | 610 | ### 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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set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up. 9. The limitation for filing an application to set aside a sale in execution of decree is 60 days in terms of Article 127 of Third Division, Part-1 of the Limitation Act, 1963 (for short the Act). Reference may also be made to Section 5 of the Act which reads as follows:- 5. Extension of prescribed period in certain cases.— Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation.—The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section. A bare reading of this provision clearly shows that Section 5 of the Act which deals with extension of time or condonation of delay is not applicable to proceedings under Order XXI Rule 90 of the CPC. Therefore, the delay, if any, cannot be condoned under Section 5 of the Act. 10. That takes us to Section 14 of the Act, which reads as follows:- 14. Exclusion of time of proceeding bona fide in court without jurisdiction.—(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature. Explanation.—For the purposes of this section,— (a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted; (b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding; (c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction. In terms of this Section the time spent by the applicant for prosecuting with due diligence other civil proceedings may be excluded if such proceedings are prosecuted in good faith in a court which, from defect of jurisdiction or other cause, is unable to entertain it. 11. As far as the present case is concerned it is not even disputed by R-1 that it had knowledge about the sales on 18.12.2007 when counsel appearing for R-3, had sought permission to file the objection application under Order XXI Rule 90 of the CPC. The writ petition was filed on 26.12.2007. On 21.04.2008, R-1 withdrew the SLP before this Court on the ground that an application has been filed by R-2 before the executing court on 18.03.2008. The writ petition itself was dismissed on 17.07.2008. On behalf of R-1 it is urged that since the writ petition was disposed of on 17.07.2008 and the objection to the execution petition was filed on 20.06.2008, the same is within limitation. 12. We are unable to accept this proposition. Any person claiming benefit of Section 14 of the Act can only claim exclusion of time of that period for which it had been prosecuting another remedy with due diligence and in good faith. We are prima facie of the view that it cannot be said that the writ petition was filed in good faith or by due diligence because on 18.12.2007 the counsel for R-3 had made a statement that he would file objections to the execution petition. However, assuming that these proceedings were filed in good faith, after a statement was made before this court on 21.04.2008, R-1 should have immediately filed the application before the executing court. The continuance of the proceedings before the High Court can neither be said to have been done in good faith nor in exercise of due diligence. 13. Even if we accept the case of R-1, at best, the period from 26.12.2007 to 21.04.2008 can be excluded. If we exclude that period then we have 7 days in December, 9 days in April, 31 days in May and 19 days in June. Thus, by giving benefit of all days of passing of the orders then also R-1 & R-3, would be barred by limitation for filing the application under Order XXI Rule 90 of the CPC by 6 days. Since there is no power to condone such delay, the petitions had to be dismissed as being time barred. Therefore, the appeals have to be allowed on this short ground.
### Response:
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### Explanation:
We are constrained to observe that the High Court totally ignored the order of this Court quoted hereinabove. This Court had specifically directed the executing court to decide both, the issue of limitation and objections on merits. This was obviously done with the purpose that in case later if the issue of limitation is decided in favour of the objectors, R-1 and R-3, then the matter again should not be remanded for decision on merits of the case. The issue of limitation could not have been ignored and should have been decided by the High Court7. We may note thatit has been strenuously urged by Mr. Nikhil Goel, learned counsel for the Respondents that the sale is fraudulent without following the procedure prescribed by law,but we are clearly of the view that first we have to decidewhether the objections filed by the respondents were filed within time or. In case the petition is filed beyond the period of limitation it is not necessary for the Court to go into other issuesA bare reading of this provision clearly shows that Section 5 of the Act which deals with extension of time or condonation of delay is not applicable to proceedings under Order XXI Rule 90 of the CPC. Therefore, the delay, if any, cannot be condoned under Section 5 of the Act11. As far as the present case is concerned it is not even disputed by R-1 that it had knowledge about the sales on 18.12.2007 when counsel appearing for R-3, had sought permission to file the objection application under Order XXI Rule 90 of the CPC. The writ petition was filed on 26.12.2007. On 21.04.2008, R-1 withdrew the SLP before this Court on the ground that an application has been filed by R-2 before the executing court on 18.03.2008. The writ petition itself was dismissed on 17.07.200812. We are unable to accept this proposition. Any person claiming benefit of Section 14 of the Act can only claim exclusion of time of that period for which it had been prosecuting another remedy with due diligence and in good faith. We are prima facie of the view that it cannot be said that the writ petition was filed in good faith or by due diligence because on 18.12.2007 the counsel for R-3 had made a statement that he would file objections to the execution petition. However, assuming that these proceedings were filed in good faith, after a statement was made before this court on 21.04.2008, R-1 should have immediately filed the application before the executing court. The continuance of the proceedings before the High Court can neither be said to have been done in good faith nor in exercise of due diligence13. Even if we accept the case of R-1, at best, the period from 26.12.2007 to 21.04.2008 can be excluded. If we exclude that period then we have 7 days in December, 9 days in April, 31 days in May and 19 days in June. Thus, by giving benefit of all days of passing of the orders then also R-1 & R-3, would be barred by limitation for filing the application under Order XXI Rule 90 of the CPC by 6 days. Since there is no power to condone such delay, the petitions had to be dismissed as being time barred. Therefore, the appeals have to be allowed on this short ground.
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Asea Brown Boveri Ltd Vs. S Industrial Finance Corporation Of India And Others | The lessor is typically a financial institution and cannot render specialized service in connection with the asset.8. The lease is usually full-pay-out, that is, the single lease repays the cost of the asset together with the interest." 17. In our opinion, financial lease is a transaction current in the commercial world, the primary purpose whereof is the financing of the purchase by the financier. The purchase of assets or equipments or machinery is by the borrower. For all practical purposes, the borrower becomes the owner of the property inasmuch as it is the borrower who chooses the property to be purchased, takes delivery, enjoys the use and occupation of the property, bears the wear and tear, maintains and operates the machinery/ equipment, undertakes indemnity and agrees to bear the risk of loss or damage, if any. He is the one who gets the property insured. He remains liable for payment of taxes and other charges and indemnity. He cannot recover from the lessor, any of the above mentioned expenses. The period of lease extends over and covers the entire life of the property for which it may remain useful divided either into one term or divided into two terms with clause for renewal. In either case, the lease is non-cancellable. 18. All the abovesaid features are available in the transaction entered into by the appellant. In addition, we find that the registration of the 56 cars stood in the name of the appellant from the very beginning and on payment of full amount including termination fee, as agreed upon, nothing more was needed to be done to vest the appellant with ownership and only loan documents were needed to be discharged and cancelled.19. There are certain tax benefits which by styling the transaction like a financial lease become available to the lessor (financer) and the lessee (borrower) both. Accounting standards have been devised consistently with which the entries are made in the accounts so as to satisfy the requirements of tax laws and to avail the best benefits by way of tax planning to both the parties. 20. However, so far as the Act is concerned, we have to go by the provisions of the Act, keeping in view the real nature of the transaction ascertaining the real intention of the contracting parties in the light of the facts and circumstances of a given case. Once a party has been notified under sub-section (2) of Section 3 of the Act then under sub-section (3), notwithstanding anything contained in any other law for the time being in force with effect from the date of notification under sub-Section (2), any property, movable or immovable or both belonging to notified party stands attached simultaneously with the issue of the notification and becomes liable to be dealt with by the custodian in such manner as the Special Court may direct. A person is liable to be notified by reference to transaction in securities between 1.4.1991 and 6.6.1992. Any contract or agreement entered into between 1.4.1991 and 6.6.1992, in relation to any property of the notified party is liable to be cancelled, if found to have been entered into fraudulently or to defeat the provisions of the Act. Analysing the provisions of the Act, it was held in BOI Finance Ltd. vs. Custodian and others (1997) 10 SCC 488, that the custodian under the Act is required to assist in the attachment of the notified persons property and to manage the same thereof. The properties of the notified persons, whether attached or not, do not, at any point of time, vest in him. He is merely a custodian and not a receiver nor is he a final liquidator so as to enjoy control over the properties. In other words, the position of the custodian is the same as that of the notified person himself. We are, therefore, of the opinion that the custodian remains bound by the obligations incurred by the notified party itself, if not incurred fraudulently or to defeat the provisions of the Act. 21. For the purpose of deciding the controversy before us, it is not necessary for us to examine whether the transaction entered into between the appellant and Fairgrowth, the respondent No. 3, would at all attract the applicability of the provisions of the Act in view of sub-section (2) of Section 3 thereof. The learned counsel for the appellant has taken a very fair stand submitting that the appellant is prepared to pay if anything in still found to be due and payable by it but in any case the 56 cars could not have been held liable and directed to be delivered to the custodian. It was a simple case of accounting. If the appellants have cleared all their payments in accordance with the agreement dated 4.12.1990, initially to Fairgrowth and thereafter to the custodian including payment of terminal fee subject to adjustment for security deposit and the interest accrued thereon, then all that had remained to be done was the transfer of ownership on paper which the custodian should have been directed to do, submitted the learned counsel. But, as we have already noticed, the registration of the cars already stands in the name of the appellant. On a scrutiny of the accounts, if in the opinion of the Special Court, nothing had been remained to be paid by the appellant, then it was only a matter of calculation, the difference between the appellants statement of account and the one prepared by the Chartered Accountant at the instance of the custodian being bonafide, the appellant could, at best, have been directed to pay the deficit. But in no case submitted the learned counsel for the appellant, the 56 cars could have been directed to be delivered to the custodian. In spite of having made full payment (bonafide error or dispute as to calculation excepted), direction of delivery of cars to the custodian has caused failure of justice. We find ourselves in agreement with the submission so made. | 1[ds]8. A perusal of the detailed order passed by the Special Court shows that the Special Court shows that the Special Court refused to treat the transaction between the appellant and Fairgrowth as one of lease finance and instead treated it to be a transaction of lease only i.e. the appellant holding 56 cars as lessee of Fairgrowth. The principal reason which prevailed according to the Special Court is that in its application, the appellant had stated the transaction to be of lease and not of lease finance. Thus the Special Court has rigidly applied the rules of pleadings but a perusal of the order shows that there has been no effort to scrutinize and interpret the documents evidencing the transaction so as to determine the real nature thereof.A perusal of the detailed order passed by the Special Court shows that the Special Court shows that the Special Court refused to treat the transaction between the appellant and Fairgrowth as one of lease finance and instead treated it to be a transaction of lease only i.e. the appellant holding 56 cars as lessee of Fairgrowth. The principal reason which prevailed according to the Special Court is that in its application, the appellant had stated the transaction to be of lease and not of lease finance. Thus the Special Court has rigidly applied the rules of pleadings but a perusal of the order shows that there has been no effort to scrutinize and interpret the documents evidencing the transaction so as to determine the real nature thereof.All the abovesaid features are available in the transaction entered into by the appellant. In addition, we find that the registration of the 56 cars stood in the name of the appellant from the very beginning and on payment of full amount including termination fee, as agreed upon, nothing more was needed to be done to vest the appellant with ownership and only loan documents were needed to be discharged and cancelled.19. There are certain tax benefits which by styling the transaction like a financial lease become available to the lessor (financer) and the lessee (borrower) both. Accounting standards have been devised consistently with which the entries are made in the accounts so as to satisfy the requirements of tax laws and to avail the best benefits by way of tax planning to both the parties.l the abovesaid features are available in the transaction entered into by the appellant. In addition, we find that the registration of the 56 cars stood in the name of the appellant from the very beginning and on payment of full amount including termination fee, as agreed upon, nothing more was needed to be done to vest the appellant with ownership and only loan documents were needed to be discharged and cancelled.19. There are certain tax benefits which by styling the transaction like a financial lease become available to the lessor (financer) and the lessee (borrower) both. Accounting standards have been devised consistently with which the entries are made in the accounts so as to satisfy the requirements of tax laws and to avail the best benefits by way of tax planning to both the parties.For the purpose of deciding the controversy before us, it is not necessary for us to examine whether the transaction entered into between the appellant and Fairgrowth, the respondent No. 3, would at all attract the applicability of the provisions of the Act in view of(2) of Section 3 thereof. The learned counsel for the appellant has taken a very fair stand submitting that the appellant is prepared to pay if anything in still found to be due and payable by it but in any case the 56 cars could not have been held liable and directed to be delivered to the custodian. It was a simple case of accounting. If the appellants have cleared all their payments in accordance with the agreement dated 4.12.1990, initially to Fairgrowth and thereafter to the custodian including payment of terminal fee subject to adjustment for security deposit and the interest accrued thereon, then all that had remained to be done was the transfer of ownership on paper which the custodian should have been directed to do, submitted the learned counsel. But, as we have already noticed, the registration of the cars already stands in the name of the appellant. On a scrutiny of the accounts, if in the opinion of the Special Court, nothing had been remained to be paid by the appellant, then it was only a matter of calculation, the difference between the appellants statement of account and the one prepared by the Chartered Accountant at the instance of the custodian being bonafide, the appellant could, at best, have been directed to pay the deficit. But in no case submitted the learned counsel for the appellant, the 56 cars could have been directed to be delivered to the custodian. In spite of having made full payment (bonafide error or dispute as to calculation excepted), direction of delivery of cars to the custodian has caused failure of justice. We find ourselves in agreement with the submission so made. | 1 | 3,257 | 916 | ### 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 lessor is typically a financial institution and cannot render specialized service in connection with the asset.8. The lease is usually full-pay-out, that is, the single lease repays the cost of the asset together with the interest." 17. In our opinion, financial lease is a transaction current in the commercial world, the primary purpose whereof is the financing of the purchase by the financier. The purchase of assets or equipments or machinery is by the borrower. For all practical purposes, the borrower becomes the owner of the property inasmuch as it is the borrower who chooses the property to be purchased, takes delivery, enjoys the use and occupation of the property, bears the wear and tear, maintains and operates the machinery/ equipment, undertakes indemnity and agrees to bear the risk of loss or damage, if any. He is the one who gets the property insured. He remains liable for payment of taxes and other charges and indemnity. He cannot recover from the lessor, any of the above mentioned expenses. The period of lease extends over and covers the entire life of the property for which it may remain useful divided either into one term or divided into two terms with clause for renewal. In either case, the lease is non-cancellable. 18. All the abovesaid features are available in the transaction entered into by the appellant. In addition, we find that the registration of the 56 cars stood in the name of the appellant from the very beginning and on payment of full amount including termination fee, as agreed upon, nothing more was needed to be done to vest the appellant with ownership and only loan documents were needed to be discharged and cancelled.19. There are certain tax benefits which by styling the transaction like a financial lease become available to the lessor (financer) and the lessee (borrower) both. Accounting standards have been devised consistently with which the entries are made in the accounts so as to satisfy the requirements of tax laws and to avail the best benefits by way of tax planning to both the parties. 20. However, so far as the Act is concerned, we have to go by the provisions of the Act, keeping in view the real nature of the transaction ascertaining the real intention of the contracting parties in the light of the facts and circumstances of a given case. Once a party has been notified under sub-section (2) of Section 3 of the Act then under sub-section (3), notwithstanding anything contained in any other law for the time being in force with effect from the date of notification under sub-Section (2), any property, movable or immovable or both belonging to notified party stands attached simultaneously with the issue of the notification and becomes liable to be dealt with by the custodian in such manner as the Special Court may direct. A person is liable to be notified by reference to transaction in securities between 1.4.1991 and 6.6.1992. Any contract or agreement entered into between 1.4.1991 and 6.6.1992, in relation to any property of the notified party is liable to be cancelled, if found to have been entered into fraudulently or to defeat the provisions of the Act. Analysing the provisions of the Act, it was held in BOI Finance Ltd. vs. Custodian and others (1997) 10 SCC 488, that the custodian under the Act is required to assist in the attachment of the notified persons property and to manage the same thereof. The properties of the notified persons, whether attached or not, do not, at any point of time, vest in him. He is merely a custodian and not a receiver nor is he a final liquidator so as to enjoy control over the properties. In other words, the position of the custodian is the same as that of the notified person himself. We are, therefore, of the opinion that the custodian remains bound by the obligations incurred by the notified party itself, if not incurred fraudulently or to defeat the provisions of the Act. 21. For the purpose of deciding the controversy before us, it is not necessary for us to examine whether the transaction entered into between the appellant and Fairgrowth, the respondent No. 3, would at all attract the applicability of the provisions of the Act in view of sub-section (2) of Section 3 thereof. The learned counsel for the appellant has taken a very fair stand submitting that the appellant is prepared to pay if anything in still found to be due and payable by it but in any case the 56 cars could not have been held liable and directed to be delivered to the custodian. It was a simple case of accounting. If the appellants have cleared all their payments in accordance with the agreement dated 4.12.1990, initially to Fairgrowth and thereafter to the custodian including payment of terminal fee subject to adjustment for security deposit and the interest accrued thereon, then all that had remained to be done was the transfer of ownership on paper which the custodian should have been directed to do, submitted the learned counsel. But, as we have already noticed, the registration of the cars already stands in the name of the appellant. On a scrutiny of the accounts, if in the opinion of the Special Court, nothing had been remained to be paid by the appellant, then it was only a matter of calculation, the difference between the appellants statement of account and the one prepared by the Chartered Accountant at the instance of the custodian being bonafide, the appellant could, at best, have been directed to pay the deficit. But in no case submitted the learned counsel for the appellant, the 56 cars could have been directed to be delivered to the custodian. In spite of having made full payment (bonafide error or dispute as to calculation excepted), direction of delivery of cars to the custodian has caused failure of justice. We find ourselves in agreement with the submission so made.
### Response:
1
### Explanation:
8. A perusal of the detailed order passed by the Special Court shows that the Special Court shows that the Special Court refused to treat the transaction between the appellant and Fairgrowth as one of lease finance and instead treated it to be a transaction of lease only i.e. the appellant holding 56 cars as lessee of Fairgrowth. The principal reason which prevailed according to the Special Court is that in its application, the appellant had stated the transaction to be of lease and not of lease finance. Thus the Special Court has rigidly applied the rules of pleadings but a perusal of the order shows that there has been no effort to scrutinize and interpret the documents evidencing the transaction so as to determine the real nature thereof.A perusal of the detailed order passed by the Special Court shows that the Special Court shows that the Special Court refused to treat the transaction between the appellant and Fairgrowth as one of lease finance and instead treated it to be a transaction of lease only i.e. the appellant holding 56 cars as lessee of Fairgrowth. The principal reason which prevailed according to the Special Court is that in its application, the appellant had stated the transaction to be of lease and not of lease finance. Thus the Special Court has rigidly applied the rules of pleadings but a perusal of the order shows that there has been no effort to scrutinize and interpret the documents evidencing the transaction so as to determine the real nature thereof.All the abovesaid features are available in the transaction entered into by the appellant. In addition, we find that the registration of the 56 cars stood in the name of the appellant from the very beginning and on payment of full amount including termination fee, as agreed upon, nothing more was needed to be done to vest the appellant with ownership and only loan documents were needed to be discharged and cancelled.19. There are certain tax benefits which by styling the transaction like a financial lease become available to the lessor (financer) and the lessee (borrower) both. Accounting standards have been devised consistently with which the entries are made in the accounts so as to satisfy the requirements of tax laws and to avail the best benefits by way of tax planning to both the parties.l the abovesaid features are available in the transaction entered into by the appellant. In addition, we find that the registration of the 56 cars stood in the name of the appellant from the very beginning and on payment of full amount including termination fee, as agreed upon, nothing more was needed to be done to vest the appellant with ownership and only loan documents were needed to be discharged and cancelled.19. There are certain tax benefits which by styling the transaction like a financial lease become available to the lessor (financer) and the lessee (borrower) both. Accounting standards have been devised consistently with which the entries are made in the accounts so as to satisfy the requirements of tax laws and to avail the best benefits by way of tax planning to both the parties.For the purpose of deciding the controversy before us, it is not necessary for us to examine whether the transaction entered into between the appellant and Fairgrowth, the respondent No. 3, would at all attract the applicability of the provisions of the Act in view of(2) of Section 3 thereof. The learned counsel for the appellant has taken a very fair stand submitting that the appellant is prepared to pay if anything in still found to be due and payable by it but in any case the 56 cars could not have been held liable and directed to be delivered to the custodian. It was a simple case of accounting. If the appellants have cleared all their payments in accordance with the agreement dated 4.12.1990, initially to Fairgrowth and thereafter to the custodian including payment of terminal fee subject to adjustment for security deposit and the interest accrued thereon, then all that had remained to be done was the transfer of ownership on paper which the custodian should have been directed to do, submitted the learned counsel. But, as we have already noticed, the registration of the cars already stands in the name of the appellant. On a scrutiny of the accounts, if in the opinion of the Special Court, nothing had been remained to be paid by the appellant, then it was only a matter of calculation, the difference between the appellants statement of account and the one prepared by the Chartered Accountant at the instance of the custodian being bonafide, the appellant could, at best, have been directed to pay the deficit. But in no case submitted the learned counsel for the appellant, the 56 cars could have been directed to be delivered to the custodian. In spite of having made full payment (bonafide error or dispute as to calculation excepted), direction of delivery of cars to the custodian has caused failure of justice. We find ourselves in agreement with the submission so made.
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Maharashtra State Textile Corporation Limited Vs. Official Liquidator and Others | circumstances, therefore, the inference is irresistible that without the consent of the Central Government the liquidation proceedings could not continue and the company Judge was not legally justified in ordering the sale of the moveables without obtaining the sanction of the Central at Government.9. It was however suggested on behalf of the respondents that section 8 would have no application to the facts of the pres ent case inasmuch as that section applied merely to proceedings for the winding up of a textile company. In the instant case, the company had already been wound up and the proceedings had however passed beyond the scope contemplated by section 8 of the Management Act. A delicate and ingenious distinction was sought to be drawn by counsel for the respondents between "the winding up" proceedings and the proceedings which started after a company had been wound up. In our opinion. it is not possible to construe, the words "winding up" in such a narrow sense as to defeat the very object of the Management Act. In our opinion, the words "winding up" must be given the widest possible amplitude in order to serve the purpose of the Act namely, to control the proceedings of a textile company which is in liquidation, by the Central Government. Whether the company bad been wound tip or whether the proceedings for the winding up of the, company lad been continuing would make no difference so far as the, application of section 8 of the Management Act is concerned. In these circumstances, we are unable to accede to the argument put forward by the counsel for the respondents.It was rightly submitted by counsel for the appellant that the High Court appears to have completely lost sight of the effect of the Nationalisation Act which bad been given retrospective effect. in this connection, our attention was drawn to section 35 of the Nationalisation Act which runs thus:-"No proceeding for the, winding up of a textile the right, title. and interest in relation to the sick textile undertaking owned by which have vested in the National Textile Corporation under this, Act or for the appointment of a receiver in respect of the business of the sick textile undertaking shall lie or be proceeded with in any court except with t he consent of the Central Government".10. This section reproduced the provisions of section 8 of the Management Act in a different form. The, Nationalisation Act was passed oil 21-12-1974 and was, given retrospective effect from 1-4-1974. Thus, if t he Act was to be properly construed the permission of the Company Judge given to the Official Liquidator to sell the moveables would fall within the mischief of section 35 of the Act.Section 2 (1) (a) of the Nationalisation Act runs thus:" "Appointed day" means the 1st day of April, 1974".11. It is, therefore, clear that the Art after being passed would, by virtue, of its statutory fiction, take effect from the 1st day of April, 1974 and all proceedings taken after this day without the permission of the Central , Government would become void ab-initio. The High Court seems to have explained away this aspect of the matter on the ground that as the Nationalisation Act was in fact passed after the Court had (ranted permission to sell, it could not affect the sale at all. We are of the opinion that the High Court was in error in not giving effect to the statutory fiction contained in section 2(1) (a) of the Nationalisation Act.In the case of East End Dwellings Co. Ltd. v. Finsbury Borough , Council([1952] A.C. 109.) Lord Asquith observed as follows:-"If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it......... Tile Statute says that you must imagine a; certain state of affairs it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs".12. These observations were quoted with approval by this Court in the case , of Mr. Boucher Pierre Audre v. Superintendent, Central Jail, Tihar, New Delhi(A...R. 1975 S.C. 164.) where Bhagwati, J. speaking for the Court observed as:"It is now well settled law that where a legal fiction is created, full effect must be given to it and it should be carried to its logical conclusion".13. In view of the decision of this Court it is manifest that even though the Nationalisation Act may have come, into force oil a later date the statutory fiction contained in the Act must be fully given effect to by the Court even if the effect of the same is to nullify an order passed prior to: the passing of the Act. For these reasons, therefore, we are clearly of the opinion that the express provisions of section 35 clearly voided the sale which took place under orders of the Company Judge after the Act would be deemed to, have, come into force.Thus whichever way we look at this case; the position is clear that the, order by which the articles were sold was void in law and completely , destitute of any legal effect. The interim order passed by this Court on 28-9-1973 could not have had the effect of authorising the sale which was void under the statute, . For these reasons, therefore, the observations of the High Court while interpreting the interim order of this Court which may be extracted thus:"In other words, the Supreme Court by its interim order has suspended the operation of section 8 of the Management Act, but subject to the provisions that the vesting in management and the possession of the respective parties will be preserved undisturbed".are uncalled for as they are, based on a misconstruction of the interim order passed by this Court.14. | 1[ds]We have heard counsel for the parties and have also perused the judgment of the High Court and we feel that the High Court has not properly construed the interim order of this Court and was tinder an erroneous impression of law that this Court by its interim order had in fact authorised the sale which in l aw was invalid. It is common ground that at the time when this Court passed the interim order dated 28-9-1973 the Management Act 1972 had already come into force. In the writ petition in which the interim order of this Court was passed the vires of The Management Act was challenged and it would appear from the reliefs sought ill the petition that there was an express prayer for suspending the provisions of the Act. Despite this fact this Court did not at all suspend any of the provisions of the Act, but merely allowed the liquidation proceedings to go on and the only condition imposed was that there would be no, distribution of money amongst the creditors or contributors until further orders. The High Court was of the view that the order of this Court directing the maintenance of status quo impliedly amounted to suspension of the provisions of the Management Act. We are however unable to agree with the interpretation put upon the interim order by the High Court.Section 8(1) of the Management Act runsproceeding for the winding up of a textile company, within the meaning of this Act, shall lie in any Court or be continued whether by or under the supervision of any Court or voluntarily, except with the consent of the Centralthis provision it is manifest that though the section does not contain an absolute embargo on the continuance of the proceedings it imposes an important condition for the continuance of the proceedings; namely, that the consent of the Central Government should be obtained. When this Court passed the interim order dated 28 -9-1973 and allowed the liquidation proceeding to continue it only meant that the proceedings should continue in accordance with law and if the law enjoined any condition the same must be complied with. In view of the provisions of section 8 of the Management Act the consent of the Central Government was necessary, so the order of this Court would be interpreted as meaning that the proceedings could continue after the Official Liquidator obtained the consent of the Central Government under section 8 of the Management Act. The order passed by this Court did not give any free licence to the parties to act in disobedience of the mandatory provisions of the Act and continue the proceedings without complying with the conditions enjoined by section 8 of the Management Act. In these circumstances, therefore, the inference is irresistible that without the consent of the Central Government the liquidation proceedings could not continue and the company Judge was not legally justified in ordering the sale of the moveables without obtaining the sanction of the Central atour opinion. it is not possible to construe, the words "winding up" in such a narrow sense as to defeat the very object of the Management Act. In our opinion, the words "winding up" must be given the widest possible amplitude in order to serve the purpose of the Act namely, to control the proceedings of a textile company which is in liquidation, by the Central Government. Whether the company bad been wound tip or whether the proceedings for the winding up of the, company lad been continuing would make no difference so far as the, application of section 8 of the Management Act is concerned. In these circumstances, we are unable to accede to the argument put forward by the counsel for the respondents.It was rightly submitted by counsel for the appellant that the High Court appears to have completely lost sight of the effect of the Nationalisation Act which bad been given retrospective effect. in this connection, our attention was drawn to section 35 of the Nationalisation Act which runsproceeding for the, winding up of a textile the right, title. and interest in relation to the sick textile undertaking owned by which have vested in the National Textile Corporation under this, Act or for the appointment of a receiver in respect of the business of the sick textile undertaking shall lie or be proceeded with in any court except with t he consent of the Centralview of the decision of this Court it is manifest that even though the Nationalisation Act may have come, into force oil a later date the statutory fiction contained in the Act must be fully given effect to by the Court even if the effect of the same is to nullify an order passed prior to: the passing of the Act. For these reasons, therefore, we are clearly of the opinion that the express provisions of section 35 clearly voided the sale which took place under orders of the Company Judge after the Act would be deemed to, have, come intowhichever way we look at this case; the position is clear that the, order by which the articles were sold was void in law and completely , destitute of any legal effect. The interim order passed by this Court on 28-9-1973 could not have had the effect of authorising the sale which was void under the statute, . For these reasons, therefore, the observations of the High Court while interpreting the interim order of this Court which may be extractedother words, the Supreme Court by its interim order has suspended the operation of section 8 of the Management Act, but subject to the provisions that the vesting in management and the possession of the respective parties will be preserveduncalled for as they are, based on a misconstruction of the interim order passed by this Court. | 1 | 2,696 | 1,036 | ### 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:
circumstances, therefore, the inference is irresistible that without the consent of the Central Government the liquidation proceedings could not continue and the company Judge was not legally justified in ordering the sale of the moveables without obtaining the sanction of the Central at Government.9. It was however suggested on behalf of the respondents that section 8 would have no application to the facts of the pres ent case inasmuch as that section applied merely to proceedings for the winding up of a textile company. In the instant case, the company had already been wound up and the proceedings had however passed beyond the scope contemplated by section 8 of the Management Act. A delicate and ingenious distinction was sought to be drawn by counsel for the respondents between "the winding up" proceedings and the proceedings which started after a company had been wound up. In our opinion. it is not possible to construe, the words "winding up" in such a narrow sense as to defeat the very object of the Management Act. In our opinion, the words "winding up" must be given the widest possible amplitude in order to serve the purpose of the Act namely, to control the proceedings of a textile company which is in liquidation, by the Central Government. Whether the company bad been wound tip or whether the proceedings for the winding up of the, company lad been continuing would make no difference so far as the, application of section 8 of the Management Act is concerned. In these circumstances, we are unable to accede to the argument put forward by the counsel for the respondents.It was rightly submitted by counsel for the appellant that the High Court appears to have completely lost sight of the effect of the Nationalisation Act which bad been given retrospective effect. in this connection, our attention was drawn to section 35 of the Nationalisation Act which runs thus:-"No proceeding for the, winding up of a textile the right, title. and interest in relation to the sick textile undertaking owned by which have vested in the National Textile Corporation under this, Act or for the appointment of a receiver in respect of the business of the sick textile undertaking shall lie or be proceeded with in any court except with t he consent of the Central Government".10. This section reproduced the provisions of section 8 of the Management Act in a different form. The, Nationalisation Act was passed oil 21-12-1974 and was, given retrospective effect from 1-4-1974. Thus, if t he Act was to be properly construed the permission of the Company Judge given to the Official Liquidator to sell the moveables would fall within the mischief of section 35 of the Act.Section 2 (1) (a) of the Nationalisation Act runs thus:" "Appointed day" means the 1st day of April, 1974".11. It is, therefore, clear that the Art after being passed would, by virtue, of its statutory fiction, take effect from the 1st day of April, 1974 and all proceedings taken after this day without the permission of the Central , Government would become void ab-initio. The High Court seems to have explained away this aspect of the matter on the ground that as the Nationalisation Act was in fact passed after the Court had (ranted permission to sell, it could not affect the sale at all. We are of the opinion that the High Court was in error in not giving effect to the statutory fiction contained in section 2(1) (a) of the Nationalisation Act.In the case of East End Dwellings Co. Ltd. v. Finsbury Borough , Council([1952] A.C. 109.) Lord Asquith observed as follows:-"If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it......... Tile Statute says that you must imagine a; certain state of affairs it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs".12. These observations were quoted with approval by this Court in the case , of Mr. Boucher Pierre Audre v. Superintendent, Central Jail, Tihar, New Delhi(A...R. 1975 S.C. 164.) where Bhagwati, J. speaking for the Court observed as:"It is now well settled law that where a legal fiction is created, full effect must be given to it and it should be carried to its logical conclusion".13. In view of the decision of this Court it is manifest that even though the Nationalisation Act may have come, into force oil a later date the statutory fiction contained in the Act must be fully given effect to by the Court even if the effect of the same is to nullify an order passed prior to: the passing of the Act. For these reasons, therefore, we are clearly of the opinion that the express provisions of section 35 clearly voided the sale which took place under orders of the Company Judge after the Act would be deemed to, have, come into force.Thus whichever way we look at this case; the position is clear that the, order by which the articles were sold was void in law and completely , destitute of any legal effect. The interim order passed by this Court on 28-9-1973 could not have had the effect of authorising the sale which was void under the statute, . For these reasons, therefore, the observations of the High Court while interpreting the interim order of this Court which may be extracted thus:"In other words, the Supreme Court by its interim order has suspended the operation of section 8 of the Management Act, but subject to the provisions that the vesting in management and the possession of the respective parties will be preserved undisturbed".are uncalled for as they are, based on a misconstruction of the interim order passed by this Court.14.
### Response:
1
### Explanation:
We have heard counsel for the parties and have also perused the judgment of the High Court and we feel that the High Court has not properly construed the interim order of this Court and was tinder an erroneous impression of law that this Court by its interim order had in fact authorised the sale which in l aw was invalid. It is common ground that at the time when this Court passed the interim order dated 28-9-1973 the Management Act 1972 had already come into force. In the writ petition in which the interim order of this Court was passed the vires of The Management Act was challenged and it would appear from the reliefs sought ill the petition that there was an express prayer for suspending the provisions of the Act. Despite this fact this Court did not at all suspend any of the provisions of the Act, but merely allowed the liquidation proceedings to go on and the only condition imposed was that there would be no, distribution of money amongst the creditors or contributors until further orders. The High Court was of the view that the order of this Court directing the maintenance of status quo impliedly amounted to suspension of the provisions of the Management Act. We are however unable to agree with the interpretation put upon the interim order by the High Court.Section 8(1) of the Management Act runsproceeding for the winding up of a textile company, within the meaning of this Act, shall lie in any Court or be continued whether by or under the supervision of any Court or voluntarily, except with the consent of the Centralthis provision it is manifest that though the section does not contain an absolute embargo on the continuance of the proceedings it imposes an important condition for the continuance of the proceedings; namely, that the consent of the Central Government should be obtained. When this Court passed the interim order dated 28 -9-1973 and allowed the liquidation proceeding to continue it only meant that the proceedings should continue in accordance with law and if the law enjoined any condition the same must be complied with. In view of the provisions of section 8 of the Management Act the consent of the Central Government was necessary, so the order of this Court would be interpreted as meaning that the proceedings could continue after the Official Liquidator obtained the consent of the Central Government under section 8 of the Management Act. The order passed by this Court did not give any free licence to the parties to act in disobedience of the mandatory provisions of the Act and continue the proceedings without complying with the conditions enjoined by section 8 of the Management Act. In these circumstances, therefore, the inference is irresistible that without the consent of the Central Government the liquidation proceedings could not continue and the company Judge was not legally justified in ordering the sale of the moveables without obtaining the sanction of the Central atour opinion. it is not possible to construe, the words "winding up" in such a narrow sense as to defeat the very object of the Management Act. In our opinion, the words "winding up" must be given the widest possible amplitude in order to serve the purpose of the Act namely, to control the proceedings of a textile company which is in liquidation, by the Central Government. Whether the company bad been wound tip or whether the proceedings for the winding up of the, company lad been continuing would make no difference so far as the, application of section 8 of the Management Act is concerned. In these circumstances, we are unable to accede to the argument put forward by the counsel for the respondents.It was rightly submitted by counsel for the appellant that the High Court appears to have completely lost sight of the effect of the Nationalisation Act which bad been given retrospective effect. in this connection, our attention was drawn to section 35 of the Nationalisation Act which runsproceeding for the, winding up of a textile the right, title. and interest in relation to the sick textile undertaking owned by which have vested in the National Textile Corporation under this, Act or for the appointment of a receiver in respect of the business of the sick textile undertaking shall lie or be proceeded with in any court except with t he consent of the Centralview of the decision of this Court it is manifest that even though the Nationalisation Act may have come, into force oil a later date the statutory fiction contained in the Act must be fully given effect to by the Court even if the effect of the same is to nullify an order passed prior to: the passing of the Act. For these reasons, therefore, we are clearly of the opinion that the express provisions of section 35 clearly voided the sale which took place under orders of the Company Judge after the Act would be deemed to, have, come intowhichever way we look at this case; the position is clear that the, order by which the articles were sold was void in law and completely , destitute of any legal effect. The interim order passed by this Court on 28-9-1973 could not have had the effect of authorising the sale which was void under the statute, . For these reasons, therefore, the observations of the High Court while interpreting the interim order of this Court which may be extractedother words, the Supreme Court by its interim order has suspended the operation of section 8 of the Management Act, but subject to the provisions that the vesting in management and the possession of the respective parties will be preserveduncalled for as they are, based on a misconstruction of the interim order passed by this Court.
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Commissioner Of Income-Tax, Delhi And Rajasthan Vs. The Mewar Textile Mills Ltd | submission of Mr. Sastri, we find that the Rajasthan High Court has omitted to consider the question of the taxability of this item. This item was exempted by the Appellate Tribunal. In this connection the Appellant Tribunal observed as follows :“but the assessee would not be liable to tax in respect of goods sold by the assessee to the purchasers on railway receipts in the names of consignees. In respect of these goods, the delivery of the goods was in Bhilwara, the goods were appropriated there and not in British India and the title in the goods had passed in the Indian State and not in British India. The assessee cannot, therefore, be assessed on the amounts received by the assessee from consignees on railway receipts in the names of the consignees. It is true that the consignees did pay the price of the goods to the assessees bankers in British India but thereby the bankers in British India had become the agents of the consignees and not the agents of the assessee. In this view of the matter the inclusion of the receipts on railway receipts addressed to the consignees cannot be justified. In the assessment years 1944-45 and 1945-66 none of the railway receipts was in the name of the consignees. The sales were on railway receipts in the name of self or were in cash. It was only in the assessment year 1943-44 that the railway receipts were in the name of the consignees and they were to the tune of Rs. 2,73,488. The amount will, therefore, be excluded form the total receipts of Rs. 12,62,911."The High Court noticed exclusion of Rs. 2,73,488 in these words :"The Tribunal also found that it was only in the assessment years 1944-45 and 1945-46 that sales were effected by assessee on railway receipts in the names of the consignees and that such sales amounted to Rs. 2,73,488. The Tribunal accordingly deleted from the aggregate amount sales of Rs. 12,72,911 and Rs. 2,73,488 obviously treating the amounts deleted as not liable to tax."Apparently the mention of 1944-45 and 1945-46 is a clerical mistake and we should read it as 1943-44. Apart from the above words, we do not find any reference to the figure of Rs. 2,73,488 in the rest of the judgment. Further, the main reasoning of the High Court concerns the item of Rupees 1,14,687 in the year 1945-56 and Rupees 1,14,289 during the year 1946-47. These amounts had been received by the assessee by discounting hundies with the Bharat Bank, Bhilwara, and the Rajasthan High Court held that the assessee was liable to tax in respect of these items not on receipt basis but on accrual basis. The item of Rs. 2,73,488 was not realised in Bhilwara by discounting of hundies but in other circumstances.4. Two courses are open to us in this appeal, either we should on the material here on record decide whether Rupees 2,73,488 is taxable or not remand the case to the High Court for decision. We have decided to take the latter course because the relevant facts in respect of this item of Rs. 2,73,488 are not clear and the counsel for the assessee and for the revenue have not been able to agree upon the facts on which we should decide this question. We regret having to adopt the latter course because this appeal concerns the assessment year 1943-44 and it is now 1965; but under the circumstances we have no choice except to send the case back to the High Court.5. We may mention, however, that Mr. Desai contends before us that the facts are clear and he relies on six documents which are printed in the paper book namely:(1) The Contract form - Annexure Ex. T;(2) Copy of the postcard from Shiv Nath Radha Krishna Somani, Beawar, to M/s. Mewar Textile Mills, Bhilwara, dated March 7, 1942 - Annexure Ex. U;(3) Copy of the advice from Umedmal Abheymal Ajmer to Mewar Textile Mills, dated March 7, 1942 - Annexure Ex. V;(4) Copy of the despatch instructions from Shiv Nath Radha Krishna Beawar, to M/s. Mewar Textile Mills, Bhilwara, dated March 11, 1942, Annexure Ex. W;(5) Copy of letter to M/s. Shivnath Radha Krishna Somani, Beawar, dated March 12, 1942, Annexure Ex. X; and(6) Copy of the Journal Entry in the Books of the Mills of Rs. 9,000 Annexure Ex. Y.He invites us to treat these documents as a sample of the manner in which the goods were sent from Bhilwara, to the consignee in British India and the amount of Rupees 2,73,488 was received. But we notice that these very documents were filed as annexures to the assessees application under S. 66 (1) of the Act in respect of questions other than question No. 2, which was referred by the Tribunal at the instance of the appellant and, therefore, we feel a doubt whether these documents could safely be treated as relating to the item of Rs. 2,73,488.6. Before we conclude we must mention a matter of procedure. The Appellate Tribunal at the instance of the assessee attached a number of documents to the statement of the case, including the six documents mentioned above, but we find no mention of these documents either in the Appellate Order of the Appellate Tribunal or in the body of the statement of the case. We feel that it is not consistent with the advisory jurisdiction of a High Court under the Act that the Appellate Tribunal should attach to the statement of the case documents, other than the proceedings of the Income-tax authorities, which are not mentioned and discussed either in its own appellate order or in the statements of the case. Suppose a dispute arises as to the interpretation of a statement which is annexed in the manner above mentioned. If the High Court decides the dispute it would be deciding questions not decided by the Tribunal, and which the High Court would be incompetent to decide, under the Indian Income-tax Act.7 | 1[ds]5. We may mention, however, that Mr. Desai contends before us that the facts are clear and he relies on six documents which are printed in the paper book namely:(1) The Contract form - Annexure Ex. T;(2) Copy of the postcard from Shiv Nath Radha Krishna Somani, Beawar, to M/s. Mewar Textile Mills, Bhilwara, dated March 7, 1942 - Annexure Ex. U;(3) Copy of the advice from Umedmal Abheymal Ajmer to Mewar Textile Mills, dated March 7, 1942 - Annexure Ex. V;(4) Copy of the despatch instructions from Shiv Nath Radha Krishna Beawar, to M/s. Mewar Textile Mills, Bhilwara, dated March 11, 1942, Annexure Ex. W;(5) Copy of letter to M/s. Shivnath Radha Krishna Somani, Beawar, dated March 12, 1942, Annexure Ex. X; and(6) Copy of the Journal Entry in the Books of the Mills of Rs. 9,000 Annexure Ex. Y.He invites us to treat these documents as a sample of the manner in which the goods were sent from Bhilwara, to the consignee in British India and the amount of Rupees 2,73,488 was received. But we notice that these very documents were filed as annexures to the assessees application under S. 66 (1) of the Act in respect of questions other than question No. 2, which was referred by the Tribunal at the instance of the appellant and, therefore, we feel a doubt whether these documents could safely be treated as relating to the item of Rs. 2,73,488.6. Before we conclude we must mention a matter of procedure. The Appellate Tribunal at the instance of the assessee attached a number of documents to the statement of the case, including the six documents mentioned above, but we find no mention of these documents either in the Appellate Order of the Appellate Tribunal or in the body of the statement of the case. We feel that it is not consistent with the advisory jurisdiction of a High Court under the Act that the Appellate Tribunal should attach to the statement of the case documents, other than the proceedings of the Income-tax authorities, which are not mentioned and discussed either in its own appellate order or in the statements of the case. Suppose a dispute arises as to the interpretation of a statement which is annexed in the manner above mentioned. If the High Court decides the dispute it would be deciding questions not decided by the Tribunal, and which the High Court would be incompetent to decide, under the Indian Income-tax Act. | 1 | 1,808 | 489 | ### 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:
submission of Mr. Sastri, we find that the Rajasthan High Court has omitted to consider the question of the taxability of this item. This item was exempted by the Appellate Tribunal. In this connection the Appellant Tribunal observed as follows :“but the assessee would not be liable to tax in respect of goods sold by the assessee to the purchasers on railway receipts in the names of consignees. In respect of these goods, the delivery of the goods was in Bhilwara, the goods were appropriated there and not in British India and the title in the goods had passed in the Indian State and not in British India. The assessee cannot, therefore, be assessed on the amounts received by the assessee from consignees on railway receipts in the names of the consignees. It is true that the consignees did pay the price of the goods to the assessees bankers in British India but thereby the bankers in British India had become the agents of the consignees and not the agents of the assessee. In this view of the matter the inclusion of the receipts on railway receipts addressed to the consignees cannot be justified. In the assessment years 1944-45 and 1945-66 none of the railway receipts was in the name of the consignees. The sales were on railway receipts in the name of self or were in cash. It was only in the assessment year 1943-44 that the railway receipts were in the name of the consignees and they were to the tune of Rs. 2,73,488. The amount will, therefore, be excluded form the total receipts of Rs. 12,62,911."The High Court noticed exclusion of Rs. 2,73,488 in these words :"The Tribunal also found that it was only in the assessment years 1944-45 and 1945-46 that sales were effected by assessee on railway receipts in the names of the consignees and that such sales amounted to Rs. 2,73,488. The Tribunal accordingly deleted from the aggregate amount sales of Rs. 12,72,911 and Rs. 2,73,488 obviously treating the amounts deleted as not liable to tax."Apparently the mention of 1944-45 and 1945-46 is a clerical mistake and we should read it as 1943-44. Apart from the above words, we do not find any reference to the figure of Rs. 2,73,488 in the rest of the judgment. Further, the main reasoning of the High Court concerns the item of Rupees 1,14,687 in the year 1945-56 and Rupees 1,14,289 during the year 1946-47. These amounts had been received by the assessee by discounting hundies with the Bharat Bank, Bhilwara, and the Rajasthan High Court held that the assessee was liable to tax in respect of these items not on receipt basis but on accrual basis. The item of Rs. 2,73,488 was not realised in Bhilwara by discounting of hundies but in other circumstances.4. Two courses are open to us in this appeal, either we should on the material here on record decide whether Rupees 2,73,488 is taxable or not remand the case to the High Court for decision. We have decided to take the latter course because the relevant facts in respect of this item of Rs. 2,73,488 are not clear and the counsel for the assessee and for the revenue have not been able to agree upon the facts on which we should decide this question. We regret having to adopt the latter course because this appeal concerns the assessment year 1943-44 and it is now 1965; but under the circumstances we have no choice except to send the case back to the High Court.5. We may mention, however, that Mr. Desai contends before us that the facts are clear and he relies on six documents which are printed in the paper book namely:(1) The Contract form - Annexure Ex. T;(2) Copy of the postcard from Shiv Nath Radha Krishna Somani, Beawar, to M/s. Mewar Textile Mills, Bhilwara, dated March 7, 1942 - Annexure Ex. U;(3) Copy of the advice from Umedmal Abheymal Ajmer to Mewar Textile Mills, dated March 7, 1942 - Annexure Ex. V;(4) Copy of the despatch instructions from Shiv Nath Radha Krishna Beawar, to M/s. Mewar Textile Mills, Bhilwara, dated March 11, 1942, Annexure Ex. W;(5) Copy of letter to M/s. Shivnath Radha Krishna Somani, Beawar, dated March 12, 1942, Annexure Ex. X; and(6) Copy of the Journal Entry in the Books of the Mills of Rs. 9,000 Annexure Ex. Y.He invites us to treat these documents as a sample of the manner in which the goods were sent from Bhilwara, to the consignee in British India and the amount of Rupees 2,73,488 was received. But we notice that these very documents were filed as annexures to the assessees application under S. 66 (1) of the Act in respect of questions other than question No. 2, which was referred by the Tribunal at the instance of the appellant and, therefore, we feel a doubt whether these documents could safely be treated as relating to the item of Rs. 2,73,488.6. Before we conclude we must mention a matter of procedure. The Appellate Tribunal at the instance of the assessee attached a number of documents to the statement of the case, including the six documents mentioned above, but we find no mention of these documents either in the Appellate Order of the Appellate Tribunal or in the body of the statement of the case. We feel that it is not consistent with the advisory jurisdiction of a High Court under the Act that the Appellate Tribunal should attach to the statement of the case documents, other than the proceedings of the Income-tax authorities, which are not mentioned and discussed either in its own appellate order or in the statements of the case. Suppose a dispute arises as to the interpretation of a statement which is annexed in the manner above mentioned. If the High Court decides the dispute it would be deciding questions not decided by the Tribunal, and which the High Court would be incompetent to decide, under the Indian Income-tax Act.7
### Response:
1
### Explanation:
5. We may mention, however, that Mr. Desai contends before us that the facts are clear and he relies on six documents which are printed in the paper book namely:(1) The Contract form - Annexure Ex. T;(2) Copy of the postcard from Shiv Nath Radha Krishna Somani, Beawar, to M/s. Mewar Textile Mills, Bhilwara, dated March 7, 1942 - Annexure Ex. U;(3) Copy of the advice from Umedmal Abheymal Ajmer to Mewar Textile Mills, dated March 7, 1942 - Annexure Ex. V;(4) Copy of the despatch instructions from Shiv Nath Radha Krishna Beawar, to M/s. Mewar Textile Mills, Bhilwara, dated March 11, 1942, Annexure Ex. W;(5) Copy of letter to M/s. Shivnath Radha Krishna Somani, Beawar, dated March 12, 1942, Annexure Ex. X; and(6) Copy of the Journal Entry in the Books of the Mills of Rs. 9,000 Annexure Ex. Y.He invites us to treat these documents as a sample of the manner in which the goods were sent from Bhilwara, to the consignee in British India and the amount of Rupees 2,73,488 was received. But we notice that these very documents were filed as annexures to the assessees application under S. 66 (1) of the Act in respect of questions other than question No. 2, which was referred by the Tribunal at the instance of the appellant and, therefore, we feel a doubt whether these documents could safely be treated as relating to the item of Rs. 2,73,488.6. Before we conclude we must mention a matter of procedure. The Appellate Tribunal at the instance of the assessee attached a number of documents to the statement of the case, including the six documents mentioned above, but we find no mention of these documents either in the Appellate Order of the Appellate Tribunal or in the body of the statement of the case. We feel that it is not consistent with the advisory jurisdiction of a High Court under the Act that the Appellate Tribunal should attach to the statement of the case documents, other than the proceedings of the Income-tax authorities, which are not mentioned and discussed either in its own appellate order or in the statements of the case. Suppose a dispute arises as to the interpretation of a statement which is annexed in the manner above mentioned. If the High Court decides the dispute it would be deciding questions not decided by the Tribunal, and which the High Court would be incompetent to decide, under the Indian Income-tax Act.
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Mackinnon Mackenzie & Co. Pvt. Ltd Vs. Ibrahim Mahommed Issak | 321 a seaman disappeared during his spell of duty at the wheel in the wheel house in the centre of the flying deck and was not afterwards seen. The night was rough, the sea choppy but the vessel was steady. The flying deck protected by a rail. There was no evidence as to how the man met his death and in spite of the presumption against suicide the Country Court Judge was unable to draw the inference that the death was due to accident. It was held by the Court of Appeal that in the circumstances the conclusion of the Country Court Judge was right. At p. 321 of the Report OBrien, L. C. said."In this case we cannot interfere with the finding of the Country Court Judge. The post of duty of the deceased was at the wheel and to steer a certain course until ordered to change it, but nobody knows how the man disappeared, or how he came to leave his post. It is conceivable that he may have fallen overboard in such circumstances as to entitle his widow to claim compensation on the ground that his death was due to an accident arising out of and in the course of the employment; but the onus of proof is on the applicant. That onus is not discharged by asserting that we must assume that the deceased was at his allotted employment when he fell overboard, although the natural inference would be that he was not, and that we should then draw the conclusion that the accident arose out of and in the course of the employment."10. In Simpson v. L. M. and S. Rly. Co., 1931 AC 351 Lord Tomlin reviewed all the previous authorities and stated the principle as follows:"...from these passages to which I have referred I think this rule may be deducted for application to that class of case which may be called unexplained accident cases-namely, that where the evidence establishes that in the course of his employment the workman was properly in a place to which some risk particular thereto attaches and an accident occurs capable of explanation solely by reference to that risk, it is legitimate, notwithstanding the absence of evidence as to the immediate circumstances of the accident, to attribute the accident to that risk, and to hold that the accident arose out of the employment; but the inference as to the origin of the accident may be displaced by evidence tending to show that the accident was due to some action of the workman outside the scope of the employment. Such a rule so stated seems to me to be consistent with all the previous decisions of your Lordships House, including 1909-2 KB 46 where there was some evidence from which it could be inferred that the seaman who fell overboard had by action of his own outside his employment added a peril to his position."In the same case Lord Thankerton expressed the principle in similar language. Lord Thankerton said at p. 371 of the Report:".....the principle to be applied in such cases is that if the accident is shown to have happened while the deceased was in the course of his employment and at a place where he was discharging the duties of his employment, and the accident is capable of being attributed to a risk which is ordinarily inherent in the discharge of such duties, the arbitrator is entitled to infer, in the absence of any evidence tending to an opposite conclusion, that the accident arose out of the employment."11. In a later case in the House of Lords, Rosen v. S. S. "Quercus" (Owners) (1933 AC 494) Lord Buckmaster explained that in that passage in Lord Thankertons speech in Simpons case, 1931AC 351 the place referred to was not the exact spot at which the accident may have occurred, but meant, in that case the train on which the workman was travelling and in the later case in the House of Lords the ship on which the workman was employed. The same principle applies in Indian law as the language of S. 3 of the Indian Act is identical with Section 1 of the English Workmens Compensation Act of 1935.12. What are the facts found in the present case? Shaikh Hassan Ibrahim was employed as a deck-hand, a seaman of category II on the ship. The medical log book of the ship showed that on December 13, 1961 Shaikh Hassan complained of pain in the chest and was, therefore, examined, but nothing abnormal was detected clinically. The Medical Officer on board the ship prescribed some tablets for Shaikh Hassan and he reported fit for work on the next day. On the 15th, however, he complained of insomnia and pain in the chest for which the Medical Officer prescribed sedative tablets. The official log book of the ship shows that on the 16th when the ship was in the Persian Gulf, Shaikh Hassan was seen near the bridge of the ship at about 2.20 a.m. He was sent back but at 3 a.m. he was seen on the Tween Deck when he told a seaman on duty that he was going to bed. At 6.15 a.m. he was found missing and a search was undertaken. The dead body, however, was not found either on that day or later on. The evidence does not show that it was a stormy night. The Commissioner made a local inspection of the ship and saw the position of the bridge and deck and found that there was a bulwark more than 3 1/2 feet. Nobody saw the missing seaman at the so-called place of accident. The Additional Commissioner held that there was no material for holding that the death of the seaman took place on account of an accident which arose out of his employment. In our opinion the Additional Commissioner did not commit any error of law in reaching his finding and the High Court was not justified in reversing it. | 1[ds]5. To come within the Act the injury by accident must arise both out of and in the course of employment. The words "in the course of the employment mean "in the course of the work which the workman is employed to do and which is incidental to it". The words arising out of employment" are understood to mean that "during the course of the employment, injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered". In other words, there must be a causal relationship between the accident and the employment.The expression "arising out of employment" is again not confined to the mere nature of the employment. The expression applies to employment as such - to its nature, its conditions, its obligations and its incidents. If by reason of any of those factors the workman is brought within the zone of special danger, the injury would be one which arises out of employment.To put it differently, if the accident had occurred on account of a risk which is an incident of the employment, the claim for compensation must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent act.In the case of death caused by accident the burden of proof rests upon the workman to prove that the accident arose out of employment as well as in the course of employment. But this does not mean that a workman who comes to court for relief must necessarily prove it by direct evidence. Although the onus of proving that the injury by accident arose both out of and in the course of employment rests upon the applicant these essentials may be inferred when the facts proved justify the inference. On the one hand the Commissioner must not surmise, conjecture or guess; on the other hand, he may draw an inference from the proved facts so long as it is a legitimate inference. It is of course impossible to lay down any rule as to the degree of proof which is sufficient to justify an inference being drawn, but the evidence must be such as would induce a reasonable man to draw it.In cases of the unexplained drowning of seaman, the question has often arisen as to whether or not there was evidence to justify the inference drawn by the Arbitrator that the seaman met his death through accident arising out of and in the course of his employment. The question was considered by the House of Lords in Kerror Lendrum v. Ayr Steam Shipping Co., 1915 ACIn a later case in the House of Lords, Rosenv. S. S. "Quercus" (Owners) (1933 AC 494)Lord Buckmaster explained that in that passage in Lord Thankertons speech in Simpons case, 1931AC 351 the place referred to was not the exact spot at which the accident may have occurred, but meant, in that case the train on which the workman was travelling and in the later case in the House of Lords the ship on which the workman was employed. The same principle applies in Indian law as the language of S. 3 of the Indian Act is identical with Section 1 of the English Workmens Compensation Act of 1935.What are the facts found in the present case? Shaikh Hassan Ibrahim was employed as aa seaman of category II on the ship. The medical log book of the ship showed that on December 13, 1961 Shaikh Hassan complained of pain in the chest and was, therefore, examined, but nothing abnormal was detected clinically. The Medical Officer on board the ship prescribed some tablets for Shaikh Hassan and he reported fit for work on the next day. On the 15th, however, he complained of insomnia and pain in the chest for which the Medical Officer prescribed sedative tablets. The official log book of the ship shows that on the 16th when the ship was in the Persian Gulf, Shaikh Hassan was seen near the bridge of the ship at about 2.20 a.m. He was sent back but at 3 a.m. he was seen on the Tween Deck when he told a seaman on duty that he was going to bed. At 6.15 a.m. he was found missing and a search was undertaken. The dead body, however, was not found either on that day or later on. The evidence does not show that it was a stormy night. The Commissioner made a local inspection of the ship and saw the position of the bridge and deck and found that there was a bulwark more than 3 1/2 feet. Nobody saw the missing seaman at theplace of accident. The Additional Commissioner held that there was no material for holding that the death of the seaman took place on account of an accident which arose out of his employment. In our opinion the Additional Commissioner did not commit any error of law in reaching his finding and the High Court was not justified in reversing it. | 1 | 4,863 | 924 | ### 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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321 a seaman disappeared during his spell of duty at the wheel in the wheel house in the centre of the flying deck and was not afterwards seen. The night was rough, the sea choppy but the vessel was steady. The flying deck protected by a rail. There was no evidence as to how the man met his death and in spite of the presumption against suicide the Country Court Judge was unable to draw the inference that the death was due to accident. It was held by the Court of Appeal that in the circumstances the conclusion of the Country Court Judge was right. At p. 321 of the Report OBrien, L. C. said."In this case we cannot interfere with the finding of the Country Court Judge. The post of duty of the deceased was at the wheel and to steer a certain course until ordered to change it, but nobody knows how the man disappeared, or how he came to leave his post. It is conceivable that he may have fallen overboard in such circumstances as to entitle his widow to claim compensation on the ground that his death was due to an accident arising out of and in the course of the employment; but the onus of proof is on the applicant. That onus is not discharged by asserting that we must assume that the deceased was at his allotted employment when he fell overboard, although the natural inference would be that he was not, and that we should then draw the conclusion that the accident arose out of and in the course of the employment."10. In Simpson v. L. M. and S. Rly. Co., 1931 AC 351 Lord Tomlin reviewed all the previous authorities and stated the principle as follows:"...from these passages to which I have referred I think this rule may be deducted for application to that class of case which may be called unexplained accident cases-namely, that where the evidence establishes that in the course of his employment the workman was properly in a place to which some risk particular thereto attaches and an accident occurs capable of explanation solely by reference to that risk, it is legitimate, notwithstanding the absence of evidence as to the immediate circumstances of the accident, to attribute the accident to that risk, and to hold that the accident arose out of the employment; but the inference as to the origin of the accident may be displaced by evidence tending to show that the accident was due to some action of the workman outside the scope of the employment. Such a rule so stated seems to me to be consistent with all the previous decisions of your Lordships House, including 1909-2 KB 46 where there was some evidence from which it could be inferred that the seaman who fell overboard had by action of his own outside his employment added a peril to his position."In the same case Lord Thankerton expressed the principle in similar language. Lord Thankerton said at p. 371 of the Report:".....the principle to be applied in such cases is that if the accident is shown to have happened while the deceased was in the course of his employment and at a place where he was discharging the duties of his employment, and the accident is capable of being attributed to a risk which is ordinarily inherent in the discharge of such duties, the arbitrator is entitled to infer, in the absence of any evidence tending to an opposite conclusion, that the accident arose out of the employment."11. In a later case in the House of Lords, Rosen v. S. S. "Quercus" (Owners) (1933 AC 494) Lord Buckmaster explained that in that passage in Lord Thankertons speech in Simpons case, 1931AC 351 the place referred to was not the exact spot at which the accident may have occurred, but meant, in that case the train on which the workman was travelling and in the later case in the House of Lords the ship on which the workman was employed. The same principle applies in Indian law as the language of S. 3 of the Indian Act is identical with Section 1 of the English Workmens Compensation Act of 1935.12. What are the facts found in the present case? Shaikh Hassan Ibrahim was employed as a deck-hand, a seaman of category II on the ship. The medical log book of the ship showed that on December 13, 1961 Shaikh Hassan complained of pain in the chest and was, therefore, examined, but nothing abnormal was detected clinically. The Medical Officer on board the ship prescribed some tablets for Shaikh Hassan and he reported fit for work on the next day. On the 15th, however, he complained of insomnia and pain in the chest for which the Medical Officer prescribed sedative tablets. The official log book of the ship shows that on the 16th when the ship was in the Persian Gulf, Shaikh Hassan was seen near the bridge of the ship at about 2.20 a.m. He was sent back but at 3 a.m. he was seen on the Tween Deck when he told a seaman on duty that he was going to bed. At 6.15 a.m. he was found missing and a search was undertaken. The dead body, however, was not found either on that day or later on. The evidence does not show that it was a stormy night. The Commissioner made a local inspection of the ship and saw the position of the bridge and deck and found that there was a bulwark more than 3 1/2 feet. Nobody saw the missing seaman at the so-called place of accident. The Additional Commissioner held that there was no material for holding that the death of the seaman took place on account of an accident which arose out of his employment. In our opinion the Additional Commissioner did not commit any error of law in reaching his finding and the High Court was not justified in reversing it.
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5. To come within the Act the injury by accident must arise both out of and in the course of employment. The words "in the course of the employment mean "in the course of the work which the workman is employed to do and which is incidental to it". The words arising out of employment" are understood to mean that "during the course of the employment, injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered". In other words, there must be a causal relationship between the accident and the employment.The expression "arising out of employment" is again not confined to the mere nature of the employment. The expression applies to employment as such - to its nature, its conditions, its obligations and its incidents. If by reason of any of those factors the workman is brought within the zone of special danger, the injury would be one which arises out of employment.To put it differently, if the accident had occurred on account of a risk which is an incident of the employment, the claim for compensation must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent act.In the case of death caused by accident the burden of proof rests upon the workman to prove that the accident arose out of employment as well as in the course of employment. But this does not mean that a workman who comes to court for relief must necessarily prove it by direct evidence. Although the onus of proving that the injury by accident arose both out of and in the course of employment rests upon the applicant these essentials may be inferred when the facts proved justify the inference. On the one hand the Commissioner must not surmise, conjecture or guess; on the other hand, he may draw an inference from the proved facts so long as it is a legitimate inference. It is of course impossible to lay down any rule as to the degree of proof which is sufficient to justify an inference being drawn, but the evidence must be such as would induce a reasonable man to draw it.In cases of the unexplained drowning of seaman, the question has often arisen as to whether or not there was evidence to justify the inference drawn by the Arbitrator that the seaman met his death through accident arising out of and in the course of his employment. The question was considered by the House of Lords in Kerror Lendrum v. Ayr Steam Shipping Co., 1915 ACIn a later case in the House of Lords, Rosenv. S. S. "Quercus" (Owners) (1933 AC 494)Lord Buckmaster explained that in that passage in Lord Thankertons speech in Simpons case, 1931AC 351 the place referred to was not the exact spot at which the accident may have occurred, but meant, in that case the train on which the workman was travelling and in the later case in the House of Lords the ship on which the workman was employed. The same principle applies in Indian law as the language of S. 3 of the Indian Act is identical with Section 1 of the English Workmens Compensation Act of 1935.What are the facts found in the present case? Shaikh Hassan Ibrahim was employed as aa seaman of category II on the ship. The medical log book of the ship showed that on December 13, 1961 Shaikh Hassan complained of pain in the chest and was, therefore, examined, but nothing abnormal was detected clinically. The Medical Officer on board the ship prescribed some tablets for Shaikh Hassan and he reported fit for work on the next day. On the 15th, however, he complained of insomnia and pain in the chest for which the Medical Officer prescribed sedative tablets. The official log book of the ship shows that on the 16th when the ship was in the Persian Gulf, Shaikh Hassan was seen near the bridge of the ship at about 2.20 a.m. He was sent back but at 3 a.m. he was seen on the Tween Deck when he told a seaman on duty that he was going to bed. At 6.15 a.m. he was found missing and a search was undertaken. The dead body, however, was not found either on that day or later on. The evidence does not show that it was a stormy night. The Commissioner made a local inspection of the ship and saw the position of the bridge and deck and found that there was a bulwark more than 3 1/2 feet. Nobody saw the missing seaman at theplace of accident. The Additional Commissioner held that there was no material for holding that the death of the seaman took place on account of an accident which arose out of his employment. In our opinion the Additional Commissioner did not commit any error of law in reaching his finding and the High Court was not justified in reversing it.
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State Of A.P Vs. C. Uma Maheswara Rao | 548 ) the appellant who was working as a local foreman, was found to have accepted a sum of Rs. 375 from a railway contractor. The appellants explanation was that he had borrowed the amount as he was in need of money for meeting the expenses of the clothing of his children who were studying in school. The Special Judge accepted the evidence of the contractor and held that the money had been taken as a bribe, that the defence story was improbable and untrue, that the presumption under Section 4 of the Act had to be raised and that the presumption had not been rebutted by the appellant and accordingly convicted him under Section 161 IPC and Section 5 of the Act. On appeal the High Court held that on the facts of that case the statutory presumption under Section 4 had to be raised, that the explanation offered by the appellant was improbable and palpably unreasonable and that the presumption had not been rebutted, and upheld the conviction. The appellant contended, on appeal in this Court, inter alia: (i) that the presumption under Section 4 could not be raised merely on proof of acceptance of money but it had further to be proved that the money was accepted as a bribe, (ii) that even if the presumption arose it was rebutted when the appellant offered a reasonably probable explanation. This Court, dealing with the presumption under Section 4, observed that such presumption arose when it was shown that the accused had received the stated amount and that the said amount was not legal remuneration. The word gratification in section 4(1) was to be given its literal dictionary meaning of satisfaction or appetite or desire, it could not be construed to mean money paid by way of a bribe. The High Court was justified in raising the presumption against the appellant as it was admitted that he had received the money from the contractor and the amount received was other than legal remuneration. On the facts the explanation given by the accused. In agreement with the opinion of the High Court was held to be wholly unsatisfactory and unreasonable. In Dhanvantrai vs. State of Maharashtra (AIR 1964 SC 575 ) it was observed that in order to raise the presumption under Section 4(1) of the Act what the prosecution has to prove is that the accused person has received gratification other than legal remuneration and when it is shown that he has received a certain sum of money which was not a legal remuneration, then, the condition prescribed by this section is satisfied and the presumption thereunder must be raised. In Jhangan vs. State of U.P. 1968 (3) SCR 766 ) the above decisions were approved and it is observed that mere receipt of money is sufficient to raise the presumption under Section 4(1) of the Act." 25. In C.I. Emden vs. State of Uttar Pradesh (AIR 1960 SC 548 ) and V.D. Jhangan vs. State of Uttar Pradesh (1966 (3) SCR 736 ) it was observed that if any money is received and no convincing, credible and acceptable explanation is offered by the accused as to how it came to be received by him, the presumption under Section 4 of the old Act is available. When the receipt is admitted it is for the accused to prove as to how the presumption is not available as perforce the presumption arises and becomes operative. 26. These aspects were highlighted recently in State of Andhra Pradesh vs. V. Vasudev Rao (JT 2003(9) SC 119 ). 27. The evidence of PW-1 cannot be ignored on the ground that he had earlier made grievances against some other officials. The Trial Court had carefully analysed his evidence and found the same to be credible. Even if PW-2 did not support the prosecution version on some aspects yet his evidence also prove giving of money. The Evidence of PW-1 coupled with those of PWs 3 and 5 is sufficient to bring home the accusations. Further, the High Court seems to have made out a new case about the alleged date of complaint. A bare reading of the contents of the complaint and the date put in the complaint as evident from Exts. P-3 and P-3A clearly show that the High Court was not correct in saying that the date of the document is 20.12.1991. Additionally, this plea was not raised before the Trial Court. There was even no suggestion about that aspect. Learned counsel for A-1 and A-2 submitted that suggestions were there which is not so. What was suggested was the documents were not prepared at the time they were claimed to be. There is a gulf of difference between time and date. In any event such a plea has not been taken before the courts below. It being essentially a question of fact, the High Court could not have made out a new case regarding correctness of the date. As noted above, the views of the High Court were also not correct when the document is itself looked at. Much stress was laid on the accused persons not being the final authority in the tender matter. As noted in Chaturdas Bhagwandas Patel vs. The State of Gujarat (1976) (3) SCC 46 ) the question whether a person has authority to do the act for which bribe is accepted is of no consequence.28. Keeping in view the legal principles as can be culled out from decisions referred to above, applying the fact situation to them the inevitable conclusion is that the High Court was not justified in directing acquittal. Not only the correct legal position was not kept in view but the analysis of the factual position is also found to be erroneous. That being so, the judgment of the High Court is set aside. Custodial sentence of one year for each of the proved offence would meet the ends of justice, with the fine and default stipulation stipulated by the Trial Court. | 1[ds]27. The evidence of PW-1 cannot be ignored on the ground that he had earlier made grievances against some other officials. The Trial Court had carefully analysed his evidence and found the same to be credible. Even if PW-2 did not support the prosecution version on some aspects yet his evidence also prove giving of money. The Evidence of PW-1 coupled with those of PWs 3 and 5 is sufficient to bring home the accusations. Further, the High Court seems to have made out a new case about the alleged date of complaint. A bare reading of the contents of the complaint and the date put in the complaint as evident from Exts. P-3 and P-3A clearly show that the High Court was not correct in saying that the date of the document is 20.12.1991. Additionally, this plea was not raised before the Trial Court. There was even no suggestion about that aspect. Learned counsel for A-1 and A-2 submitted that suggestions were there which is not so. What was suggested was the documents were not prepared at the time they were claimed to be. There is a gulf of difference between time and date. In any event such a plea has not been taken before the courts below. It being essentially a question of fact, the High Court could not have made out a new case regarding correctness of the date. As noted above, the views of the High Court were also not correct when the document is itself looked at. Much stress was laid on the accused persons not being the final authority in the tender matter. As noted in Chaturdas Bhagwandas Patel vs. The State of Gujarat (1976) (3) SCC 46 ) the question whether a person has authority to do the act for which bribe is accepted is of no consequence.28. Keeping in view the legal principles as can be culled out from decisions referred to above, applying the fact situation to them the inevitable conclusion is that the High Court was not justified in directing acquittal. Not only the correct legal position was not kept in view but the analysis of the factual position is also found to be erroneous. That being so, the judgment of the High Court is set aside. Custodial sentence of one year for each of the proved offence would meet the ends of justice, with the fine and default stipulation stipulated by the Trial Court. | 1 | 4,988 | 444 | ### Instruction:
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548 ) the appellant who was working as a local foreman, was found to have accepted a sum of Rs. 375 from a railway contractor. The appellants explanation was that he had borrowed the amount as he was in need of money for meeting the expenses of the clothing of his children who were studying in school. The Special Judge accepted the evidence of the contractor and held that the money had been taken as a bribe, that the defence story was improbable and untrue, that the presumption under Section 4 of the Act had to be raised and that the presumption had not been rebutted by the appellant and accordingly convicted him under Section 161 IPC and Section 5 of the Act. On appeal the High Court held that on the facts of that case the statutory presumption under Section 4 had to be raised, that the explanation offered by the appellant was improbable and palpably unreasonable and that the presumption had not been rebutted, and upheld the conviction. The appellant contended, on appeal in this Court, inter alia: (i) that the presumption under Section 4 could not be raised merely on proof of acceptance of money but it had further to be proved that the money was accepted as a bribe, (ii) that even if the presumption arose it was rebutted when the appellant offered a reasonably probable explanation. This Court, dealing with the presumption under Section 4, observed that such presumption arose when it was shown that the accused had received the stated amount and that the said amount was not legal remuneration. The word gratification in section 4(1) was to be given its literal dictionary meaning of satisfaction or appetite or desire, it could not be construed to mean money paid by way of a bribe. The High Court was justified in raising the presumption against the appellant as it was admitted that he had received the money from the contractor and the amount received was other than legal remuneration. On the facts the explanation given by the accused. In agreement with the opinion of the High Court was held to be wholly unsatisfactory and unreasonable. In Dhanvantrai vs. State of Maharashtra (AIR 1964 SC 575 ) it was observed that in order to raise the presumption under Section 4(1) of the Act what the prosecution has to prove is that the accused person has received gratification other than legal remuneration and when it is shown that he has received a certain sum of money which was not a legal remuneration, then, the condition prescribed by this section is satisfied and the presumption thereunder must be raised. In Jhangan vs. State of U.P. 1968 (3) SCR 766 ) the above decisions were approved and it is observed that mere receipt of money is sufficient to raise the presumption under Section 4(1) of the Act." 25. In C.I. Emden vs. State of Uttar Pradesh (AIR 1960 SC 548 ) and V.D. Jhangan vs. State of Uttar Pradesh (1966 (3) SCR 736 ) it was observed that if any money is received and no convincing, credible and acceptable explanation is offered by the accused as to how it came to be received by him, the presumption under Section 4 of the old Act is available. When the receipt is admitted it is for the accused to prove as to how the presumption is not available as perforce the presumption arises and becomes operative. 26. These aspects were highlighted recently in State of Andhra Pradesh vs. V. Vasudev Rao (JT 2003(9) SC 119 ). 27. The evidence of PW-1 cannot be ignored on the ground that he had earlier made grievances against some other officials. The Trial Court had carefully analysed his evidence and found the same to be credible. Even if PW-2 did not support the prosecution version on some aspects yet his evidence also prove giving of money. The Evidence of PW-1 coupled with those of PWs 3 and 5 is sufficient to bring home the accusations. Further, the High Court seems to have made out a new case about the alleged date of complaint. A bare reading of the contents of the complaint and the date put in the complaint as evident from Exts. P-3 and P-3A clearly show that the High Court was not correct in saying that the date of the document is 20.12.1991. Additionally, this plea was not raised before the Trial Court. There was even no suggestion about that aspect. Learned counsel for A-1 and A-2 submitted that suggestions were there which is not so. What was suggested was the documents were not prepared at the time they were claimed to be. There is a gulf of difference between time and date. In any event such a plea has not been taken before the courts below. It being essentially a question of fact, the High Court could not have made out a new case regarding correctness of the date. As noted above, the views of the High Court were also not correct when the document is itself looked at. Much stress was laid on the accused persons not being the final authority in the tender matter. As noted in Chaturdas Bhagwandas Patel vs. The State of Gujarat (1976) (3) SCC 46 ) the question whether a person has authority to do the act for which bribe is accepted is of no consequence.28. Keeping in view the legal principles as can be culled out from decisions referred to above, applying the fact situation to them the inevitable conclusion is that the High Court was not justified in directing acquittal. Not only the correct legal position was not kept in view but the analysis of the factual position is also found to be erroneous. That being so, the judgment of the High Court is set aside. Custodial sentence of one year for each of the proved offence would meet the ends of justice, with the fine and default stipulation stipulated by the Trial Court.
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### Explanation:
27. The evidence of PW-1 cannot be ignored on the ground that he had earlier made grievances against some other officials. The Trial Court had carefully analysed his evidence and found the same to be credible. Even if PW-2 did not support the prosecution version on some aspects yet his evidence also prove giving of money. The Evidence of PW-1 coupled with those of PWs 3 and 5 is sufficient to bring home the accusations. Further, the High Court seems to have made out a new case about the alleged date of complaint. A bare reading of the contents of the complaint and the date put in the complaint as evident from Exts. P-3 and P-3A clearly show that the High Court was not correct in saying that the date of the document is 20.12.1991. Additionally, this plea was not raised before the Trial Court. There was even no suggestion about that aspect. Learned counsel for A-1 and A-2 submitted that suggestions were there which is not so. What was suggested was the documents were not prepared at the time they were claimed to be. There is a gulf of difference between time and date. In any event such a plea has not been taken before the courts below. It being essentially a question of fact, the High Court could not have made out a new case regarding correctness of the date. As noted above, the views of the High Court were also not correct when the document is itself looked at. Much stress was laid on the accused persons not being the final authority in the tender matter. As noted in Chaturdas Bhagwandas Patel vs. The State of Gujarat (1976) (3) SCC 46 ) the question whether a person has authority to do the act for which bribe is accepted is of no consequence.28. Keeping in view the legal principles as can be culled out from decisions referred to above, applying the fact situation to them the inevitable conclusion is that the High Court was not justified in directing acquittal. Not only the correct legal position was not kept in view but the analysis of the factual position is also found to be erroneous. That being so, the judgment of the High Court is set aside. Custodial sentence of one year for each of the proved offence would meet the ends of justice, with the fine and default stipulation stipulated by the Trial Court.
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Sivayogeswara Cotton Press,Devangere And Others Vs. M. Panchaksharappa And Another | owners. Its character could be changed with the permission of the Government on payment of certain prescribed fees and charges. The parties could not be certain of obtaining the necessary Government sanction to the conversion of the tenancy from agricultural to building purposes. Therefore the stipulation was clearly made that in the event of the Government refusing to sanction the conversion, the lease will be deemed to have come to an end. If the permission were forthcoming, and if the lessee put up substantial structures, it would be in his interest to continue in possession of the premises demised by the lease as long as he found it worth his while, but the lessee may have apprehended that circumstances might supervene necessitating his walking out of the venture. He therefore had to make provision in the lease entitling him to surrender the lease so as to avoid the liability for payment of future rents. But the lessor on his part would be equally anxious to conserve his rights and therefore he insisted upon the payment of rent for at least 20 years, irrespective of the consideration whether or not the tenant continued to occupy the premises. Thereafter, the lessor stipulated for enhanced rent of Rs. 400/- per annum for the first ten years after the initial period of twenty years aforesaid, and Rs. 500/- thereafter for all times that the lessee continued to occupy the premises.It could not therefore have been in the contemplation of the parties that the lease should be only for the life of the grantee or for an indefinite period which could be terminated at the will of the lessor.In order to ensure that the lessor should not eject the lessee at his sweet will, the term was specifically included in the lease that it will not be open to the lessor to do so. It must, therefore, be held that a stipulation entitling the lessee to surrender possession of the premises at his will is not wholly inconsistent with the tenancy being permanent. In this connection, the following observations of the Judicial Committee of the Privy Council in the case of 35 Cal WN 982 : (AIR 1931 PC 207 ) may be quoted :"On the other hand, restrictions upon the powers of the tenant to dig tanks and build masonry structures (CI. 8) and other provisions in the document were relied upon by the Appellants as indicating a tenancy not of a permanent nature. That some provisions are to be found which point in that direction cannot be denied though some of them may be explained by the existence of the special powers to resume Khas possession referred to above. But the question, after all, is one of construction of a document, viz., what is the correct view to take of the rights of the parties after considering all the clauses of the kabuliyat and giving due weight to the several indications which point in the different directions ?"17. It is noteworthy that the lease was intended by the parties to be heritable and assignable. It was a lease for twenty years certain, and then in terms which are not wholly unequivocal in respect of the period after the lapse of the initial twenty years. That the lease was not intended to be for the life only of the grantee is clear not only from the facts already noticed, namely, that it was meant for building purposes, was heritable and assignable and had not reserved any right to the lessor to terminate the tenancy, but also from the consideration that the lessor would not gamble upon the life of his lessee when he was making sure of the term of at least twenty years. He must have known that if the factory worked for twenty years, it would go on for ever, according to human calculations.18. The fact that the lessee stipulated in express terms that he shall always be at full liberty to give up the lease after October 1, 1934, it was argued, was a clear indication of the lease not being a permanent one; in other words, the contention is that the presumption arising from the fact that the lease was for a building purpose, heritable and assignable, is rebutted by the fact that the tenant had insisted upon the stipulation aforesaid. In our opinion, there is no substance in this contention. It is always open to a lessee of whatever description to surrender his leasehold interest to the lessor, by mutual consent. It is not necessary in law that the mutual consent should be at the time the surrender is being made. It is open to the parties to stipulate terms in anticipation of such a surrender. In the instant case, the surrender was to be in express terms agreed to by the parties, at any time after the lapse of the initial period of twenty years. Such a stipulation for the benefit of the lessee cannot be construed as in derogation of the permanency of the tenure, if the parties otherwise agreed to create such a tenure,19. For the reasons aforesaid, it must be held that the High Court was in error in holding that the present case is governed by the decision of the Bombay High Court in ILR (1954) Bom 448 : (AIR 1954 Bom 257 ). That decision was, with all respect, entirely correct on the norms of the document then before the court. That being so, in our opinion, on a true and proper construction of the lease deed, the presumption in favour of the transaction creating a permanent lease cannot be held to have been rebutted by a stipulation in favour of the tenant having the right to surrender the lease at his choice. That being so, it must be held that the lease deed evidences an intention to create a permanent lease. In view of this finding, it is not necessary to advert to the other contentions noised on behalf of the appellants. | 1[ds]ut as that defence has not been raised in the pleadings of the defendant and as that point has not been canvassed in the High Court, we ruled that we shall not permit that contention to be raised here. But the substantial ground on which this appeal has been pressed upon us is that by virtue of the lease deed of the year 1914, on a proper construction of that grant, a permanent tenancy was created. If that is so, it is common ground that the suit must fail. Naturally therefore, the main argument at the bar on both sides has been devoted to theIt is manifest, therefore, on a plain construction of the terms aforesaid of the lease deed that the purpose of the transaction was a building lease, that though there was liberty reserved for the lessee or his successor to give up the lease-hold at any time after October 1, 1934, no corresponding right was reserved to the lessor. Thus there is no room for the controversy which has occupied a large portion of the judgments of the courts below, that reservation of the right to the lessee to surrender possession at any time, imported a corresponding right to the lessor to call upon the lessee to give up possession. It was an advantage specifically reserved to the lessee without any corresponding benefit to the lessor. It is equally clear that the lease was heritable and assignable. Thus there is no difficulty in holding that there is no room for the contention, on the terms of the lease, that the parties intended that after the lapse of the first 20 years of the lease, the tenancy will be merely a tenancy at will. It was clearly a tenancy for an indefinite period, at theterms of the grant in that case are set out in full at p. 402 and it is clear on a reference to those terms that the deed was not as strong as we have in the instant case. Only two things were explicit in the terms of that document, namely, (1) that it was a lease for building purposes and (2) that as long as the lessee continued to pay the stipulated rent, the lessor would not be entitled to call upon the lessee toour opinion, the presumption raised by the fact that the lease was for building purposes and therefore intended to be permanent is not weakened by the fact that the lessee had stipulated with the lessor to be entitled to give up possession if and when he decided to do so. It is a right reserved in favour of the lessee and did not confer, as already pointed out any corresponding right on the lessor. Such a right in favour of the lessee cannot be converted into a disability or an obligation which should detract from the grant of a permanent tenancy. Such a stipulation which gives a right to the tenant to surrender the leasehold at any time he decided to do so, if it is coupled with a corresponding right in the landlord to serve notice of ejectment at any time he chose to do so may have the effect of making the tenancy, a tenancy at will, but such a conclusion has been negatived by the High Court and rightlyare in complete agreement with the following observations of the court made in that case which in our opinion apply to the facts and circumstances of the case in handcould not therefore have been in the contemplation of the parties that the lease should be only for the life of the grantee or for an indefinite period which could be terminated at the will of the lessor.In order to ensure that the lessor should not eject the lessee at his sweet will, the term was specifically included in the lease that it will not be open to the lessor to do so. It must, therefore, be held that a stipulation entitling the lessee to surrender possession of the premises at his will is not wholly inconsistent with the tenancy being permanent.It is noteworthy that the lease was intended by the parties to be heritable and assignable. It was a lease for twenty years certain, and then in terms which are not wholly unequivocal in respect of the period after the lapse of the initial twenty years. That the lease was not intended to be for the life only of the grantee is clear not only from the facts already noticed, namely, that it was meant for building purposes, was heritable and assignable and had not reserved any right to the lessor to terminate the tenancy, but also from the consideration that the lessor would not gamble upon the life of his lessee when he was making sure of the term of at least twenty years. He must have known that if the factory worked for twenty years, it would go on for ever, according to humanour opinion, there is no substance in this contention. It is always open to a lessee of whatever description to surrender his leasehold interest to the lessor, by mutual consent. It is not necessary in law that the mutual consent should be at the time the surrender is being made. It is open to the parties to stipulate terms in anticipation of such a surrender. In the instant case, the surrender was to be in express terms agreed to by the parties, at any time after the lapse of the initial period of twenty years. Such a stipulation for the benefit of the lessee cannot be construed as in derogation of the permanency of the tenure, if the parties otherwise agreed to create such aFor the reasons aforesaid, it must be held that the High Court was in error in holding that the present case is governed by the decision of the Bombay High Court in ILR (1954) Bom 448 : (AIR 1954 Bom 257 ). That decision was, with all respect, entirely correct on the norms of the document then before the court. That being so, in our opinion, on a true and proper construction of the lease deed, the presumption in favour of the transaction creating a permanent lease cannot be held to have been rebutted by a stipulation in favour of the tenant having the right to surrender the lease at his choice. That being so, it must be held that the lease deed evidences an intention to create a permanent lease. In view of this finding, it is not necessary to advert to the other contentions noised on behalf of the appellants. | 1 | 5,701 | 1,190 | ### Instruction:
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owners. Its character could be changed with the permission of the Government on payment of certain prescribed fees and charges. The parties could not be certain of obtaining the necessary Government sanction to the conversion of the tenancy from agricultural to building purposes. Therefore the stipulation was clearly made that in the event of the Government refusing to sanction the conversion, the lease will be deemed to have come to an end. If the permission were forthcoming, and if the lessee put up substantial structures, it would be in his interest to continue in possession of the premises demised by the lease as long as he found it worth his while, but the lessee may have apprehended that circumstances might supervene necessitating his walking out of the venture. He therefore had to make provision in the lease entitling him to surrender the lease so as to avoid the liability for payment of future rents. But the lessor on his part would be equally anxious to conserve his rights and therefore he insisted upon the payment of rent for at least 20 years, irrespective of the consideration whether or not the tenant continued to occupy the premises. Thereafter, the lessor stipulated for enhanced rent of Rs. 400/- per annum for the first ten years after the initial period of twenty years aforesaid, and Rs. 500/- thereafter for all times that the lessee continued to occupy the premises.It could not therefore have been in the contemplation of the parties that the lease should be only for the life of the grantee or for an indefinite period which could be terminated at the will of the lessor.In order to ensure that the lessor should not eject the lessee at his sweet will, the term was specifically included in the lease that it will not be open to the lessor to do so. It must, therefore, be held that a stipulation entitling the lessee to surrender possession of the premises at his will is not wholly inconsistent with the tenancy being permanent. In this connection, the following observations of the Judicial Committee of the Privy Council in the case of 35 Cal WN 982 : (AIR 1931 PC 207 ) may be quoted :"On the other hand, restrictions upon the powers of the tenant to dig tanks and build masonry structures (CI. 8) and other provisions in the document were relied upon by the Appellants as indicating a tenancy not of a permanent nature. That some provisions are to be found which point in that direction cannot be denied though some of them may be explained by the existence of the special powers to resume Khas possession referred to above. But the question, after all, is one of construction of a document, viz., what is the correct view to take of the rights of the parties after considering all the clauses of the kabuliyat and giving due weight to the several indications which point in the different directions ?"17. It is noteworthy that the lease was intended by the parties to be heritable and assignable. It was a lease for twenty years certain, and then in terms which are not wholly unequivocal in respect of the period after the lapse of the initial twenty years. That the lease was not intended to be for the life only of the grantee is clear not only from the facts already noticed, namely, that it was meant for building purposes, was heritable and assignable and had not reserved any right to the lessor to terminate the tenancy, but also from the consideration that the lessor would not gamble upon the life of his lessee when he was making sure of the term of at least twenty years. He must have known that if the factory worked for twenty years, it would go on for ever, according to human calculations.18. The fact that the lessee stipulated in express terms that he shall always be at full liberty to give up the lease after October 1, 1934, it was argued, was a clear indication of the lease not being a permanent one; in other words, the contention is that the presumption arising from the fact that the lease was for a building purpose, heritable and assignable, is rebutted by the fact that the tenant had insisted upon the stipulation aforesaid. In our opinion, there is no substance in this contention. It is always open to a lessee of whatever description to surrender his leasehold interest to the lessor, by mutual consent. It is not necessary in law that the mutual consent should be at the time the surrender is being made. It is open to the parties to stipulate terms in anticipation of such a surrender. In the instant case, the surrender was to be in express terms agreed to by the parties, at any time after the lapse of the initial period of twenty years. Such a stipulation for the benefit of the lessee cannot be construed as in derogation of the permanency of the tenure, if the parties otherwise agreed to create such a tenure,19. For the reasons aforesaid, it must be held that the High Court was in error in holding that the present case is governed by the decision of the Bombay High Court in ILR (1954) Bom 448 : (AIR 1954 Bom 257 ). That decision was, with all respect, entirely correct on the norms of the document then before the court. That being so, in our opinion, on a true and proper construction of the lease deed, the presumption in favour of the transaction creating a permanent lease cannot be held to have been rebutted by a stipulation in favour of the tenant having the right to surrender the lease at his choice. That being so, it must be held that the lease deed evidences an intention to create a permanent lease. In view of this finding, it is not necessary to advert to the other contentions noised on behalf of the appellants.
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is manifest, therefore, on a plain construction of the terms aforesaid of the lease deed that the purpose of the transaction was a building lease, that though there was liberty reserved for the lessee or his successor to give up the lease-hold at any time after October 1, 1934, no corresponding right was reserved to the lessor. Thus there is no room for the controversy which has occupied a large portion of the judgments of the courts below, that reservation of the right to the lessee to surrender possession at any time, imported a corresponding right to the lessor to call upon the lessee to give up possession. It was an advantage specifically reserved to the lessee without any corresponding benefit to the lessor. It is equally clear that the lease was heritable and assignable. Thus there is no difficulty in holding that there is no room for the contention, on the terms of the lease, that the parties intended that after the lapse of the first 20 years of the lease, the tenancy will be merely a tenancy at will. It was clearly a tenancy for an indefinite period, at theterms of the grant in that case are set out in full at p. 402 and it is clear on a reference to those terms that the deed was not as strong as we have in the instant case. Only two things were explicit in the terms of that document, namely, (1) that it was a lease for building purposes and (2) that as long as the lessee continued to pay the stipulated rent, the lessor would not be entitled to call upon the lessee toour opinion, the presumption raised by the fact that the lease was for building purposes and therefore intended to be permanent is not weakened by the fact that the lessee had stipulated with the lessor to be entitled to give up possession if and when he decided to do so. It is a right reserved in favour of the lessee and did not confer, as already pointed out any corresponding right on the lessor. Such a right in favour of the lessee cannot be converted into a disability or an obligation which should detract from the grant of a permanent tenancy. Such a stipulation which gives a right to the tenant to surrender the leasehold at any time he decided to do so, if it is coupled with a corresponding right in the landlord to serve notice of ejectment at any time he chose to do so may have the effect of making the tenancy, a tenancy at will, but such a conclusion has been negatived by the High Court and rightlyare in complete agreement with the following observations of the court made in that case which in our opinion apply to the facts and circumstances of the case in handcould not therefore have been in the contemplation of the parties that the lease should be only for the life of the grantee or for an indefinite period which could be terminated at the will of the lessor.In order to ensure that the lessor should not eject the lessee at his sweet will, the term was specifically included in the lease that it will not be open to the lessor to do so. It must, therefore, be held that a stipulation entitling the lessee to surrender possession of the premises at his will is not wholly inconsistent with the tenancy being permanent.It is noteworthy that the lease was intended by the parties to be heritable and assignable. It was a lease for twenty years certain, and then in terms which are not wholly unequivocal in respect of the period after the lapse of the initial twenty years. That the lease was not intended to be for the life only of the grantee is clear not only from the facts already noticed, namely, that it was meant for building purposes, was heritable and assignable and had not reserved any right to the lessor to terminate the tenancy, but also from the consideration that the lessor would not gamble upon the life of his lessee when he was making sure of the term of at least twenty years. He must have known that if the factory worked for twenty years, it would go on for ever, according to humanour opinion, there is no substance in this contention. It is always open to a lessee of whatever description to surrender his leasehold interest to the lessor, by mutual consent. It is not necessary in law that the mutual consent should be at the time the surrender is being made. It is open to the parties to stipulate terms in anticipation of such a surrender. In the instant case, the surrender was to be in express terms agreed to by the parties, at any time after the lapse of the initial period of twenty years. Such a stipulation for the benefit of the lessee cannot be construed as in derogation of the permanency of the tenure, if the parties otherwise agreed to create such aFor the reasons aforesaid, it must be held that the High Court was in error in holding that the present case is governed by the decision of the Bombay High Court in ILR (1954) Bom 448 : (AIR 1954 Bom 257 ). That decision was, with all respect, entirely correct on the norms of the document then before the court. That being so, in our opinion, on a true and proper construction of the lease deed, the presumption in favour of the transaction creating a permanent lease cannot be held to have been rebutted by a stipulation in favour of the tenant having the right to surrender the lease at his choice. That being so, it must be held that the lease deed evidences an intention to create a permanent lease. In view of this finding, it is not necessary to advert to the other contentions noised on behalf of the appellants.
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State Of Orissa Vs. Ram Chandra Dev & Anr | the jurisdiction of the High Court under Art. 226 to issue a writ solely for the purpose of granting an interim relief to the party who moved the High Court under Art. 226. It is in that connection that this Court observed that an interim relief can be granted only in aid of and as auxiliary to the main relief which may be available to the party on final determination of his rights in a suit or proceedings under Art., 226. It would thus be noticed that when the Orissa High Court purported to issue a writ under Art. 226 in favour of the grantees of the mining leases issued in their favour by the Ruler of Keonjhar and gave them adequate relief by issuing a writ without deciding the question of title, this Court corrected the error and set aside the High Courts orders. In our opinion, what the High Court has done in the present cases is substantially similar to what had been done in the case of Madan Gopal Rungta, 1952 SCR 28 : (AIR 1952 SC 12 ). 11. As we have already observed, the High Court did not embark upon the enquiry as to title in the present proceedings, because that is a question which may be appropriately tried in a regular suit. In proceeding to issue a writ in favour of the respondents, the High Court, however, appears to have assumed that the appellant was not entitled to seek to recover possession of the properties after resuming the grants in question. Whether or not the grants in question are resumable, and if they are, whether or not the appellant can recover possession without filing a suit, are questions on which we propose to express no opinion in the present appeals. Ordinarily, where property has been granted by the State on conditions which make the grant resumable, after resumption it is the grantee who moves the Court for appropriate relief, and that proceeds on the basis that the grantor State which has reserved to itself the right to resume may, after exercising its right, seek to recover possession of the property without filing a suit. But apart from this aspect of the matter, it is difficult to see how the High Court was justified in issuing the writ in the present appeals the inevitable consequence of which would be that the respondents would remain in possession of the property until the appellant files a suit against them; and that, in our opinion, would not be justified unless questions of title are determined and it is held that the appellant must file a suit before the respondents can be dispossessed. It appears that in issuing the writ in favour of the respondents, the High Court failed to appreciate the legal effect of its conclusion that questions of title cannot be tried in writ proceedings. Once it is held that the question of title cannot be determined, it follows that no right can be postulated in favour of the respondents on the basis of which a writ can be issued in their favour under Art. 226. 12. Mr. Tatachari, however, has contended that the right on which the petitions of the respondents are founded is a right flowing from the respondents continuous possession of the properties for many years, and he argues that if such a right is proved, the High Court would be justified in issuing a writ protecting that right. This argument is clearly fallacious. Mere possession of the property for however long a period it may be, will not clothe the possessor with any legal right if it is shown that the possession is under a grant from the State which is resumable. Such long possession may give him a legal right to protect his possession against third parties, but as between the State and the grantee, possession of the grantee under a resumable grant cannot be said to confer any right on the grantee which would justify a claim for a writ under Art. 226 where the grant has been resumed. In dealing with this argument, we have assumed without deciding that though a suit under S. 9 of the Specific relief Act would have been incompetent against the appellant, a similar relief can be claimed by the respondents against the appellant under Art. 226. Even on that assumption, no right can be claimed by the respondents merely on the ground of their possession, unless their right to remain in possession is established against the appellant, and this can be done if the grant is held to be not resumable. 13. In support of his argument, Mr. Tatachari has referred us to three decisions in which appropriate relief was granted to the party in possession where his possession was sought to be disturbed by executive action-Kistareddy v. Commissioner of City Police, Hyderabad, AIR 1952 Hyd 36; Mohinder Singh v. State of Pepsu AIR 1955, Pepsu 60 and Mrs. C. N. Lloyd v. District Council, United Khasi and Jaintia Hills. AIR 1960 Assam, 131. It appears that in all these cases, the question which the High Courts purported to decide was whether a person admittedly in possession can be dispossessed by executive action when such executive action is not founded on any law, and the decision proceeded on the provisions of Art 31 (1) of the Constitution. We do not wish to examine the question which these decisions have considered, because, in our opinion, possession of the respondents cannot be said to constitute any right against the appellant, having regard to the fact that the properties in question originally belonged to the appellant and had been granted by the appellant to the predecessors of the respondents, unless the effect of the terms of the grants is duly determined. That being so we must hold that the High Court was in error in issuing a writ against the appellant and in favour of the respondents in the writ petitions from which the two appeals arose. | 1[ds]We have rejected Mr. Tatacharis request for adjournment because we are satisfied that no useful purpose would be served by granting the respondents any further time. The conduct of the respondents after time was given to them under the consent order delivered by this Court on October 10, 1962 does not justify the present request for further adjournment. That is why we proceeded to hear the appeals on the merits8. On the merits, the position is absolutely clear. Under Art. 226 of the Constitution, the jurisdiction of the High Court is undoubtedly very wide. Appropriate writs can be issued by the High Court under the said article even for purposes other than the enforcement of the fundamental rights and in that sense, a party who invokes the special jurisdiction of the High Court under Art. 226 is not confined to cases of illegal invasion of his fundamental rights alone. But though the jurisdiction of the High Court under Art. 226 is wide in that sense, the concluding words of the article clearly indicate that before a writ or an appropriate order can be issued in favour of a party, it must be established that the party has a right and the said right is illegally invaded or threatened. The existence of a right is thus the foundation of a petition under Art. 2269. In dealing with this question, it is necessary to recall that the High Court has refused to consider the controversy between the parties on the merits, and so, the respondents would not be entitled to rely on their case that by virtue of the grants made to their predecessors by the State, they have a proprietary interest in the properties in question. If that be so, it is difficult to see what right can be said to have been proved by the respondents to justify the issue of the writ11. As we have already observed, the High Court did not embark upon the enquiry as to title in the present proceedings, because that is a question which may be appropriately tried in a regular suit. In proceeding to issue a writ in favour of the respondents, the High Court, however, appears to have assumed that the appellant was not entitled to seek to recover possession of the properties after resuming the grants in question. Whether or not the grants in question are resumable, and if they are, whether or not the appellant can recover possession without filing a suit, are questions on which we propose to express no opinion in the present appeals. Ordinarily, where property has been granted by the State on conditions which make the grant resumable, after resumption it is the grantee who moves the Court for appropriate relief, and that proceeds on the basis that the grantor State which has reserved to itself the right to resume may, after exercising its right, seek to recover possession of the property without filing a suit. But apart from this aspect of the matter, it is difficult to see how the High Court was justified in issuing the writ in the present appeals the inevitable consequence of which would be that the respondents would remain in possession of the property until the appellant files a suit against them; and that, in our opinion, would not be justified unless questions of title are determined and it is held that the appellant must file a suit before the respondents can be dispossessed. It appears that in issuing the writ in favour of the respondents, the High Court failed to appreciate the legal effect of its conclusion that questions of title cannot be tried in writ proceedings. Once it is held that the question of title cannot be determined, it follows that no right can be postulated in favour of the respondents on the basis of which a writ can be issued in their favour under Art. 226This argument is clearly fallacious. Mere possession of the property for however long a period it may be, will not clothe the possessor with any legal right if it is shown that the possession is under a grant from the State which is resumable. Such long possession may give him a legal right to protect his possession against third parties, but as between the State and the grantee, possession of the grantee under a resumable grant cannot be said to confer any right on the grantee which would justify a claim for a writ under Art. 226 where the grant has been resumed. In dealing with this argument, we have assumed without deciding that though a suit under S. 9 of the Specific relief Act would have been incompetent against the appellant, a similar relief can be claimed by the respondents against the appellant under Art. 226. Even on that assumption, no right can be claimed by the respondents merely on the ground of their possession, unless their right to remain in possession is established against the appellant, and this can be done if the grant is held to be not resumableIt appears that in all these cases, the question which the High Courts purported to decide was whether a person admittedly in possession can be dispossessed by executive action when such executive action is not founded on any law, and the decision proceeded on the provisions of Art 31 (1) of the Constitution. We do not wish to examine the question which these decisions have considered, because, in our opinion, possession of the respondents cannot be said to constitute any right against the appellant, having regard to the fact that the properties in question originally belonged to the appellant and had been granted by the appellant to the predecessors of the respondents, unless the effect of the terms of the grants is duly determined. That being so we must hold that the High Court was in error in issuing a writ against the appellant and in favour of the respondents in the writ petitions from which the two appeals arose. | 1 | 3,339 | 1,084 | ### Instruction:
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the jurisdiction of the High Court under Art. 226 to issue a writ solely for the purpose of granting an interim relief to the party who moved the High Court under Art. 226. It is in that connection that this Court observed that an interim relief can be granted only in aid of and as auxiliary to the main relief which may be available to the party on final determination of his rights in a suit or proceedings under Art., 226. It would thus be noticed that when the Orissa High Court purported to issue a writ under Art. 226 in favour of the grantees of the mining leases issued in their favour by the Ruler of Keonjhar and gave them adequate relief by issuing a writ without deciding the question of title, this Court corrected the error and set aside the High Courts orders. In our opinion, what the High Court has done in the present cases is substantially similar to what had been done in the case of Madan Gopal Rungta, 1952 SCR 28 : (AIR 1952 SC 12 ). 11. As we have already observed, the High Court did not embark upon the enquiry as to title in the present proceedings, because that is a question which may be appropriately tried in a regular suit. In proceeding to issue a writ in favour of the respondents, the High Court, however, appears to have assumed that the appellant was not entitled to seek to recover possession of the properties after resuming the grants in question. Whether or not the grants in question are resumable, and if they are, whether or not the appellant can recover possession without filing a suit, are questions on which we propose to express no opinion in the present appeals. Ordinarily, where property has been granted by the State on conditions which make the grant resumable, after resumption it is the grantee who moves the Court for appropriate relief, and that proceeds on the basis that the grantor State which has reserved to itself the right to resume may, after exercising its right, seek to recover possession of the property without filing a suit. But apart from this aspect of the matter, it is difficult to see how the High Court was justified in issuing the writ in the present appeals the inevitable consequence of which would be that the respondents would remain in possession of the property until the appellant files a suit against them; and that, in our opinion, would not be justified unless questions of title are determined and it is held that the appellant must file a suit before the respondents can be dispossessed. It appears that in issuing the writ in favour of the respondents, the High Court failed to appreciate the legal effect of its conclusion that questions of title cannot be tried in writ proceedings. Once it is held that the question of title cannot be determined, it follows that no right can be postulated in favour of the respondents on the basis of which a writ can be issued in their favour under Art. 226. 12. Mr. Tatachari, however, has contended that the right on which the petitions of the respondents are founded is a right flowing from the respondents continuous possession of the properties for many years, and he argues that if such a right is proved, the High Court would be justified in issuing a writ protecting that right. This argument is clearly fallacious. Mere possession of the property for however long a period it may be, will not clothe the possessor with any legal right if it is shown that the possession is under a grant from the State which is resumable. Such long possession may give him a legal right to protect his possession against third parties, but as between the State and the grantee, possession of the grantee under a resumable grant cannot be said to confer any right on the grantee which would justify a claim for a writ under Art. 226 where the grant has been resumed. In dealing with this argument, we have assumed without deciding that though a suit under S. 9 of the Specific relief Act would have been incompetent against the appellant, a similar relief can be claimed by the respondents against the appellant under Art. 226. Even on that assumption, no right can be claimed by the respondents merely on the ground of their possession, unless their right to remain in possession is established against the appellant, and this can be done if the grant is held to be not resumable. 13. In support of his argument, Mr. Tatachari has referred us to three decisions in which appropriate relief was granted to the party in possession where his possession was sought to be disturbed by executive action-Kistareddy v. Commissioner of City Police, Hyderabad, AIR 1952 Hyd 36; Mohinder Singh v. State of Pepsu AIR 1955, Pepsu 60 and Mrs. C. N. Lloyd v. District Council, United Khasi and Jaintia Hills. AIR 1960 Assam, 131. It appears that in all these cases, the question which the High Courts purported to decide was whether a person admittedly in possession can be dispossessed by executive action when such executive action is not founded on any law, and the decision proceeded on the provisions of Art 31 (1) of the Constitution. We do not wish to examine the question which these decisions have considered, because, in our opinion, possession of the respondents cannot be said to constitute any right against the appellant, having regard to the fact that the properties in question originally belonged to the appellant and had been granted by the appellant to the predecessors of the respondents, unless the effect of the terms of the grants is duly determined. That being so we must hold that the High Court was in error in issuing a writ against the appellant and in favour of the respondents in the writ petitions from which the two appeals arose.
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We have rejected Mr. Tatacharis request for adjournment because we are satisfied that no useful purpose would be served by granting the respondents any further time. The conduct of the respondents after time was given to them under the consent order delivered by this Court on October 10, 1962 does not justify the present request for further adjournment. That is why we proceeded to hear the appeals on the merits8. On the merits, the position is absolutely clear. Under Art. 226 of the Constitution, the jurisdiction of the High Court is undoubtedly very wide. Appropriate writs can be issued by the High Court under the said article even for purposes other than the enforcement of the fundamental rights and in that sense, a party who invokes the special jurisdiction of the High Court under Art. 226 is not confined to cases of illegal invasion of his fundamental rights alone. But though the jurisdiction of the High Court under Art. 226 is wide in that sense, the concluding words of the article clearly indicate that before a writ or an appropriate order can be issued in favour of a party, it must be established that the party has a right and the said right is illegally invaded or threatened. The existence of a right is thus the foundation of a petition under Art. 2269. In dealing with this question, it is necessary to recall that the High Court has refused to consider the controversy between the parties on the merits, and so, the respondents would not be entitled to rely on their case that by virtue of the grants made to their predecessors by the State, they have a proprietary interest in the properties in question. If that be so, it is difficult to see what right can be said to have been proved by the respondents to justify the issue of the writ11. As we have already observed, the High Court did not embark upon the enquiry as to title in the present proceedings, because that is a question which may be appropriately tried in a regular suit. In proceeding to issue a writ in favour of the respondents, the High Court, however, appears to have assumed that the appellant was not entitled to seek to recover possession of the properties after resuming the grants in question. Whether or not the grants in question are resumable, and if they are, whether or not the appellant can recover possession without filing a suit, are questions on which we propose to express no opinion in the present appeals. Ordinarily, where property has been granted by the State on conditions which make the grant resumable, after resumption it is the grantee who moves the Court for appropriate relief, and that proceeds on the basis that the grantor State which has reserved to itself the right to resume may, after exercising its right, seek to recover possession of the property without filing a suit. But apart from this aspect of the matter, it is difficult to see how the High Court was justified in issuing the writ in the present appeals the inevitable consequence of which would be that the respondents would remain in possession of the property until the appellant files a suit against them; and that, in our opinion, would not be justified unless questions of title are determined and it is held that the appellant must file a suit before the respondents can be dispossessed. It appears that in issuing the writ in favour of the respondents, the High Court failed to appreciate the legal effect of its conclusion that questions of title cannot be tried in writ proceedings. Once it is held that the question of title cannot be determined, it follows that no right can be postulated in favour of the respondents on the basis of which a writ can be issued in their favour under Art. 226This argument is clearly fallacious. Mere possession of the property for however long a period it may be, will not clothe the possessor with any legal right if it is shown that the possession is under a grant from the State which is resumable. Such long possession may give him a legal right to protect his possession against third parties, but as between the State and the grantee, possession of the grantee under a resumable grant cannot be said to confer any right on the grantee which would justify a claim for a writ under Art. 226 where the grant has been resumed. In dealing with this argument, we have assumed without deciding that though a suit under S. 9 of the Specific relief Act would have been incompetent against the appellant, a similar relief can be claimed by the respondents against the appellant under Art. 226. Even on that assumption, no right can be claimed by the respondents merely on the ground of their possession, unless their right to remain in possession is established against the appellant, and this can be done if the grant is held to be not resumableIt appears that in all these cases, the question which the High Courts purported to decide was whether a person admittedly in possession can be dispossessed by executive action when such executive action is not founded on any law, and the decision proceeded on the provisions of Art 31 (1) of the Constitution. We do not wish to examine the question which these decisions have considered, because, in our opinion, possession of the respondents cannot be said to constitute any right against the appellant, having regard to the fact that the properties in question originally belonged to the appellant and had been granted by the appellant to the predecessors of the respondents, unless the effect of the terms of the grants is duly determined. That being so we must hold that the High Court was in error in issuing a writ against the appellant and in favour of the respondents in the writ petitions from which the two appeals arose.
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A. Panduranga Rao Vs. State Of Andhra Pradesh & Ors | of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment."As pointed out at page 89 by this Court in Chandra Mohan v. State of Uttar Pradesh &Ors ([1967] 1 S.C.R. 77.)"There are two sources of recruitment, namely, (1) service of the Union or of the State, and (ii) members of the Bar. The said judges from the first source are appointed in consultation with the High Court and those from the second source are appointed on the recommendation of the High Court."7. A candidate for direct recruitment from the Bar does not become eligible for appointment without the recommendation of the High Court. He becomes eligible only on such recommendation under clause (2) of Art. 233. The High Court in the judgment under appeal felt some difficulty in appreciating the meaning of the word "recommend". But the literal meaning given in the Concise oxford Dictionary is quite simple and apposite. It means "suggest as fit for employment." In case of appointment from the Bar it is not open to the Government to choose a candidate for appointment until and unless his name is recommended by the High Court.8. The recommendation of the High Court for filling up the six vacancies was contained in its letter dated 13-7-1973. Government was not bound to accept all the recommendations but could tell the High Court its reasons for not accepting the High Courts recommendations in regard to certain persons. If the High Court agreed with the reasons in case of a particular person the recommendation in his case stood with drawn and there was no question of appointing him. Even if the High Court did not agree the final authority was the Government in the matter of appointment and for good reasons it could reject the High Courts recommendations. In either event it could ask the High Court to make mo re recommendations in place of those who have been rejected. But surely it was wrong and incompetent for the Government to write a letter like the one dated 26-7-1973 inviting the High Courts attention to Instruction 12(5) of the Secretariat instructions and on the basis of that to ask it to send the list of persons whom the High Court considered to have reasonable claims to the appointment. On the basis of the furore created by two Bar Associations of Hyderabad and the High Courts letter dated 26-7-1973 written in reply to the Governments letter dated 24-7-1973 no persons candidature recommended by the High Court had been rejected when the letter dated 26-7-1973 was written by the Government. Even after rejection the Government could not ask the High Court to send the list of all persons whom the High Court considered to have reasonable claim to the appointment We feel distressed to find that instead of pointing out the correct position of law to the Government and itself acting according to it, a letter hike the one dated 1-8-1973 was sent by the High Court in reply to the Governments letter dated 26-7-1973. It is not clear from this letter whether it was written under the direction of the Chief Justice alone or under the directions of Chief Justice and the other Judges of the High Court as in the case of the letter dated 13-7-1973. But surely it was very much wrong on the part of the High Court to forward the entire list of the candidates interviewed with the marks obtained by them and adding at the same time that the High Court had no further remarks to offer. We could not understand the reason for writing such a letter by the High Court. But if we may hazard a surmise it seems to have been written in utter disgust at the Governments unreasonable attitude displayed in its letter dated 26-7-1973. By no means could it be, nor was it, a recommendation by the High Court of all there 263 candidates interviewed, that all of them had a reasonable claim, or in other words, were fit to be appointed District Judges. We must express our displeasure at and disapproval of all that happened between the Government and the High Court in the former writing the letter dated 26-7-1973 and the letter sending the reply dated 1-8-1973.Then comes the letter dated 30-11-1973. After tracing the history of the recommendation made by the High Court in its letter dated l 3-7-1973 and "in the light of the further in formation about these candidates as required from High Court", Government decided to select the six candidates mentioned therein including respondents 3 to 6 as if they were from "the list recommended by the High Court . It was further stated in this letter "Reasons for not selecting candidates placed by the High Court higher than those now selected are given in the annexure enclosed to this D.o. letter." The High Court, to be more accurate, the Chief Justice to whom the letter dated 30-11-1973 was addressed seems to have not resented or protested against the selection so made by the Government in clear violation of Article 233 of the Constitution. We find it intriguing that the letter written by the Registrar o f the High Court on 1-8-1973 was treated as a recommendation of all the 263 candidates as having been found fit for appointment as District Judges. By no means could it be so. It was not so. And yet the High Court or the Chief Justice did not object to the appointment of respondents 3 to 6 as District Judges. They were not eligible to be so appointed as their names had never been recommended.9. | 1[ds]In the view which we take as to the violation of Article 233 in this case, we would not like, nor is it necessary to do so, to examine the claim of the appellant for appointment in one of the sixrecommendation of the High Court for filling up the six vacancies was contained in its letter dated 13-7-1973. Government was not bound to accept all the recommendations but could tell the High Court its reasons for not accepting the High Courts recommendations in regard to certain persons. If the High Court agreed with the reasons in case of a particular person the recommendation in his case stood with drawn and there was no question of appointing him. Even if the High Court did not agree the final authority was the Government in the matter of appointment and for good reasons it could reject the High Courts recommendations. In either event it could ask the High Court to make mo re recommendations in place of those who have been rejected. But surely it was wrong and incompetent for the Government to write a letter like the one dated 26-7-1973 inviting the High Courts attention to Instruction 12(5) of the Secretariat instructions and on the basis of that to ask it to send the list of persons whom the High Court considered to have reasonable claims to the appointment. On the basis of the furore created by two Bar Associations of Hyderabad and the High Courts letter dated 26-7-1973 written in reply to the Governments letter dated 24-7-1973 no persons candidature recommended by the High Court had been rejected when the letter dated 26-7-1973 was written by the Government. Even after rejection the Government could not ask the High Court to send the list of all persons whom the High Court considered to have reasonable claim to the appointment We feel distressed to find that instead of pointing out the correct position of law to the Government and itself acting according to it, a letter hike the one dated 1-8-1973 was sent by the High Court in reply to the Governments letter dated 26-7-1973. It is not clear from this letter whether it was written under the direction of the Chief Justice alone or under the directions of Chief Justice and the other Judges of the High Court as in the case of the letter dated 13-7-1973. But surely it was very much wrong on the part of the High Court to forward the entire list of the candidates interviewed with the marks obtained by them and adding at the same time that the High Court had no further remarks to offer. We could not understand the reason for writing such a letter by the High Court. But if we may hazard a surmise it seems to have been written in utter disgust at the Governments unreasonable attitude displayed in its letter dated 26-7-1973. By no means could it be, nor was it, a recommendation by the High Court of all there 263 candidates interviewed, that all of them had a reasonable claim, or in other words, were fit to be appointed District Judges. We must express our displeasure at and disapproval of all that happened between the Government and the High Court in the former writing the letter dated 26-7-1973 and the letter sending the reply dated 1-8-1973.Then comes the letter dated 30-11-1973. After tracing the history of the recommendation made by the High Court in its letter dated l 3-7-1973 and "in the light of the further in formation about these candidates as required from High Court", Government decided to select the six candidates mentioned therein including respondents 3 to 6 as if they were from "the list recommended by the High Court . It was further stated in this letter "Reasons for not selecting candidates placed by the High Court higher than those now selected are given in the annexure enclosed to this D.o. letter." The High Court, to be more accurate, the Chief Justice to whom the letter dated 30-11-1973 was addressed seems to have not resented or protested against the selection so made by the Government in clear violation of Article 233 of the Constitution. We find it intriguing that the letter written by the Registrar o f the High Court on 1-8-1973 was treated as a recommendation of all the 263 candidates as having been found fit for appointment as District Judges. By no means could it be so. It was not so. And yet the High Court or the Chief Justice did not object to the appointment of respondents 3 to 6 as District Judges. They were not eligible to be so appointed as their names had never been recommended.A candidate for direct recruitment from the Bar does not become eligible for appointment without the recommendation of the High Court. He becomes eligible only on such recommendation under clause (2) of Art. 233. The High Court in the judgment under appeal felt some difficulty in appreciating the meaning of the word "recommend". But the literal meaning given in the Concise oxford Dictionary is quite simple and apposite. It means "suggest as fit for employment." In case of appointment from the Bar it is not open to the Government to choose a candidate for appointment until and unless his name is recommended by the High Court. | 1 | 2,361 | 948 | ### 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:
of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment."As pointed out at page 89 by this Court in Chandra Mohan v. State of Uttar Pradesh &Ors ([1967] 1 S.C.R. 77.)"There are two sources of recruitment, namely, (1) service of the Union or of the State, and (ii) members of the Bar. The said judges from the first source are appointed in consultation with the High Court and those from the second source are appointed on the recommendation of the High Court."7. A candidate for direct recruitment from the Bar does not become eligible for appointment without the recommendation of the High Court. He becomes eligible only on such recommendation under clause (2) of Art. 233. The High Court in the judgment under appeal felt some difficulty in appreciating the meaning of the word "recommend". But the literal meaning given in the Concise oxford Dictionary is quite simple and apposite. It means "suggest as fit for employment." In case of appointment from the Bar it is not open to the Government to choose a candidate for appointment until and unless his name is recommended by the High Court.8. The recommendation of the High Court for filling up the six vacancies was contained in its letter dated 13-7-1973. Government was not bound to accept all the recommendations but could tell the High Court its reasons for not accepting the High Courts recommendations in regard to certain persons. If the High Court agreed with the reasons in case of a particular person the recommendation in his case stood with drawn and there was no question of appointing him. Even if the High Court did not agree the final authority was the Government in the matter of appointment and for good reasons it could reject the High Courts recommendations. In either event it could ask the High Court to make mo re recommendations in place of those who have been rejected. But surely it was wrong and incompetent for the Government to write a letter like the one dated 26-7-1973 inviting the High Courts attention to Instruction 12(5) of the Secretariat instructions and on the basis of that to ask it to send the list of persons whom the High Court considered to have reasonable claims to the appointment. On the basis of the furore created by two Bar Associations of Hyderabad and the High Courts letter dated 26-7-1973 written in reply to the Governments letter dated 24-7-1973 no persons candidature recommended by the High Court had been rejected when the letter dated 26-7-1973 was written by the Government. Even after rejection the Government could not ask the High Court to send the list of all persons whom the High Court considered to have reasonable claim to the appointment We feel distressed to find that instead of pointing out the correct position of law to the Government and itself acting according to it, a letter hike the one dated 1-8-1973 was sent by the High Court in reply to the Governments letter dated 26-7-1973. It is not clear from this letter whether it was written under the direction of the Chief Justice alone or under the directions of Chief Justice and the other Judges of the High Court as in the case of the letter dated 13-7-1973. But surely it was very much wrong on the part of the High Court to forward the entire list of the candidates interviewed with the marks obtained by them and adding at the same time that the High Court had no further remarks to offer. We could not understand the reason for writing such a letter by the High Court. But if we may hazard a surmise it seems to have been written in utter disgust at the Governments unreasonable attitude displayed in its letter dated 26-7-1973. By no means could it be, nor was it, a recommendation by the High Court of all there 263 candidates interviewed, that all of them had a reasonable claim, or in other words, were fit to be appointed District Judges. We must express our displeasure at and disapproval of all that happened between the Government and the High Court in the former writing the letter dated 26-7-1973 and the letter sending the reply dated 1-8-1973.Then comes the letter dated 30-11-1973. After tracing the history of the recommendation made by the High Court in its letter dated l 3-7-1973 and "in the light of the further in formation about these candidates as required from High Court", Government decided to select the six candidates mentioned therein including respondents 3 to 6 as if they were from "the list recommended by the High Court . It was further stated in this letter "Reasons for not selecting candidates placed by the High Court higher than those now selected are given in the annexure enclosed to this D.o. letter." The High Court, to be more accurate, the Chief Justice to whom the letter dated 30-11-1973 was addressed seems to have not resented or protested against the selection so made by the Government in clear violation of Article 233 of the Constitution. We find it intriguing that the letter written by the Registrar o f the High Court on 1-8-1973 was treated as a recommendation of all the 263 candidates as having been found fit for appointment as District Judges. By no means could it be so. It was not so. And yet the High Court or the Chief Justice did not object to the appointment of respondents 3 to 6 as District Judges. They were not eligible to be so appointed as their names had never been recommended.9.
### Response:
1
### Explanation:
In the view which we take as to the violation of Article 233 in this case, we would not like, nor is it necessary to do so, to examine the claim of the appellant for appointment in one of the sixrecommendation of the High Court for filling up the six vacancies was contained in its letter dated 13-7-1973. Government was not bound to accept all the recommendations but could tell the High Court its reasons for not accepting the High Courts recommendations in regard to certain persons. If the High Court agreed with the reasons in case of a particular person the recommendation in his case stood with drawn and there was no question of appointing him. Even if the High Court did not agree the final authority was the Government in the matter of appointment and for good reasons it could reject the High Courts recommendations. In either event it could ask the High Court to make mo re recommendations in place of those who have been rejected. But surely it was wrong and incompetent for the Government to write a letter like the one dated 26-7-1973 inviting the High Courts attention to Instruction 12(5) of the Secretariat instructions and on the basis of that to ask it to send the list of persons whom the High Court considered to have reasonable claims to the appointment. On the basis of the furore created by two Bar Associations of Hyderabad and the High Courts letter dated 26-7-1973 written in reply to the Governments letter dated 24-7-1973 no persons candidature recommended by the High Court had been rejected when the letter dated 26-7-1973 was written by the Government. Even after rejection the Government could not ask the High Court to send the list of all persons whom the High Court considered to have reasonable claim to the appointment We feel distressed to find that instead of pointing out the correct position of law to the Government and itself acting according to it, a letter hike the one dated 1-8-1973 was sent by the High Court in reply to the Governments letter dated 26-7-1973. It is not clear from this letter whether it was written under the direction of the Chief Justice alone or under the directions of Chief Justice and the other Judges of the High Court as in the case of the letter dated 13-7-1973. But surely it was very much wrong on the part of the High Court to forward the entire list of the candidates interviewed with the marks obtained by them and adding at the same time that the High Court had no further remarks to offer. We could not understand the reason for writing such a letter by the High Court. But if we may hazard a surmise it seems to have been written in utter disgust at the Governments unreasonable attitude displayed in its letter dated 26-7-1973. By no means could it be, nor was it, a recommendation by the High Court of all there 263 candidates interviewed, that all of them had a reasonable claim, or in other words, were fit to be appointed District Judges. We must express our displeasure at and disapproval of all that happened between the Government and the High Court in the former writing the letter dated 26-7-1973 and the letter sending the reply dated 1-8-1973.Then comes the letter dated 30-11-1973. After tracing the history of the recommendation made by the High Court in its letter dated l 3-7-1973 and "in the light of the further in formation about these candidates as required from High Court", Government decided to select the six candidates mentioned therein including respondents 3 to 6 as if they were from "the list recommended by the High Court . It was further stated in this letter "Reasons for not selecting candidates placed by the High Court higher than those now selected are given in the annexure enclosed to this D.o. letter." The High Court, to be more accurate, the Chief Justice to whom the letter dated 30-11-1973 was addressed seems to have not resented or protested against the selection so made by the Government in clear violation of Article 233 of the Constitution. We find it intriguing that the letter written by the Registrar o f the High Court on 1-8-1973 was treated as a recommendation of all the 263 candidates as having been found fit for appointment as District Judges. By no means could it be so. It was not so. And yet the High Court or the Chief Justice did not object to the appointment of respondents 3 to 6 as District Judges. They were not eligible to be so appointed as their names had never been recommended.A candidate for direct recruitment from the Bar does not become eligible for appointment without the recommendation of the High Court. He becomes eligible only on such recommendation under clause (2) of Art. 233. The High Court in the judgment under appeal felt some difficulty in appreciating the meaning of the word "recommend". But the literal meaning given in the Concise oxford Dictionary is quite simple and apposite. It means "suggest as fit for employment." In case of appointment from the Bar it is not open to the Government to choose a candidate for appointment until and unless his name is recommended by the High Court.
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Municipal Corporation of Greater Bombay Vs. Bombay Tyres International Ltd. & Others | S. Rajendra Babu, J. C.A. 1179/94 and SLPs (C) Nos. 15507/87, 853/88 and 14597/87 : 1. In SLPs leave granted. 2. In this batch of cases, the appellant is Municipal Corporation of Greater Bombay, which has made provisions for Water Charges by framing appropriate Rules and Bye-laws pursuant to Section 141 and Section 169 of the Bombay Municipal Corporation Act, 1888. The scope of these provisions was considered in Muncipal Corporation of Greater Bombay v. Nagpal Printing Mills, and another, 1988(3) SCR 274, by this Court and the view of the Bombay High Court that Rule III(d)(i) to be invalid and beyond the rule-making power of Corporation was upheld. It was made clear by this Court in the said decision that the said provisions of the Act would empower the Corporation to levy charge only in respect of water that has in fact been supplied to and consumed by the consumer and it is to be levied on the basis of measurement or estimated measurement. It is also noticed that an estimated amount could be fixed on the basis of sound guidelines and the power given to the Commissioner to fix a quota has no guidelines. On the basis of this decision, the High Court disposed of several matters. Challenging the correctness of those decisions, these appeals have been preferred before this Court contending that the decision in Nagpals case requires reconsideration and the provisions of the Municipal Corporation Act considered earlier have been relied upon to contend that the appellant has competence to frame Rule III(d)(i) while the respondents have reiterated the view expressed in Nagpals case. On hearing this aspect, a Bench of two learned Judges referred this matter to a larger Bench for consideration of the correct scope of the provisions that were considered in Nagpals case. Thus the matter is before us. 3. We do not think that there is any good reason to reconsider the decision in Nagpals case. The view taken by this Court in Nagpals case is a plausible one and subsequently that Rule having been deleted is now replaced by a new rule. We respectfully follow the view expressed by this Court in Nagpals case and uphold the order made by the High Court. 4. However, Shri S.K. Dholakia, learned Senior Advocate for the appellant submitted that at any rate this Court had no occasion to examine the scope of the quota rule, and, therefore, it need not have made the observations to the following effect:- "The bye-laws made in 1968 here empower the Commissioner to fix a quota. But no guideline is indicated. That is bad and unwarranted." This aspect also need not be re-examined because subsequently by the rules framed in 1994 the definition of quota has been altered and whether this present rule answers the objections noticed by this Court in Nagpals decision need not be examined as the new Rules are not in question before us.5. The High Court having allowed the petitions has directed the refund of the amounts with certain rates of interest and if those amounts have already been refunded to the parties concerned, we do not think it appropriate to allow the appellants to recover such amounts again but if, however, such amounts have not been refunded and are retained by the Corporation, such amount shall not be refunded. We are making this order being conscious of the fact that the rule had been struck down not on the ground that it was incompetent to frame such Rule but on account of clear provisions not having been framed. Further, we are not sure in the absence of investigation as to whether the respondents had included in their price structure the amounts paid to the Corporation pursuant to the demand raised under the invalidated rules and whether the burden had been passed on to the consumers, in which event it will be wholly inequitable to allow respondents to claim such amounts back from the Corporation. | 1[ds]5. The High Court having allowed the petitions has directed the refund of the amounts with certain rates of interest and if those amounts have already been refunded to the parties concerned, we do not think it appropriate to allow the appellants to recover such amounts again but if, however, such amounts have not been refunded and are retained by the Corporation, such amount shall not be refunded. We are making this order being conscious of the fact that the rule had been struck down not on the ground that it was incompetent to frame such Rule but on account of clear provisions not having been framed. Further, we are not sure in the absence of investigation as to whether the respondents had included in their price structure the amounts paid to the Corporation pursuant to the demand raised under the invalidated rules and whether the burden had been passed on to the consumers, in which event it will be wholly inequitable to allow respondents to claim such amounts back from the Corporation. | 1 | 729 | 187 | ### 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:
S. Rajendra Babu, J. C.A. 1179/94 and SLPs (C) Nos. 15507/87, 853/88 and 14597/87 : 1. In SLPs leave granted. 2. In this batch of cases, the appellant is Municipal Corporation of Greater Bombay, which has made provisions for Water Charges by framing appropriate Rules and Bye-laws pursuant to Section 141 and Section 169 of the Bombay Municipal Corporation Act, 1888. The scope of these provisions was considered in Muncipal Corporation of Greater Bombay v. Nagpal Printing Mills, and another, 1988(3) SCR 274, by this Court and the view of the Bombay High Court that Rule III(d)(i) to be invalid and beyond the rule-making power of Corporation was upheld. It was made clear by this Court in the said decision that the said provisions of the Act would empower the Corporation to levy charge only in respect of water that has in fact been supplied to and consumed by the consumer and it is to be levied on the basis of measurement or estimated measurement. It is also noticed that an estimated amount could be fixed on the basis of sound guidelines and the power given to the Commissioner to fix a quota has no guidelines. On the basis of this decision, the High Court disposed of several matters. Challenging the correctness of those decisions, these appeals have been preferred before this Court contending that the decision in Nagpals case requires reconsideration and the provisions of the Municipal Corporation Act considered earlier have been relied upon to contend that the appellant has competence to frame Rule III(d)(i) while the respondents have reiterated the view expressed in Nagpals case. On hearing this aspect, a Bench of two learned Judges referred this matter to a larger Bench for consideration of the correct scope of the provisions that were considered in Nagpals case. Thus the matter is before us. 3. We do not think that there is any good reason to reconsider the decision in Nagpals case. The view taken by this Court in Nagpals case is a plausible one and subsequently that Rule having been deleted is now replaced by a new rule. We respectfully follow the view expressed by this Court in Nagpals case and uphold the order made by the High Court. 4. However, Shri S.K. Dholakia, learned Senior Advocate for the appellant submitted that at any rate this Court had no occasion to examine the scope of the quota rule, and, therefore, it need not have made the observations to the following effect:- "The bye-laws made in 1968 here empower the Commissioner to fix a quota. But no guideline is indicated. That is bad and unwarranted." This aspect also need not be re-examined because subsequently by the rules framed in 1994 the definition of quota has been altered and whether this present rule answers the objections noticed by this Court in Nagpals decision need not be examined as the new Rules are not in question before us.5. The High Court having allowed the petitions has directed the refund of the amounts with certain rates of interest and if those amounts have already been refunded to the parties concerned, we do not think it appropriate to allow the appellants to recover such amounts again but if, however, such amounts have not been refunded and are retained by the Corporation, such amount shall not be refunded. We are making this order being conscious of the fact that the rule had been struck down not on the ground that it was incompetent to frame such Rule but on account of clear provisions not having been framed. Further, we are not sure in the absence of investigation as to whether the respondents had included in their price structure the amounts paid to the Corporation pursuant to the demand raised under the invalidated rules and whether the burden had been passed on to the consumers, in which event it will be wholly inequitable to allow respondents to claim such amounts back from the Corporation.
### Response:
1
### Explanation:
5. The High Court having allowed the petitions has directed the refund of the amounts with certain rates of interest and if those amounts have already been refunded to the parties concerned, we do not think it appropriate to allow the appellants to recover such amounts again but if, however, such amounts have not been refunded and are retained by the Corporation, such amount shall not be refunded. We are making this order being conscious of the fact that the rule had been struck down not on the ground that it was incompetent to frame such Rule but on account of clear provisions not having been framed. Further, we are not sure in the absence of investigation as to whether the respondents had included in their price structure the amounts paid to the Corporation pursuant to the demand raised under the invalidated rules and whether the burden had been passed on to the consumers, in which event it will be wholly inequitable to allow respondents to claim such amounts back from the Corporation.
|
State Bank Of Bikaner Vs. Balai Chander Sen | 1500 ) has been misunderstood by the labour court and this Court did not lay down in that case that an application under S. 33(2) (b) would not be maintainable if it is made by an employer after he had concluded the enquiry and decided to impose a certain punishment but had not actually imposed it. We are of opinion that this contention must prevail.4. The contention in the Strawboard Manufacturing Co.s case. (1962) Supp (3) SCR 618 : (AIR 1962 SC 1500 ) was that the application for approval must be made before the employer takes action and that view was negatived. In that case what the employer had done was to make the enquiry and decide to dismiss the employee. The order of dismissal was passed on February 1, 1960 and on the same day an application was made to the tribunal for approval of the action taken. The tribunal took the view that the application for approval had been made after the dismissal of the employee and the same should have been made before dismissing him. That view was held by this Court to be incorrect. This Court held that S. 33 (2)(b) requires the employer to do three things contemplated in the proviso, namely, (1) the dismissal or discharge of the employee. (2) payment of wages and (3) the making of the application as parts of the same transaction. That case, however, did not lay down that if an employer takes the precaution of making an application after the necessary enquiry and before actually taking any action for approval of the proposed action, such an application would not be maintainable. That case was concerned with the latest time by which the employer must make the application for approval after he had taken the action of which the approval was sought. But there is nothing in S. 33(2)(b) which requires that an application for approval can only be made after the action has been taken. We see nothing in principle against the employer making an application under Section 33 (2) (b) for approval of the proposed action before the actual action is taken. Such a course on the part of the employer would, if anything be more favourable to the employee and would not in our opinion be against the provisions contained in S. 33 (2) (b).We are therefore of opinion that the labour court was wrong in holding that an application made by an employer under S. 33 (2) (b) for approval of the action he proposes to take is not entertainable and that such an application must necessarily be made after the action of which approval is sought is taken. All that the Strawboard Manufacturing Co.s case, (1962) Supp (3) SCR 618 : (AIR 1962 SC 1500 ) lays down is that the application can be made after the action of which the approval is sought has been taken and that when this happens the three conditions in the proviso to S. 33 (2) (b) must be shown to be parts of the same transaction. But if an employer chooses to make an application under S. 33 (2) (b) for approval of the action he proposes to take and then takes the action we find nothing in S. 33 (2) (b) which would make such an application not maintainable. Such an application in our opinion would not be contrary to the provisions of S. 33 (2) (b) read with the proviso thereof and would be maintainable. The view of the labour court therefore that the application by the appellant in the present case was not maintainable must fail.5. This brings us to the question whether approval should be granted to the action proposed to be taken by the appellant-bank. It appears that the respondent could not appear before the labour court on the date on which it decided the matter, on the ground that he was ill. He had submitted a medical certificate in that connection. The labour court however decided to proceed with the matter and dismissed the application on the ground that it was not maintainable. Learned counsel for the respondent prays that in the circumstances the matter should be remanded to the labour court to enable the respondent to appear. We find however that the respondent had filed a written statement in reply to the banks application in which he controverted the facts on which he was ordered to be discharged. Considering that the matter has been pending since 1961 we do not think that this is a case where a remand is called for. The appellant relied on the enquiry proceedings, copies of which were filed with the application; and all that the tribunal has to see when dealing with an application under S. 33(2) (b) is whether the employer had conducted the enquiry properly and whether the action taken or proposed to be taken was bona fide and not due to victimisation or unfair labour practice. We have been taken through the enquiry papers and we are of opinion that there is nothing in them to show that the enquiry was not properly conducted. Nor is there anything to show that the respondent was victimised or the proposed action is the result of any unfair labour practice. It is true that the respondent said in his written statement that the enquiry was merely a pretence of an enquiry and was held in utter disregard of the rules of natural justice and also that he had been victimised. But besides making these allegations the written statement does not show in what manner the enquiry was not fair and proper and why the respondent was victimised. We are of opinion that the enquiry held in this case was fair and proper and in accordance with the principles of natural justice and the respondent had full opportunity to defend himself. We are also satisfied that there is no question of victimisation or unfair labour practice. Therefore the approval sought for must be granted. | 1[ds]4. The contention in the Strawboard Manufacturing Co.s case. (1962) Supp (3) SCR 618 : (AIR 1962 SC 1500 ) was that the application for approval must be made before the employer takes action and that view was negatived. In that case what the employer had done was to make the enquiry and decide to dismiss the employee. The order of dismissal was passed on February 1, 1960 and on the same day an application was made to the tribunal for approval of the action taken. The tribunal took the view that the application for approval had been made after the dismissal of the employee and the same should have been made before dismissing him. That view was held by this Court to be incorrect. This Court held that S. 33 (2)(b) requires the employer to do three things contemplated in the proviso, namely, (1) the dismissal or discharge of the employee. (2) payment of wages and (3) the making of the application as parts of the same transaction. That case, however, did not lay down that if an employer takes the precaution of making an application after the necessary enquiry and before actually taking any action for approval of the proposed action, such an application would not be maintainable. That case was concerned with the latest time by which the employer must make the application for approval after he had taken the action of which the approval was sought. But there is nothing in S. 33(2)(b) which requires that an application for approval can only be made after the action has been taken. We see nothing in principle against the employer making an application under Section 33 (2) (b) for approval of the proposed action before the actual action is taken. Such a course on the part of the employer would, if anything be more favourable to the employee and would not in our opinion be against the provisions contained in S. 33 (2) (b).We are therefore of opinion that the labour court was wrong in holding that an application made by an employer under S. 33 (2) (b) for approval of the action he proposes to take is not entertainable and that such an application must necessarily be made after the action of which approval is sought is taken. All that the Strawboard Manufacturing Co.s case, (1962) Supp (3) SCR 618 : (AIR 1962 SC 1500 ) lays down is that the application can be made after the action of which the approval is sought has been taken and that when this happens the three conditions in the proviso to S. 33 (2) (b) must be shown to be parts of the same transaction. But if an employer chooses to make an application under S. 33 (2) (b) for approval of the action he proposes to take and then takes the action we find nothing in S. 33 (2) (b) which would make such an application not maintainable. Such an application in our opinion would not be contrary to the provisions of S. 33 (2) (b) read with the proviso thereof and would be maintainable. The view of the labour court therefore that the application by the appellant in the present case was not maintainable must fail.5. This brings us to the question whether approval should be granted to the action proposed to be taken by the appellant-bank. It appears that the respondent could not appear before the labour court on the date on which it decided the matter, on the ground that he was ill. He had submitted a medical certificate in that connection. The labour court however decided to proceed with the matter and dismissed the application on the ground that it was not maintainable. Learned counsel for the respondent prays that in the circumstances the matter should be remanded to the labour court to enable the respondent to appear. We find however that the respondent had filed a written statement in reply to the banks application in which he controverted the facts on which he was ordered to be discharged. Considering that the matter has been pending since 1961 we do not think that this is a case where a remand is called for. The appellant relied on the enquiry proceedings, copies of which were filed with the application; and all that the tribunal has to see when dealing with an application under S. 33(2) (b) is whether the employer had conducted the enquiry properly and whether the action taken or proposed to be taken was bona fide and not due to victimisation or unfair labour practice. We have been taken through the enquiry papers and we are of opinion that there is nothing in them to show that the enquiry was not properly conducted. Nor is there anything to show that the respondent was victimised or the proposed action is the result of any unfair labour practice. It is true that the respondent said in his written statement that the enquiry was merely a pretence of an enquiry and was held in utter disregard of the rules of natural justice and also that he had been victimised. But besides making these allegations the written statement does not show in what manner the enquiry was not fair and proper and why the respondent was victimised. We are of opinion that the enquiry held in this case was fair and proper and in accordance with the principles of natural justice and the respondent had full opportunity to defend himself. We are also satisfied that there is no question of victimisation or unfair labour practice. Therefore the approval sought for must be granted. | 1 | 1,904 | 1,045 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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1500 ) has been misunderstood by the labour court and this Court did not lay down in that case that an application under S. 33(2) (b) would not be maintainable if it is made by an employer after he had concluded the enquiry and decided to impose a certain punishment but had not actually imposed it. We are of opinion that this contention must prevail.4. The contention in the Strawboard Manufacturing Co.s case. (1962) Supp (3) SCR 618 : (AIR 1962 SC 1500 ) was that the application for approval must be made before the employer takes action and that view was negatived. In that case what the employer had done was to make the enquiry and decide to dismiss the employee. The order of dismissal was passed on February 1, 1960 and on the same day an application was made to the tribunal for approval of the action taken. The tribunal took the view that the application for approval had been made after the dismissal of the employee and the same should have been made before dismissing him. That view was held by this Court to be incorrect. This Court held that S. 33 (2)(b) requires the employer to do three things contemplated in the proviso, namely, (1) the dismissal or discharge of the employee. (2) payment of wages and (3) the making of the application as parts of the same transaction. That case, however, did not lay down that if an employer takes the precaution of making an application after the necessary enquiry and before actually taking any action for approval of the proposed action, such an application would not be maintainable. That case was concerned with the latest time by which the employer must make the application for approval after he had taken the action of which the approval was sought. But there is nothing in S. 33(2)(b) which requires that an application for approval can only be made after the action has been taken. We see nothing in principle against the employer making an application under Section 33 (2) (b) for approval of the proposed action before the actual action is taken. Such a course on the part of the employer would, if anything be more favourable to the employee and would not in our opinion be against the provisions contained in S. 33 (2) (b).We are therefore of opinion that the labour court was wrong in holding that an application made by an employer under S. 33 (2) (b) for approval of the action he proposes to take is not entertainable and that such an application must necessarily be made after the action of which approval is sought is taken. All that the Strawboard Manufacturing Co.s case, (1962) Supp (3) SCR 618 : (AIR 1962 SC 1500 ) lays down is that the application can be made after the action of which the approval is sought has been taken and that when this happens the three conditions in the proviso to S. 33 (2) (b) must be shown to be parts of the same transaction. But if an employer chooses to make an application under S. 33 (2) (b) for approval of the action he proposes to take and then takes the action we find nothing in S. 33 (2) (b) which would make such an application not maintainable. Such an application in our opinion would not be contrary to the provisions of S. 33 (2) (b) read with the proviso thereof and would be maintainable. The view of the labour court therefore that the application by the appellant in the present case was not maintainable must fail.5. This brings us to the question whether approval should be granted to the action proposed to be taken by the appellant-bank. It appears that the respondent could not appear before the labour court on the date on which it decided the matter, on the ground that he was ill. He had submitted a medical certificate in that connection. The labour court however decided to proceed with the matter and dismissed the application on the ground that it was not maintainable. Learned counsel for the respondent prays that in the circumstances the matter should be remanded to the labour court to enable the respondent to appear. We find however that the respondent had filed a written statement in reply to the banks application in which he controverted the facts on which he was ordered to be discharged. Considering that the matter has been pending since 1961 we do not think that this is a case where a remand is called for. The appellant relied on the enquiry proceedings, copies of which were filed with the application; and all that the tribunal has to see when dealing with an application under S. 33(2) (b) is whether the employer had conducted the enquiry properly and whether the action taken or proposed to be taken was bona fide and not due to victimisation or unfair labour practice. We have been taken through the enquiry papers and we are of opinion that there is nothing in them to show that the enquiry was not properly conducted. Nor is there anything to show that the respondent was victimised or the proposed action is the result of any unfair labour practice. It is true that the respondent said in his written statement that the enquiry was merely a pretence of an enquiry and was held in utter disregard of the rules of natural justice and also that he had been victimised. But besides making these allegations the written statement does not show in what manner the enquiry was not fair and proper and why the respondent was victimised. We are of opinion that the enquiry held in this case was fair and proper and in accordance with the principles of natural justice and the respondent had full opportunity to defend himself. We are also satisfied that there is no question of victimisation or unfair labour practice. Therefore the approval sought for must be granted.
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4. The contention in the Strawboard Manufacturing Co.s case. (1962) Supp (3) SCR 618 : (AIR 1962 SC 1500 ) was that the application for approval must be made before the employer takes action and that view was negatived. In that case what the employer had done was to make the enquiry and decide to dismiss the employee. The order of dismissal was passed on February 1, 1960 and on the same day an application was made to the tribunal for approval of the action taken. The tribunal took the view that the application for approval had been made after the dismissal of the employee and the same should have been made before dismissing him. That view was held by this Court to be incorrect. This Court held that S. 33 (2)(b) requires the employer to do three things contemplated in the proviso, namely, (1) the dismissal or discharge of the employee. (2) payment of wages and (3) the making of the application as parts of the same transaction. That case, however, did not lay down that if an employer takes the precaution of making an application after the necessary enquiry and before actually taking any action for approval of the proposed action, such an application would not be maintainable. That case was concerned with the latest time by which the employer must make the application for approval after he had taken the action of which the approval was sought. But there is nothing in S. 33(2)(b) which requires that an application for approval can only be made after the action has been taken. We see nothing in principle against the employer making an application under Section 33 (2) (b) for approval of the proposed action before the actual action is taken. Such a course on the part of the employer would, if anything be more favourable to the employee and would not in our opinion be against the provisions contained in S. 33 (2) (b).We are therefore of opinion that the labour court was wrong in holding that an application made by an employer under S. 33 (2) (b) for approval of the action he proposes to take is not entertainable and that such an application must necessarily be made after the action of which approval is sought is taken. All that the Strawboard Manufacturing Co.s case, (1962) Supp (3) SCR 618 : (AIR 1962 SC 1500 ) lays down is that the application can be made after the action of which the approval is sought has been taken and that when this happens the three conditions in the proviso to S. 33 (2) (b) must be shown to be parts of the same transaction. But if an employer chooses to make an application under S. 33 (2) (b) for approval of the action he proposes to take and then takes the action we find nothing in S. 33 (2) (b) which would make such an application not maintainable. Such an application in our opinion would not be contrary to the provisions of S. 33 (2) (b) read with the proviso thereof and would be maintainable. The view of the labour court therefore that the application by the appellant in the present case was not maintainable must fail.5. This brings us to the question whether approval should be granted to the action proposed to be taken by the appellant-bank. It appears that the respondent could not appear before the labour court on the date on which it decided the matter, on the ground that he was ill. He had submitted a medical certificate in that connection. The labour court however decided to proceed with the matter and dismissed the application on the ground that it was not maintainable. Learned counsel for the respondent prays that in the circumstances the matter should be remanded to the labour court to enable the respondent to appear. We find however that the respondent had filed a written statement in reply to the banks application in which he controverted the facts on which he was ordered to be discharged. Considering that the matter has been pending since 1961 we do not think that this is a case where a remand is called for. The appellant relied on the enquiry proceedings, copies of which were filed with the application; and all that the tribunal has to see when dealing with an application under S. 33(2) (b) is whether the employer had conducted the enquiry properly and whether the action taken or proposed to be taken was bona fide and not due to victimisation or unfair labour practice. We have been taken through the enquiry papers and we are of opinion that there is nothing in them to show that the enquiry was not properly conducted. Nor is there anything to show that the respondent was victimised or the proposed action is the result of any unfair labour practice. It is true that the respondent said in his written statement that the enquiry was merely a pretence of an enquiry and was held in utter disregard of the rules of natural justice and also that he had been victimised. But besides making these allegations the written statement does not show in what manner the enquiry was not fair and proper and why the respondent was victimised. We are of opinion that the enquiry held in this case was fair and proper and in accordance with the principles of natural justice and the respondent had full opportunity to defend himself. We are also satisfied that there is no question of victimisation or unfair labour practice. Therefore the approval sought for must be granted.
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United Bank of India Vs. Bengal Behar Construction Company Limited and Others | 1. Special leave granted 2. On 28-11-1995, we passed an order setting aside the order of the Division Bench of the High Court which had set aside the decree passed against the principal debtor by the learned Single Judge and we restored that decree. Therefore, so far as the principal debtor is concerned, there is a decree on admission against him under Order 12 Rule 6 CPC 3. As regards the decree against the guarantors, we had deferred the issue regarding the confirmation of the decree against them but had directed them to file an undertaking within 7 days to the effect that they will not dispose of any of their personal properties, encumbered or otherwise to be indicated in the undertaking till further orders. Pursuant thereto, undertakings have been filed by the two guarantors which are far from satisfactory. They are identically worded except for the schedule of properties in which the equity shares and their value have been set out. The undertaking is to the following effect "In compliance of the said order, I annex hereto a schedule of properties and assets owned and possessed by me and I declare that I am the sole owner of the said properties and assets I give an undertaking that I will not alienate, transfer, dispose of or deal with the said properties and assets until further order of this Honble Court." * In the schedule, certain shares of a limited company and the value thereof has been stated. The deponent does not state that except the property shown in the schedule, he has no other property. The undertaking is, therefore, far from satisfactory 4. Apart from that, we now find that the guarantors have instituted Suit No. 281 of 1995 in the High Court for a declaration that the said 7 letters of guarantee are null and void and are not binding on the plaintiffs. It is clear that they have also sought relief against the enforcement of the guarantees by execution of any decree passed in Suit No. 223 of 1985 which is the suit which has given rise to the present proceedings. The aforesaid Suit No. 281 of 1995 was filed by the guarantors during the pendency of the present proceedings and yet this fact has not been disclosed in the pleadings. It is, therefore, clear that the guarantors are trying to avoid any order that may be passed in the present proceedings for enforcement of the guarantees and have initiated separate proceedings notwithstanding the pendency of Suit No. 223 of 1985 5. In view of the above, the question regarding confirmation of the decree against the guarantors now needs to be settled. We had deferred the question by our order dated 28-11-1995 but now see no reason to further defer it. Since the decree has been confirmed against the principal debtor by virtue of the order of 28-11-1995, albeit on admission, we see no reason why the guarantors should not be made liable under the letters of guarantee, the terms whereof clearly stipulate that on the failure of the principal debtor to abide by the contract, they will be liable to pay the amount due from the principal debtor by the appellants. Clause 15 of the letter of guarantee, in terms states that any action settled or stated between the bank and the principal debtor or admitted by the principal debtor shall be accepted by the guarantors as conclusive evidence. In view of this stipulation in the letter of guarantee, once the decree on admission is passed against the principal debtor, the guarantors would become liable to satisfy the decree jointly and severally. | 1[ds]It is clear that they have also sought relief against the enforcement of the guarantees by execution of any decree passed in Suit No. 223 of 1985 which is the suit which has given rise to the present proceedings. The aforesaid Suit No. 281 of 1995 was filed by the guarantors during the pendency of the present proceedings and yet this fact has not been disclosed in the pleadings. It is, therefore, clear that the guarantors are trying to avoid any order that may be passed in the present proceedings for enforcement of the guarantees and have initiated separate proceedings notwithstanding the pendency of Suit No. 223 of 19855. In view of the above, the question regarding confirmation of the decree against the guarantors now needs to be settled.We had deferred the question by our order dated5 but now see no reason to further defer it. Since the decree has been confirmed against the principal debtor by virtue of the order of, albeit on admission, we see no reason why the guarantors should not be made liable under the letters of guarantee, the terms whereof clearly stipulate that on the failure of the principal debtor to abide by the contract, they will be liable to pay the amount due from the principal debtor by the appellants. Clause 15 of the letter of guarantee, in terms states that any action settled or stated between the bank and the principal debtor or admitted by the principal debtor shall be accepted by the guarantors as conclusive evidence. In view of this stipulation in the letter of guarantee, once the decree on admission is passed against the principal debtor, the guarantors would become liable to satisfy the decree jointly and severally. | 1 | 656 | 311 | ### 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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1. Special leave granted 2. On 28-11-1995, we passed an order setting aside the order of the Division Bench of the High Court which had set aside the decree passed against the principal debtor by the learned Single Judge and we restored that decree. Therefore, so far as the principal debtor is concerned, there is a decree on admission against him under Order 12 Rule 6 CPC 3. As regards the decree against the guarantors, we had deferred the issue regarding the confirmation of the decree against them but had directed them to file an undertaking within 7 days to the effect that they will not dispose of any of their personal properties, encumbered or otherwise to be indicated in the undertaking till further orders. Pursuant thereto, undertakings have been filed by the two guarantors which are far from satisfactory. They are identically worded except for the schedule of properties in which the equity shares and their value have been set out. The undertaking is to the following effect "In compliance of the said order, I annex hereto a schedule of properties and assets owned and possessed by me and I declare that I am the sole owner of the said properties and assets I give an undertaking that I will not alienate, transfer, dispose of or deal with the said properties and assets until further order of this Honble Court." * In the schedule, certain shares of a limited company and the value thereof has been stated. The deponent does not state that except the property shown in the schedule, he has no other property. The undertaking is, therefore, far from satisfactory 4. Apart from that, we now find that the guarantors have instituted Suit No. 281 of 1995 in the High Court for a declaration that the said 7 letters of guarantee are null and void and are not binding on the plaintiffs. It is clear that they have also sought relief against the enforcement of the guarantees by execution of any decree passed in Suit No. 223 of 1985 which is the suit which has given rise to the present proceedings. The aforesaid Suit No. 281 of 1995 was filed by the guarantors during the pendency of the present proceedings and yet this fact has not been disclosed in the pleadings. It is, therefore, clear that the guarantors are trying to avoid any order that may be passed in the present proceedings for enforcement of the guarantees and have initiated separate proceedings notwithstanding the pendency of Suit No. 223 of 1985 5. In view of the above, the question regarding confirmation of the decree against the guarantors now needs to be settled. We had deferred the question by our order dated 28-11-1995 but now see no reason to further defer it. Since the decree has been confirmed against the principal debtor by virtue of the order of 28-11-1995, albeit on admission, we see no reason why the guarantors should not be made liable under the letters of guarantee, the terms whereof clearly stipulate that on the failure of the principal debtor to abide by the contract, they will be liable to pay the amount due from the principal debtor by the appellants. Clause 15 of the letter of guarantee, in terms states that any action settled or stated between the bank and the principal debtor or admitted by the principal debtor shall be accepted by the guarantors as conclusive evidence. In view of this stipulation in the letter of guarantee, once the decree on admission is passed against the principal debtor, the guarantors would become liable to satisfy the decree jointly and severally.
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It is clear that they have also sought relief against the enforcement of the guarantees by execution of any decree passed in Suit No. 223 of 1985 which is the suit which has given rise to the present proceedings. The aforesaid Suit No. 281 of 1995 was filed by the guarantors during the pendency of the present proceedings and yet this fact has not been disclosed in the pleadings. It is, therefore, clear that the guarantors are trying to avoid any order that may be passed in the present proceedings for enforcement of the guarantees and have initiated separate proceedings notwithstanding the pendency of Suit No. 223 of 19855. In view of the above, the question regarding confirmation of the decree against the guarantors now needs to be settled.We had deferred the question by our order dated5 but now see no reason to further defer it. Since the decree has been confirmed against the principal debtor by virtue of the order of, albeit on admission, we see no reason why the guarantors should not be made liable under the letters of guarantee, the terms whereof clearly stipulate that on the failure of the principal debtor to abide by the contract, they will be liable to pay the amount due from the principal debtor by the appellants. Clause 15 of the letter of guarantee, in terms states that any action settled or stated between the bank and the principal debtor or admitted by the principal debtor shall be accepted by the guarantors as conclusive evidence. In view of this stipulation in the letter of guarantee, once the decree on admission is passed against the principal debtor, the guarantors would become liable to satisfy the decree jointly and severally.
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Jwala Prasad Sehgal Vs. State of Punjab | J.C. Shah, J.1. The petitioner’s son Ranbir Singh Sehgal was convicted and sentenced by different Courts for offences under Explosive Substance Act, conspiracy to commit dacoity, Arms Act and other offences and was sentenced to various terms of imprisonment and to pay fine. The first sentence was imposed upon him on June 13, 1960, and the total sentence which he had to suffer was 12 years and 4 months. He had to pay Rs. 8500 in the aggregate as fine. It appears, however, that he had paid substantially the entire amount of fine. In normal course the last sentence would expire sometime in October 1972, but under the prison rules Ranbir Singh is entitled to certain remissions if the conditions prescribed are satisfied by him.2. The case of the petitioner is that in the record maintained by the prison authorities it was entered that Ranbir Singh Sehgal had earned a total remission of 3 years, 4 months and 26 days and he was, therefore, entitled to be released sometime in July 1969 but was not released. An affidavit is filed by the Superintendent of Central Jail, Patiala, who has stated that by some error it was recorded that Ranbir Singh Sehgal had earned remission which was of a longer duration than he was in law entitled to. He has also stated in his affidavit that when Ranbir Singh Sehgal was in the Mental Hospital, Amritsar, during the time when he was suffering sentence of imprisonment on November 8, 1965 he ran away from custody and was again arrested on July 13, 1966. In view of this conduct the Inspector-General of Prisons had in accordance with paragraph 633A, of the Punjab Jail Manual passed an order withdrawing certain remissions.3. Counsel for the petitioner has contended that there was no evidence that the Inspector-General of Prisons had in fact cancelled the remissions. But we have before us a copy of the letter under the signature of the A. I. G. (who has written the letter for Inspector-General of Prisons) that the remission of 8 months and 3 days granted to Ranbir Singh Sehgal was cancelled under Rule 633-A, of the Punjab Jail Manual for escaping from lawful custody on November 8, 1965. It is not averred in the affidavit that the order was made by the. Inspector-General of Prisons and there is nothing on the record to show that the order was not made by the Inspector-General of Prisons but by some other officer.4. It was then urged that the Inspector General of Prisons, Haryana had power to cancel the remission and not the Inspector-General of Prisons Punjab; but no such plea appear to have been raised at any stage nor has any such averment been made in the petition or at any later stage even in the affidavit in rejoinder.>5. It was also urged that once the remission has been entered in the records of the prison and has been tallied as required under the rule there is no power to withdraw the remission. In our judgment there is no substance in these contentions. If by reason of any error there has been credited to a convict a larger period of remission than he is in law entitled to, it would be open to the authorities to rectify the record and to make it consistent with the true state of affairs. | 0[ds]3. Counsel for the petitioner has contended that there was no evidence that theof Prisons had in fact cancelled the remissions. But we have before us a copy of the letter under the signature of the A. I. G. (who has written the letter forf Prisons) that the remission of 8 months and 3 days granted to Ranbir Singh Sehgal was cancelled under Rule633A, of the Punjab Jail Manualfor escaping from lawful custody on November 8, 1965. It is not averred in the affidavit that the order was made by the.of Prisons and there is nothing on the record to show that the order was not made by theof Prisons but by some other officer.4. It was then urged that the Inspector General of Prisons, Haryana had power to cancel the remission and not theof Prisons Punjab; but no such plea appear to have been raised at any stage nor has any such averment been made in the petition or at any later stage even in the affidavit in rejoinder.It was also urged that once the remission has been entered in the records of the prison and has been tallied as required under the rule there is no power to withdraw the remission.In our judgment there is no substance in these contentions. If by reason of any error there has been credited to a convict a larger period of remission than he is in law entitled to, it would be open to the authorities to rectify the record and to make it consistent with the true state of affairs. | 0 | 608 | 276 | ### 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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J.C. Shah, J.1. The petitioner’s son Ranbir Singh Sehgal was convicted and sentenced by different Courts for offences under Explosive Substance Act, conspiracy to commit dacoity, Arms Act and other offences and was sentenced to various terms of imprisonment and to pay fine. The first sentence was imposed upon him on June 13, 1960, and the total sentence which he had to suffer was 12 years and 4 months. He had to pay Rs. 8500 in the aggregate as fine. It appears, however, that he had paid substantially the entire amount of fine. In normal course the last sentence would expire sometime in October 1972, but under the prison rules Ranbir Singh is entitled to certain remissions if the conditions prescribed are satisfied by him.2. The case of the petitioner is that in the record maintained by the prison authorities it was entered that Ranbir Singh Sehgal had earned a total remission of 3 years, 4 months and 26 days and he was, therefore, entitled to be released sometime in July 1969 but was not released. An affidavit is filed by the Superintendent of Central Jail, Patiala, who has stated that by some error it was recorded that Ranbir Singh Sehgal had earned remission which was of a longer duration than he was in law entitled to. He has also stated in his affidavit that when Ranbir Singh Sehgal was in the Mental Hospital, Amritsar, during the time when he was suffering sentence of imprisonment on November 8, 1965 he ran away from custody and was again arrested on July 13, 1966. In view of this conduct the Inspector-General of Prisons had in accordance with paragraph 633A, of the Punjab Jail Manual passed an order withdrawing certain remissions.3. Counsel for the petitioner has contended that there was no evidence that the Inspector-General of Prisons had in fact cancelled the remissions. But we have before us a copy of the letter under the signature of the A. I. G. (who has written the letter for Inspector-General of Prisons) that the remission of 8 months and 3 days granted to Ranbir Singh Sehgal was cancelled under Rule 633-A, of the Punjab Jail Manual for escaping from lawful custody on November 8, 1965. It is not averred in the affidavit that the order was made by the. Inspector-General of Prisons and there is nothing on the record to show that the order was not made by the Inspector-General of Prisons but by some other officer.4. It was then urged that the Inspector General of Prisons, Haryana had power to cancel the remission and not the Inspector-General of Prisons Punjab; but no such plea appear to have been raised at any stage nor has any such averment been made in the petition or at any later stage even in the affidavit in rejoinder.>5. It was also urged that once the remission has been entered in the records of the prison and has been tallied as required under the rule there is no power to withdraw the remission. In our judgment there is no substance in these contentions. If by reason of any error there has been credited to a convict a larger period of remission than he is in law entitled to, it would be open to the authorities to rectify the record and to make it consistent with the true state of affairs.
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3. Counsel for the petitioner has contended that there was no evidence that theof Prisons had in fact cancelled the remissions. But we have before us a copy of the letter under the signature of the A. I. G. (who has written the letter forf Prisons) that the remission of 8 months and 3 days granted to Ranbir Singh Sehgal was cancelled under Rule633A, of the Punjab Jail Manualfor escaping from lawful custody on November 8, 1965. It is not averred in the affidavit that the order was made by the.of Prisons and there is nothing on the record to show that the order was not made by theof Prisons but by some other officer.4. It was then urged that the Inspector General of Prisons, Haryana had power to cancel the remission and not theof Prisons Punjab; but no such plea appear to have been raised at any stage nor has any such averment been made in the petition or at any later stage even in the affidavit in rejoinder.It was also urged that once the remission has been entered in the records of the prison and has been tallied as required under the rule there is no power to withdraw the remission.In our judgment there is no substance in these contentions. If by reason of any error there has been credited to a convict a larger period of remission than he is in law entitled to, it would be open to the authorities to rectify the record and to make it consistent with the true state of affairs.
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Thiruvalanchuli Vaithilingam Pillai Charities Vs. Vijayavalli Achi & Others | that the share of the 1st defendant should go after her death to her representative. It has to be remembered that at the date of the judgment Kalyanasundaram was the legal representative of both Vaithilinga and Kamakshi It seems to us, therefore, to be a natural interpretation of the sentence in the judgment on which the respondents rely to hold that the word” representative had been used really as indicating Kalyanasundaram. We should also point out that in the earlier part of the judgment as also in the part on which, the respondents relied it was held that Vaithilinga and Kamakshi had by the deed been given only a life interest in the lands. It would not be a natural interpretation of the learned Judges judgment, to hold that having decided that under the deed Vaithilinga and Kamakshi held lands only for their lives he proceeded to decide that at their deaths, the lands would go to their respective representatives. The question was of the rights under the deed and if under the deed Vaithilinga and Kamakshi had only life interest in the lands, their ultimate destination had to be decided by the terms of the deed if it made any provision in that behalf which it did. Admittedly under the deed the lands were to go to Kalyanasundaram after the death of Vaithilinga and Kamakshi. The learned Subordinate Judge was not deciding any question of intestate succession to the lands on the death of these two.10. It also seems to us that in the portion of the judgment on which the respondents rely the learned Subordinate Judge only dealt with the question whether Kalyanasundaram who had been held not to be entitled to the entirety of the 100 acres was entitled to any portion of the lands. The real point in that connection, according to the learned Subordinate Judge was whether the deed has made Vaithilinga and Kamakshi joint tenants in respect of the 100 acres or tenants-in-common because it was only in the latter event that Kalyanasundaram might claim a half share in the lands on Vaithilingas death. Having held that the words of grant in the deed read by themselves created a tenancy-in-common in the lands in favour of Vaithilinga and Kamakshi, he proceeded to consider whether the words provide for the lands going to Kalyanasundaram on the deaths of Vaithilinga and Kamakshi it should lead to a different interpretation of the words of grant and held that they were not clear enough to do so. Having thus decided that Vaithilinga had a half share in the lands as a tenant-in-common with Kamakshi, he proceeded to consider whether the provision in the deed that Kalyanasundaram would get the lands after the life-time of Vaithilinga and Kamakshi could be interpreted to mean that though the lands were held as tenants in common by Vaithilinga and Kamakshi, Kalyanasundaram was not entitled to any part of the land till after the death of both of them and that till then, Kamakshi was entitled to them as she claimed. He answered the question in the negative and it was in that connection only that he said the proper interpretation of these words was that the share of Vaithilinga in the lands was given to his representative after his death and the share of Kamakshi to her representative after her death. He was only deciding that the words meant that on the death of each his or her share would devolve as provided in the deed and not pass to the persons who survived. On this basis he held that Kalyanasundaram was entitled on Vaithilingas death to the 50 acres which the latter held for his life. Kalyanasundaram did not claim as the legal representative of Vaithilinga but as the person named in the deed. He of course was Vaithilingas legal representative and obviously that is why the learned Subordinate Judge used these words to describe him. We are unable to hold that he was interpreting the deed as meaning that the share each of Vaithilinga and Kamakshi in the lands would go on their respective deaths to their legal representatives whoever they might be at the time. That was not a question that arose or he was asked to decide. We are therefore of the view that there is nothing in the judgment in Suit No. 54 of 1904 to operate as barring this suit by way of res judicata. It is of some interest to point out that the sale in execution on which the trustees-plaintiffs now represented by the appellants before us based their claim was expressly of Kalyanasundarams vested interest under the deed in the lands which were then in Kamakshis possession under the decree in Suit No. 54 of 1904. The trustees in that application for execution had alleged that Kalyanasundaram had such vested interest. The order directing the sale held that he had such a vested interest. The certificate of sale mentioned that Kalyanasundaram had a vested right in these lands. That would appear to be a decision binding on the respondents as Kalyanasundarams heir.11. The learned Counsel for the respondents stated that if we found ourselves in agreement with the appellants contention, we should refer the case back to the High Court for the decision of various other points that arose in it. This contention seems to us to be wholly unfounded. It is clear from the judgment of the High Court under appeal that before that Court the respondents confined their argument only to the question of res judicata. Besides this aspect of the matter the learned Counsel for the respondents was also unable to refer us to any point of any substance which could have been argued with plausibility in the High Court in support of the respondents’ case and was not argued. We find no reason to refer the case back to the High Court for decision of any outstanding point. We are clear that no other point remains to be decided. | 1[ds]We should suppose that if such was the interpretation of the deed by the learned Subordinate Judge, his judgment might operate as res judicata barring the claim of the appellants in the present suit for the claim through Kalyanasundaram who was a party to the earlier suit. The question appears to us to be whether this sentence in this judgment amounts to a decision operating as res judicata. It is unnecessary to refer to the decision on the point of res judicata; it is enough to say that a decision can operate as res judicata if it was necessary for the purpose of the case in which it had been given. There is no dispute between the parties on this point.8. Now, it seems to us perfectly clear that no question arose in Suit No. 54 of 1904 as to the person who would succeed after her death to any property that might come to Kamakshi under a decree made in it. It was not necessary for the learned Subordinate Judge for the decision of any of the disputes that arose in that suit to say to whom the lands that went to Kamakshi would go on her death. It would, therefore, appear that the sentence in the judgment in Suit No. 54 of 1904 on which the learned Counsel for the respondents relied could not operate as res judicata barring the present suit.It has to be remembered that at the date of the judgment Kalyanasundaram was the legal representative of both Vaithilinga and Kamakshi It seems to us, therefore, to be a natural interpretation of the sentence in the judgment on which the respondents rely to hold that therepresentative had been used really as indicating Kalyanasundaram. We should also point out that in the earlier part of the judgment as also in the part on which, the respondents relied it was held that Vaithilinga and Kamakshi had by the deed been given only a life interest in the lands. It would not be a natural interpretation of the learned Judges judgment, to hold that having decided that under the deed Vaithilinga and Kamakshi held lands only for their lives he proceeded to decide that at their deaths, the lands would go to their respective representatives. The question was of the rights under the deed and if under the deed Vaithilinga and Kamakshi had only life interest in the lands, their ultimate destination had to be decided by the terms of the deed if it made any provision in that behalf which it did. Admittedly under the deed the lands were to go to Kalyanasundaram after the death of Vaithilinga and Kamakshi. The learned Subordinate Judge was not deciding any question of intestate succession to the lands on the death of these two.10. It also seems to us that in the portion of the judgment on which the respondents rely the learned Subordinate Judge only dealt with the question whether Kalyanasundaram who had been held not to be entitled to the entirety of the 100 acres was entitled to any portion of the lands. The real point in that connection, according to the learned Subordinate Judge was whether the deed has made Vaithilinga and Kamakshi joint tenants in respect of the 100 acres orbecause it was only in the latter event that Kalyanasundaram might claim a half share in the lands on Vaithilingas death. Having held that the words of grant in the deed read by themselves created ain the lands in favour of Vaithilinga and Kamakshi, he proceeded to consider whether the words provide for the lands going to Kalyanasundaram on the deaths of Vaithilinga and Kamakshi it should lead to a different interpretation of the words of grant and held that they were not clear enough to do so. Having thus decided that Vaithilinga had a half share in the lands as awith Kamakshi, he proceeded to consider whether the provision in the deed that Kalyanasundaram would get the lands after thelifetime of Vaithilingaand Kamakshi could be interpreted to mean that though the lands were held as tenants in common by Vaithilinga and Kamakshi, Kalyanasundaram was not entitled to any part of the land till after the death of both of them and that till then, Kamakshi was entitled to them as she claimed. He answered the question in the negative and it was in that connection only that he said the proper interpretation of these words was that the share of Vaithilinga in the lands was given to his representative after his death and the share of Kamakshi to her representative after her death. He was only deciding that the words meant that on the death of each his or her share would devolve as provided in the deed and not pass to the persons who survived. On this basis he held that Kalyanasundaram was entitled on Vaithilingas death to the 50 acres which the latter held for his life. Kalyanasundaram did not claim as the legal representative of Vaithilinga but as the person named in the deed. He of course was Vaithilingas legal representative and obviously that is why the learned Subordinate Judge used these words to describe him. We are unable to hold that he was interpreting the deed as meaning that the share each of Vaithilinga and Kamakshi in the lands would go on their respective deaths to their legal representatives whoever they might be at the time. That was not a question that arose or he was asked to decide. We are therefore of the view that there is nothing in the judgment in Suit No. 54 of 1904 to operate as barring this suit by way of res judicata. It is of some interest to point out that the sale in execution on which thenow represented by the appellants before us based their claim was expressly of Kalyanasundarams vested interest under the deed in the lands which were then in Kamakshis possession under the decree in Suit No. 54 of 1904. The trustees in that application for execution had alleged that Kalyanasundaram had such vested interest. The order directing the sale held that he had such a vested interest. The certificate of sale mentioned that Kalyanasundaram had a vested right in these lands. That would appear to be a decision binding on the respondents as Kalyanasundaramscontention seems to us to be wholly unfounded. It is clear from the judgment of the High Court under appeal that before that Court the respondents confined their argument only to the question of res judicata. Besides this aspect of the matter the learned Counsel for the respondents was also unable to refer us to any point of any substance which could have been argued with plausibility in the High Court in support of thecase and was not argued. We find no reason to refer the case back to the High Court for decision of any outstanding point. We are clear that no other point remains to be decided. | 1 | 3,644 | 1,219 | ### Instruction:
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that the share of the 1st defendant should go after her death to her representative. It has to be remembered that at the date of the judgment Kalyanasundaram was the legal representative of both Vaithilinga and Kamakshi It seems to us, therefore, to be a natural interpretation of the sentence in the judgment on which the respondents rely to hold that the word” representative had been used really as indicating Kalyanasundaram. We should also point out that in the earlier part of the judgment as also in the part on which, the respondents relied it was held that Vaithilinga and Kamakshi had by the deed been given only a life interest in the lands. It would not be a natural interpretation of the learned Judges judgment, to hold that having decided that under the deed Vaithilinga and Kamakshi held lands only for their lives he proceeded to decide that at their deaths, the lands would go to their respective representatives. The question was of the rights under the deed and if under the deed Vaithilinga and Kamakshi had only life interest in the lands, their ultimate destination had to be decided by the terms of the deed if it made any provision in that behalf which it did. Admittedly under the deed the lands were to go to Kalyanasundaram after the death of Vaithilinga and Kamakshi. The learned Subordinate Judge was not deciding any question of intestate succession to the lands on the death of these two.10. It also seems to us that in the portion of the judgment on which the respondents rely the learned Subordinate Judge only dealt with the question whether Kalyanasundaram who had been held not to be entitled to the entirety of the 100 acres was entitled to any portion of the lands. The real point in that connection, according to the learned Subordinate Judge was whether the deed has made Vaithilinga and Kamakshi joint tenants in respect of the 100 acres or tenants-in-common because it was only in the latter event that Kalyanasundaram might claim a half share in the lands on Vaithilingas death. Having held that the words of grant in the deed read by themselves created a tenancy-in-common in the lands in favour of Vaithilinga and Kamakshi, he proceeded to consider whether the words provide for the lands going to Kalyanasundaram on the deaths of Vaithilinga and Kamakshi it should lead to a different interpretation of the words of grant and held that they were not clear enough to do so. Having thus decided that Vaithilinga had a half share in the lands as a tenant-in-common with Kamakshi, he proceeded to consider whether the provision in the deed that Kalyanasundaram would get the lands after the life-time of Vaithilinga and Kamakshi could be interpreted to mean that though the lands were held as tenants in common by Vaithilinga and Kamakshi, Kalyanasundaram was not entitled to any part of the land till after the death of both of them and that till then, Kamakshi was entitled to them as she claimed. He answered the question in the negative and it was in that connection only that he said the proper interpretation of these words was that the share of Vaithilinga in the lands was given to his representative after his death and the share of Kamakshi to her representative after her death. He was only deciding that the words meant that on the death of each his or her share would devolve as provided in the deed and not pass to the persons who survived. On this basis he held that Kalyanasundaram was entitled on Vaithilingas death to the 50 acres which the latter held for his life. Kalyanasundaram did not claim as the legal representative of Vaithilinga but as the person named in the deed. He of course was Vaithilingas legal representative and obviously that is why the learned Subordinate Judge used these words to describe him. We are unable to hold that he was interpreting the deed as meaning that the share each of Vaithilinga and Kamakshi in the lands would go on their respective deaths to their legal representatives whoever they might be at the time. That was not a question that arose or he was asked to decide. We are therefore of the view that there is nothing in the judgment in Suit No. 54 of 1904 to operate as barring this suit by way of res judicata. It is of some interest to point out that the sale in execution on which the trustees-plaintiffs now represented by the appellants before us based their claim was expressly of Kalyanasundarams vested interest under the deed in the lands which were then in Kamakshis possession under the decree in Suit No. 54 of 1904. The trustees in that application for execution had alleged that Kalyanasundaram had such vested interest. The order directing the sale held that he had such a vested interest. The certificate of sale mentioned that Kalyanasundaram had a vested right in these lands. That would appear to be a decision binding on the respondents as Kalyanasundarams heir.11. The learned Counsel for the respondents stated that if we found ourselves in agreement with the appellants contention, we should refer the case back to the High Court for the decision of various other points that arose in it. This contention seems to us to be wholly unfounded. It is clear from the judgment of the High Court under appeal that before that Court the respondents confined their argument only to the question of res judicata. Besides this aspect of the matter the learned Counsel for the respondents was also unable to refer us to any point of any substance which could have been argued with plausibility in the High Court in support of the respondents’ case and was not argued. We find no reason to refer the case back to the High Court for decision of any outstanding point. We are clear that no other point remains to be decided.
### Response:
1
### Explanation:
It was not necessary for the learned Subordinate Judge for the decision of any of the disputes that arose in that suit to say to whom the lands that went to Kamakshi would go on her death. It would, therefore, appear that the sentence in the judgment in Suit No. 54 of 1904 on which the learned Counsel for the respondents relied could not operate as res judicata barring the present suit.It has to be remembered that at the date of the judgment Kalyanasundaram was the legal representative of both Vaithilinga and Kamakshi It seems to us, therefore, to be a natural interpretation of the sentence in the judgment on which the respondents rely to hold that therepresentative had been used really as indicating Kalyanasundaram. We should also point out that in the earlier part of the judgment as also in the part on which, the respondents relied it was held that Vaithilinga and Kamakshi had by the deed been given only a life interest in the lands. It would not be a natural interpretation of the learned Judges judgment, to hold that having decided that under the deed Vaithilinga and Kamakshi held lands only for their lives he proceeded to decide that at their deaths, the lands would go to their respective representatives. The question was of the rights under the deed and if under the deed Vaithilinga and Kamakshi had only life interest in the lands, their ultimate destination had to be decided by the terms of the deed if it made any provision in that behalf which it did. Admittedly under the deed the lands were to go to Kalyanasundaram after the death of Vaithilinga and Kamakshi. The learned Subordinate Judge was not deciding any question of intestate succession to the lands on the death of these two.10. It also seems to us that in the portion of the judgment on which the respondents rely the learned Subordinate Judge only dealt with the question whether Kalyanasundaram who had been held not to be entitled to the entirety of the 100 acres was entitled to any portion of the lands. The real point in that connection, according to the learned Subordinate Judge was whether the deed has made Vaithilinga and Kamakshi joint tenants in respect of the 100 acres orbecause it was only in the latter event that Kalyanasundaram might claim a half share in the lands on Vaithilingas death. Having held that the words of grant in the deed read by themselves created ain the lands in favour of Vaithilinga and Kamakshi, he proceeded to consider whether the words provide for the lands going to Kalyanasundaram on the deaths of Vaithilinga and Kamakshi it should lead to a different interpretation of the words of grant and held that they were not clear enough to do so. Having thus decided that Vaithilinga had a half share in the lands as awith Kamakshi, he proceeded to consider whether the provision in the deed that Kalyanasundaram would get the lands after thelifetime of Vaithilingaand Kamakshi could be interpreted to mean that though the lands were held as tenants in common by Vaithilinga and Kamakshi, Kalyanasundaram was not entitled to any part of the land till after the death of both of them and that till then, Kamakshi was entitled to them as she claimed. He answered the question in the negative and it was in that connection only that he said the proper interpretation of these words was that the share of Vaithilinga in the lands was given to his representative after his death and the share of Kamakshi to her representative after her death. He was only deciding that the words meant that on the death of each his or her share would devolve as provided in the deed and not pass to the persons who survived. On this basis he held that Kalyanasundaram was entitled on Vaithilingas death to the 50 acres which the latter held for his life. Kalyanasundaram did not claim as the legal representative of Vaithilinga but as the person named in the deed. He of course was Vaithilingas legal representative and obviously that is why the learned Subordinate Judge used these words to describe him. We are unable to hold that he was interpreting the deed as meaning that the share each of Vaithilinga and Kamakshi in the lands would go on their respective deaths to their legal representatives whoever they might be at the time. That was not a question that arose or he was asked to decide. We are therefore of the view that there is nothing in the judgment in Suit No. 54 of 1904 to operate as barring this suit by way of res judicata. It is of some interest to point out that the sale in execution on which thenow represented by the appellants before us based their claim was expressly of Kalyanasundarams vested interest under the deed in the lands which were then in Kamakshis possession under the decree in Suit No. 54 of 1904. The trustees in that application for execution had alleged that Kalyanasundaram had such vested interest. The order directing the sale held that he had such a vested interest. The certificate of sale mentioned that Kalyanasundaram had a vested right in these lands. That would appear to be a decision binding on the respondents as Kalyanasundaramscontention seems to us to be wholly unfounded. It is clear from the judgment of the High Court under appeal that before that Court the respondents confined their argument only to the question of res judicata. Besides this aspect of the matter the learned Counsel for the respondents was also unable to refer us to any point of any substance which could have been argued with plausibility in the High Court in support of thecase and was not argued. We find no reason to refer the case back to the High Court for decision of any outstanding point. We are clear that no other point remains to be decided.
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Assistant Commissioner Ofsales Tax, Kerala Vs. Messrs P.Kesavan and Company | 1. The appeals, by certificate, arise upon the common judgment of a Division Bench of the Kerala High Court whereby writ petitions filed by the respondents were allowed. 2. The respondents were sellers of Caristrap Rayon Cord Strapping. According to them, the said strapping was exempted from taxation under the Kerala General Sales Tax Act, 1963. They felied in this behalf upon Entry-7 of Schedule-III to the said Act. Schedule-III sets out the goods which are exempted from sales tax under Section-9 of the said Act. Entry-7 thereof reads thus: "Cotton fabrics, woolen fabrics and rayon or artificial silk fabrics as defined in Items Nos. 19, 21 and 22 respectively of the First Schedule to the Central Excise and Salt Act, 1944." 3. Item No.22 of the First Schedule to the Central Excise and Salt Act, 1944, so far as it is relevant, read as follows: "Rayon or Artificial Silk Fabrics - Rayon or artificial silk fabrics include all variteties of fabrics manufactured either wholly or partly from rayon or artificial silk." 4. The said strapping, according to the writ petitions, is a fabric made purely from rayon yarns. The rayon yarns are used with bonding agents in fabricating the said strapping. The percentage of the bonding agent used for fabricating the said strapping is negligible. Sample of the said strapping with its literature was annexed to the writ petitions. Upon this basis it was contended that the refusal by the assessing authority of exemption under Entry-7 of Schedule-III of the said Act was erroneous. The appellants filed an affidavit to counter the averments in the writ petitions. 5. They submitted that the writ petitions w ere not maintainable in that the writ petitioners had not chosen to agitate the issue before the appropriate sales tax authorities in appeal and revision. The counter also submitted that the said strapping was a different and distinct commercial commodity and it was so understood in the commercial world and by persons using the same. The writ petitions were rejected by the learned single judge, who found that the requirements of Entry-7 of Schedule-III to the Act were not satisfied. The Division Bench allowed the appeals filed against his decision, observing that all articles produced and manufactured by the use of rayon would be rayon fabrics. Before the learned single judge and the Division Bench the appellants, that is to say, the sales tax authorities, strenuously contended that technical matters were involved and that the appropriate authorities to go into and appreciate such technical matters were the authorities provided for in the said A ct. Both the learned single judge and the Division Bench negatived this contention. These appeals had come up earlier for hearing and the bench of two learned judges came to the conclusion that they should be heard by a bench of three judges in view of the fact that new techniques had been evolved for making fabric out of yarn and it might be inadvisable to confine the weaving process to the wrap and woof method. 6. What has to be seen, having regard to Entry-7 of Schedule-III of the said Act read with Item No.22 of the First Schedule of the Central Excise and Salt Act, 1944, is whether the said strapping is a fabric, manufactured, either wholly or partly, from rayon. As aforestated, the only material placed by the respondents before the court was the bare statement that the said strapping was made purely from rayon yarns and the percentage of bonding agent used in fabricating the said strapping was negligible. The brochure which was annexed to the writ petition is before us. It describes the various uses to which the said strapping can be put; it does not describe the process of manufacture or fabrication of the said strapping, the inputs therein and the percentage of the bonding agent used. The principal question is whether the said strapping is a fabric made from rayon yarn and no material was placed before the court in the writ petition to show that it was. In view thereof, we think that the writ petitions ought not to have been entertained and the respondents ought to have been drected to agitate their grievances before the authorities under the Act. These authorities would have been in a better position to seek and appreciate the necessary evidence and determine whether or not the said strapping was something that fell within the scope of Entry-7 of Schedule-III to the Act. 7. Where technical matters are involved, and particularly when processes of manufacture have become increasingly complicated, it is appropriate that the authorities best competent to deal with such matters should be allowed to do so. The learned single judge was swayed by the fact that some time had already elapsed since the writ petition was admitted. Far less time had elapsed then t han has elapsed now. The Division Bench cited judgments in support of the view that it was not necessary to refer the respondents to the authorities under the Act. It does not appear to have appreciated that regard must be had to the facts of e ach case. Where sufficient evidence is placed before the writ court for an unambiguous conclusion upon technical matters to be reached, those authorities might be apposite, but we must stress that where intricate technical processes are involved , it is proper that the writ court should direct writ petitioners to agitate their grievances before statutory authorities who are more competent to assess the merits thereof. 8. We are satisfied that the decision of the Division Bench was given upon inadequate material. This decision must be set aside and the respondents relegated to such remedy as they may have under the provisions of the said Act. 9. | 1[ds]What has to be seen, having regard to Entry-7 of Schedule-III of the said Act read with Item No.22 of the First Schedule of the Central Excise and Salt Act, 1944, is whether the said strapping is a fabric, manufactured, either wholly or partly, from rayon. As aforestated, the only material placed by the respondents before the court was the bare statement that the said strapping was made purely from rayon yarns and the percentage of bonding agent used in fabricating the said strapping was negligible. The brochure which was annexed to the writ petition is before us. It describes the various uses to which the said strapping can be put; it does not describe the process of manufacture or fabrication of the said strapping, the inputs therein and the percentage of the bonding agent used. The principal question is whether the said strapping is a fabric made from rayon yarn and no material was placed before the court in the writ petition to show that it was. In view thereof, we think that the writ petitions ought not to have been entertained and the respondents ought to have been drected to agitate their grievances before the authorities under the Act. These authorities would have been in a better position to seek and appreciate the necessary evidence and determine whether or not the said strapping was something that fell within the scope of Entry-7 of Schedule-III to thetechnical matters are involved, and particularly when processes of manufacture have become increasingly complicated, it is appropriate that the authorities best competent to deal with such matters should be allowed to do so. The learned single judge was swayed by the fact that some time had already elapsed since the writ petition was admitted. Far less time had elapsed then t han has elapsed now. The Division Bench cited judgments in support of the view that it was not necessary to refer the respondents to the authorities under the Act. It does not appear to have appreciated that regard must be had to the facts of e ach case. Where sufficient evidence is placed before the writ court for an unambiguous conclusion upon technical matters to be reached, those authorities might be apposite, but we must stress that where intricate technical processes are involved , it is proper that the writ court should direct writ petitioners to agitate their grievances before statutory authorities who are more competent to assess the meritsare satisfied that the decision of the Division Bench was given upon inadequate material. This decision must be set aside and the respondents relegated to such remedy as they may have under the provisions of the said Act. | 1 | 1,043 | 476 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
### Input:
1. The appeals, by certificate, arise upon the common judgment of a Division Bench of the Kerala High Court whereby writ petitions filed by the respondents were allowed. 2. The respondents were sellers of Caristrap Rayon Cord Strapping. According to them, the said strapping was exempted from taxation under the Kerala General Sales Tax Act, 1963. They felied in this behalf upon Entry-7 of Schedule-III to the said Act. Schedule-III sets out the goods which are exempted from sales tax under Section-9 of the said Act. Entry-7 thereof reads thus: "Cotton fabrics, woolen fabrics and rayon or artificial silk fabrics as defined in Items Nos. 19, 21 and 22 respectively of the First Schedule to the Central Excise and Salt Act, 1944." 3. Item No.22 of the First Schedule to the Central Excise and Salt Act, 1944, so far as it is relevant, read as follows: "Rayon or Artificial Silk Fabrics - Rayon or artificial silk fabrics include all variteties of fabrics manufactured either wholly or partly from rayon or artificial silk." 4. The said strapping, according to the writ petitions, is a fabric made purely from rayon yarns. The rayon yarns are used with bonding agents in fabricating the said strapping. The percentage of the bonding agent used for fabricating the said strapping is negligible. Sample of the said strapping with its literature was annexed to the writ petitions. Upon this basis it was contended that the refusal by the assessing authority of exemption under Entry-7 of Schedule-III of the said Act was erroneous. The appellants filed an affidavit to counter the averments in the writ petitions. 5. They submitted that the writ petitions w ere not maintainable in that the writ petitioners had not chosen to agitate the issue before the appropriate sales tax authorities in appeal and revision. The counter also submitted that the said strapping was a different and distinct commercial commodity and it was so understood in the commercial world and by persons using the same. The writ petitions were rejected by the learned single judge, who found that the requirements of Entry-7 of Schedule-III to the Act were not satisfied. The Division Bench allowed the appeals filed against his decision, observing that all articles produced and manufactured by the use of rayon would be rayon fabrics. Before the learned single judge and the Division Bench the appellants, that is to say, the sales tax authorities, strenuously contended that technical matters were involved and that the appropriate authorities to go into and appreciate such technical matters were the authorities provided for in the said A ct. Both the learned single judge and the Division Bench negatived this contention. These appeals had come up earlier for hearing and the bench of two learned judges came to the conclusion that they should be heard by a bench of three judges in view of the fact that new techniques had been evolved for making fabric out of yarn and it might be inadvisable to confine the weaving process to the wrap and woof method. 6. What has to be seen, having regard to Entry-7 of Schedule-III of the said Act read with Item No.22 of the First Schedule of the Central Excise and Salt Act, 1944, is whether the said strapping is a fabric, manufactured, either wholly or partly, from rayon. As aforestated, the only material placed by the respondents before the court was the bare statement that the said strapping was made purely from rayon yarns and the percentage of bonding agent used in fabricating the said strapping was negligible. The brochure which was annexed to the writ petition is before us. It describes the various uses to which the said strapping can be put; it does not describe the process of manufacture or fabrication of the said strapping, the inputs therein and the percentage of the bonding agent used. The principal question is whether the said strapping is a fabric made from rayon yarn and no material was placed before the court in the writ petition to show that it was. In view thereof, we think that the writ petitions ought not to have been entertained and the respondents ought to have been drected to agitate their grievances before the authorities under the Act. These authorities would have been in a better position to seek and appreciate the necessary evidence and determine whether or not the said strapping was something that fell within the scope of Entry-7 of Schedule-III to the Act. 7. Where technical matters are involved, and particularly when processes of manufacture have become increasingly complicated, it is appropriate that the authorities best competent to deal with such matters should be allowed to do so. The learned single judge was swayed by the fact that some time had already elapsed since the writ petition was admitted. Far less time had elapsed then t han has elapsed now. The Division Bench cited judgments in support of the view that it was not necessary to refer the respondents to the authorities under the Act. It does not appear to have appreciated that regard must be had to the facts of e ach case. Where sufficient evidence is placed before the writ court for an unambiguous conclusion upon technical matters to be reached, those authorities might be apposite, but we must stress that where intricate technical processes are involved , it is proper that the writ court should direct writ petitioners to agitate their grievances before statutory authorities who are more competent to assess the merits thereof. 8. We are satisfied that the decision of the Division Bench was given upon inadequate material. This decision must be set aside and the respondents relegated to such remedy as they may have under the provisions of the said Act. 9.
### Response:
1
### Explanation:
What has to be seen, having regard to Entry-7 of Schedule-III of the said Act read with Item No.22 of the First Schedule of the Central Excise and Salt Act, 1944, is whether the said strapping is a fabric, manufactured, either wholly or partly, from rayon. As aforestated, the only material placed by the respondents before the court was the bare statement that the said strapping was made purely from rayon yarns and the percentage of bonding agent used in fabricating the said strapping was negligible. The brochure which was annexed to the writ petition is before us. It describes the various uses to which the said strapping can be put; it does not describe the process of manufacture or fabrication of the said strapping, the inputs therein and the percentage of the bonding agent used. The principal question is whether the said strapping is a fabric made from rayon yarn and no material was placed before the court in the writ petition to show that it was. In view thereof, we think that the writ petitions ought not to have been entertained and the respondents ought to have been drected to agitate their grievances before the authorities under the Act. These authorities would have been in a better position to seek and appreciate the necessary evidence and determine whether or not the said strapping was something that fell within the scope of Entry-7 of Schedule-III to thetechnical matters are involved, and particularly when processes of manufacture have become increasingly complicated, it is appropriate that the authorities best competent to deal with such matters should be allowed to do so. The learned single judge was swayed by the fact that some time had already elapsed since the writ petition was admitted. Far less time had elapsed then t han has elapsed now. The Division Bench cited judgments in support of the view that it was not necessary to refer the respondents to the authorities under the Act. It does not appear to have appreciated that regard must be had to the facts of e ach case. Where sufficient evidence is placed before the writ court for an unambiguous conclusion upon technical matters to be reached, those authorities might be apposite, but we must stress that where intricate technical processes are involved , it is proper that the writ court should direct writ petitioners to agitate their grievances before statutory authorities who are more competent to assess the meritsare satisfied that the decision of the Division Bench was given upon inadequate material. This decision must be set aside and the respondents relegated to such remedy as they may have under the provisions of the said Act.
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Wali Singh Vs. Sohan Singh | years after attaining majority notwithstanding that the parties may have continued in joint possession. In this view they dismissed the suit.4. Learned counsel for the plaintiff-appellant urges that the mutation proceedings did not purport to be based on any transfer by Kirpal Singh as guardian of Wali Singh and that there is no basis for invoking the application of Article 44 against the plaintiff. The inference of the High Court that the mutation proceedings in 1920 constitute a transfer is based on the narrations therein. It is necessary, therefore, to examine them. The first was the mutation entry No. 167 shown by Ex. D-9 dated 1-6-1920. This entry shows that the mutation was made on certain statements made by Kirpal Singh and Wali Singh.Kirpal Singhs statement is as follows:"I Kirpal Singh have adopted Wali Singh, the grandson of my real brother, as my son, under a registered deed. Pritam Singh his other brother also died. His (Pritam Singhs) son is alive. I wish that during my lifetime my entire movable and immovable property might be entered in the name of Wali Singh and accordingly Wali Singh shall have so concern with the property of Shib Singh. The son of Pritam Singh is a minor. His rights are not affected thereby."Wali Singhs statement is as follows:"My name may be removed from the heritage, of Shib Singh. It may be entered in the name of the son of Pritam Singh. A separate mutation be entered in respect thereof."Mutation No. 174 in Ex. D-4 which was also made on the same date shows the following statement by Wali Singh."My name may be removed from my parental heritage, because Kirpal Singh had adopted me as his son. I now relinquish my right in the heritage of my father."Mutation entry No. 175 shown by Ex. D-8 dated 15-6-1920, was merely the resultant of mutation entries Nos. 167 and 174. These statements relate to Bahuwal. It may be taken that similar statements were made in respect of the villages Mahalpur and Wasuwal. The learned Judges were inclined to treat these statements as showing a transfer by Kirpal Singh of Wali Singhs pre-adoption 1/4th share.It appears to us, however, that they cannot really bear any such interpretation. It is true that the various mutations were brought about by Kirpal Singh and that Wali Singh was a minor at the time to the knowledge of everybody concerned. It is also true that Kirpal Singh intended that Wali Singh should not have any share in his natural fathers property.But in terms, what appears to have been done was to get Wali Singh to make a declaration of relinquishment of his share in Shiv Singhs heritage. The recitals do not purport to be based on any transfer or relinquishment by Kirpal Singh as the guardian of Wali Singh. The purported release by the minor Wali Singh was absolutely infructuous in law. There being nothing by way of release by Kirpal Singh on behalf of Wali Singh, no case for the application of Article 44 of the Limitation Act arose. We are, therefore, of the opinion that the learned Judges of the High Court were in error in thinking that the plaintiffs suit was barred by virtue of Art. 44, Limitation Act.5. Learned counsel for the respondent, however, urges that in view of the course of events appearing on the record the plaintiff is not entitled to any declaratory relief and that the same is barred by limitation under Art. 120, Limitation Act. He urges that even if knowledge of the wrong entries in the revenue records of the year 1920 did not furnish the plaintiff a cause of action since he was then a minor, there are a number of subsequent proceedings which indicate not only that he was perfectly well aware of his situation from at least the year 1928 but also that he throughout conducted himself in his relations with the respondent as an equal sharer and went so far as to become a party to a joint application for partition of the family properties in equal shares between himself and the defendant so late as in the year 1943.Exs. D-10 and D-12 dated 7-12-1928 Ex. D-1 dated 15-7-1937, Exs. A and B dated 26-2-1943, and Exs. D-5, D-6 and D-11 of the year 1944 have been relied on in support of the above contention. It is also pointed out that the averments made by the plaintiff in paras 5 and 6 of the plaint as to when the right to sue accrued and cause of action arose have not been substantiated in the evidence at the trial. It is urged, therefore, that whatever cause of action the plaintiff had or a declaratory relief, it was much more than six years prior to suit and that no fresh cause of action has been made out and that, therefore, the present suit is barred on this ground.6. But we notice that the above aspect has not at all been raised in the Courts below. There is no mention of it in the grounds of appeal to the High Court or in the case filed for the respondent in this court. The above mentioned facts were relied on in the courts below only to make out pleas of acquiescee, estoppel or ratification which have been found against. Besides, it appears from the record that when the issues were framed by the trial Court, it was expressly recorded as follows in a statement signed by counsel for both the parties."There is no other point in dispute or any issue to be framed. We give it up if a mention of it is made in the pleadings."In these circumstances it is too late to allow this point to be raised at this state.Besides, the plaintiff has a subsisting title and his legal right as three-fourth sharer has been denied at least in these proceedings. There is, therefore, no purpose served by dismissing this suit and by driving the parties to another litigation.7. | 1[ds]It is true that the various mutations were brought about by Kirpal Singh and that Wali Singh was a minor at the time to the knowledge of everybody concerned. It is also true that Kirpal Singh intended that Wali Singh should not have any share in his natural fathers property.But in terms, what appears to have been done was to get Wali Singh to make a declaration of relinquishment of his share in Shiv Singhs heritage. The recitals do not purport to be based on any transfer or relinquishment by Kirpal Singh as the guardian of Wali Singh. The purported release by the minor Wali Singh was absolutely infructuous in law. There being nothing by way of release by Kirpal Singh on behalf of Wali Singh, no case for the application of Article 44 of the Limitation Act arose. We are, therefore, of the opinion that the learned Judges of the High Court were in error in thinking that the plaintiffs suit was barred by virtue of Art. 44, Limitation Act.But we notice that the above aspect has not at all been raised in the Courts below. There is no mention of it in the grounds of appeal to the High Court or in the case filed for the respondent in this court. The above mentioned facts were relied on in the courts below only to make out pleas of acquiescee, estoppel or ratification which have been found against. Besides, it appears from the record that when the issues were framed by the trial Court, it was expressly recorded as follows in a statement signed by counsel for both the parties."There is no other point in dispute or any issue to be framed. We give it up if a mention of it is made in the pleadings."In these circumstances it is too late to allow this point to be raised at this state.Besides, the plaintiff has a subsisting title and his legal right assharer has been denied at least in these proceedings. There is, therefore, no purpose served by dismissing this suit and by driving the parties to another litigation. | 1 | 2,063 | 383 | ### 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:
years after attaining majority notwithstanding that the parties may have continued in joint possession. In this view they dismissed the suit.4. Learned counsel for the plaintiff-appellant urges that the mutation proceedings did not purport to be based on any transfer by Kirpal Singh as guardian of Wali Singh and that there is no basis for invoking the application of Article 44 against the plaintiff. The inference of the High Court that the mutation proceedings in 1920 constitute a transfer is based on the narrations therein. It is necessary, therefore, to examine them. The first was the mutation entry No. 167 shown by Ex. D-9 dated 1-6-1920. This entry shows that the mutation was made on certain statements made by Kirpal Singh and Wali Singh.Kirpal Singhs statement is as follows:"I Kirpal Singh have adopted Wali Singh, the grandson of my real brother, as my son, under a registered deed. Pritam Singh his other brother also died. His (Pritam Singhs) son is alive. I wish that during my lifetime my entire movable and immovable property might be entered in the name of Wali Singh and accordingly Wali Singh shall have so concern with the property of Shib Singh. The son of Pritam Singh is a minor. His rights are not affected thereby."Wali Singhs statement is as follows:"My name may be removed from the heritage, of Shib Singh. It may be entered in the name of the son of Pritam Singh. A separate mutation be entered in respect thereof."Mutation No. 174 in Ex. D-4 which was also made on the same date shows the following statement by Wali Singh."My name may be removed from my parental heritage, because Kirpal Singh had adopted me as his son. I now relinquish my right in the heritage of my father."Mutation entry No. 175 shown by Ex. D-8 dated 15-6-1920, was merely the resultant of mutation entries Nos. 167 and 174. These statements relate to Bahuwal. It may be taken that similar statements were made in respect of the villages Mahalpur and Wasuwal. The learned Judges were inclined to treat these statements as showing a transfer by Kirpal Singh of Wali Singhs pre-adoption 1/4th share.It appears to us, however, that they cannot really bear any such interpretation. It is true that the various mutations were brought about by Kirpal Singh and that Wali Singh was a minor at the time to the knowledge of everybody concerned. It is also true that Kirpal Singh intended that Wali Singh should not have any share in his natural fathers property.But in terms, what appears to have been done was to get Wali Singh to make a declaration of relinquishment of his share in Shiv Singhs heritage. The recitals do not purport to be based on any transfer or relinquishment by Kirpal Singh as the guardian of Wali Singh. The purported release by the minor Wali Singh was absolutely infructuous in law. There being nothing by way of release by Kirpal Singh on behalf of Wali Singh, no case for the application of Article 44 of the Limitation Act arose. We are, therefore, of the opinion that the learned Judges of the High Court were in error in thinking that the plaintiffs suit was barred by virtue of Art. 44, Limitation Act.5. Learned counsel for the respondent, however, urges that in view of the course of events appearing on the record the plaintiff is not entitled to any declaratory relief and that the same is barred by limitation under Art. 120, Limitation Act. He urges that even if knowledge of the wrong entries in the revenue records of the year 1920 did not furnish the plaintiff a cause of action since he was then a minor, there are a number of subsequent proceedings which indicate not only that he was perfectly well aware of his situation from at least the year 1928 but also that he throughout conducted himself in his relations with the respondent as an equal sharer and went so far as to become a party to a joint application for partition of the family properties in equal shares between himself and the defendant so late as in the year 1943.Exs. D-10 and D-12 dated 7-12-1928 Ex. D-1 dated 15-7-1937, Exs. A and B dated 26-2-1943, and Exs. D-5, D-6 and D-11 of the year 1944 have been relied on in support of the above contention. It is also pointed out that the averments made by the plaintiff in paras 5 and 6 of the plaint as to when the right to sue accrued and cause of action arose have not been substantiated in the evidence at the trial. It is urged, therefore, that whatever cause of action the plaintiff had or a declaratory relief, it was much more than six years prior to suit and that no fresh cause of action has been made out and that, therefore, the present suit is barred on this ground.6. But we notice that the above aspect has not at all been raised in the Courts below. There is no mention of it in the grounds of appeal to the High Court or in the case filed for the respondent in this court. The above mentioned facts were relied on in the courts below only to make out pleas of acquiescee, estoppel or ratification which have been found against. Besides, it appears from the record that when the issues were framed by the trial Court, it was expressly recorded as follows in a statement signed by counsel for both the parties."There is no other point in dispute or any issue to be framed. We give it up if a mention of it is made in the pleadings."In these circumstances it is too late to allow this point to be raised at this state.Besides, the plaintiff has a subsisting title and his legal right as three-fourth sharer has been denied at least in these proceedings. There is, therefore, no purpose served by dismissing this suit and by driving the parties to another litigation.7.
### Response:
1
### Explanation:
It is true that the various mutations were brought about by Kirpal Singh and that Wali Singh was a minor at the time to the knowledge of everybody concerned. It is also true that Kirpal Singh intended that Wali Singh should not have any share in his natural fathers property.But in terms, what appears to have been done was to get Wali Singh to make a declaration of relinquishment of his share in Shiv Singhs heritage. The recitals do not purport to be based on any transfer or relinquishment by Kirpal Singh as the guardian of Wali Singh. The purported release by the minor Wali Singh was absolutely infructuous in law. There being nothing by way of release by Kirpal Singh on behalf of Wali Singh, no case for the application of Article 44 of the Limitation Act arose. We are, therefore, of the opinion that the learned Judges of the High Court were in error in thinking that the plaintiffs suit was barred by virtue of Art. 44, Limitation Act.But we notice that the above aspect has not at all been raised in the Courts below. There is no mention of it in the grounds of appeal to the High Court or in the case filed for the respondent in this court. The above mentioned facts were relied on in the courts below only to make out pleas of acquiescee, estoppel or ratification which have been found against. Besides, it appears from the record that when the issues were framed by the trial Court, it was expressly recorded as follows in a statement signed by counsel for both the parties."There is no other point in dispute or any issue to be framed. We give it up if a mention of it is made in the pleadings."In these circumstances it is too late to allow this point to be raised at this state.Besides, the plaintiff has a subsisting title and his legal right assharer has been denied at least in these proceedings. There is, therefore, no purpose served by dismissing this suit and by driving the parties to another litigation.
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State Of U.P. Vs. M/S. Swadeshi Plytex Ltd. | placed on State financial corporations exercising their powers under section 29 of the State Financial Corporations Act, as prescribed in Mahesh Chandra v. Regional Manager, U.P.Financial Corpn. Are no longer in place in view of the subsequent decision in Haryana Financial Corpn. Vs. Jagdamba Oil Mills. However, in overruling the decision in Mahesh Chandra this Court has affirmed the view taken in Chairman and managing Director, SIPCOT v. Contromic (P) Ltd. and said that in the matter of sale under section 29, State financial corporations must act in accordance with the statute and must not act unfairly i.e. unreasonably. If they do, their action can be called into question under Article 226. Reasonableness is to be tested against the dominant consideration to secure the best price for the property to be sold. "This can be achieved only when there is a maximum public participation in the process of sale and everybody has an opportunity of making an offer. Public auction after adequate publicity ensures participation of every person who is interested in purchasing the property and generally secures the best price."Adequate publicity to ensure maximum participation of bidders in turn requires that a fair and practical period of time must be given to purchasers to effectively participate in the sale. Unless the subject-matter of sale is of such a nature which requires immediate disposal, an opportunity must be given to the possible purchaser who is required to purchase the property on "as-is-where-is basis" to inspect it and to give a considered offer with the necessary financial support to deposit the earnest money and pay the offered amount, if required." 15. We must, therefore, repel Mr. Dwivedis argument that as SPL had suffered no prejudice in the auction proceedings, the sale should not be interfered with. 16. There is yet another circumstance which vitiates sale. Rule 285-D of the Rules that 25% of the amount of the auction money shall be deposited at the fall of the hammer and the remaining 75% within 15 days. The case of the appellants is that the Bank draft for 7.80 Crores had been deposited by the auction purchasers on 2nd May 2005 i.e., the date of auction but the learned Single Judge has found that as the auction had been completed at 1.30 p.m., it would not have been possible to have received the Bank draft from Kanpur 460 km. away on that date. This finding appears to be correct. We also find that the balance 75% of the amount that had been deposited by various Bank drafts on 18th May 2005 was also beyond the 15 days permissible and the finding of the learned Single Judge based on the record is that though the drafts were dated 14th May 2005 but they had, in fact, had been handed over to the concerned authority only on the 18th May 2005. This Court in M.M.Shah vs. S.S.A.S.Mahamad & Anr. 1954 SCR 108 has held as under: "Having examined the language of the relevant rules and the judicial decisions bearing upon the subject we are of opinion that the provisions of the rules requiring the deposit of 25% of the purchase-money immediately on the person being declared as a purchaser and the payment of the balance within 15 days of the sale are mandatory and upon non-compliance with these provisions there is no sale at all. The rules do not contemplate that there can be any sale in favour of a purchaser without depositing 25% of the purchase-money in the first instance and the balance within 15 days. When there is no sale within the contemplation of these rules, there can be no question, of material irregularity in the conduct of the sale. Non-payment of the price on the part of the defaulting purchaser renders the sale proceedings as a complete nullity. The very fact that the Court is bound to re-sell the property in the event of a default shows that the previous proceedings for sale are completely wiped out as if they do not exist in the eye of law. We hold, therefore, that in the circumstances of the present case there was no sale and purchasers acquired no rights at all." 17. For this additional reason as well, the auction sale cannot be maintained. 18. In this view of the matter, we need not go into the argument raised by Mr. R.F. Nariman that in the facts of the case we should not entertain this matter in the exercise of the discretionary jurisdiction under Article 136 of the Constitution of India. 19. We also notice from the last paragraph of the judgment of the learned Single Judge appears to have been extremely annoyed with what he perceived to be gross irregularities on the part of the officers of the State Government connected with the sale of the property and he had accordingly directed as under: "Subject to above writ petition is allowed with cost quantifies to Rs.50,000/- Petitioner shall be entitled to withdraw Rs.25,000/- and rest of Rs.25,000/- shall be remitted to U.P. State Legal Services Authorities to utilize for providing legal aid to the litigants approaching Lucknow Bench of High Court. The cost shall be deposited within one month from today in this court by the District Magistrate, Ghaziabad. Registrar to ensure compliance. It shall be open for the State Government to recover the cost from the salary of the office/officers who are responsible to auction the property in question in such unruly manner by holding an inquiry.The Chief Secretary Government of U.P. is further directed to take appropriate action against the officers or employees who had acted in arbitrary manner while proceeding with the auction and sale of the property in question. Let a copy of the judgment be sent to the Chief Secretary, Govt. of U.P. by the office within a week for appropriate action." 20. We are of the opinion, however, that High Courts direction that action should be initiated against the concerned officers, is not justified and we | 0[ds]13. Shri Nariman, the learned senior counsel for the respondents, therefore, appears to be right in contending that the specific averments made by SPL in the writ petition have not been denied by the respondent and it was therefore open to SPL to contend that the property had not been properly valued and that the sum of Rs.27 crores represents not even half the market price.The question of valuation is to our mind of the utmost importance as it is designed to ensure the best price for the property and it is essential in this circumstance that wide publication and notice of the proposed sale should be given as per Rule 285-A which postulates a notice of 30 days between the date of issuance of the sale proclamation and the date of auction. It can hardly be over emphasized that the proper valuation of the property and wide publicity of the proposed auction is intimately linked with the price that the auction fetches. As already mentioned above, the auction had been held on 2nd May 2005. The sale proclamation had been issued on the 1st April 2005, and served on the Chowkidar on the 21st April 2005, the publication made in "Amar Ujala" on 22nd April 2005 whereas rule 285 itself postulates a notice period of 30 days to be counted from the date of issuance of the sale proclamation.There is yet another circumstance which vitiates sale. Rule 285-D of the Rules that 25% of the amount of the auction money shall be deposited at the fall of the hammer and the remaining 75% within 15 days. The case of the appellants is that the Bank draft for 7.80 Crores had been deposited by the auction purchasers on 2nd May 2005 i.e., the date of auction but the learned Single Judge has found that as the auction had been completed at 1.30 p.m., it would not have been possible to have received the Bank draft from Kanpur 460 km. away on that date. This finding appears to be correct. We also find that the balance 75% of the amount that had been deposited by various Bank drafts on 18th May 2005 was also beyond the 15 days permissible and the finding of the learned Single Judge based on the record is that though the drafts were dated 14th May 2005 but they had, in fact, had been handed over to the concerned authority only on the 18th. In this view of the matter, we need not go into the argument raised by Mr. R.F. Nariman that in the facts of the case we should not entertain this matter in the exercise of the discretionary jurisdiction under Article 136 of the Constitution of India.We are of the opinion, however, that High Courts direction that action should be initiated against the concerned officers, is not justified | 0 | 6,914 | 508 | ### 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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placed on State financial corporations exercising their powers under section 29 of the State Financial Corporations Act, as prescribed in Mahesh Chandra v. Regional Manager, U.P.Financial Corpn. Are no longer in place in view of the subsequent decision in Haryana Financial Corpn. Vs. Jagdamba Oil Mills. However, in overruling the decision in Mahesh Chandra this Court has affirmed the view taken in Chairman and managing Director, SIPCOT v. Contromic (P) Ltd. and said that in the matter of sale under section 29, State financial corporations must act in accordance with the statute and must not act unfairly i.e. unreasonably. If they do, their action can be called into question under Article 226. Reasonableness is to be tested against the dominant consideration to secure the best price for the property to be sold. "This can be achieved only when there is a maximum public participation in the process of sale and everybody has an opportunity of making an offer. Public auction after adequate publicity ensures participation of every person who is interested in purchasing the property and generally secures the best price."Adequate publicity to ensure maximum participation of bidders in turn requires that a fair and practical period of time must be given to purchasers to effectively participate in the sale. Unless the subject-matter of sale is of such a nature which requires immediate disposal, an opportunity must be given to the possible purchaser who is required to purchase the property on "as-is-where-is basis" to inspect it and to give a considered offer with the necessary financial support to deposit the earnest money and pay the offered amount, if required." 15. We must, therefore, repel Mr. Dwivedis argument that as SPL had suffered no prejudice in the auction proceedings, the sale should not be interfered with. 16. There is yet another circumstance which vitiates sale. Rule 285-D of the Rules that 25% of the amount of the auction money shall be deposited at the fall of the hammer and the remaining 75% within 15 days. The case of the appellants is that the Bank draft for 7.80 Crores had been deposited by the auction purchasers on 2nd May 2005 i.e., the date of auction but the learned Single Judge has found that as the auction had been completed at 1.30 p.m., it would not have been possible to have received the Bank draft from Kanpur 460 km. away on that date. This finding appears to be correct. We also find that the balance 75% of the amount that had been deposited by various Bank drafts on 18th May 2005 was also beyond the 15 days permissible and the finding of the learned Single Judge based on the record is that though the drafts were dated 14th May 2005 but they had, in fact, had been handed over to the concerned authority only on the 18th May 2005. This Court in M.M.Shah vs. S.S.A.S.Mahamad & Anr. 1954 SCR 108 has held as under: "Having examined the language of the relevant rules and the judicial decisions bearing upon the subject we are of opinion that the provisions of the rules requiring the deposit of 25% of the purchase-money immediately on the person being declared as a purchaser and the payment of the balance within 15 days of the sale are mandatory and upon non-compliance with these provisions there is no sale at all. The rules do not contemplate that there can be any sale in favour of a purchaser without depositing 25% of the purchase-money in the first instance and the balance within 15 days. When there is no sale within the contemplation of these rules, there can be no question, of material irregularity in the conduct of the sale. Non-payment of the price on the part of the defaulting purchaser renders the sale proceedings as a complete nullity. The very fact that the Court is bound to re-sell the property in the event of a default shows that the previous proceedings for sale are completely wiped out as if they do not exist in the eye of law. We hold, therefore, that in the circumstances of the present case there was no sale and purchasers acquired no rights at all." 17. For this additional reason as well, the auction sale cannot be maintained. 18. In this view of the matter, we need not go into the argument raised by Mr. R.F. Nariman that in the facts of the case we should not entertain this matter in the exercise of the discretionary jurisdiction under Article 136 of the Constitution of India. 19. We also notice from the last paragraph of the judgment of the learned Single Judge appears to have been extremely annoyed with what he perceived to be gross irregularities on the part of the officers of the State Government connected with the sale of the property and he had accordingly directed as under: "Subject to above writ petition is allowed with cost quantifies to Rs.50,000/- Petitioner shall be entitled to withdraw Rs.25,000/- and rest of Rs.25,000/- shall be remitted to U.P. State Legal Services Authorities to utilize for providing legal aid to the litigants approaching Lucknow Bench of High Court. The cost shall be deposited within one month from today in this court by the District Magistrate, Ghaziabad. Registrar to ensure compliance. It shall be open for the State Government to recover the cost from the salary of the office/officers who are responsible to auction the property in question in such unruly manner by holding an inquiry.The Chief Secretary Government of U.P. is further directed to take appropriate action against the officers or employees who had acted in arbitrary manner while proceeding with the auction and sale of the property in question. Let a copy of the judgment be sent to the Chief Secretary, Govt. of U.P. by the office within a week for appropriate action." 20. We are of the opinion, however, that High Courts direction that action should be initiated against the concerned officers, is not justified and we
### Response:
0
### Explanation:
13. Shri Nariman, the learned senior counsel for the respondents, therefore, appears to be right in contending that the specific averments made by SPL in the writ petition have not been denied by the respondent and it was therefore open to SPL to contend that the property had not been properly valued and that the sum of Rs.27 crores represents not even half the market price.The question of valuation is to our mind of the utmost importance as it is designed to ensure the best price for the property and it is essential in this circumstance that wide publication and notice of the proposed sale should be given as per Rule 285-A which postulates a notice of 30 days between the date of issuance of the sale proclamation and the date of auction. It can hardly be over emphasized that the proper valuation of the property and wide publicity of the proposed auction is intimately linked with the price that the auction fetches. As already mentioned above, the auction had been held on 2nd May 2005. The sale proclamation had been issued on the 1st April 2005, and served on the Chowkidar on the 21st April 2005, the publication made in "Amar Ujala" on 22nd April 2005 whereas rule 285 itself postulates a notice period of 30 days to be counted from the date of issuance of the sale proclamation.There is yet another circumstance which vitiates sale. Rule 285-D of the Rules that 25% of the amount of the auction money shall be deposited at the fall of the hammer and the remaining 75% within 15 days. The case of the appellants is that the Bank draft for 7.80 Crores had been deposited by the auction purchasers on 2nd May 2005 i.e., the date of auction but the learned Single Judge has found that as the auction had been completed at 1.30 p.m., it would not have been possible to have received the Bank draft from Kanpur 460 km. away on that date. This finding appears to be correct. We also find that the balance 75% of the amount that had been deposited by various Bank drafts on 18th May 2005 was also beyond the 15 days permissible and the finding of the learned Single Judge based on the record is that though the drafts were dated 14th May 2005 but they had, in fact, had been handed over to the concerned authority only on the 18th. In this view of the matter, we need not go into the argument raised by Mr. R.F. Nariman that in the facts of the case we should not entertain this matter in the exercise of the discretionary jurisdiction under Article 136 of the Constitution of India.We are of the opinion, however, that High Courts direction that action should be initiated against the concerned officers, is not justified
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Union of India Vs. Mackinnon Mackenzie and Company Limited | no distinction between the export of the goods and acquisition of character of export goods. The submission is not correct because the expression export goods merely means that the goods are ready for being taken outside India. As long as the goods are not actually taken out of India, it cannot be even suggested that the export is completed. The Assistant Collector, therefore, was perfectly justified in holding that the export had not taken place in respect of damaged sugar bags. Mr. Bulchandani submitted that even though the export has not taken place, once the shipping company filed bills of entry for home consumption, it must be assumed that the cargo which was sought to be cleared from custom barrier was imported goods. The learned Counsel fairly stated that the expression imported goods as defined in section 2 (25) of the Act, means goods brought into India from a place outside India. Mr. Bulchandani could not submit that the damaged sugar bags were brought from outside India but urged that as the damaged sugar bags had acquired characteristic of export goods, when such goods are brought for home consumption by filing a bill of entry, it must be concluded that such goods had acquired the character of goods imported from outside India. It is not permissible to make violence to the clear language of the statute and accept the contention of the department that the damaged sugar bags were imported goods. ( 13 ) MR. Bulchandani submitted that unless the damaged sugar bags were treated as imported goods, the customs authorities cannot recover countervailing duty. The countervailing duty is payable so as to offset the advantage which the imported goods may earn over the manufacture of local goods due to non-payment of excise duty. Mr. Bulchandani submitted that the sugar bags were permitted to be cleared from factory gate without payment of excise duty in view of the fact that the bags were to be exported outside India. It was urged that as the bags were not exported, the cargo had escaped payment of excise duty and in case the damaged sugar bags are not treated as imported goods, then the liability to pay countervailing duty will not arise. The apprehension of the learned Counsel that the manufacturer of sugar will escape payment of excise duty is ill founded because the liability to pay excise duty on the manufacture of sugar had accrued when the sugar was cleared from the factory gate by Indian Sugar Industry Export Corporation Limited. Mr. Bulchandani had to concede that the corporation had executed the requisite bond in favour of Collector of Excise and had undertaken to pay the excise duty in case the goods are not exported. It is, therefore, obvious that the Collector of Excise can enforce the bond and recover the excise duty and the claim of Mr. Bulchandani that the sugar had escaped duty because of failure to export is not correct. Mr. Bulchandani then submitted that the shipping company had acted as the agent of Indian Sugar Industry Export Corporation Limited and, as such, was liable to pay the amount of duty. Reliance was placed on letter dated June 2, 1980 addressed by the Corporation to the shipping company. The letter, inter alia, mentions that after shipment was effected, the Corporation had submitted proof of export to Maritime Collector of Central Excise, Bombay, and necessary credit in the bond account has been given. Relying on this averment in the letter, it was claimed that the Corporation had secured the advantage of non-payment of excise duty and, consequently, the shipping company must pay the said duty. The submission is devoid of any merit for more than one reason. In the first instance, Mr. Bulchandani could not explain why the Collector of Central Excise, Bombay, had given credit to the Corporation when the sugar was, in fact, not exported. Secondly, Mr. Bulchandani could not vouchsafe about the correctness of the averment made in the letter by the Corporation. The customs authorities had not bothered to ascertain from the Collector of Excise as to whether any credit was in fact given to the Corporation. Next, even assuming that the Collector of Excise had given erroneous credit to the Corporation, that would not transfer the liability to pay the excise duty from the Corporation to the shipping company. Mr. Bulchandani had to concede that the liability to pay the excise duty is solely of the manufacturer, but made a faint attempt to urge that the shipping company had stepped into the shoes of the Corporation. It was contended that the shipping company had taken lien in securing the report from the surveyors and had taken active interest in disposing of the damaged sugar bags. The submission that the shipping company was acting at the behest of the Corporation or as the agent of the Corporation is without any substance. The shipping company was required to take steps to mitigate the damages which the shipping company was required to pay to the Corporation for the damage caused to the sugar bags entrusted to the shipping company for export. The steps taken by the shipping company for mitigating the losses cannot lead to the conclusion that the shipping company was acting as the agent of the Corporation whose duty was to pay the excise duty. In our judgment, the recovery of countervailing duty from the shipping company was not justified as the assumption of the customs department that the cargo cleared for home consumption under bills of entry filed by the shipping company was imported goods was not correct. The customs authorities could not have recovered the excise duty from the shipping company as it was the sole liability of the manufacturers to pay the same. In our judgment, the action of the customs authorities in recovery of duty was without any authority of law and the order of the learned Single Judge directing the refund of the entire duty does not suffer from any infirmity. | 0[ds]The submission proceeds on the assumption that the sugar bags which were cleared by the shipping company for home consumption were imported goods. The assumption of the department that the sugar bags were imported goods is entirely incorrect and contrary to the statutoryis not in dispute that the requisite entry of goods contained in sugar bags was made for exportation under section 50 of the Act. It is equally not in dispute that while clearing the sugar bags from the factory gate, excise duty which is normally payable was not recoverable in view of the fact that the sugar was to be exported. It hardly requires to be stated that the liability to pay excise duty in respect of manufacture of sugar arises as soon as the goods are cleared from the factory gate and the liability stands differed when the goods are to be exported. The manufacturer, who is liable to pay excise duty, is required to execute a bond assuring that in case the goods are not exported for one reason or other, then the manufacturer will pay the requisite excise duty. It is not in dispute that Indian Sugar Industries Export Corporation Limited had executed such bond in respect of the goods which were to be exported. The officer had permitted clearance and loading of the goods for exportation in accordance with section 51 of the Act.It is impossible to accede to the submission. The expression export defined under the Act clearly means taking the goods out of India to a place outside India. It is not in dispute that the territorial water of India extends to limits of 12 nautical miles from Bombaysubmission is not correct because the expression export goods merely means that the goods are ready for being taken outside India. As long as the goods are not actually taken out of India, it cannot be even suggested that the export is completed. The Assistant Collector, therefore, was perfectly justified in holding that the export had not taken place in respect of damaged sugaris not permissible to make violence to the clear language of the statute and accept the contention of the department that the damaged sugar bags were importedis, therefore, obvious that the Collector of Excise can enforce the bond and recover the excise duty and the claim of Mr. Bulchandani that the sugar had escaped duty because of failure to export is notsubmission is devoid of any merit for more than one reason. In the first instance, Mr. Bulchandani could not explain why the Collector of Central Excise, Bombay, had given credit to the Corporation when the sugar was, in fact, not exported. Secondly, Mr. Bulchandani could not vouchsafe about the correctness of the averment made in the letter by the Corporation. The customs authorities had not bothered to ascertain from the Collector of Excise as to whether any credit was in fact given to the Corporation. Next, even assuming that the Collector of Excise had given erroneous credit to the Corporation, that would not transfer the liability to pay the excise duty from the Corporation to the shippingsubmission that the shipping company was acting at the behest of the Corporation or as the agent of the Corporation is without any substance. The shipping company was required to take steps to mitigate the damages which the shipping company was required to pay to the Corporation for the damage caused to the sugar bags entrusted to the shipping company for export. The steps taken by the shipping company for mitigating the losses cannot lead to the conclusion that the shipping company was acting as the agent of the Corporation whose duty was to pay the excise duty. In our judgment, the recovery of countervailing duty from the shipping company was not justified as the assumption of the customs department that the cargo cleared for home consumption under bills of entry filed by the shipping company was imported goods was not correct. The customs authorities could not have recovered the excise duty from the shipping company as it was the sole liability of the manufacturers to pay the same. In our judgment, the action of the customs authorities in recovery of duty was without any authority of law and the order of the learned Single Judge directing the refund of the entire duty does not suffer from any infirmity. | 0 | 5,115 | 770 | ### Instruction:
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no distinction between the export of the goods and acquisition of character of export goods. The submission is not correct because the expression export goods merely means that the goods are ready for being taken outside India. As long as the goods are not actually taken out of India, it cannot be even suggested that the export is completed. The Assistant Collector, therefore, was perfectly justified in holding that the export had not taken place in respect of damaged sugar bags. Mr. Bulchandani submitted that even though the export has not taken place, once the shipping company filed bills of entry for home consumption, it must be assumed that the cargo which was sought to be cleared from custom barrier was imported goods. The learned Counsel fairly stated that the expression imported goods as defined in section 2 (25) of the Act, means goods brought into India from a place outside India. Mr. Bulchandani could not submit that the damaged sugar bags were brought from outside India but urged that as the damaged sugar bags had acquired characteristic of export goods, when such goods are brought for home consumption by filing a bill of entry, it must be concluded that such goods had acquired the character of goods imported from outside India. It is not permissible to make violence to the clear language of the statute and accept the contention of the department that the damaged sugar bags were imported goods. ( 13 ) MR. Bulchandani submitted that unless the damaged sugar bags were treated as imported goods, the customs authorities cannot recover countervailing duty. The countervailing duty is payable so as to offset the advantage which the imported goods may earn over the manufacture of local goods due to non-payment of excise duty. Mr. Bulchandani submitted that the sugar bags were permitted to be cleared from factory gate without payment of excise duty in view of the fact that the bags were to be exported outside India. It was urged that as the bags were not exported, the cargo had escaped payment of excise duty and in case the damaged sugar bags are not treated as imported goods, then the liability to pay countervailing duty will not arise. The apprehension of the learned Counsel that the manufacturer of sugar will escape payment of excise duty is ill founded because the liability to pay excise duty on the manufacture of sugar had accrued when the sugar was cleared from the factory gate by Indian Sugar Industry Export Corporation Limited. Mr. Bulchandani had to concede that the corporation had executed the requisite bond in favour of Collector of Excise and had undertaken to pay the excise duty in case the goods are not exported. It is, therefore, obvious that the Collector of Excise can enforce the bond and recover the excise duty and the claim of Mr. Bulchandani that the sugar had escaped duty because of failure to export is not correct. Mr. Bulchandani then submitted that the shipping company had acted as the agent of Indian Sugar Industry Export Corporation Limited and, as such, was liable to pay the amount of duty. Reliance was placed on letter dated June 2, 1980 addressed by the Corporation to the shipping company. The letter, inter alia, mentions that after shipment was effected, the Corporation had submitted proof of export to Maritime Collector of Central Excise, Bombay, and necessary credit in the bond account has been given. Relying on this averment in the letter, it was claimed that the Corporation had secured the advantage of non-payment of excise duty and, consequently, the shipping company must pay the said duty. The submission is devoid of any merit for more than one reason. In the first instance, Mr. Bulchandani could not explain why the Collector of Central Excise, Bombay, had given credit to the Corporation when the sugar was, in fact, not exported. Secondly, Mr. Bulchandani could not vouchsafe about the correctness of the averment made in the letter by the Corporation. The customs authorities had not bothered to ascertain from the Collector of Excise as to whether any credit was in fact given to the Corporation. Next, even assuming that the Collector of Excise had given erroneous credit to the Corporation, that would not transfer the liability to pay the excise duty from the Corporation to the shipping company. Mr. Bulchandani had to concede that the liability to pay the excise duty is solely of the manufacturer, but made a faint attempt to urge that the shipping company had stepped into the shoes of the Corporation. It was contended that the shipping company had taken lien in securing the report from the surveyors and had taken active interest in disposing of the damaged sugar bags. The submission that the shipping company was acting at the behest of the Corporation or as the agent of the Corporation is without any substance. The shipping company was required to take steps to mitigate the damages which the shipping company was required to pay to the Corporation for the damage caused to the sugar bags entrusted to the shipping company for export. The steps taken by the shipping company for mitigating the losses cannot lead to the conclusion that the shipping company was acting as the agent of the Corporation whose duty was to pay the excise duty. In our judgment, the recovery of countervailing duty from the shipping company was not justified as the assumption of the customs department that the cargo cleared for home consumption under bills of entry filed by the shipping company was imported goods was not correct. The customs authorities could not have recovered the excise duty from the shipping company as it was the sole liability of the manufacturers to pay the same. In our judgment, the action of the customs authorities in recovery of duty was without any authority of law and the order of the learned Single Judge directing the refund of the entire duty does not suffer from any infirmity.
### Response:
0
### Explanation:
The submission proceeds on the assumption that the sugar bags which were cleared by the shipping company for home consumption were imported goods. The assumption of the department that the sugar bags were imported goods is entirely incorrect and contrary to the statutoryis not in dispute that the requisite entry of goods contained in sugar bags was made for exportation under section 50 of the Act. It is equally not in dispute that while clearing the sugar bags from the factory gate, excise duty which is normally payable was not recoverable in view of the fact that the sugar was to be exported. It hardly requires to be stated that the liability to pay excise duty in respect of manufacture of sugar arises as soon as the goods are cleared from the factory gate and the liability stands differed when the goods are to be exported. The manufacturer, who is liable to pay excise duty, is required to execute a bond assuring that in case the goods are not exported for one reason or other, then the manufacturer will pay the requisite excise duty. It is not in dispute that Indian Sugar Industries Export Corporation Limited had executed such bond in respect of the goods which were to be exported. The officer had permitted clearance and loading of the goods for exportation in accordance with section 51 of the Act.It is impossible to accede to the submission. The expression export defined under the Act clearly means taking the goods out of India to a place outside India. It is not in dispute that the territorial water of India extends to limits of 12 nautical miles from Bombaysubmission is not correct because the expression export goods merely means that the goods are ready for being taken outside India. As long as the goods are not actually taken out of India, it cannot be even suggested that the export is completed. The Assistant Collector, therefore, was perfectly justified in holding that the export had not taken place in respect of damaged sugaris not permissible to make violence to the clear language of the statute and accept the contention of the department that the damaged sugar bags were importedis, therefore, obvious that the Collector of Excise can enforce the bond and recover the excise duty and the claim of Mr. Bulchandani that the sugar had escaped duty because of failure to export is notsubmission is devoid of any merit for more than one reason. In the first instance, Mr. Bulchandani could not explain why the Collector of Central Excise, Bombay, had given credit to the Corporation when the sugar was, in fact, not exported. Secondly, Mr. Bulchandani could not vouchsafe about the correctness of the averment made in the letter by the Corporation. The customs authorities had not bothered to ascertain from the Collector of Excise as to whether any credit was in fact given to the Corporation. Next, even assuming that the Collector of Excise had given erroneous credit to the Corporation, that would not transfer the liability to pay the excise duty from the Corporation to the shippingsubmission that the shipping company was acting at the behest of the Corporation or as the agent of the Corporation is without any substance. The shipping company was required to take steps to mitigate the damages which the shipping company was required to pay to the Corporation for the damage caused to the sugar bags entrusted to the shipping company for export. The steps taken by the shipping company for mitigating the losses cannot lead to the conclusion that the shipping company was acting as the agent of the Corporation whose duty was to pay the excise duty. In our judgment, the recovery of countervailing duty from the shipping company was not justified as the assumption of the customs department that the cargo cleared for home consumption under bills of entry filed by the shipping company was imported goods was not correct. The customs authorities could not have recovered the excise duty from the shipping company as it was the sole liability of the manufacturers to pay the same. In our judgment, the action of the customs authorities in recovery of duty was without any authority of law and the order of the learned Single Judge directing the refund of the entire duty does not suffer from any infirmity.
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Ram Bachan Lal Vs. State of Bihar & Another | municipality, and to extend to it all or any of the provisions of this Act. (b) When the State Government is satisfied that any municipality, or any area in a municipality, does not fulfil the conditions specified in clause (a), or when the Commissioners at a meeting have made a recommendation in this behalf, the State Government may declare its intention to withdraw such municipality from the operation of this Act, or to exclude such area from such municipality. It would be noticed that S. 4(1) contemplates a town containing not less than five thousand inhabitants and a town of a particular density of population, and further that three-fourths of the adult male population should be engaged in pursuits other than agriculture. Now, these requirements show that the area has reached such a stage of development that the Government should constitute a municipality in the area. Section 388 would come into the picture only if the requirements of S. 4 are not satisfied but yet the Government considers it necessary to make administrative provisions for all or any of the purposes of this Act. In our opinion, this gives sufficient guidance to the Government and thus no arbitrary power has been conferred on the Government 11. Coming to the second point, S. 82 is challenged on various grounds. First, it is said that the proviso to S. 82 (1)(ff) enables the Government to exempt any classes of profession, trades or callings from the tax, without giving any guidance as to which classes should be exempted. We do not find it necessary to deal with this academic point because, first, the Government has not exercised this power and, secondly, even if we were to hold this proviso to be violative of Art. 14, it would he severable and would not give any relief to the petitioner. The second ground of attack is that the rate of tax to be levied has been left to the discretion of the Commissioners under S. 82(1)(ff) and of the Government under proviso (iv) to S. 82(1) without giving any guidance as to the amount of tax. We see no force in this contention. Schedule IV specifies the maximum amount of tax that can be levied and Section 150D lays down the purposes for which the tax can be utilised. This, in our view, gives sufficient guidance to the Commissioners of the State Government to fix the rate of tax. In The Corporation of Calcutta v. Liberty Cinema, (1965) 2 SCR 477 : (AIR 1965 SC 1107 ) this Court, by majority, upheld the validity of S. 548 of the Calcutta Municipal Act. Speaking for the majority, Sarkar J., as he then was, observed:"It seems to us that there are various decisions of this Court which support the proposition that for a statutory provision for raising revenue for the purposes of the delegate, as the section now under consideration is, the needs of the taxing body for carrying out its functions under the statute for which alone the taxing power was conferred on it, may afford sufficient guidance to make the power to fix the rate of tax valid." In view of these observations it is clear that S. 150 A gives sufficient guidance to the Commissioners and the State Government to fix the rate of taxation. 12. Mr. Sen then urged that proviso (iv) to S. 82(1) is void because it does not give any indication as to the circumstances under which the Government should direct the Commissioners to levy the tax under Section 82(1)(ff). It seems to us that the Government will only direct the Commissioners to levy the tax if the Commissioners do not carry out their duty properly. Chapter XIII of the Act, which has been applied to the Notified Areas, confers powers of control on the State Government over the Notified Areas and the Government would only act under proviso (iv) to S. 82(1) if it is necessary in view of the circumstances of the case. 13. Mr. B. Sen then argued that the Act does not lay down proper procedure for the assessment and the determination of the tax. We see no force in this contention. We have already set out the explanations to S. 150 A. Explanation (1) clearly provides that if a person is assessable to income-tax under the Indian Income-tax Act, 1922, his taxable income would be determined according to the provisions of the Indian Income-tax Act, and if he is not assessable his taxable income would be computed as far as may be in accordance with the procedure laid down in the said Act 14. Some complaint was made about Explanation (2) that unnecessary burden was being placed on the person, liable to tax, but we are unable to appreciate this point. The assessee has only to produce the order from the assessing authorities to establish the amount of this taxable income. 15. The last complaint was that no appeals or references are provided in the Act and the only remedy of an assessee who was aggrieved by the assessment is to file a review under S. 150E. In the circumstances we consider that S. 150E gives a reasonable remedy to an aggrieved person. Sub-section (2) of S. 150E directs that the application has to be heard and determined in accordance with the procedure laid down in Sections 115, 117, 118 and 119. These sections have been applied to the Notified Area Committees. Under S. 117 a review would be heard by a Committee consisting of not less than three Commissioners and the Committee is further entitled to take evidence and to make such enquiries as it deems necessary. The subject matter of Profession Tax is not very complicated and in our view, the procedure provided for the assessment and review is reasonable. 16. We may mention that similar points were raised before the Patna High Court and the High Court rejected them in Rohtas Industries Ltd., Dalmianagar v. State of Bihar, 1965 BLJR 886. 17. | 0[ds]Coming to the second point, S. 82 is challenged on various grounds. First, it is said that the proviso to S. 82 (1)(ff) enables the Government to exempt any classes of profession, trades or callings from the tax, without giving any guidance as to which classes should be exempted. We do not find it necessary to deal with this academic point because, first, the Government has not exercised this power and, secondly, even if we were to hold this proviso to be violative of Art. 14, it would he severable and would not give any relief to the petitioner. The second ground of attack is that the rate of tax to be levied has been left to the discretion of the Commissioners under S. 82(1)(ff) and of the Government under proviso (iv) to S. 82(1) without giving any guidance as to the amount of tax. We see no force in this contention. Schedule IV specifies the maximum amount of tax that can be levied and Section 150D lays down the purposes for which the tax can be utilised. This, in our view, gives sufficient guidance to the Commissioners of the State Government to fix the rate of taxIt seems to us that the Government will only direct the Commissioners to levy the tax if the Commissioners do not carry out their duty properly. Chapter XIII of the Act, which has been applied to the Notified Areas, confers powers of control on the State Government over the Notified Areas and the Government would only act under proviso (iv) to S. 82(1) if it is necessary in view of the circumstances of the caseIt seems to us that the Government will only direct the Commissioners to levy the tax if the Commissioners do not carry out their duty properly. Chapter XIII of the Act, which has been applied to the Notified Areas, confers powers of control on the State Government over the Notified Areas and the Government would only act under proviso (iv) to S. 82(1) if it is necessary in view of the circumstances of the caseWe see no force in this contention. We have already set out the explanations to S. 150 A. Explanation (1) clearly provides that if a person is assessable to income-tax under the Indian Income-tax Act, 1922, his taxable income would be determined according to the provisions of the Indian Income-tax Act, and if he is not assessable his taxable income would be computed as far as may be in accordance with the procedure laid down in the said ActSome complaint was made about Explanation (2) that unnecessary burden was being placed on the person, liable to tax, but we are unable to appreciate this point. The assessee has only to produce the order from the assessing authorities to establish the amount of this taxable incomeThe last complaint was that no appeals or references are provided in the Act and the only remedy of an assessee who was aggrieved by the assessment is to file a review under S. 150E. In the circumstances we consider that S. 150E gives a reasonable remedy to an aggrieved person. Sub-section (2) of S. 150E directs that the application has to be heard and determined in accordance with the procedure laid down in Sections 115, 117, 118 and 119. These sections have been applied to the Notified Area Committees. Under S. 117 a review would be heard by a Committee consisting of not less than three Commissioners and the Committee is further entitled to take evidence and to make such enquiries as it deems necessary. The subject matter of Profession Tax is not very complicated and in our view, the procedure provided for the assessment and review is reasonable. | 0 | 3,277 | 696 | ### Instruction:
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municipality, and to extend to it all or any of the provisions of this Act. (b) When the State Government is satisfied that any municipality, or any area in a municipality, does not fulfil the conditions specified in clause (a), or when the Commissioners at a meeting have made a recommendation in this behalf, the State Government may declare its intention to withdraw such municipality from the operation of this Act, or to exclude such area from such municipality. It would be noticed that S. 4(1) contemplates a town containing not less than five thousand inhabitants and a town of a particular density of population, and further that three-fourths of the adult male population should be engaged in pursuits other than agriculture. Now, these requirements show that the area has reached such a stage of development that the Government should constitute a municipality in the area. Section 388 would come into the picture only if the requirements of S. 4 are not satisfied but yet the Government considers it necessary to make administrative provisions for all or any of the purposes of this Act. In our opinion, this gives sufficient guidance to the Government and thus no arbitrary power has been conferred on the Government 11. Coming to the second point, S. 82 is challenged on various grounds. First, it is said that the proviso to S. 82 (1)(ff) enables the Government to exempt any classes of profession, trades or callings from the tax, without giving any guidance as to which classes should be exempted. We do not find it necessary to deal with this academic point because, first, the Government has not exercised this power and, secondly, even if we were to hold this proviso to be violative of Art. 14, it would he severable and would not give any relief to the petitioner. The second ground of attack is that the rate of tax to be levied has been left to the discretion of the Commissioners under S. 82(1)(ff) and of the Government under proviso (iv) to S. 82(1) without giving any guidance as to the amount of tax. We see no force in this contention. Schedule IV specifies the maximum amount of tax that can be levied and Section 150D lays down the purposes for which the tax can be utilised. This, in our view, gives sufficient guidance to the Commissioners of the State Government to fix the rate of tax. In The Corporation of Calcutta v. Liberty Cinema, (1965) 2 SCR 477 : (AIR 1965 SC 1107 ) this Court, by majority, upheld the validity of S. 548 of the Calcutta Municipal Act. Speaking for the majority, Sarkar J., as he then was, observed:"It seems to us that there are various decisions of this Court which support the proposition that for a statutory provision for raising revenue for the purposes of the delegate, as the section now under consideration is, the needs of the taxing body for carrying out its functions under the statute for which alone the taxing power was conferred on it, may afford sufficient guidance to make the power to fix the rate of tax valid." In view of these observations it is clear that S. 150 A gives sufficient guidance to the Commissioners and the State Government to fix the rate of taxation. 12. Mr. Sen then urged that proviso (iv) to S. 82(1) is void because it does not give any indication as to the circumstances under which the Government should direct the Commissioners to levy the tax under Section 82(1)(ff). It seems to us that the Government will only direct the Commissioners to levy the tax if the Commissioners do not carry out their duty properly. Chapter XIII of the Act, which has been applied to the Notified Areas, confers powers of control on the State Government over the Notified Areas and the Government would only act under proviso (iv) to S. 82(1) if it is necessary in view of the circumstances of the case. 13. Mr. B. Sen then argued that the Act does not lay down proper procedure for the assessment and the determination of the tax. We see no force in this contention. We have already set out the explanations to S. 150 A. Explanation (1) clearly provides that if a person is assessable to income-tax under the Indian Income-tax Act, 1922, his taxable income would be determined according to the provisions of the Indian Income-tax Act, and if he is not assessable his taxable income would be computed as far as may be in accordance with the procedure laid down in the said Act 14. Some complaint was made about Explanation (2) that unnecessary burden was being placed on the person, liable to tax, but we are unable to appreciate this point. The assessee has only to produce the order from the assessing authorities to establish the amount of this taxable income. 15. The last complaint was that no appeals or references are provided in the Act and the only remedy of an assessee who was aggrieved by the assessment is to file a review under S. 150E. In the circumstances we consider that S. 150E gives a reasonable remedy to an aggrieved person. Sub-section (2) of S. 150E directs that the application has to be heard and determined in accordance with the procedure laid down in Sections 115, 117, 118 and 119. These sections have been applied to the Notified Area Committees. Under S. 117 a review would be heard by a Committee consisting of not less than three Commissioners and the Committee is further entitled to take evidence and to make such enquiries as it deems necessary. The subject matter of Profession Tax is not very complicated and in our view, the procedure provided for the assessment and review is reasonable. 16. We may mention that similar points were raised before the Patna High Court and the High Court rejected them in Rohtas Industries Ltd., Dalmianagar v. State of Bihar, 1965 BLJR 886. 17.
### Response:
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### Explanation:
Coming to the second point, S. 82 is challenged on various grounds. First, it is said that the proviso to S. 82 (1)(ff) enables the Government to exempt any classes of profession, trades or callings from the tax, without giving any guidance as to which classes should be exempted. We do not find it necessary to deal with this academic point because, first, the Government has not exercised this power and, secondly, even if we were to hold this proviso to be violative of Art. 14, it would he severable and would not give any relief to the petitioner. The second ground of attack is that the rate of tax to be levied has been left to the discretion of the Commissioners under S. 82(1)(ff) and of the Government under proviso (iv) to S. 82(1) without giving any guidance as to the amount of tax. We see no force in this contention. Schedule IV specifies the maximum amount of tax that can be levied and Section 150D lays down the purposes for which the tax can be utilised. This, in our view, gives sufficient guidance to the Commissioners of the State Government to fix the rate of taxIt seems to us that the Government will only direct the Commissioners to levy the tax if the Commissioners do not carry out their duty properly. Chapter XIII of the Act, which has been applied to the Notified Areas, confers powers of control on the State Government over the Notified Areas and the Government would only act under proviso (iv) to S. 82(1) if it is necessary in view of the circumstances of the caseIt seems to us that the Government will only direct the Commissioners to levy the tax if the Commissioners do not carry out their duty properly. Chapter XIII of the Act, which has been applied to the Notified Areas, confers powers of control on the State Government over the Notified Areas and the Government would only act under proviso (iv) to S. 82(1) if it is necessary in view of the circumstances of the caseWe see no force in this contention. We have already set out the explanations to S. 150 A. Explanation (1) clearly provides that if a person is assessable to income-tax under the Indian Income-tax Act, 1922, his taxable income would be determined according to the provisions of the Indian Income-tax Act, and if he is not assessable his taxable income would be computed as far as may be in accordance with the procedure laid down in the said ActSome complaint was made about Explanation (2) that unnecessary burden was being placed on the person, liable to tax, but we are unable to appreciate this point. The assessee has only to produce the order from the assessing authorities to establish the amount of this taxable incomeThe last complaint was that no appeals or references are provided in the Act and the only remedy of an assessee who was aggrieved by the assessment is to file a review under S. 150E. In the circumstances we consider that S. 150E gives a reasonable remedy to an aggrieved person. Sub-section (2) of S. 150E directs that the application has to be heard and determined in accordance with the procedure laid down in Sections 115, 117, 118 and 119. These sections have been applied to the Notified Area Committees. Under S. 117 a review would be heard by a Committee consisting of not less than three Commissioners and the Committee is further entitled to take evidence and to make such enquiries as it deems necessary. The subject matter of Profession Tax is not very complicated and in our view, the procedure provided for the assessment and review is reasonable.
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K.V.S.Ram Vs. Bangalore Metropolitan Transport Corp | court or tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however, grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised. (Emphasis supplied) 13. In the case of Iswarlal Mohanlal Thakkar vs. Paschim Gujarat Vij Company Ltd. & Anr., (2004) 6 SCC 434, it was held as under:- 15. We find the judgment and award of the labour court well reasoned and based on facts and evidence on record. The High Court has erred in its exercise of power under Article 227 of the Constitution of India to annul the findings of the labour court in its award as it is well settled law that the [pic]High Court cannot exercise its power under Article 227 of the Constitution as an appellate court or reappreciate evidence and record its findings on the contentious points. Only if there is a serious error of law or the findings recorded suffer from error apparent on record, can the High Court quash the order of a lower court. The Labour Court in the present case has satisfactorily exercised its original jurisdiction and properly appreciated the facts and legal evidence on record and given a well reasoned order and answered the points of dispute in favour of the appellant. The High Court had no reason to interfere with the same as the award of the Labour Court was based on sound and cogent reasoning, which has served the ends of justice. 16. It is relevant to mention that in Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 8 SCC 329 with regard to the limitations of the High Court to exercise its jurisdiction under Article 227, it was held in para 49 that: (SCC p. 348) 49. (m) ... The power of interference under [Article 227] is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. It was also held that: (SCC p. 347, para 49) 49. (c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it. 14. Emphasizing that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution of India, Courts are to keep in view the goals set out in the Preamble and in Part IV of the Constitution while construing social welfare legislations, in Harjinder Singh vs. Punjab State Warehousing Corporation, (2010) 3 SCC 192 , this Court has held as under: 21. Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty-bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the Preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43-A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to subserve the common good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J. opined that: 10. ...The concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State. (State of Mysore v. Workers of Gold Mines, AIR 1958 SC 923 at page 928 para 10) 15. Once the Labour Court has exercised the discretion judicially, the High Court can interfere with the award, only if it is satisfied that the award of the Labour Court is vitiated by any fundamental flaws. We do not find that the award passed by the Labour Court suffers from any such flaws. While interfering with the award of the Labour Court, the High Court did not keep in view the parameters laid down by this Court for exercise of jurisdiction by the High Court under Articles 226 and/or 227 of the Constitution of India and the impugned judgment cannot be sustained. | 1[ds]9. The appellant joined the services of the corporation in the year 1985. In the year 1990, charges were framed against the appellant alleging that he had secured appointment by producing a false certificate and enquiry was initiated in the year 1992 and the Enquiry Officer submitted his report only in the year 2002, nearly twelve years after framing of charges. Even though the Enquiry Officer submitted his report on 13.3.2002, order of dismissal from service was passed only on 1.10.2004Enquiry report was thus submitted after a lapse of twelve years and there was a delay of twelve years in conducting and completing the enquiry. As pointed out by the Labour Court, there was no plausible explanation for such inordinate delay in completing the enquiry. The appellant continued in service from 1990 to 2004. Having allowed the appellant-workman to work for fourteen years, by the time punishment of dismissal from service was imposed on the appellant, the appellant had reached the age of forty five years. As observed by the Labour Court, the appellant having crossed forty five years, he could not have sought for alternative employment. Further, as seen from Exs. W.5 to W.11, similarly placed workmen were ordered to be reinstated with lesser punishment of stoppage of few increments. While so, there is no reason as to why for the similar misconduct the appellant should be imposed harsh punishment of dismissal from service10. It is settled proposition of law that while considering the managements decision to dismiss or terminate the services of a workman, the Labour Court can interfere with the decision of the management only when it is satisfied that the punishment imposed by the management is highly disproportionate to the degree of guilt of the workman concerned. Considering the delay in completing the enquiry and the age of the appellant and the fact that similarly situated workmen were reinstated with lesser punishment, the Labour Court ordered reinstatement, in exercise of its discretion under Section 11A of the Industrial Disputes Act15. Once the Labour Court has exercised the discretion judicially, the High Court can interfere with the award, only if it is satisfied that the award of the Labour Court is vitiated by any fundamental flaws. We do not find that the award passed by the Labour Court suffers from any such flaws. While interfering with the award of the Labour Court, the High Court did not keep in view the parameters laid down by this Court for exercise of jurisdiction by the High Court under Articles 226 and/or 227 of the Constitution of India and the impugned judgment cannot be sustained. | 1 | 2,721 | 473 | ### Instruction:
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court or tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however, grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised. (Emphasis supplied) 13. In the case of Iswarlal Mohanlal Thakkar vs. Paschim Gujarat Vij Company Ltd. & Anr., (2004) 6 SCC 434, it was held as under:- 15. We find the judgment and award of the labour court well reasoned and based on facts and evidence on record. The High Court has erred in its exercise of power under Article 227 of the Constitution of India to annul the findings of the labour court in its award as it is well settled law that the [pic]High Court cannot exercise its power under Article 227 of the Constitution as an appellate court or reappreciate evidence and record its findings on the contentious points. Only if there is a serious error of law or the findings recorded suffer from error apparent on record, can the High Court quash the order of a lower court. The Labour Court in the present case has satisfactorily exercised its original jurisdiction and properly appreciated the facts and legal evidence on record and given a well reasoned order and answered the points of dispute in favour of the appellant. The High Court had no reason to interfere with the same as the award of the Labour Court was based on sound and cogent reasoning, which has served the ends of justice. 16. It is relevant to mention that in Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 8 SCC 329 with regard to the limitations of the High Court to exercise its jurisdiction under Article 227, it was held in para 49 that: (SCC p. 348) 49. (m) ... The power of interference under [Article 227] is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. It was also held that: (SCC p. 347, para 49) 49. (c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it. 14. Emphasizing that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution of India, Courts are to keep in view the goals set out in the Preamble and in Part IV of the Constitution while construing social welfare legislations, in Harjinder Singh vs. Punjab State Warehousing Corporation, (2010) 3 SCC 192 , this Court has held as under: 21. Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty-bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the Preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43-A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to subserve the common good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J. opined that: 10. ...The concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State. (State of Mysore v. Workers of Gold Mines, AIR 1958 SC 923 at page 928 para 10) 15. Once the Labour Court has exercised the discretion judicially, the High Court can interfere with the award, only if it is satisfied that the award of the Labour Court is vitiated by any fundamental flaws. We do not find that the award passed by the Labour Court suffers from any such flaws. While interfering with the award of the Labour Court, the High Court did not keep in view the parameters laid down by this Court for exercise of jurisdiction by the High Court under Articles 226 and/or 227 of the Constitution of India and the impugned judgment cannot be sustained.
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9. The appellant joined the services of the corporation in the year 1985. In the year 1990, charges were framed against the appellant alleging that he had secured appointment by producing a false certificate and enquiry was initiated in the year 1992 and the Enquiry Officer submitted his report only in the year 2002, nearly twelve years after framing of charges. Even though the Enquiry Officer submitted his report on 13.3.2002, order of dismissal from service was passed only on 1.10.2004Enquiry report was thus submitted after a lapse of twelve years and there was a delay of twelve years in conducting and completing the enquiry. As pointed out by the Labour Court, there was no plausible explanation for such inordinate delay in completing the enquiry. The appellant continued in service from 1990 to 2004. Having allowed the appellant-workman to work for fourteen years, by the time punishment of dismissal from service was imposed on the appellant, the appellant had reached the age of forty five years. As observed by the Labour Court, the appellant having crossed forty five years, he could not have sought for alternative employment. Further, as seen from Exs. W.5 to W.11, similarly placed workmen were ordered to be reinstated with lesser punishment of stoppage of few increments. While so, there is no reason as to why for the similar misconduct the appellant should be imposed harsh punishment of dismissal from service10. It is settled proposition of law that while considering the managements decision to dismiss or terminate the services of a workman, the Labour Court can interfere with the decision of the management only when it is satisfied that the punishment imposed by the management is highly disproportionate to the degree of guilt of the workman concerned. Considering the delay in completing the enquiry and the age of the appellant and the fact that similarly situated workmen were reinstated with lesser punishment, the Labour Court ordered reinstatement, in exercise of its discretion under Section 11A of the Industrial Disputes Act15. Once the Labour Court has exercised the discretion judicially, the High Court can interfere with the award, only if it is satisfied that the award of the Labour Court is vitiated by any fundamental flaws. We do not find that the award passed by the Labour Court suffers from any such flaws. While interfering with the award of the Labour Court, the High Court did not keep in view the parameters laid down by this Court for exercise of jurisdiction by the High Court under Articles 226 and/or 227 of the Constitution of India and the impugned judgment cannot be sustained.
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B. N. Mutto & Anr Vs. T. K. Nandi | possession of the premises on the grounds specified in Clause (e) of the Proviso to Sub-section (1) of Section 14 or Section 14A. Under Section 14A(1)(e) the tenant may (1)(1977) 3 SCR 372 may resist the application on the grounds specified namely, that the premises are not let for residential purposes, that they are not required. So far as the fact which would disentitled the landlord from obtaining an order under Section 14A are concerned they can only be that the landlord is not a person in acception of residential premises allotted to him by the Central Government or that a general or special order has been made by the Government requiring him to vacate such residential accommodation on the terms specified in the section. Leave to contest an application under Section 14A(1) cannot be said to be analogous to the provisions of grant of leave to defend as envisaged in the Civil Procedure Code. Order XXXVII, Rule 2, Sub-rule (3), of the Code of Civil Procedure provides that the defendant shall not appear or defend the suit unless he obtains leave from a Judge as hereinafter provided so to appear and defend. Sub-rule (1) of Rule 3 of Order XXXVII lays down the procedure to obtain leave. Under the provisions leave to appear and defend the suit is to be given if the affidavit discloses such facts as would make incumbent on the holder to prove consideration or such other facts as the Court may laid down sufficient to support the application. The scope of Section 25B(5) is very restricted for the leave to contest can only be given if the facts are such as would disentitle the landlord from obtaining an order for recovery of possession on the ground specified in Section 14A. 18. The learned counsel for the tenant submitted that the requirements of Section 14(1)(e) should also be satisfied before the landlord could take advantage of the procedure provided under Section 25B. The learned counsel drew our attention to Section 25C(1) and Section 25C(2) and submitted that the reading of these two Sub-sections would indicate that before an eviction could be ordered under and application under Section 14A(1) the requirement of Sections 14(6) and (7) should be satisfied. While Section 14(1) enumerates the grounds on which the landlord can get a decree for recovery of possession against a tenant Sub-sections (2) to (11) place certain restrictions. Sub-section (2) provides restriction as to right for recovery of possession under Section 14(1)(e). Restriction regarding the right to recover possession under Clause(e) is laid down in Sub-sections (6) and (7) of Section 14. Section 14(6) states that where a landlord acquired any premises by transfer no application for recovery of possession shall lie under Sub-section (1) on the ground specified in Clause(e) of the proviso the rate, unless as a period of five years has elapsed from the date of the acquisition. Sub-section (7) to Section 14 lays down that where an order for the recovery of possession of any premises is made on the ground specified in Clause(e) of the proviso to Sub-section (1), the landlord shall not be entitle to obtain possession thereof before the expiration of a period of six months from the date of the order. Section 25C makes an exception to the requirement of Section 14(6) to the effect that where a landlord is in occupation of any residential premises allotted to him by the Central Government or any local authority and who fulfils the requirement of Section 14A(1) the requirement under Section 14(6) that he would not be entitled to possession unless a period of five years has elapsed from the date of his acquisition of the premises is not applicable. In other words, he can straightway obtain possession without the impediment deposed under Section 14(6). Great stress was laid by the learned counsel for the tenant on Section 25C(2) which provides that is in the case of a landlord who, being a person of the category specified in Sub-section (), has obtained, on the ground specified in Clause(e) of the proviso to Sub-section (1) of Section 14, or under Section 14-A, an order for the eviction of a tenant from any premises, the provisions of Sub-section (7) of Section 14 shall have effect as if for the words ?six months?, occurring therein, the words ?two months? were substituted. The contention was that if Section 14A(1) stood by itself and if a landlord applying under Section 14A(1) would straightaway get the possession after tenant cannot contest the suit on the grounds specified in Section 25B(3) there is no need for mentioning the provisions of Section 14(1)(6) and Section 14(1)(7) and prescribing a lesser period for a prescribed period under Section 14(7). In other words, the submission was that an application for possession under Section 14A should also satisfy the requirements of Section 14(1)(a). The provisions of Section 25B and 25C are applicable to both applications under Section 14(1)(e) and under Section 14A. Applications under Section 14(1)(e) are governed by Section 14(6) and Section 17(7). By introduction of Section 25C the condition imposed in Section 14(6) in made not applicable to persons who satisfy the requirements under Section 14A meaning thereby that this restriction will be applicable only to an application under Section 14(1)(a). Section 25C(2) makes it clear that not only in the case of an application under Section 14(1)(e) but also under Section 14A the term of six months prescribed in Section 14(7) is reduced to two months. The reason for specifying the period of two months in the case of Section 14A would be entitled to possession immediately. By prescribing a specific period of two months under Section 25C(2) it is made clear that even an applicant under Section 14A would have to satisfy the condition laid down Section 25C i.e. a period of two months should elapse before the landlord is satisfied to obtain possession from the date of an order for recovery of possession. The submission also fails. 19. | 1[ds]In order to appreciate the point that arises for consideration it is necessary to refer to the relevant provisions of the Delhi Rent Control Act. Delhi Rent Control Act (Act 59 of 1958) came into force on 31st December, 1958. By Chapter III the right of the landlord to evict the tenant was restricted, Section 14 prohibited any order or decree for recovery of possession of any of the premises being made by any Court in favour of a landlord except under certain circumstances. The landlord was required to make an application to the Controller for recovery of the possession on one of the grounds mentioned in Sub-clauses (a) to (1) in Section 14(1)A reading of Section 14A discloses that a right to recover immediate possession of premises accrues to certain persons if the requisite conditions are satisfied. The conditions are: (1) the landlord must be in occupation of any residential premises allotted to him by the Central Government or any local authority; (2) such landlord is required by a general or special order made by the Government or authority to vacate such residential accommodation or in default to incur certain obligations on the ground that he owns in the Union Territory of Delhi a residential accommodation either in his own name or in the name of his wife or dependant child. If the aforesaid conditions are satisfied a right shall accrue to such a landlord on and from the date of such order to recover immediate possession of any premises let out by him. It may be noted that the section does not require that the person who is in occupation of the premises allotted by the Government should be a Government servant. It is necessary that the person is required by the Government or authority to vacate such accommodation imposing certain consequences in the event of his not vacating. The policy decision taken by the Government on 9th September, 1975 only related to Government servants who were in occupation of premises allotted to them by the Government. If the Government servant had another house in the locality he was to vacate within 3 months from the 1st October, 1975. This general order no doubt relates only to Government servants. After the decision was taken it was realised that some provisions should be made to enable the persons in occupation of buildings allotted to them by the Government to get possession of the houses they own but have been let to tenants. In order to enable them to get possession of the premises let by them expeditiously Section 14A(1) was enacted and the expeditious procedure under Section 25B was made applicable. It may also be noted that the order served on landlord on 9th December, 1975 mentions that all Government officials who own houses in Delhi and have also been allotted Government residence are to vacate Government accommodation. The general circular dated 9th September, 1975 as well as the notice served on the landlord thus support the view that the intention of the Government was to enable only those Government servants who are in occupation of Government accommodation and who own houses to get immediate possession, though Section 14A does not restrict the right to recover immediate possession to Government servants alone. In these circumstances the conclusion arrived at by the High Court that a Government servant who had retired before the date on which he had filed the application is not entitled to the benefits of Section 14(1) is understandable. This view was exercised by this Court in Nihal Chand v. Kalyan Chand Jain wherein it was observed:?There apears to be some force in the view taken by the High Court that the provision of Section 14A(1) was not intended for Government servants who have retired from Government service or who have been transferred outside Delhi…?.But the Court did not decide the issue because on the facts of the case it was of the view that the landlord was entitled to invoke the provisions of Section 14(A)(1) notwithstanding the fact that he had retired from Government service with effect from 30th November, 1975. In that case the notice was served on the appellant-landlord on 30th September, 1975 which was before the date of retirement which was on 31st November, 1975, on the ground that the right to evict the tenant accrued to the landlord when he was in service it was held that he was entitled to the rights conferred under Section 14A. In this case the notice was served on 9th December, 1975 and the officer had retired on 30th November, 1975. On the reasoning in the above case the appellant will not be entitled to the relief. The question, therefore, squarely arises in this case as to whether a Government servant who retired before the notice was served on him requiring to quit the Government accommodation is entitled to the benefit of Section 14A(1)It is not clear as to why the right to recover immediate possession is not confined to Government servants alone under Section 14A. It is clear that according to Government?s policy statement the intention was only to require the Government servants to vacate the premises allotted to them by the Government if they had their own houses in the area. It cannot be said that it was by inadvertence that the Legislature mentioned persons instead of Government servants and made the section applicable to persons other than Government servants. It is stated at the Bar that Government accommodation is provided not only to Government servants but also to Members of Parliament and other non-officials who occupy important position in public life. The Court will not be justified in resuming that wen the Government used the word ?persons? it meant only Government servants. The rule as to construction of the statutes is well known and has been clearly laid down. Craiss on Statute Law (6th Ed., p.66) relying on Tasmania v. Commonwealth has stated the rule as follows:—(1)?The cordinal rule for the construction of Acts of Parliament is that they should be construed according to the intention expressed in the Act themselves.?The Court has to determine the intention as expressed by the words used. If the words of statutes are themselves precise and unambiguous then no more can be necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case best declare the intention of the law giver. Taking into account the object of the Act there could be no difficulty in giving the plain meaning to the word ?person? as not being confined to Government servants for it is seen that accommodation has been provided by the Government not only to Government servants but to others also. In the circumstances, the Court cannot help giving the plain and unambiguous meaning to the section. It may be that the retired Government servants as well as others who are in occupation of Government accommodation may become entitled to a special advantage, but the purpose of the legislation being to enable the Government to get possession of accommodation provided by them by enabling the allottee to get immediate possession of the residential accommodation owned but let by them, the Court will not be justified in giving a meaning which the words used will not warrant. On this question, therefore, we find ourselves unable to concur with the view taken by the High CourtIt is admitted that the premises were left for residential as well as professional purposes. Section 14(1)(e) requires that in order to avail the provisions of Section 14(1)(a) the premises should be ?let for use as a residence?. It has been held that when premises are let for residential as well as commercial or for residential and professional purposes the provisions of Section 14(1)(e) will not apply. This Court in Dr. Gopal Bose Varma v. Dr. S.M. Bhardwaj and Anr 1962 (2) SCR 1678, in construing Section 13(1)(e) ofthe Delhi and Ajmer Rent Control Act, 1952 held that premises let for residential purposes but used by the tenant with the consent of the landlord incidentally for commercial, professional or other purposes can to be premises let for a residential purpose alone and as such the landlord would not be entitled to eject the tenant under Section 13(1)(e) of the Act. Section 12(1)(a) allowed a decree for ejectment to be passed if the Court is satisfied that the premises let for residential purposes are required bona fide by the landlord who is the owner of such premises for occupation as a residence for himself or his family and that he has no other suitable accommodation. On the facts of the case it was found that right from the commencement of the tenancy a substantial part of the premises was used by respondent 1 for his professional purposes and they have also found that this has been done obviously with the consent of the landlord. The Court held that the professional use of a substantial part of premises with the consent of the appellant clearly takes the case outside Section 13(1)(e). The view expressed in the above case was reiterated by this Court in Kartar Singh v. Chaman Lal & Ors. (1970) 1 SCR 9 , on the facts it was found that the premises had been taken for residential-cum-business or professional purposes. By the rent deed the owner inducted as a tenant Labha Mal Arora who was practising Advocate. Along with the rent deed a letter was written by the landlord to the tenant stating that he had no objection to the tenant having his professional office along with the residence. After the tenant?s death in 1952 the premises were used only for residence by his sons and widow till 1957. In August 1957 the first respondent who qualified himself as a legal practitioner started practising as a lawyer in the same premises some time later. The landlord served a notice on the sons and widow of the deceased for requiring them to vacate the premises. The Court found two rooms were used by the original tenant as his office, one room by his clerk and the premises had been let for residence-cum-business purposes. The plea that the tenant was only granted a licence to use the premises for residence-cum-profession which was personal to him and which came to an end on his death was not accepted. The Court agreed with the view expressed in Dr. Gopal Dass Verma?s Case (supra) that a tenant could not be ejected under Section 13(1)(h) because the tenancy of premises let out or used for residence and carrying on of profession could not be terminated merely by showing that the tenant had acquired a suitable residence. The Court rejected the contention that the tenant Labha Mal Arora, had been merely given a permission or licence which was of a personal nature to his office. It was also enable to find that any test of dominant intention was applied in Dr. Gopal Dass Varma?s case15. It is not necessary for us to go into the question whether the words ?let for residential purpose? would exclude premises let predominantly for residential purposes with a licence to use an insignificant part for professional purpose such as lawyer?s or doctor?s consulting room. The words used in Section 14A are clearly different. Section 14A contemplates the owning by the landlord in the Union Territory of Delhi a residential accommodation. If he owns a residential accommodation he has a right to recover immediate possession of any premises let out by him. The emphasis is on residential accommodation. If the premises are one intended for residential accommodation it will not make any difference if the premises are let for residential as well as other purpose. Even though the residential accommodation is let for professional or commercial purpose the premises will not cease to be for residential accommodation. It is common ground that the premises let were put up under the Delhi Development Authority?s scheme for residential purposes. The only plea was that though it was put up for residential purposes it was let for residential as well as for professional purposes. The requirement in Section (14)(1)(a) that in order to enable the landlord to recover possession the premises ought to have been let for residential purposes is not there in Section 14(1)(1). In this view we agree with the High Court that it is not necessary in a petition for eviction under Section 14A to satisfy that it was let for residential purposes only. This view has been taken by this Court in Buaching Schmitz Private Ltd. v. P.T. Menghani and Anr. (1977) 3 SCR 312 The submission that as a previous application for possession by the landlord was pending this petition would not be permissible cannot be accepted as the grounds on which an application for possession is filed under Section 14A(1) are different and based on special rights conferred on the class of persons who occupied Government accommodationThe special procedure prescribed under Section 25B is made applicable in cases where the landlord applied for recovery of possession on any of the grounds specified in Clause (e) of the Proviso to Sub-section (1) of Section 14 or under Section 14A. Sub-section (5) of Section 25B of says that the Controller shall give leave to the tenant to contest if the affidavit filed by the tenant discloses such facts that would disentitled the landlord from obtaining an order for the recovery of possession of the premises on the grounds specified in Clause (e) of the Proviso to Sub-section (1) of Section 14 or Section 14A. Under Section 14A(1)(e) the tenant may (1)(1977) 3 SCR 372 may resist the application on the grounds specified namely, that the premises are not let for residential purposes, that they are not required. So far as the fact which would disentitled the landlord from obtaining an order under Section 14A are concerned they can only be that the landlord is not a person in acception of residential premises allotted to him by the Central Government or that a general or special order has been made by the Government requiring him to vacate such residential accommodation on the terms specified in the section. Leave to contest an application under Section 14A(1) cannot be said to be analogous to the provisions of grant of leave to defend as envisaged in the Civil Procedure Code. Order XXXVII, Rule 2, Sub-rule (3), of theCode of Civil Procedure provides that the defendant shall not appear or defend the suit unless he obtains leave from a Judge as hereinafter provided so to appear and defend. Sub-rule (1) of Rule 3 of Order XXXVII lays down the procedure to obtain leave. Under the provisions leave to appear and defend the suit is to be given if the affidavit discloses such facts as would make incumbent on the holder to prove consideration or such other facts as the Court may laid down sufficient to support the application. The scope of Section 25B(5) is very restricted for the leave to contest can only be given if the facts are such as would disentitle the landlord from obtaining an order for recovery of possession on the ground specified in Section 14AThe learned counsel for the tenant submitted that the requirements of Section 14(1)(e) should also be satisfied before the landlord could take advantage of the procedure provided under Section 25B. The learned counsel drew our attention to Section 25C(1) and Section 25C(2) and submitted that the reading of these twoSub-sectionswould indicate that before an eviction could be ordered under and application under Section 14A(1) the requirement of Sections 14(6) and (7) should besatisfied.While Section 14(1) enumerates the grounds on which the landlord can get a decree for recovery of possession against a tenantSub-sections(2) to (11) place certain restrictions. Sub-section (2) provides restriction as to right for recovery of possession under Section 14(1)(e). Restriction regarding the right to recover possession under Clause(e) is laid down inSub-sections(6) and (7) of Section 14. Section 14(6) states that where a landlord acquired any premises by transfer no application for recovery of possession shall lie under Sub-section (1) on the ground specified in Clause(e) of the proviso the rate, unless as a period of five years has elapsed from the date of the acquisition. Sub-section (7) to Section 14 lays down that where an order for the recovery of possession of any premises is made on the ground specified in Clause(e) of the proviso to Sub-section (1), the landlord shall not be entitle to obtain possession thereof before the expiration of a period of six months from the date of the order. Section 25C makes an exception to the requirement of Section 14(6) to the effect that where a landlord is in occupation of any residential premises allotted to him by the Central Government or any local authority and who fulfils the requirement of Section 14A(1) the requirement under Section 14(6) that he would not be entitled to possession unless a period of five years has elapsed from the date of his acquisition of the premises is not applicable. In other words, he can straightway obtain possession without the impediment deposed under Section 14(6).Great stress was laid by the learned counsel for the tenant on Section 25C(2) which provides that is in the case of a landlord who, being a person of the category specified inSub-section(), has obtained, on the ground specified in Clause(e) of the proviso toSub-section(1) of Section 14, or under Section, an order for the eviction of a tenant from any premises, the provisions ofSub-section(7) of Section 14 shall have effect as if for the words ?six months?, occurring therein, the words ?two months? were substituted. The contention was that if Section 14A(1) stood by itself and if a landlord applying under Section 14A(1) would straightaway get the possession after tenant cannot contest the suit on the grounds specified in Section 25B(3) there is no need for mentioning the provisions of Section 14(1)(6) and Section 14(1)(7) and prescribing a lesser period for a prescribed period under Section 14(7). In other words, the submission was that an application for possession under Section 14A should also satisfy the requirements of Section 14(1)(a).The provisions of Section 25B and 25C are applicable to both applications under Section 14(1)(e) and under Section 14A. Applications under Section 14(1)(e) are governed by Section 14(6) and Section 17(7). By introduction of Section 25C the condition imposed in Section 14(6) in made not applicable to persons who satisfy the requirements under Section 14A meaning thereby that this restriction will be applicable only to an application under Section 14(1)(a). Section 25C(2) makes it clear that not only in the case of an application under Section 14(1)(e) but also under Section 14A the term of six months prescribed in Section 14(7) is reduced to two months. The reason for specifying the period of two months in the case of Section 14A would be entitled to possession immediately. By prescribing a specific period of two months under Section 25C(2) it is made clear that even an applicant under Section 14A would have to satisfy the condition laid down Section 25C i.e. a period of two months should elapse before the landlord is satisfied to obtain possession from the date of an order for recovery of possession. The submission also fails. | 1 | 6,124 | 3,708 | ### 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:
possession of the premises on the grounds specified in Clause (e) of the Proviso to Sub-section (1) of Section 14 or Section 14A. Under Section 14A(1)(e) the tenant may (1)(1977) 3 SCR 372 may resist the application on the grounds specified namely, that the premises are not let for residential purposes, that they are not required. So far as the fact which would disentitled the landlord from obtaining an order under Section 14A are concerned they can only be that the landlord is not a person in acception of residential premises allotted to him by the Central Government or that a general or special order has been made by the Government requiring him to vacate such residential accommodation on the terms specified in the section. Leave to contest an application under Section 14A(1) cannot be said to be analogous to the provisions of grant of leave to defend as envisaged in the Civil Procedure Code. Order XXXVII, Rule 2, Sub-rule (3), of the Code of Civil Procedure provides that the defendant shall not appear or defend the suit unless he obtains leave from a Judge as hereinafter provided so to appear and defend. Sub-rule (1) of Rule 3 of Order XXXVII lays down the procedure to obtain leave. Under the provisions leave to appear and defend the suit is to be given if the affidavit discloses such facts as would make incumbent on the holder to prove consideration or such other facts as the Court may laid down sufficient to support the application. The scope of Section 25B(5) is very restricted for the leave to contest can only be given if the facts are such as would disentitle the landlord from obtaining an order for recovery of possession on the ground specified in Section 14A. 18. The learned counsel for the tenant submitted that the requirements of Section 14(1)(e) should also be satisfied before the landlord could take advantage of the procedure provided under Section 25B. The learned counsel drew our attention to Section 25C(1) and Section 25C(2) and submitted that the reading of these two Sub-sections would indicate that before an eviction could be ordered under and application under Section 14A(1) the requirement of Sections 14(6) and (7) should be satisfied. While Section 14(1) enumerates the grounds on which the landlord can get a decree for recovery of possession against a tenant Sub-sections (2) to (11) place certain restrictions. Sub-section (2) provides restriction as to right for recovery of possession under Section 14(1)(e). Restriction regarding the right to recover possession under Clause(e) is laid down in Sub-sections (6) and (7) of Section 14. Section 14(6) states that where a landlord acquired any premises by transfer no application for recovery of possession shall lie under Sub-section (1) on the ground specified in Clause(e) of the proviso the rate, unless as a period of five years has elapsed from the date of the acquisition. Sub-section (7) to Section 14 lays down that where an order for the recovery of possession of any premises is made on the ground specified in Clause(e) of the proviso to Sub-section (1), the landlord shall not be entitle to obtain possession thereof before the expiration of a period of six months from the date of the order. Section 25C makes an exception to the requirement of Section 14(6) to the effect that where a landlord is in occupation of any residential premises allotted to him by the Central Government or any local authority and who fulfils the requirement of Section 14A(1) the requirement under Section 14(6) that he would not be entitled to possession unless a period of five years has elapsed from the date of his acquisition of the premises is not applicable. In other words, he can straightway obtain possession without the impediment deposed under Section 14(6). Great stress was laid by the learned counsel for the tenant on Section 25C(2) which provides that is in the case of a landlord who, being a person of the category specified in Sub-section (), has obtained, on the ground specified in Clause(e) of the proviso to Sub-section (1) of Section 14, or under Section 14-A, an order for the eviction of a tenant from any premises, the provisions of Sub-section (7) of Section 14 shall have effect as if for the words ?six months?, occurring therein, the words ?two months? were substituted. The contention was that if Section 14A(1) stood by itself and if a landlord applying under Section 14A(1) would straightaway get the possession after tenant cannot contest the suit on the grounds specified in Section 25B(3) there is no need for mentioning the provisions of Section 14(1)(6) and Section 14(1)(7) and prescribing a lesser period for a prescribed period under Section 14(7). In other words, the submission was that an application for possession under Section 14A should also satisfy the requirements of Section 14(1)(a). The provisions of Section 25B and 25C are applicable to both applications under Section 14(1)(e) and under Section 14A. Applications under Section 14(1)(e) are governed by Section 14(6) and Section 17(7). By introduction of Section 25C the condition imposed in Section 14(6) in made not applicable to persons who satisfy the requirements under Section 14A meaning thereby that this restriction will be applicable only to an application under Section 14(1)(a). Section 25C(2) makes it clear that not only in the case of an application under Section 14(1)(e) but also under Section 14A the term of six months prescribed in Section 14(7) is reduced to two months. The reason for specifying the period of two months in the case of Section 14A would be entitled to possession immediately. By prescribing a specific period of two months under Section 25C(2) it is made clear that even an applicant under Section 14A would have to satisfy the condition laid down Section 25C i.e. a period of two months should elapse before the landlord is satisfied to obtain possession from the date of an order for recovery of possession. The submission also fails. 19.
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1
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tenant discloses such facts that would disentitled the landlord from obtaining an order for the recovery of possession of the premises on the grounds specified in Clause (e) of the Proviso to Sub-section (1) of Section 14 or Section 14A. Under Section 14A(1)(e) the tenant may (1)(1977) 3 SCR 372 may resist the application on the grounds specified namely, that the premises are not let for residential purposes, that they are not required. So far as the fact which would disentitled the landlord from obtaining an order under Section 14A are concerned they can only be that the landlord is not a person in acception of residential premises allotted to him by the Central Government or that a general or special order has been made by the Government requiring him to vacate such residential accommodation on the terms specified in the section. Leave to contest an application under Section 14A(1) cannot be said to be analogous to the provisions of grant of leave to defend as envisaged in the Civil Procedure Code. Order XXXVII, Rule 2, Sub-rule (3), of theCode of Civil Procedure provides that the defendant shall not appear or defend the suit unless he obtains leave from a Judge as hereinafter provided so to appear and defend. Sub-rule (1) of Rule 3 of Order XXXVII lays down the procedure to obtain leave. Under the provisions leave to appear and defend the suit is to be given if the affidavit discloses such facts as would make incumbent on the holder to prove consideration or such other facts as the Court may laid down sufficient to support the application. The scope of Section 25B(5) is very restricted for the leave to contest can only be given if the facts are such as would disentitle the landlord from obtaining an order for recovery of possession on the ground specified in Section 14AThe learned counsel for the tenant submitted that the requirements of Section 14(1)(e) should also be satisfied before the landlord could take advantage of the procedure provided under Section 25B. The learned counsel drew our attention to Section 25C(1) and Section 25C(2) and submitted that the reading of these twoSub-sectionswould indicate that before an eviction could be ordered under and application under Section 14A(1) the requirement of Sections 14(6) and (7) should besatisfied.While Section 14(1) enumerates the grounds on which the landlord can get a decree for recovery of possession against a tenantSub-sections(2) to (11) place certain restrictions. Sub-section (2) provides restriction as to right for recovery of possession under Section 14(1)(e). Restriction regarding the right to recover possession under Clause(e) is laid down inSub-sections(6) and (7) of Section 14. Section 14(6) states that where a landlord acquired any premises by transfer no application for recovery of possession shall lie under Sub-section (1) on the ground specified in Clause(e) of the proviso the rate, unless as a period of five years has elapsed from the date of the acquisition. Sub-section (7) to Section 14 lays down that where an order for the recovery of possession of any premises is made on the ground specified in Clause(e) of the proviso to Sub-section (1), the landlord shall not be entitle to obtain possession thereof before the expiration of a period of six months from the date of the order. Section 25C makes an exception to the requirement of Section 14(6) to the effect that where a landlord is in occupation of any residential premises allotted to him by the Central Government or any local authority and who fulfils the requirement of Section 14A(1) the requirement under Section 14(6) that he would not be entitled to possession unless a period of five years has elapsed from the date of his acquisition of the premises is not applicable. In other words, he can straightway obtain possession without the impediment deposed under Section 14(6).Great stress was laid by the learned counsel for the tenant on Section 25C(2) which provides that is in the case of a landlord who, being a person of the category specified inSub-section(), has obtained, on the ground specified in Clause(e) of the proviso toSub-section(1) of Section 14, or under Section, an order for the eviction of a tenant from any premises, the provisions ofSub-section(7) of Section 14 shall have effect as if for the words ?six months?, occurring therein, the words ?two months? were substituted. The contention was that if Section 14A(1) stood by itself and if a landlord applying under Section 14A(1) would straightaway get the possession after tenant cannot contest the suit on the grounds specified in Section 25B(3) there is no need for mentioning the provisions of Section 14(1)(6) and Section 14(1)(7) and prescribing a lesser period for a prescribed period under Section 14(7). In other words, the submission was that an application for possession under Section 14A should also satisfy the requirements of Section 14(1)(a).The provisions of Section 25B and 25C are applicable to both applications under Section 14(1)(e) and under Section 14A. Applications under Section 14(1)(e) are governed by Section 14(6) and Section 17(7). By introduction of Section 25C the condition imposed in Section 14(6) in made not applicable to persons who satisfy the requirements under Section 14A meaning thereby that this restriction will be applicable only to an application under Section 14(1)(a). Section 25C(2) makes it clear that not only in the case of an application under Section 14(1)(e) but also under Section 14A the term of six months prescribed in Section 14(7) is reduced to two months. The reason for specifying the period of two months in the case of Section 14A would be entitled to possession immediately. By prescribing a specific period of two months under Section 25C(2) it is made clear that even an applicant under Section 14A would have to satisfy the condition laid down Section 25C i.e. a period of two months should elapse before the landlord is satisfied to obtain possession from the date of an order for recovery of possession. The submission also fails.
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Special Land Acquisition Officer Hosanagar Vs. K.S. Ramachandra Rao & Others | Hegde, J. 1. This appeal has been brought up by Special Leave by the Special Land Acquisition Officer, S. V.H. Electric Project, Shimoga District. The lands acquired under the present proceedings were originally Government lands. They had been granted to the Respondents subject to the condition that if it becomes necessary for Government to take possession of the lands for any public purpose then no. compensation will be paid to them. Despite that condition the Government notified these lands for acquisition under Section 4 of the Land Acquisition Act. During the land acquisition proceedings, the Respondents claimed compensation for the lands in question. The Land Acquisition Officer valued the compensation payable to the Respondents at Rs.19, 265.37 paise but he declined to make an Award in respect of the same in view of the condition attached to the original grant. Thereafter the matter was referred to the Additional District Judge Shimoga under Section 18 of the Land Acquisition Act, at the instance of the Respondents. The learned District Judge came to the conclusion that the Respondents were entitled to get the compensation determined by the Land Acquisition Officer. Aggrieved by that decision, the Appellant went up in revision to the High Court of Mysore. The High Court of Mysore following the decision of that Court in M. S. Seshagiri Rao v. The Special Land Acquisition and Rehabilitation Officer, (1964) 2 Mys LJ 287 dismissed the revision petition. The decision in Seshagiri Raos case, (supra) has been substantially affirmed by this Court in Special Land Acquisition and Rehabilitation Officer, Sagar v. M. S. Seshagiri Rao, (1968) 2 SCR 892 = (AIR 1968 SC 1045 ).2. Mr. M. Veerappa, the learned Counsel for the State of Mysore, contends that the Land Acquisition Officer had not assessed the compensation payable for the rights of the Respondents in the lands acquired. According to him the Land Acquisition Officer merely estimated the value of the lands acquired. He contends that the Respondents are not entitled to the entire value of the lands acquired, but that they are entitled only to the value of their rights in those lands as held by this Court in Seshagiri Raos case, (1964) 2 Mys LJ 287 (supra). We have gone through the Award made by the Land Acquisition Officer. The Land Acquisition Officer appears to have valued the rights of the Respondents in the lands acquired. Whether the valuation made by him is correct or not cannot be gone into these proceedings. The appellants is bound by the valuation made by the Land Acquisition Officer. The view taken by the Land Acquisition Officer that the Respondents are not entitled to any compensation in respect of the lands acquired cannot be sustained in view of this Courts decision in Seshagiri Raos case (supra). | 0[ds]2. Mr. M. Veerappa, the learned Counsel for the State of Mysore, contends that the Land Acquisition Officer had not assessed the compensation payable for the rights of the Respondents in the lands acquired. According to him the Land Acquisition Officer merely estimated the value of the lands acquired. He contends that the Respondents are not entitled to the entire value of the lands acquired, but that they are entitled only to the value of their rights in those lands as held by this Court in Seshagiri Raos case, (1964) 2 Mys LJ 287 (supra).We have gone through the Award made by the Land Acquisition Officer. The Land Acquisition Officer appears to have valued the rights of the Respondents in the lands acquired. Whether the valuation made by him is correct or not cannot be gone into these proceedings. The appellants is bound by the valuation made by the Land Acquisition Officer. The view taken by the Land Acquisition Officer that the Respondents are not entitled to any compensation in respect of the lands acquired cannot be sustained in view of this Courts decision in Seshagiri Raos case (supra). | 0 | 517 | 214 | ### 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:
Hegde, J. 1. This appeal has been brought up by Special Leave by the Special Land Acquisition Officer, S. V.H. Electric Project, Shimoga District. The lands acquired under the present proceedings were originally Government lands. They had been granted to the Respondents subject to the condition that if it becomes necessary for Government to take possession of the lands for any public purpose then no. compensation will be paid to them. Despite that condition the Government notified these lands for acquisition under Section 4 of the Land Acquisition Act. During the land acquisition proceedings, the Respondents claimed compensation for the lands in question. The Land Acquisition Officer valued the compensation payable to the Respondents at Rs.19, 265.37 paise but he declined to make an Award in respect of the same in view of the condition attached to the original grant. Thereafter the matter was referred to the Additional District Judge Shimoga under Section 18 of the Land Acquisition Act, at the instance of the Respondents. The learned District Judge came to the conclusion that the Respondents were entitled to get the compensation determined by the Land Acquisition Officer. Aggrieved by that decision, the Appellant went up in revision to the High Court of Mysore. The High Court of Mysore following the decision of that Court in M. S. Seshagiri Rao v. The Special Land Acquisition and Rehabilitation Officer, (1964) 2 Mys LJ 287 dismissed the revision petition. The decision in Seshagiri Raos case, (supra) has been substantially affirmed by this Court in Special Land Acquisition and Rehabilitation Officer, Sagar v. M. S. Seshagiri Rao, (1968) 2 SCR 892 = (AIR 1968 SC 1045 ).2. Mr. M. Veerappa, the learned Counsel for the State of Mysore, contends that the Land Acquisition Officer had not assessed the compensation payable for the rights of the Respondents in the lands acquired. According to him the Land Acquisition Officer merely estimated the value of the lands acquired. He contends that the Respondents are not entitled to the entire value of the lands acquired, but that they are entitled only to the value of their rights in those lands as held by this Court in Seshagiri Raos case, (1964) 2 Mys LJ 287 (supra). We have gone through the Award made by the Land Acquisition Officer. The Land Acquisition Officer appears to have valued the rights of the Respondents in the lands acquired. Whether the valuation made by him is correct or not cannot be gone into these proceedings. The appellants is bound by the valuation made by the Land Acquisition Officer. The view taken by the Land Acquisition Officer that the Respondents are not entitled to any compensation in respect of the lands acquired cannot be sustained in view of this Courts decision in Seshagiri Raos case (supra).
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0
### Explanation:
2. Mr. M. Veerappa, the learned Counsel for the State of Mysore, contends that the Land Acquisition Officer had not assessed the compensation payable for the rights of the Respondents in the lands acquired. According to him the Land Acquisition Officer merely estimated the value of the lands acquired. He contends that the Respondents are not entitled to the entire value of the lands acquired, but that they are entitled only to the value of their rights in those lands as held by this Court in Seshagiri Raos case, (1964) 2 Mys LJ 287 (supra).We have gone through the Award made by the Land Acquisition Officer. The Land Acquisition Officer appears to have valued the rights of the Respondents in the lands acquired. Whether the valuation made by him is correct or not cannot be gone into these proceedings. The appellants is bound by the valuation made by the Land Acquisition Officer. The view taken by the Land Acquisition Officer that the Respondents are not entitled to any compensation in respect of the lands acquired cannot be sustained in view of this Courts decision in Seshagiri Raos case (supra).
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STATE OF U.P Vs. THE UPPER JAMUNA VALLEY ELECTRICITY SUPPLY CO. LTD. AND OTHERS | of and attracted the provisions of Article 31C of the Constitution rendering the law immune from assailment on the ground of violation of fundamental rights. The contentions of the parties would require to be examined as the provisions of Articles 19(1)(f) and 31 stood at the relevant time. Articles 19(1)(f) and 31 were deleted later; but that does not affect the constitutional position with reference to which the present case would require to be decided. Thus, in this case this Court proceeded on the basis that Articles 19(1)(f) and 31 applied to the facts of that case. The Court still set aside the Judgment of the High Court, which had upheld the challenge. This Court still held that the challenge on grounds of violation of Articles 14, 19 and 31 fails. The contention that compensation was not adequate and/or illusory was not accepted. In Vellore Electric Corporations case also this Court considered the challenge to the change in the method of valuation from market value to book value on the basis of Articles 19(1)(g) and 31. In this case also it was held that such a contention was not available, as it had been negatived in Tinsukhias case. 19. In our view, the authorities in Tinsukhias case, Thana Electric Supply Companys case and Vellore Electric Corporations case fully cover the point urged by Dr. Singhvi. Even if the principles laid down in Coopers case (supra) are applicable, still it has been held by this Court, in the above mentioned three cases that principles of valuation on book value is a well known concept of valuation and that the amount is not illusory. We, therefore, see no substance in this challenge. 20. Dr. Singhvi, however, submitted that the notice to take over the undertaking was given on November 30, 1962 and the undertaking was taken over on June 28, 1964. He submitted that on the date of takeover the rights of the 1st Respondent had crystallised. He submitted that the 1st Respondent, therefore, became entitled to receive the market value of the property. He submitted that as the amount payable had already got crystallised, a subsequent acquisition could only be acquisition of money. He submitted that on June 28, 1964 the vesting took place. He submitted that thereafter nothing more than payment of money was to be done. He submitted that by a retrospective amendment, made in 1975, money could not be compulsory (compulsorily?) acquired. He submitted that there could be no public purpose in acquisition of money and that such acquisition would amount to a forced loan. He submitted that the restrictions laid down by the retrospective amendment were not reasonable. He submitted that no reasons for such restrictions were given or could exist. He submitted that by the amendment the crystallised right to money was being taken away. 21. In support of his submission Dr. Singhvi relied upon the case of Madan Mohan Pathak and Another Vs. Union of India (UOI) and Others, , In that case there was a settlement between the management and the labour under which an annual cash bonus was to be paid to Class III and Class IV employees. By the Life Insurance Corporation (Modification of Settlement) Act, 1976 Class III and Class IV employees were sought to be deprived of the annual cash bonus that they were entitled to receive under the settlement. This Court held that the term Property under Articles 19(1)(f), 31(1) and 31(2) had to be given the widest interpretation and refers to property of every kind, tangible or intangible, debts and chose-in-action. It was held that the chose-in-action could be compulsory acquired under Article 31(2). It was held that the right to receive the annual cash settlement was a right to property within the meaning of Article 31(2). It was held that extinguishments of the debt of a creditor with the corresponding benefit to the State or State owned/controlled Corporation would be transfer of ownership to the State and would amount to compulsory acquisition under Article 31(2). It was held that acquisition of money, debt and/or chose-in-action must be made to serve a public purpose. It was held that the impugned Act was a pure and simple case of deprivation of the rights of the Class II and Class IV employees without any apparent nexus with any public interest. It was held that an acquisition of a chose-in-action could not be for the purpose of augmenting the revenues of the State or reducing State expenditure as that would not be a public purpose and would be violative of the constitutional guarantee embodied in Article 31(2). It was held that an acquisition of this nature amounted to a forced loan. Dr. Singhvi also relied upon the case of The State of Bihar Vs. Maharajadhiraja Sir Kameshwar Singh of Darbhanga and Others, . 22. We are unable to accept the submission. As has been held in Tinsukhias case, Thana Electric Supply Companys case and Vellore Electric Corporations case what has been acquired is not a chose-in-action or a debt. What has been acquired is the undertaking which dealt with material resource of the country. There was no crystallisation of any amount. The only right was a right to receive compensation which was to be worked out on certain principles. All that the amending Act has done is to change the method or principle on the basis of which the compensation was to be worked out. It has been held that the legislation is not a piece of colourable legislation. It has also been held, in the above mentioned cases, that the provisions for quantification of the amount payable to the undertaking form an integral and inseparable part of the nationalisation and do not admit of being considered as distinct provisions independent of each other. It has been held that the economic costs of nationalization was not justiciable. In our view this case is fully covered by the judgments in Tinsukhias case, Thana Electric Supply Companys case and Vellore Electric Corporations case. | 1[ds]8. It must be mentioned that the above mentioned Ordinances and Amendment Act were part of the policy of nationalisation of electric companies by the Union of India. Similar amendments were made by many States. Electric companies, all over India, were sought to be so purchased. Like the 1st Respondent, a number of other Electric Companies challenged the constitutional validity of the Amending Act/Ordinance. The challenge was, inter alia, on the ground that the rights under Article 19(1)(f) and Article 31(2) were being violated. It was also claimed that the Amending Act/Ordinance was invalid as it had no reasonable direct nexus to the principles under Article 39(b) of the Constitution. It was also claimed that, in effect and substance, the law was not one for acquisition of electrical undertakings but was one to acquire a chose-in-action and to extinguish rights, which had accrued in the Electric Companies, to get the market price. It was contended that the right to get compensation accrued on the day the notice was given. It was contended that what was being acquired was the difference between the market price which the State was obliged to pay and the book value to which the liability was now sought to be limited. It was claimed that as the Act was merely a cloak which the law was made to wear, to undo the obligations arising out of intended statutory sale, Article 31(c) was not attracted. It was also claimed that in any case, every provision of a statute was not entitled to protection of Article 31(c) but only those which are necessary for giving effect to the principles in Article 39(b) and accordingly the provision in the impugned law in relation to the determination of the amount do not attract Article 31(c). In all the matters it was claimed that the purchase price should be the market value.9. A Constitution Bench of this Court in the case of Tinsukhia Electric Supply Co. Ltd. Vs. State of Assam and others, , upheld the validity of the Act/Ordinance. This Court held that the Act had nexus with the principles in Article 39(b) and was therefore protected by Article 31(c). It was held that the Act was not a piece of colourable legislation. It was held that electric energy generated and distributed was a material resource of the community for the purpose and within the meaning of Article 39(b). It was held that the idea of distribution of natural resources in Article 39(b) envisages nationalisation. It was held that on an examination of the scheme of the impugned law the inescapable conclusion was that the legislature measure was one of nationalisation of the undertaking and this law was eligible for and entitled to protection of Article 31(C). It was held that it was not possible to divorce the economic consideration or component from the scheme of nationalisation with which the former are inextricably integrated. It was held that the financial costs of a scheme lies at its very heart and cannot be isolated. It was held that with the provisions relating to vestiture of the undertaking in the State and those pertaining to the quantification of the amount are integral and inseparable parts of the scheme of nationalisation and do not admit of being considered as distinct provisions independent of each other. It was held that the provisions for payment of amount to the undertaking, by reducing the market value to book value, formed an integral part of the nationalisation scheme and that economic consideration for nationalisation was not justiciable. It was held that what was being acquired was the material resources of the community. The contention that immediately upon giving of the notice the rights got crystallised was negatived. It was held that the exercise of the option did not affect licensees right to carry on business. It was held that the licensees rights would be affected only when the undertaking was actually taken over. Similar view was taken in the cases of Maharastra State Electricity Board Vs. Thane Electric Supply Co. and others, , and Vellore Electric Corporation Ltd. and Another Vs. State of Tamil Nadu and Others, .16. We have considered the submissions of Dr. Singhvi. Undoubtedly, the law which is to prevail is the law which was prevailing on the date of takeover, i.e. 28th of June, 1964. It is also clear that on that day the Constitution (Twenty-fifth Amendment) Act had not been enacted and Article 31(C) was not there. Undoubtedly, in Coopers case it has been held that even after amendment of Article 31(C) the term compensation meant just equivalent or full indemnification. However, Coopers case itself notes that there has been a change inasmuch as if the law pertains to change in the principles of the method of determination of compensation and the method is a recognized principle applicable in the determination of compensation and the principle is appropriate in determining the value of the property, then it would not be open to the Courts to question the valuation. Coopers case also lays down that if several principles are appropriate and one is selected for determination of the value of the property to be acquired, selection of that principle to the exclusion of other principles is not open to challenge, for the selection must be left to the wisdom of the Parliament. Of course, the principles specified must be appropriate to the determination of compensation for an appropriate class of property sought to be acquired.17. In Tinsukhias case, this Court has gone into the question as to whether the principles would be appropriate even if Article 31(C) was not applicable. It ultimately held as follows:96. Even if the impugned law did not have the protection of Article 31C, a hypothesis on which contention (c) is based, the adequacy or inadequacy of the amount is not justiciable. The limitations of the courts scrutiny explicit in Article 31(2), are referred to by Mathew, J. in the Keshavananda case (SCC p. 889,para 1751):... the wordamount conveys no idea of any norm. It supplies no yardstick. It furnishes no measuring rod. The neutral word amount was deliberately chosen for the purpose. I am unable to understand the purpose in substituting the word amount for the word compensation in the Sub-article unless it be to deprive the court of any yardstick or norm for determining the adequacy of the amount and the relevancy of the principle fixed by law.97. Referring to what might, yet to open to judicial scrutiny, under Article 31(B), Shelat and Grover, JJ. observed in the Kesavananda case : (SCC p. 457 para 591)But still on the learned Solicitor Generals argument, the right to receive the amount continues to be a fundamental right. That cannot be denuded of its identity. The obligation to act on some principle while fixing the amount arises both from Article 31(2) and from the nature of the legislative power. For, there can be no power which permits in a democratic system and arbitrary use of power...But the norm or the principles of fixing or determining the amount will have to be disclosed to the court. It will have to be satisfied that the amount has reasonable relationship with the value of the property acquired or requisitioned and one or more of the relevant principles have been applied and further that he amount is neither illusory nor it has been fixed arbitrarily, nor at such a figure that it means virtual deprivation of the right under Article 31(2). The question of adequacy or inadequacy, however, cannot be gone into.Justice Chandrachud observed: (SCC p. 1000. para 2122)The specific obligation to pay an amount and in the alternative the use of the word principles for determination of that amount must mean that the amount fixed or determined to be paid cannot be illusory. If the right to property still finds a place in the Constitution, you cannot mock at the man and ridicule his right. You cannot tell him: I will take your fortune for a farthing.98. All the same, the concept of book value is an accepted accountancy concept of value. It cannot be held be illusory.Even though Coopers case has not been specifically referred to, in Tinsukhias case, still the principles laid down in Coopers case have been kept in mind and dealt with. Keeping those principles in mind, in Tinsukhias case it has been held that the concept of book value is an accepted accountancy concept and that it cannot be held to be illusory.18. Further, in Thana Electric Supply Companys case it has been held as:15. As stated earlier, the principal controversy before the High Court was whether the provisions of the Amendment Act, 1976, which scaled down, quite drastically, the measure of the recompense for the taking over of the companys undertaking, were violative of Articles 14, 19(1)(f) and (g), and 31 of the Constitution of India, as contended by the company, or whether the Amending Act of 1976 had the protection of and attracted the provisions of Article 31C of the Constitution rendering the law immune from assailment on the ground of violation of fundamental rights. The contentions of the parties would require to be examined as the provisions of Articles 19(1)(f) and 31 stood at the relevant time. Articles 19(1)(f) and 31 were deleted later; but that does not affect the constitutional position with reference to which the present case would require to be decided.Thus, in this case this Court proceeded on the basis that Articles 19(1)(f) and 31 applied to the facts of that case. The Court still set aside the Judgment of the High Court, which had upheld the challenge. This Court still held that the challenge on grounds of violation of Articles 14, 19 and 31 fails. The contention that compensation was not adequate and/or illusory was not accepted. In Vellore Electric Corporations case also this Court considered the challenge to the change in the method of valuation from market value to book value on the basis of Articles 19(1)(g) and 31. In this case also it was held that such a contention was not available, as it had been negatived in Tinsukhias case.19. In our view, the authorities in Tinsukhias case, Thana Electric Supply Companys case and Vellore Electric Corporations case fully cover the point urged by Dr. Singhvi. Even if the principles laid down in Coopers case (supra) are applicable, still it has been held by this Court, in the above mentioned three cases that principles of valuation on book value is a well known concept of valuation and that the amount is not illusory. We, therefore, see no substance in this challenge.22. We are unable to accept the submission. As has been held in Tinsukhias case, Thana Electric Supply Companys case and Vellore Electric Corporations case what has been acquired is not a chose-in-action or a debt. What has been acquired is the undertaking which dealt with material resource of the country. There was no crystallisation of any amount. The only right was a right to receive compensation which was to be worked out on certain principles. All that the amending Act has done is to change the method or principle on the basis of which the compensation was to be worked out. It has been held that the legislation is not a piece of colourable legislation. It has also been held, in the above mentioned cases, that the provisions for quantification of the amount payable to the undertaking form an integral and inseparable part of the nationalisation and do not admit of being considered as distinct provisions independent of each other. It has been held that the economic costs of nationalization was not justiciable. In our view this case is fully covered by the judgments in Tinsukhias case, Thana Electric Supply Companys case and Vellore Electric Corporations case. | 1 | 6,532 | 2,245 | ### Instruction:
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of and attracted the provisions of Article 31C of the Constitution rendering the law immune from assailment on the ground of violation of fundamental rights. The contentions of the parties would require to be examined as the provisions of Articles 19(1)(f) and 31 stood at the relevant time. Articles 19(1)(f) and 31 were deleted later; but that does not affect the constitutional position with reference to which the present case would require to be decided. Thus, in this case this Court proceeded on the basis that Articles 19(1)(f) and 31 applied to the facts of that case. The Court still set aside the Judgment of the High Court, which had upheld the challenge. This Court still held that the challenge on grounds of violation of Articles 14, 19 and 31 fails. The contention that compensation was not adequate and/or illusory was not accepted. In Vellore Electric Corporations case also this Court considered the challenge to the change in the method of valuation from market value to book value on the basis of Articles 19(1)(g) and 31. In this case also it was held that such a contention was not available, as it had been negatived in Tinsukhias case. 19. In our view, the authorities in Tinsukhias case, Thana Electric Supply Companys case and Vellore Electric Corporations case fully cover the point urged by Dr. Singhvi. Even if the principles laid down in Coopers case (supra) are applicable, still it has been held by this Court, in the above mentioned three cases that principles of valuation on book value is a well known concept of valuation and that the amount is not illusory. We, therefore, see no substance in this challenge. 20. Dr. Singhvi, however, submitted that the notice to take over the undertaking was given on November 30, 1962 and the undertaking was taken over on June 28, 1964. He submitted that on the date of takeover the rights of the 1st Respondent had crystallised. He submitted that the 1st Respondent, therefore, became entitled to receive the market value of the property. He submitted that as the amount payable had already got crystallised, a subsequent acquisition could only be acquisition of money. He submitted that on June 28, 1964 the vesting took place. He submitted that thereafter nothing more than payment of money was to be done. He submitted that by a retrospective amendment, made in 1975, money could not be compulsory (compulsorily?) acquired. He submitted that there could be no public purpose in acquisition of money and that such acquisition would amount to a forced loan. He submitted that the restrictions laid down by the retrospective amendment were not reasonable. He submitted that no reasons for such restrictions were given or could exist. He submitted that by the amendment the crystallised right to money was being taken away. 21. In support of his submission Dr. Singhvi relied upon the case of Madan Mohan Pathak and Another Vs. Union of India (UOI) and Others, , In that case there was a settlement between the management and the labour under which an annual cash bonus was to be paid to Class III and Class IV employees. By the Life Insurance Corporation (Modification of Settlement) Act, 1976 Class III and Class IV employees were sought to be deprived of the annual cash bonus that they were entitled to receive under the settlement. This Court held that the term Property under Articles 19(1)(f), 31(1) and 31(2) had to be given the widest interpretation and refers to property of every kind, tangible or intangible, debts and chose-in-action. It was held that the chose-in-action could be compulsory acquired under Article 31(2). It was held that the right to receive the annual cash settlement was a right to property within the meaning of Article 31(2). It was held that extinguishments of the debt of a creditor with the corresponding benefit to the State or State owned/controlled Corporation would be transfer of ownership to the State and would amount to compulsory acquisition under Article 31(2). It was held that acquisition of money, debt and/or chose-in-action must be made to serve a public purpose. It was held that the impugned Act was a pure and simple case of deprivation of the rights of the Class II and Class IV employees without any apparent nexus with any public interest. It was held that an acquisition of a chose-in-action could not be for the purpose of augmenting the revenues of the State or reducing State expenditure as that would not be a public purpose and would be violative of the constitutional guarantee embodied in Article 31(2). It was held that an acquisition of this nature amounted to a forced loan. Dr. Singhvi also relied upon the case of The State of Bihar Vs. Maharajadhiraja Sir Kameshwar Singh of Darbhanga and Others, . 22. We are unable to accept the submission. As has been held in Tinsukhias case, Thana Electric Supply Companys case and Vellore Electric Corporations case what has been acquired is not a chose-in-action or a debt. What has been acquired is the undertaking which dealt with material resource of the country. There was no crystallisation of any amount. The only right was a right to receive compensation which was to be worked out on certain principles. All that the amending Act has done is to change the method or principle on the basis of which the compensation was to be worked out. It has been held that the legislation is not a piece of colourable legislation. It has also been held, in the above mentioned cases, that the provisions for quantification of the amount payable to the undertaking form an integral and inseparable part of the nationalisation and do not admit of being considered as distinct provisions independent of each other. It has been held that the economic costs of nationalization was not justiciable. In our view this case is fully covered by the judgments in Tinsukhias case, Thana Electric Supply Companys case and Vellore Electric Corporations case.
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amount is not justiciable. The limitations of the courts scrutiny explicit in Article 31(2), are referred to by Mathew, J. in the Keshavananda case (SCC p. 889,para 1751):... the wordamount conveys no idea of any norm. It supplies no yardstick. It furnishes no measuring rod. The neutral word amount was deliberately chosen for the purpose. I am unable to understand the purpose in substituting the word amount for the word compensation in the Sub-article unless it be to deprive the court of any yardstick or norm for determining the adequacy of the amount and the relevancy of the principle fixed by law.97. Referring to what might, yet to open to judicial scrutiny, under Article 31(B), Shelat and Grover, JJ. observed in the Kesavananda case : (SCC p. 457 para 591)But still on the learned Solicitor Generals argument, the right to receive the amount continues to be a fundamental right. That cannot be denuded of its identity. The obligation to act on some principle while fixing the amount arises both from Article 31(2) and from the nature of the legislative power. For, there can be no power which permits in a democratic system and arbitrary use of power...But the norm or the principles of fixing or determining the amount will have to be disclosed to the court. It will have to be satisfied that the amount has reasonable relationship with the value of the property acquired or requisitioned and one or more of the relevant principles have been applied and further that he amount is neither illusory nor it has been fixed arbitrarily, nor at such a figure that it means virtual deprivation of the right under Article 31(2). The question of adequacy or inadequacy, however, cannot be gone into.Justice Chandrachud observed: (SCC p. 1000. para 2122)The specific obligation to pay an amount and in the alternative the use of the word principles for determination of that amount must mean that the amount fixed or determined to be paid cannot be illusory. If the right to property still finds a place in the Constitution, you cannot mock at the man and ridicule his right. You cannot tell him: I will take your fortune for a farthing.98. All the same, the concept of book value is an accepted accountancy concept of value. It cannot be held be illusory.Even though Coopers case has not been specifically referred to, in Tinsukhias case, still the principles laid down in Coopers case have been kept in mind and dealt with. Keeping those principles in mind, in Tinsukhias case it has been held that the concept of book value is an accepted accountancy concept and that it cannot be held to be illusory.18. Further, in Thana Electric Supply Companys case it has been held as:15. As stated earlier, the principal controversy before the High Court was whether the provisions of the Amendment Act, 1976, which scaled down, quite drastically, the measure of the recompense for the taking over of the companys undertaking, were violative of Articles 14, 19(1)(f) and (g), and 31 of the Constitution of India, as contended by the company, or whether the Amending Act of 1976 had the protection of and attracted the provisions of Article 31C of the Constitution rendering the law immune from assailment on the ground of violation of fundamental rights. The contentions of the parties would require to be examined as the provisions of Articles 19(1)(f) and 31 stood at the relevant time. Articles 19(1)(f) and 31 were deleted later; but that does not affect the constitutional position with reference to which the present case would require to be decided.Thus, in this case this Court proceeded on the basis that Articles 19(1)(f) and 31 applied to the facts of that case. The Court still set aside the Judgment of the High Court, which had upheld the challenge. This Court still held that the challenge on grounds of violation of Articles 14, 19 and 31 fails. The contention that compensation was not adequate and/or illusory was not accepted. In Vellore Electric Corporations case also this Court considered the challenge to the change in the method of valuation from market value to book value on the basis of Articles 19(1)(g) and 31. In this case also it was held that such a contention was not available, as it had been negatived in Tinsukhias case.19. In our view, the authorities in Tinsukhias case, Thana Electric Supply Companys case and Vellore Electric Corporations case fully cover the point urged by Dr. Singhvi. Even if the principles laid down in Coopers case (supra) are applicable, still it has been held by this Court, in the above mentioned three cases that principles of valuation on book value is a well known concept of valuation and that the amount is not illusory. We, therefore, see no substance in this challenge.22. We are unable to accept the submission. As has been held in Tinsukhias case, Thana Electric Supply Companys case and Vellore Electric Corporations case what has been acquired is not a chose-in-action or a debt. What has been acquired is the undertaking which dealt with material resource of the country. There was no crystallisation of any amount. The only right was a right to receive compensation which was to be worked out on certain principles. All that the amending Act has done is to change the method or principle on the basis of which the compensation was to be worked out. It has been held that the legislation is not a piece of colourable legislation. It has also been held, in the above mentioned cases, that the provisions for quantification of the amount payable to the undertaking form an integral and inseparable part of the nationalisation and do not admit of being considered as distinct provisions independent of each other. It has been held that the economic costs of nationalization was not justiciable. In our view this case is fully covered by the judgments in Tinsukhias case, Thana Electric Supply Companys case and Vellore Electric Corporations case.
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COMMISSIONER OF INCOME TAX JAIPUR Vs. M/S GOPAL SHRI SCRIPS PVT LTD | Abhay Manohar Sapre, J.1. Leave granted.2. This appeal is filed against the final judgment and order dated 09.08.2016 passed by the High Court of Judicature for Rajasthan at Jaipur in DBITA No.53 of 2000 whereby the High Court dismissed the appeal as having become infructuous filed by the appellant herein.3. The appeal involves a short question as would be clear from the facts stated infra.4. The appellant is the Union of India¬Income Tax Department. The respondent is the assessee in the appeal out of which this appeal arises.5. The appellant herein filed an appeal under Section 260¬A of the Income Tax Act, 1961(hereinafter referred to as “the Act”) in the High Court of Rajasthan (Jaipur bench) against the order dated 28.04.2000 of Income Tax Appellate Tribunal (ITAT) in ITA No 226/JP/1999.6. By impugned order, the High Court dismissed the appeal as having rendered infructuous giving rise to filing of this appeal by way of special leave by the Income Tax Department in this Court.The impugned order reads as under:"On the last date of hearing when the matter cam up before the Court on 05.07.2016, counsel for the appellant was directed to seek instructions about the present status of the Respondent¬assessee (Company) whether it is in existence or has become non operational or defunct by passage of time.Sh. Anuroop Singhi, Adv., appearing for the appellant has placed for our perusal a communication issued from the office of Registrar of Companies dated 07.04.2011 indicating that pursuant to sub¬section(5) of Section 560 of the Companies Act, 1956 the name of Gopal Shri Scrips Pvt. Ltd., has been struck off from the register and the said company is dissolved.In the light of the communication placed for our perusal dated 07.04.2011, no purpose is going to be served in examining the substantial question of law which has been raised for consideration in the instant appeal and on account of these change in circumstances, the present appeal has become infructuous and accordingly stands dismissed. However, the appellant is still at liberty to file application if any occasion arises in future.”7. The short question, which arises for consideration in this appeal, is whether the High Court was justified in dismissing the appeal filed by the Income Tax Department on the ground that it has rendered infructuous.8. Mr. A.N.S. Nadkarni, learned ASG appeared for the appellant. None appeared for the respondent (assessee) though served.9. Having heard the learned counsel for the appellant (Income Tax Department) and on perusal of the record of the case, we are constrained to allow the appeal, set aside the impugned order and remand the case to the High Court for deciding the appeal afresh on merits in accordance with law.10. Mere perusal of the impugned order quoted supra would go to show that the High Court dismissed the appeal on the ground that it has rendered infructuous because it was brought to its notice that the name of the company¬ the respondent¬assessee has been struck off from the Register of the Company under Section 560(5) of the Companies Act, 1956.11. In other words, the High Court was of the view that since the respondent¬Company stands dissolved as a result of the order passed by the Registrar of the Companies under Section 560 (5) of the Companies Act, the appeal filed against such Company which stands dissolved does not survive for its consideration on merits.12. In our view, the High Court was wrong in dismissing the appeal as having rendered infructuous.13. The High Court failed to notice Section 506(5) proviso (a) of the Companies Act and further failed to notice Chapter XV of the Income Tax Act which deals with "liability in special cases" and its clause (L) which deals with "discontinuance of business or dissolution".14. The aforementioned two provisions, namely, one under the Companies Act and the other under the Income Tax Act specifically deal with the cases of the Companies, whose name has been struck off under Section 506 (5) of the Companies Act.15. These provisions provide as to how and in what manner the liability against such Company arising under the Companies Act and under the Income Tax Act is required to be dealt with.16. Since the High Court did not decide the appeal keeping in view the aforementioned two relevant provisions, the impugned order is not legally sustainable and has to be set aside. | 1[ds]9. Having heard the learned counsel for the appellant (Income Tax Department) and on perusal of the record of the case, we are constrained to allow the appeal, set aside the impugned order and remand the case to the High Court for deciding the appeal afresh on merits in accordance with law.10. Mere perusal of the impugned order quoted supra would go to show that the High Court dismissed the appeal on the ground that it has rendered infructuous because it was brought to its notice that the name of the company¬ the respondent¬assessee has been struck off from the Register of the Company under Section 560(5) of the Companies Act, 1956.11. In other words, the High Court was of the view that since the respondent¬Company stands dissolved as a result of the order passed by the Registrar of the Companies under Section 560 (5) of the Companies Act, the appeal filed against such Company which stands dissolved does not survive for its consideration on merits.12. In our view, the High Court was wrong in dismissing the appeal as having rendered infructuous.13. The High Court failed to notice Section 506(5) proviso (a) of the Companies Act and further failed to notice Chapter XV of the Income Tax Act which deals with "liability in special cases" and its clause (L) which deals with "discontinuance of business or dissolution".14. The aforementioned two provisions, namely, one under the Companies Act and the other under the Income Tax Act specifically deal with the cases of the Companies, whose name has been struck off under Section 506 (5) of the Companies Act.15. These provisions provide as to how and in what manner the liability against such Company arising under the Companies Act and under the Income Tax Act is required to be dealt with.16. Since the High Court did not decide the appeal keeping in view the aforementioned two relevant provisions, the impugned order is not legally sustainable and has to be set aside. | 1 | 813 | 373 | ### Instruction:
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Abhay Manohar Sapre, J.1. Leave granted.2. This appeal is filed against the final judgment and order dated 09.08.2016 passed by the High Court of Judicature for Rajasthan at Jaipur in DBITA No.53 of 2000 whereby the High Court dismissed the appeal as having become infructuous filed by the appellant herein.3. The appeal involves a short question as would be clear from the facts stated infra.4. The appellant is the Union of India¬Income Tax Department. The respondent is the assessee in the appeal out of which this appeal arises.5. The appellant herein filed an appeal under Section 260¬A of the Income Tax Act, 1961(hereinafter referred to as “the Act”) in the High Court of Rajasthan (Jaipur bench) against the order dated 28.04.2000 of Income Tax Appellate Tribunal (ITAT) in ITA No 226/JP/1999.6. By impugned order, the High Court dismissed the appeal as having rendered infructuous giving rise to filing of this appeal by way of special leave by the Income Tax Department in this Court.The impugned order reads as under:"On the last date of hearing when the matter cam up before the Court on 05.07.2016, counsel for the appellant was directed to seek instructions about the present status of the Respondent¬assessee (Company) whether it is in existence or has become non operational or defunct by passage of time.Sh. Anuroop Singhi, Adv., appearing for the appellant has placed for our perusal a communication issued from the office of Registrar of Companies dated 07.04.2011 indicating that pursuant to sub¬section(5) of Section 560 of the Companies Act, 1956 the name of Gopal Shri Scrips Pvt. Ltd., has been struck off from the register and the said company is dissolved.In the light of the communication placed for our perusal dated 07.04.2011, no purpose is going to be served in examining the substantial question of law which has been raised for consideration in the instant appeal and on account of these change in circumstances, the present appeal has become infructuous and accordingly stands dismissed. However, the appellant is still at liberty to file application if any occasion arises in future.”7. The short question, which arises for consideration in this appeal, is whether the High Court was justified in dismissing the appeal filed by the Income Tax Department on the ground that it has rendered infructuous.8. Mr. A.N.S. Nadkarni, learned ASG appeared for the appellant. None appeared for the respondent (assessee) though served.9. Having heard the learned counsel for the appellant (Income Tax Department) and on perusal of the record of the case, we are constrained to allow the appeal, set aside the impugned order and remand the case to the High Court for deciding the appeal afresh on merits in accordance with law.10. Mere perusal of the impugned order quoted supra would go to show that the High Court dismissed the appeal on the ground that it has rendered infructuous because it was brought to its notice that the name of the company¬ the respondent¬assessee has been struck off from the Register of the Company under Section 560(5) of the Companies Act, 1956.11. In other words, the High Court was of the view that since the respondent¬Company stands dissolved as a result of the order passed by the Registrar of the Companies under Section 560 (5) of the Companies Act, the appeal filed against such Company which stands dissolved does not survive for its consideration on merits.12. In our view, the High Court was wrong in dismissing the appeal as having rendered infructuous.13. The High Court failed to notice Section 506(5) proviso (a) of the Companies Act and further failed to notice Chapter XV of the Income Tax Act which deals with "liability in special cases" and its clause (L) which deals with "discontinuance of business or dissolution".14. The aforementioned two provisions, namely, one under the Companies Act and the other under the Income Tax Act specifically deal with the cases of the Companies, whose name has been struck off under Section 506 (5) of the Companies Act.15. These provisions provide as to how and in what manner the liability against such Company arising under the Companies Act and under the Income Tax Act is required to be dealt with.16. Since the High Court did not decide the appeal keeping in view the aforementioned two relevant provisions, the impugned order is not legally sustainable and has to be set aside.
### Response:
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### Explanation:
9. Having heard the learned counsel for the appellant (Income Tax Department) and on perusal of the record of the case, we are constrained to allow the appeal, set aside the impugned order and remand the case to the High Court for deciding the appeal afresh on merits in accordance with law.10. Mere perusal of the impugned order quoted supra would go to show that the High Court dismissed the appeal on the ground that it has rendered infructuous because it was brought to its notice that the name of the company¬ the respondent¬assessee has been struck off from the Register of the Company under Section 560(5) of the Companies Act, 1956.11. In other words, the High Court was of the view that since the respondent¬Company stands dissolved as a result of the order passed by the Registrar of the Companies under Section 560 (5) of the Companies Act, the appeal filed against such Company which stands dissolved does not survive for its consideration on merits.12. In our view, the High Court was wrong in dismissing the appeal as having rendered infructuous.13. The High Court failed to notice Section 506(5) proviso (a) of the Companies Act and further failed to notice Chapter XV of the Income Tax Act which deals with "liability in special cases" and its clause (L) which deals with "discontinuance of business or dissolution".14. The aforementioned two provisions, namely, one under the Companies Act and the other under the Income Tax Act specifically deal with the cases of the Companies, whose name has been struck off under Section 506 (5) of the Companies Act.15. These provisions provide as to how and in what manner the liability against such Company arising under the Companies Act and under the Income Tax Act is required to be dealt with.16. Since the High Court did not decide the appeal keeping in view the aforementioned two relevant provisions, the impugned order is not legally sustainable and has to be set aside.
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Union of India & Others Vs. Uttam Steel Ltd | of transport and other allied matters as may be specified in the notification which the exporter undertakes to abide by entering into a bond in the proper form with such surety or sufficient security, and under such conditions as the Commissioner approves.(2) The Central Government may, from time to time, by notification in the Official Gazette, permit export of specified excisable goods in bond, without payment of duty from a factory of manufacture or warehouse, to Nepal or Bhutan, subject to such conditions or limitations as regards the class of goods, destination, mode of transport and other matters as may be specified therein.Explanation I. -- In this rule, the expression "manufacture" includes the process of blending of any goods or making alterations or any other operation thereon.Explanation II. -- In this rule, the term "materials" shall include raw materials, consumables ( other than fuel ), components, semi-finished goods, assemblies, sub-assemblies, intermediate goods, accessories, parts and packaging materials used in the manufacture of export goods but does not include capital goods used in the factory in or in relation to manufacture of export goods.""Notifications and Procedures under Rule 12[l] Rebate of duty on export of all excisable goods except ships stores and mineral oil products exported as stores for consumption on board an aircraft on foreign run. -- In exercise of the powers conferred by clause (a) of sub-rule (1) of rule 12 of the Central Excise Rules, 1944, the Central Government hereby directs that rebate of duty paid on the excisable goods as specified in the Table annexed hereto, shall on their exportation out of India to any country except Nepal and Bhutan, be made to the extent specified in column (3) thereof:Provided that -(i) except as otherwise permitted by the Central Board of Excise and Customs by a general or a special order, the excisable goods shall be exported after payment of duty directly from a factory or a warehouse;(ii) the excisable goods are exported by the exporter in accordance with the procedure set out in Chapter IX of the Central Excise Rules, 1944;(iii) the excisable goods shall be exported within six months from the date on which they were cleared for export from the factory of manufacture or warehouse or within such extended period as the Commissioner of Central Excise may in any particular case allow;(iv) the claim or, as the case may be, supplementary claims, for rebate of duty is lodged with the Maritime Commissioner of Central Excise or the Commissioner of Central Excise having jurisdiction over the factory of manufacture or warehouse, as mentioned in the relevant export documents; together with the proof of due exportation within the time limit specified in section 11B of the Central Excise Act,1944(1 of 1944);(v) the market price of the excisable goods at the time of exportation is, in the opinion of the Commissioner of Central Excise not less than the amount of rebate of duty claimed;(vi) the amount of rebate of duty admissible is not less than five hundred rupees;(vii) the exporter undertakes to refund any rebate of duty erroneously paid, to the Commissioner of Central Excise sanctioning such rebate in accordance with provisions of section 11A of the Central Excise Act, 1944(1 of 1944);(viii) if the excisable goods are not exported or the proof of export thereof is not furnished to the satisfaction of the Commissioner of Central Excise or, as the case may be, the Maritime Commissioner of Central Excise in the manner and within the prescribed time limit, the said officer on an application being made by the exporter or otherwise, shall cancel the export documents;(ix) if exported -(a) by land, the export shall take place by such routes or such land Customs Stations or Border Check Posts as have been approved by the Central Government;(b) by parcel post, the parcel is delivered by the exporter at the Post Office of despatch within six months of the payment of duty"At the relevant time, Section 11B(2) read as follows:-"(2) If, on receipt of any such application, the Assistant Commissioner of Central Excise is satisfied that the whole or any part of the duty of excise paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund:Provided that the amount of duty of excise as determined by the Assistant Commissioner of Central excise under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to -(a) rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India;xxx xxx xxx"Explanation. - For the purposes of this section, -(A) "refund" includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India." 13. Shri Bagarias argument based on the proviso to rule 12(1) would obviously not have any force if Section 11B were to apply of its own force. It is clear from Section 11B(2) proviso (a) that a rebate of duty of excise on excisable goods exported out of India would be covered by the said provision. A reading of Mafatlal Industries (supra) would also show that such claims for rebate can only be made under Section 11B within the period of limitation stated therefor. This being the case, the argument based on Rule 12 would have to be discarded as it is not open to subordinate legislation to dispense with the requirements of Section 11B. Equally, the argument that on a bond being provided under Rule 13, the goods would have been exported without any problem of limitation would not hold as the exporter in the present case chose the route under Rule 12 which, as has been stated above, is something that can only be done if the application for rebate had been made within six months. | 1[ds]There is no doubt whatsoever that a period of limitation being procedural or adjectival law would ordinarily be retrospective in nature. This, however, is with one proviso super added which is that the claim made under the amended provision should not itself have been a dead claim in the sense that it was time barred before an Amending Act with a larger period of limitation comes into force. A number of judgments of this Court have recognised the aforesaid proposition.Shri Bagarias argument based on the proviso to rule 12(1) would obviously not have any force if Section 11B were to apply of its own force. It is clear from Section 11B(2) proviso (a) that a rebate of duty of excise on excisable goods exported out of India would be covered by the said provision. A reading of Mafatlal Industries (supra) would also show that such claims for rebate can only be made under Section 11B within the period of limitation stated therefor. This being the case, the argument based on Rule 12 would have to be discarded as it is not open to subordinate legislation to dispense with the requirements of Section 11B. Equally, the argument that on a bond being provided under Rule 13, the goods would have been exported without any problem of limitation would not hold as the exporter in the present case chose the route under Rule 12 which, as has been stated above, is something that can only be done if the application for rebate had been made within six months.The effect of the amendment of Section 11B on 12th May, 2000 is that all claims for rebate pending on this date would be governed by a period of one year from the date of shipment and not six months. This, however, is subject to the rider that the claim for rebate should not be made beyond the original period of six months. On the facts of the present case, since the claims for rebate were made beyond the original period of six months, the respondents cannot avail of the extended period of one year on the subsequent amendment to Section 11B.The effect of Section 11B, and in particular, applications for rebate being made within time, has been laid down in Mafatlal Industries Ltd. v. Union of India, (1997) 5 SCC 536 ,The discussion in the judgment yields the following propositions. We may forewarn that these propositions are set out merely for the sake of convenient reference and are not supposed to be exhaustive. In case of any doubt or ambiguity in these propositions, reference must be had to the discussion and propositions in the body of the judgment.(i) Where a refund of tax/duty is claimed on the ground that it has been collected from thebefore the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991 ormisinterpreting or misapplying the provisions of the Central Excises and Salt Act, 1944 read with Central Excise Tariff Act, 1985 or Customs Act, 1962 read with Customs Tariff Act or by misinterpreting or misapplying any of the rules, regulations or notifications issued under the said enactments, such a claim has necessarily to be preferred under and in accordance with the provisions of the respective enactments before the authorities specified thereunder and within the period of limitation prescribed therein. No suit is maintainable in that behalf. While the jurisdiction of the High Courts under Articleof this Court under Articlebe circumscribed by the provisions of the said enactments, they will certainly have due regard to the legislative intent evidenced by the provisions of the said Acts and would exercise their jurisdiction consistent with the provisions of the Act. The writ petition will be considered and disposed of in the light of and in accordance with the provisions of SectionThis is for the reason that the power under Article 226 has to be exercised to effectuate the rule of law and not for abrogating it.The said enactments including Section11B of the CentralExcises and Salt Act and Section 27 of the Customs Act do constitute "law" within the meaning of Article 265 of the Constitution of India and hence, any tax collected, retained or not refunded in accordance with the said provisions must be held to be collected, retained or not refunded, as the case may be, under the authority of law. Both the enactments areenactments providing for levy, assessment, recovery and refund of duties imposed thereunder. Section11B of the CentralExcises and Salt Act and Section 27 of the Customs Act, both before and after the 1991 (Amendment) Act are constitutionally valid and have to be followed and given effect to. Section 72 of the Contract Act has no application to such a claim of refund and cannot form a basis for maintaining a suit or a writ petition. All refund claims except those mentioned under Proposition (ii) below have to be and must be filed and adjudicated under the provisions of the Central Excises and Salt Act or the Customs Act, as the case may be. It is necessary to emphasise in this behalf that Act provides a complete mechanism for correcting any errors whether of fact or law and that not only an appeal is provided to ais not a departmentalto this Court, which is a civilthe law laid down by this decision it is clear that all claims for rebate/refund have to be made only under Section 11B with one exceptionwhere a statute is struck down as unconstitutional. Further, the limitation period of six months has to be strictly applied. | 1 | 4,835 | 1,008 | ### 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:
of transport and other allied matters as may be specified in the notification which the exporter undertakes to abide by entering into a bond in the proper form with such surety or sufficient security, and under such conditions as the Commissioner approves.(2) The Central Government may, from time to time, by notification in the Official Gazette, permit export of specified excisable goods in bond, without payment of duty from a factory of manufacture or warehouse, to Nepal or Bhutan, subject to such conditions or limitations as regards the class of goods, destination, mode of transport and other matters as may be specified therein.Explanation I. -- In this rule, the expression "manufacture" includes the process of blending of any goods or making alterations or any other operation thereon.Explanation II. -- In this rule, the term "materials" shall include raw materials, consumables ( other than fuel ), components, semi-finished goods, assemblies, sub-assemblies, intermediate goods, accessories, parts and packaging materials used in the manufacture of export goods but does not include capital goods used in the factory in or in relation to manufacture of export goods.""Notifications and Procedures under Rule 12[l] Rebate of duty on export of all excisable goods except ships stores and mineral oil products exported as stores for consumption on board an aircraft on foreign run. -- In exercise of the powers conferred by clause (a) of sub-rule (1) of rule 12 of the Central Excise Rules, 1944, the Central Government hereby directs that rebate of duty paid on the excisable goods as specified in the Table annexed hereto, shall on their exportation out of India to any country except Nepal and Bhutan, be made to the extent specified in column (3) thereof:Provided that -(i) except as otherwise permitted by the Central Board of Excise and Customs by a general or a special order, the excisable goods shall be exported after payment of duty directly from a factory or a warehouse;(ii) the excisable goods are exported by the exporter in accordance with the procedure set out in Chapter IX of the Central Excise Rules, 1944;(iii) the excisable goods shall be exported within six months from the date on which they were cleared for export from the factory of manufacture or warehouse or within such extended period as the Commissioner of Central Excise may in any particular case allow;(iv) the claim or, as the case may be, supplementary claims, for rebate of duty is lodged with the Maritime Commissioner of Central Excise or the Commissioner of Central Excise having jurisdiction over the factory of manufacture or warehouse, as mentioned in the relevant export documents; together with the proof of due exportation within the time limit specified in section 11B of the Central Excise Act,1944(1 of 1944);(v) the market price of the excisable goods at the time of exportation is, in the opinion of the Commissioner of Central Excise not less than the amount of rebate of duty claimed;(vi) the amount of rebate of duty admissible is not less than five hundred rupees;(vii) the exporter undertakes to refund any rebate of duty erroneously paid, to the Commissioner of Central Excise sanctioning such rebate in accordance with provisions of section 11A of the Central Excise Act, 1944(1 of 1944);(viii) if the excisable goods are not exported or the proof of export thereof is not furnished to the satisfaction of the Commissioner of Central Excise or, as the case may be, the Maritime Commissioner of Central Excise in the manner and within the prescribed time limit, the said officer on an application being made by the exporter or otherwise, shall cancel the export documents;(ix) if exported -(a) by land, the export shall take place by such routes or such land Customs Stations or Border Check Posts as have been approved by the Central Government;(b) by parcel post, the parcel is delivered by the exporter at the Post Office of despatch within six months of the payment of duty"At the relevant time, Section 11B(2) read as follows:-"(2) If, on receipt of any such application, the Assistant Commissioner of Central Excise is satisfied that the whole or any part of the duty of excise paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund:Provided that the amount of duty of excise as determined by the Assistant Commissioner of Central excise under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to -(a) rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India;xxx xxx xxx"Explanation. - For the purposes of this section, -(A) "refund" includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India." 13. Shri Bagarias argument based on the proviso to rule 12(1) would obviously not have any force if Section 11B were to apply of its own force. It is clear from Section 11B(2) proviso (a) that a rebate of duty of excise on excisable goods exported out of India would be covered by the said provision. A reading of Mafatlal Industries (supra) would also show that such claims for rebate can only be made under Section 11B within the period of limitation stated therefor. This being the case, the argument based on Rule 12 would have to be discarded as it is not open to subordinate legislation to dispense with the requirements of Section 11B. Equally, the argument that on a bond being provided under Rule 13, the goods would have been exported without any problem of limitation would not hold as the exporter in the present case chose the route under Rule 12 which, as has been stated above, is something that can only be done if the application for rebate had been made within six months.
### Response:
1
### Explanation:
There is no doubt whatsoever that a period of limitation being procedural or adjectival law would ordinarily be retrospective in nature. This, however, is with one proviso super added which is that the claim made under the amended provision should not itself have been a dead claim in the sense that it was time barred before an Amending Act with a larger period of limitation comes into force. A number of judgments of this Court have recognised the aforesaid proposition.Shri Bagarias argument based on the proviso to rule 12(1) would obviously not have any force if Section 11B were to apply of its own force. It is clear from Section 11B(2) proviso (a) that a rebate of duty of excise on excisable goods exported out of India would be covered by the said provision. A reading of Mafatlal Industries (supra) would also show that such claims for rebate can only be made under Section 11B within the period of limitation stated therefor. This being the case, the argument based on Rule 12 would have to be discarded as it is not open to subordinate legislation to dispense with the requirements of Section 11B. Equally, the argument that on a bond being provided under Rule 13, the goods would have been exported without any problem of limitation would not hold as the exporter in the present case chose the route under Rule 12 which, as has been stated above, is something that can only be done if the application for rebate had been made within six months.The effect of the amendment of Section 11B on 12th May, 2000 is that all claims for rebate pending on this date would be governed by a period of one year from the date of shipment and not six months. This, however, is subject to the rider that the claim for rebate should not be made beyond the original period of six months. On the facts of the present case, since the claims for rebate were made beyond the original period of six months, the respondents cannot avail of the extended period of one year on the subsequent amendment to Section 11B.The effect of Section 11B, and in particular, applications for rebate being made within time, has been laid down in Mafatlal Industries Ltd. v. Union of India, (1997) 5 SCC 536 ,The discussion in the judgment yields the following propositions. We may forewarn that these propositions are set out merely for the sake of convenient reference and are not supposed to be exhaustive. In case of any doubt or ambiguity in these propositions, reference must be had to the discussion and propositions in the body of the judgment.(i) Where a refund of tax/duty is claimed on the ground that it has been collected from thebefore the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991 ormisinterpreting or misapplying the provisions of the Central Excises and Salt Act, 1944 read with Central Excise Tariff Act, 1985 or Customs Act, 1962 read with Customs Tariff Act or by misinterpreting or misapplying any of the rules, regulations or notifications issued under the said enactments, such a claim has necessarily to be preferred under and in accordance with the provisions of the respective enactments before the authorities specified thereunder and within the period of limitation prescribed therein. No suit is maintainable in that behalf. While the jurisdiction of the High Courts under Articleof this Court under Articlebe circumscribed by the provisions of the said enactments, they will certainly have due regard to the legislative intent evidenced by the provisions of the said Acts and would exercise their jurisdiction consistent with the provisions of the Act. The writ petition will be considered and disposed of in the light of and in accordance with the provisions of SectionThis is for the reason that the power under Article 226 has to be exercised to effectuate the rule of law and not for abrogating it.The said enactments including Section11B of the CentralExcises and Salt Act and Section 27 of the Customs Act do constitute "law" within the meaning of Article 265 of the Constitution of India and hence, any tax collected, retained or not refunded in accordance with the said provisions must be held to be collected, retained or not refunded, as the case may be, under the authority of law. Both the enactments areenactments providing for levy, assessment, recovery and refund of duties imposed thereunder. Section11B of the CentralExcises and Salt Act and Section 27 of the Customs Act, both before and after the 1991 (Amendment) Act are constitutionally valid and have to be followed and given effect to. Section 72 of the Contract Act has no application to such a claim of refund and cannot form a basis for maintaining a suit or a writ petition. All refund claims except those mentioned under Proposition (ii) below have to be and must be filed and adjudicated under the provisions of the Central Excises and Salt Act or the Customs Act, as the case may be. It is necessary to emphasise in this behalf that Act provides a complete mechanism for correcting any errors whether of fact or law and that not only an appeal is provided to ais not a departmentalto this Court, which is a civilthe law laid down by this decision it is clear that all claims for rebate/refund have to be made only under Section 11B with one exceptionwhere a statute is struck down as unconstitutional. Further, the limitation period of six months has to be strictly applied.
|
State of Uttar Pradesh Vs. Jogendra Singh | allowed and the order directing the enquiry to be held by the appointed authority under R. 55 of the said Civil Services Rules was quashed.5. This order was challenged by the appellant by an appeal under the Letters Patent before a Division Bench of the said High Court. The Division Bench agreed with the view taken by the learned single Judge and dismissed the appeal. The appellant then applied for and obtained a certificate from the said High Court and it is with the said certificate that it has cosine to this Court.6. Mr. Hajela for the appellant contends that the conclusion reached by the Courts below is not supported on a fair and reasonable construction of R. 4(2) of the Rules. The appellants case is that in the State of U.P. it is competent to the Governor to direct that disciplinary proceedings against the officers specified in R. 4 of the Rules should be tried before an Administrative officer, but there is no obligation on the Governor in that behalf. The Governor may, if he so decides direct that the said enquiry may be held under R. 55 of the Civil Services Rules and conducted by an appropriate authority appointed in that behalf. Whether the enquiry should be held by the Administrative Tribunal or by an appropriate authority, is a matter entirely within the discretion of the Governor.7. On the other hand, the High Court has held that so far as cases of gazetted government servants are concerned, they are covered by R. 4(2) of the Rules and on a fair construction of the said Rule, it is dear that if a gazetted government servant requests that the enquiry against him should be held by the Administrative Tribunal, the Governor is bound to grant his request. So, the narrow point which arises for our decision is which of the two views can be said to represent correctly the effects R. 4(2) of the Rules. Rule 4 reads as follows:-"4. (1) The Governor may refer to the Tribunal cases relating to an individual government servant or class of government servants or government servants in a particular area only in respect of matters involving -(a) corruption;(b) failure to discharge duties properly;(c) irremediable general inefficiency in a public servant of more than ten years standing, and(d) personal immorality.(2) The Governor may, in respect of a gazetted government servant on his own request, refer his case to the Tribunal in respect of matters referred to in sub-rule (1)."It would be noticed that R. 4(1) confers discretion on the Governor to refer to the Tribunal cases falling under cls. (a) to (d) in respect of servants specified by the first part of sub-r. (1). In regard to these cases, the government servant concerned cannot claim that the enquiry against him should not be held by a Tribunal and the matter falls to be decided solely in the discretion of the Governor. It is also clear that amongst the classes of servants to whom sub-rule (1) applies, gazetted government servants are included, so that if R. 4(1) had stood by itself even gazetted government servants would have no right to claim that the enquiry against them should not be held by a Tribunal. It is in the light of this provision that R. 4(2) has to be considered.8. Rule 4(2) deals with the class of gazetted government servants and gives them the right to make a request to the governor that their cases should be referred to the Tribunal in respect of matters specified in cls. (a) to (d) of sub-r (1).The question for our decision is whether like the word "may" in R. 4(1) which confers the discretion on the Governor, the word "may" in sub-r. (2) confers the discretion on him, or does the word "may" in sub-rule (2) really mean "shall" or "must"? There is no doubt that the word "may" generally does not mean "must" or "shall". But it is well-settled that the word "may" is capable of meant, "must" or "shall" in the light of the context. It is also clear that where a discretion is conferred upon a public authority coupled with an obligation, the word "may" which denotes discretion should be construed to mean a command. Sometimes, the Legislature uses the word "may" out of deference to the high status of the authority on whom the power and the obligation are intended to be conferred and imposed. In the present case, it is the context which is decisive. The whole purpose of R. 4 (2) would be frustrated if the word "may" in the said rule receives the same construction as in sub-r. (1). It is because in regard to gazetted government servants the discretion had already been given to the Governor to refer their cases to the Tribunal that the rule-making authority wanted to make a special provision in respect of them as distinguished from other government servants falling under R. 4(1) and R. 4(2) has been prescribed, otherwise R. 4(2) would be wholly redundant. In other words, the plain and an ambiguous object of enacting R. 4 2) is to provide an option to the gazetted government servants to request the Governor that their cases should be tried by a Tribunal and not otherwise. The rule-making authority presumably thought that having regard to the status of the gazetted government servants, it would be legitimate to give such an option to them. Therefore, we feel no difficulty in acceptance the view taken by the High Court that R. 4(2) imposes an obligation on the Governor to grant a request made by the gazetted government servant that his case should be referred to the Tribunal under the Rules. Such a request was admittedly made by the respondent and has not been granted. Therefore, we are satisfied that the High Court was right in quashing the proceedings proposed to be taken by the appellant against the respondent otherwise than by referring his case to the Tribunal user the Rules. | 0[ds]8. Rule 4(2) deals with the class of gazetted government servants and gives them the right to make a request to the governor that their cases should be referred to the Tribunal in respect of matters specified in cls. (a) to (d) of sub-r (1).The question for our decision is whether like the word "may" in R. 4(1) which confers the discretion on the Governor, the word "may" in sub-r. (2) confers the discretion on him, or does the word "may" in sub-rule (2) really mean "shall" or "must"? There is no doubt that the word "may" generally does not mean "must" or "shall". But it is well-settled that the word "may" is capable of meant, "must" or "shall" in the light of the context. It is also clear that where a discretion is conferred upon a public authority coupled with an obligation, the word "may" which denotes discretion should be construed to mean a command. Sometimes, the Legislature uses the word "may" out of deference to the high status of the authority on whom the power and the obligation are intended to be conferred and imposed. In the present case, it is the context which is decisive. The whole purpose of R. 4 (2) would be frustrated if the word "may" in the said rule receives the same construction as in sub-r. (1). It is because in regard to gazetted government servants the discretion had already been given to the Governor to refer their cases to the Tribunal that the rule-making authority wanted to make a special provision in respect of them as distinguished from other government servants falling under R. 4(1) and R. 4(2) has been prescribed, otherwise R. 4(2) would be wholly redundant. In other words, the plain and an ambiguous object of enacting R. 4 2) is to provide an option to the gazetted government servants to request the Governor that their cases should be tried by a Tribunal and not otherwise. The rule-making authority presumably thought that having regard to the status of the gazetted government servants, it would be legitimate to give such an option to them. Therefore, we feel no difficulty in acceptance the view taken by the High Court that R. 4(2) imposes an obligation on the Governor to grant a request made by the gazetted government servant that his case should be referred to the Tribunal under the Rules. Such a request was admittedly made by the respondent and has not been granted. Therefore, we are satisfied that the High Court was right in quashing the proceedings proposed to be taken by the appellant against the respondent otherwise than by referring his case to the Tribunal user the Rules. | 0 | 1,662 | 540 | ### 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:
allowed and the order directing the enquiry to be held by the appointed authority under R. 55 of the said Civil Services Rules was quashed.5. This order was challenged by the appellant by an appeal under the Letters Patent before a Division Bench of the said High Court. The Division Bench agreed with the view taken by the learned single Judge and dismissed the appeal. The appellant then applied for and obtained a certificate from the said High Court and it is with the said certificate that it has cosine to this Court.6. Mr. Hajela for the appellant contends that the conclusion reached by the Courts below is not supported on a fair and reasonable construction of R. 4(2) of the Rules. The appellants case is that in the State of U.P. it is competent to the Governor to direct that disciplinary proceedings against the officers specified in R. 4 of the Rules should be tried before an Administrative officer, but there is no obligation on the Governor in that behalf. The Governor may, if he so decides direct that the said enquiry may be held under R. 55 of the Civil Services Rules and conducted by an appropriate authority appointed in that behalf. Whether the enquiry should be held by the Administrative Tribunal or by an appropriate authority, is a matter entirely within the discretion of the Governor.7. On the other hand, the High Court has held that so far as cases of gazetted government servants are concerned, they are covered by R. 4(2) of the Rules and on a fair construction of the said Rule, it is dear that if a gazetted government servant requests that the enquiry against him should be held by the Administrative Tribunal, the Governor is bound to grant his request. So, the narrow point which arises for our decision is which of the two views can be said to represent correctly the effects R. 4(2) of the Rules. Rule 4 reads as follows:-"4. (1) The Governor may refer to the Tribunal cases relating to an individual government servant or class of government servants or government servants in a particular area only in respect of matters involving -(a) corruption;(b) failure to discharge duties properly;(c) irremediable general inefficiency in a public servant of more than ten years standing, and(d) personal immorality.(2) The Governor may, in respect of a gazetted government servant on his own request, refer his case to the Tribunal in respect of matters referred to in sub-rule (1)."It would be noticed that R. 4(1) confers discretion on the Governor to refer to the Tribunal cases falling under cls. (a) to (d) in respect of servants specified by the first part of sub-r. (1). In regard to these cases, the government servant concerned cannot claim that the enquiry against him should not be held by a Tribunal and the matter falls to be decided solely in the discretion of the Governor. It is also clear that amongst the classes of servants to whom sub-rule (1) applies, gazetted government servants are included, so that if R. 4(1) had stood by itself even gazetted government servants would have no right to claim that the enquiry against them should not be held by a Tribunal. It is in the light of this provision that R. 4(2) has to be considered.8. Rule 4(2) deals with the class of gazetted government servants and gives them the right to make a request to the governor that their cases should be referred to the Tribunal in respect of matters specified in cls. (a) to (d) of sub-r (1).The question for our decision is whether like the word "may" in R. 4(1) which confers the discretion on the Governor, the word "may" in sub-r. (2) confers the discretion on him, or does the word "may" in sub-rule (2) really mean "shall" or "must"? There is no doubt that the word "may" generally does not mean "must" or "shall". But it is well-settled that the word "may" is capable of meant, "must" or "shall" in the light of the context. It is also clear that where a discretion is conferred upon a public authority coupled with an obligation, the word "may" which denotes discretion should be construed to mean a command. Sometimes, the Legislature uses the word "may" out of deference to the high status of the authority on whom the power and the obligation are intended to be conferred and imposed. In the present case, it is the context which is decisive. The whole purpose of R. 4 (2) would be frustrated if the word "may" in the said rule receives the same construction as in sub-r. (1). It is because in regard to gazetted government servants the discretion had already been given to the Governor to refer their cases to the Tribunal that the rule-making authority wanted to make a special provision in respect of them as distinguished from other government servants falling under R. 4(1) and R. 4(2) has been prescribed, otherwise R. 4(2) would be wholly redundant. In other words, the plain and an ambiguous object of enacting R. 4 2) is to provide an option to the gazetted government servants to request the Governor that their cases should be tried by a Tribunal and not otherwise. The rule-making authority presumably thought that having regard to the status of the gazetted government servants, it would be legitimate to give such an option to them. Therefore, we feel no difficulty in acceptance the view taken by the High Court that R. 4(2) imposes an obligation on the Governor to grant a request made by the gazetted government servant that his case should be referred to the Tribunal under the Rules. Such a request was admittedly made by the respondent and has not been granted. Therefore, we are satisfied that the High Court was right in quashing the proceedings proposed to be taken by the appellant against the respondent otherwise than by referring his case to the Tribunal user the Rules.
### Response:
0
### Explanation:
8. Rule 4(2) deals with the class of gazetted government servants and gives them the right to make a request to the governor that their cases should be referred to the Tribunal in respect of matters specified in cls. (a) to (d) of sub-r (1).The question for our decision is whether like the word "may" in R. 4(1) which confers the discretion on the Governor, the word "may" in sub-r. (2) confers the discretion on him, or does the word "may" in sub-rule (2) really mean "shall" or "must"? There is no doubt that the word "may" generally does not mean "must" or "shall". But it is well-settled that the word "may" is capable of meant, "must" or "shall" in the light of the context. It is also clear that where a discretion is conferred upon a public authority coupled with an obligation, the word "may" which denotes discretion should be construed to mean a command. Sometimes, the Legislature uses the word "may" out of deference to the high status of the authority on whom the power and the obligation are intended to be conferred and imposed. In the present case, it is the context which is decisive. The whole purpose of R. 4 (2) would be frustrated if the word "may" in the said rule receives the same construction as in sub-r. (1). It is because in regard to gazetted government servants the discretion had already been given to the Governor to refer their cases to the Tribunal that the rule-making authority wanted to make a special provision in respect of them as distinguished from other government servants falling under R. 4(1) and R. 4(2) has been prescribed, otherwise R. 4(2) would be wholly redundant. In other words, the plain and an ambiguous object of enacting R. 4 2) is to provide an option to the gazetted government servants to request the Governor that their cases should be tried by a Tribunal and not otherwise. The rule-making authority presumably thought that having regard to the status of the gazetted government servants, it would be legitimate to give such an option to them. Therefore, we feel no difficulty in acceptance the view taken by the High Court that R. 4(2) imposes an obligation on the Governor to grant a request made by the gazetted government servant that his case should be referred to the Tribunal under the Rules. Such a request was admittedly made by the respondent and has not been granted. Therefore, we are satisfied that the High Court was right in quashing the proceedings proposed to be taken by the appellant against the respondent otherwise than by referring his case to the Tribunal user the Rules.
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Workmen of Dimakuchi Tea Estate Vs. Management of Dimakuchi Tea Estate | point was raised that they had ceased to be workmen and were therefore outside the scope of the Act. This argument was repelled. In my opinion, there is no justification for treating such cases as authorities for the wider proposition that a valid industrial dispute can be raised by workmen about the employment or non-employment of someone else who does not belong and never belonged to their class or category. My view therefore is that the Act does not apply to cases of non-workmen, or officers, if they may be so called." Both these views as also other decisions of High Court and awards of Industrial Tribunals, were considered by the Full Bench of the Labour Appellate Tribunal and the Chairman of the Tribunal (Mr. J. N. Majumdar) acknowledged that his earlier view was not correct and expressed his opinion, concurred in by all the other members of the Tribunal, at p. 210-"I am, therefore, of opinion that the expression any person has to be interpreted in terms of workman. The words any person cannot have, in my opinion, their widest amplitude, as that would create incongruity and repugnancy in the provisions of the Act. They are to be interpreted in a manner that persons, who would come within that expression, can at some stage or other, answer the description of workman as defined in the Act." 20. It is necessary to state here that earlier a contrary view had been taken by the Calcutta High Court in Birla Brothers, Ltd. v. Modak, ILR (1948) 2 Cal 209 (H), by Banerjee, J. in Dalhousie Jute Co. Ltd. v. S. N. Modak, 1951-1 Lab LJ 145 (Cal) (I), and by the Industrial Tribunal, Madras, in East India Industries (Madras) Ltd. v. Their Workmen, 1952-1 Lab LJ 122 (Mad) (J). It is necessary to emphasise here two considerations which have generally weighed with some of the learned Judges in support of the view expressed by them: these two considerations are that (1) normally workmen will not raise a dispute in which they are not directly or substantially interested and (2) Government will not make a reference unless the dispute is a real or substantial one. We think that these two considerations instead of leading to a strictly grammatical or etymological interpretation of the expression "any person" occurring in the definition clause should lead, on the contrary, to an interpretation which, to use the words of Maxwell, is to be found in the subject or in the occasion on which the words are used and the object to be attained by the statute. We are aware that anybody may be a potential workman and the concept of "a potential workman" introduces an element of indefiniteness and uncertainty. We also agree that the expression "any person" is not co-extensive with any workman, potential or otherwise. We think, however, that the crucial test is one of community of interest and the person regarding whom the dispute is raised must be one in whose employment, non-employment, terms of employment or conditions of labour (as the case may be) the parties to the dispute have a direct or substantial interest. Whether such direct or substantial interest has been established in a particular case will depend on its facts and circumstances. 21. Two other later decisions have also been brought to our notice: Prahlad Rai Oil Mills v. State of Uttar Pradesh, AIR 1955 NUC (all) 2664 (K), in which Bhargava, J. expressed the view that the expression any person in the definition clause did not mean a workman and the decision in 55 Bom LR 125: (AIR 1953 Bom 325 ) (A), being the decision of Chagla, C. J., and Shah, J. from which we have already quoted some extracts. 22. An examination of the decisions referred to above undoubtedly discloses a divergence of opinion: two views have been expressed, one based on the ordinary meaning of the expression any person and the other based on the context, with reference to the subject of the enactment and the objects which the legislature has in view. For the reasons which we have already given, we think that the latter view is correct. 23.To summarise. Having regard to the scheme and objects of the Act, and its other provisions, the expression any person in S. 2 (k) of the Act must be read subject to such limitations and qualifications as arise from the context; the two crucial limitations are (1) the dispute must be a real dispute between the parties to the dispute (as indicated in the first two parts of the definition clause) so as to be capable of settlement or adjudication by one party to the dispute giving necessary relief to the other, and (2) the person regarding whom the dispute is raised must be one in whose employment, non-employment, terms of employment, or conditions of labour (as the case may be) the parties to the dispute have a direct or substantial interest. In the absence of such interest the dispute cannot be said to be a real dispute between the parties. Where the workmen raise a dispute as against their employer, the person regarding whose employment, non-employment, terms of employment or conditions of labour the dispute is raised need not be, strictly speaking, a workman within the meaning of the Act but must be one in whose employment, non-employment, terms of employment or conditions of labour the workmen as a class have a direct or substantial interest. 24. In the case before us, Dr. K. P. Banerjee was not a workman. He belonged to the medical or technical staff - a different category altogether from workmen. The appellants had no direct, nor substantial interest in his employment or non-employment, and even assuming that he was a member of the same Trade Union, it cannot be said, on the tests laid down by us, that the dispute regarding his termination of service was an industrial dispute within the meaning of S. 2 (k) of the Act. 25. | 0[ds]At first sight, it does appear that there is considerable force in the argument advanced on behalf of the appellants. It is rightly pointed out that the definition clause does not contain any words of qualification or restriction in respect of the expression "any person" occurring in the third part, and if any limitations as to its scope are to be imposed, they must be such as can be reasonably inferred from the definition clause itself or other provisions of the Act9. 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 world. 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 workmen. 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 or 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."We think that there is no real difficulty with regard to the first two limitations. They are, we think, implicit in the definition clause itself. It is obvious that a dispute between employers and employers, employers and workmen, or between workmen and workmen must be a real dispute capable of settlement or adjudication by directing one of the parties to the dispute to give necessary relief to the other. It is also obvious that the parties to the dispute must be directly or substantially interested therein, so that if workmen raise a dispute, it must relate to the establishment or part of establishment in which they are employed. With regard to limitation (3) ,while we agree that the expression any person cannot be completely equated with any workman as defined in the Act, we think that the limitation formulated by learned counsel for the appellants is much too widely stated and is not quite correct. We recognise that if the expression any person means any workman within the meaning of the Act. then it is difficult to understand why the legislature instead of using the expression any workman used the much wider expression any person in the third part of the definition clauseThe expression any person in the definition clause means, in our opinion, a person in whose employment, or non-employment, or terms of employment, or conditions of labour the workmen as a class have a direct or substantial interest - with whom they have under the scheme of the Act, a community of interest. Our reason for so holding is not merely that the Act makes a distinction between workmen and non-workmen, but because a dispute to be a real dispute must be one in which the parties to the dispute have a direct or substantial interest. Can it be said that workmen as a class are directly or substantially interested in the employment, non-employment, terms of employment or conditions of labour of persons who belong to the supervisory staff and are, under the provisions of the Act, non-workmen on whom the Act has conferred no benefit, who cannot by themselves be parties to an industrial dispute and for whose representation the Act makes no particular provision? We venture to think that the answer must be in the negative. Limitation (4) formulated by learned counsel for the appellants is also too generally stated. We recognise that solidarity of labour or general interest of labour welfare may furnish, in some cases, the necessary nexus of direct or substantial interest in a dispute between employers and workmen, but the principle of solidarity of the labour movement or general welfare of labour must be based on or correlated to the principle of community of interest; the workmen can raise a dispute in respect of those persons only in the employment or non-employment or the terms of employment or the conditions of labour of whom they have a direct or substantial interest. We think that Chagla, C. J., correctly put the crucial test when he said in 55 Bom LR 125 at p. 131: (AIR 1953 Bom 325 at p. 327( (A)In the case before us, Dr. K. P. Banerjee was not a workman. He belonged to the medical or technical staff - a different category altogether from workmen. The appellants had no direct, nor substantial interest in his employment or non-employment, and even assuming that he was a member of the same Trade Union, it cannot be said, on the tests laid down by us, that the dispute regarding his termination of service was an industrial dispute within the meaning of S. 2 (k) of the Act. | 0 | 9,959 | 995 | ### 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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point was raised that they had ceased to be workmen and were therefore outside the scope of the Act. This argument was repelled. In my opinion, there is no justification for treating such cases as authorities for the wider proposition that a valid industrial dispute can be raised by workmen about the employment or non-employment of someone else who does not belong and never belonged to their class or category. My view therefore is that the Act does not apply to cases of non-workmen, or officers, if they may be so called." Both these views as also other decisions of High Court and awards of Industrial Tribunals, were considered by the Full Bench of the Labour Appellate Tribunal and the Chairman of the Tribunal (Mr. J. N. Majumdar) acknowledged that his earlier view was not correct and expressed his opinion, concurred in by all the other members of the Tribunal, at p. 210-"I am, therefore, of opinion that the expression any person has to be interpreted in terms of workman. The words any person cannot have, in my opinion, their widest amplitude, as that would create incongruity and repugnancy in the provisions of the Act. They are to be interpreted in a manner that persons, who would come within that expression, can at some stage or other, answer the description of workman as defined in the Act." 20. It is necessary to state here that earlier a contrary view had been taken by the Calcutta High Court in Birla Brothers, Ltd. v. Modak, ILR (1948) 2 Cal 209 (H), by Banerjee, J. in Dalhousie Jute Co. Ltd. v. S. N. Modak, 1951-1 Lab LJ 145 (Cal) (I), and by the Industrial Tribunal, Madras, in East India Industries (Madras) Ltd. v. Their Workmen, 1952-1 Lab LJ 122 (Mad) (J). It is necessary to emphasise here two considerations which have generally weighed with some of the learned Judges in support of the view expressed by them: these two considerations are that (1) normally workmen will not raise a dispute in which they are not directly or substantially interested and (2) Government will not make a reference unless the dispute is a real or substantial one. We think that these two considerations instead of leading to a strictly grammatical or etymological interpretation of the expression "any person" occurring in the definition clause should lead, on the contrary, to an interpretation which, to use the words of Maxwell, is to be found in the subject or in the occasion on which the words are used and the object to be attained by the statute. We are aware that anybody may be a potential workman and the concept of "a potential workman" introduces an element of indefiniteness and uncertainty. We also agree that the expression "any person" is not co-extensive with any workman, potential or otherwise. We think, however, that the crucial test is one of community of interest and the person regarding whom the dispute is raised must be one in whose employment, non-employment, terms of employment or conditions of labour (as the case may be) the parties to the dispute have a direct or substantial interest. Whether such direct or substantial interest has been established in a particular case will depend on its facts and circumstances. 21. Two other later decisions have also been brought to our notice: Prahlad Rai Oil Mills v. State of Uttar Pradesh, AIR 1955 NUC (all) 2664 (K), in which Bhargava, J. expressed the view that the expression any person in the definition clause did not mean a workman and the decision in 55 Bom LR 125: (AIR 1953 Bom 325 ) (A), being the decision of Chagla, C. J., and Shah, J. from which we have already quoted some extracts. 22. An examination of the decisions referred to above undoubtedly discloses a divergence of opinion: two views have been expressed, one based on the ordinary meaning of the expression any person and the other based on the context, with reference to the subject of the enactment and the objects which the legislature has in view. For the reasons which we have already given, we think that the latter view is correct. 23.To summarise. Having regard to the scheme and objects of the Act, and its other provisions, the expression any person in S. 2 (k) of the Act must be read subject to such limitations and qualifications as arise from the context; the two crucial limitations are (1) the dispute must be a real dispute between the parties to the dispute (as indicated in the first two parts of the definition clause) so as to be capable of settlement or adjudication by one party to the dispute giving necessary relief to the other, and (2) the person regarding whom the dispute is raised must be one in whose employment, non-employment, terms of employment, or conditions of labour (as the case may be) the parties to the dispute have a direct or substantial interest. In the absence of such interest the dispute cannot be said to be a real dispute between the parties. Where the workmen raise a dispute as against their employer, the person regarding whose employment, non-employment, terms of employment or conditions of labour the dispute is raised need not be, strictly speaking, a workman within the meaning of the Act but must be one in whose employment, non-employment, terms of employment or conditions of labour the workmen as a class have a direct or substantial interest. 24. In the case before us, Dr. K. P. Banerjee was not a workman. He belonged to the medical or technical staff - a different category altogether from workmen. The appellants had no direct, nor substantial interest in his employment or non-employment, and even assuming that he was a member of the same Trade Union, it cannot be said, on the tests laid down by us, that the dispute regarding his termination of service was an industrial dispute within the meaning of S. 2 (k) of the Act. 25.
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At first sight, it does appear that there is considerable force in the argument advanced on behalf of the appellants. It is rightly pointed out that the definition clause does not contain any words of qualification or restriction in respect of the expression "any person" occurring in the third part, and if any limitations as to its scope are to be imposed, they must be such as can be reasonably inferred from the definition clause itself or other provisions of the Act9. 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 world. 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 workmen. 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 or 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."We think that there is no real difficulty with regard to the first two limitations. They are, we think, implicit in the definition clause itself. It is obvious that a dispute between employers and employers, employers and workmen, or between workmen and workmen must be a real dispute capable of settlement or adjudication by directing one of the parties to the dispute to give necessary relief to the other. It is also obvious that the parties to the dispute must be directly or substantially interested therein, so that if workmen raise a dispute, it must relate to the establishment or part of establishment in which they are employed. With regard to limitation (3) ,while we agree that the expression any person cannot be completely equated with any workman as defined in the Act, we think that the limitation formulated by learned counsel for the appellants is much too widely stated and is not quite correct. We recognise that if the expression any person means any workman within the meaning of the Act. then it is difficult to understand why the legislature instead of using the expression any workman used the much wider expression any person in the third part of the definition clauseThe expression any person in the definition clause means, in our opinion, a person in whose employment, or non-employment, or terms of employment, or conditions of labour the workmen as a class have a direct or substantial interest - with whom they have under the scheme of the Act, a community of interest. Our reason for so holding is not merely that the Act makes a distinction between workmen and non-workmen, but because a dispute to be a real dispute must be one in which the parties to the dispute have a direct or substantial interest. Can it be said that workmen as a class are directly or substantially interested in the employment, non-employment, terms of employment or conditions of labour of persons who belong to the supervisory staff and are, under the provisions of the Act, non-workmen on whom the Act has conferred no benefit, who cannot by themselves be parties to an industrial dispute and for whose representation the Act makes no particular provision? We venture to think that the answer must be in the negative. Limitation (4) formulated by learned counsel for the appellants is also too generally stated. We recognise that solidarity of labour or general interest of labour welfare may furnish, in some cases, the necessary nexus of direct or substantial interest in a dispute between employers and workmen, but the principle of solidarity of the labour movement or general welfare of labour must be based on or correlated to the principle of community of interest; the workmen can raise a dispute in respect of those persons only in the employment or non-employment or the terms of employment or the conditions of labour of whom they have a direct or substantial interest. We think that Chagla, C. J., correctly put the crucial test when he said in 55 Bom LR 125 at p. 131: (AIR 1953 Bom 325 at p. 327( (A)In the case before us, Dr. K. P. Banerjee was not a workman. He belonged to the medical or technical staff - a different category altogether from workmen. The appellants had no direct, nor substantial interest in his employment or non-employment, and even assuming that he was a member of the same Trade Union, it cannot be said, on the tests laid down by us, that the dispute regarding his termination of service was an industrial dispute within the meaning of S. 2 (k) of the Act.
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Rana Sheo Ambar Singh Vs. Allahabad Bank Limited | BEG, C.J. 1. This appeal by certificate raises the simple question whether certain trees, said to be part of a grove, are included in grove-land, which, under section 6(a) (i) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the Act) vests in the State of Uttar Pradesh free from all encumbrances. This very question was raised by the respondent-decree holder in the execution proceedings in this very case, between the same parties which came to this Court on an earlier occasion. We have perused the judgment of this Court reported in 1962 (2) S.C.R. 441, in the case. We find that the position taken by the respond- ent-decree-holder then also was that, after the coming into force of the Act, what could still be sold in execution of the decree was the right in trees of groves as these continued to vest in the intermediary. This Court rejected that submission and held that after vesting of all the rights mentioned in. section 6 of the Act in the State of Uttar Pradesh, new bhumidhari rights came into existence under section 18 of the Act. It also held that the only way in which a mortgagee could enforce his right against the mortgage or after the Act came into force is provided in section 6(h) of the Act, read with section 73 of the Transfer of Property Act, 1882, so that nothing more than the compensation awarded to the, intermediary could be proceeded against by the mortgagee. Proceed against by the mortgagee.2. We are surprised that, even after that decision which, according to the appellant-judgment-debtor, constitutes a complete answer to any further execution proceedings in respect of any part of bhumidhari rights, execution should have proceeded against trees in groves and the view taken by the execution court, that there is a distinction between, trees and a grove and grove land, should have been upheld by a Division Bench of the Allahabad High Court (Lucknow Bench).We find that it is impossible for us to accept this opinion in view of the definition of the intermediarys grove-under section 3(13) of the Act which says "intermediary grove means grove-land held or occupied by an intermediary as such". This means that "grove-land" and an "intermediarys groves are equated and groves are only collections of trees in plots of land so as to preclude cultivation in them. The uncut trees are deemed to be parts of the "land".Section 18(1)(a) of the Act provides that an "intermediarys grove" is bhumidhari property. Rights in it are part of bhumidhari rights. After these clear words of the enactment. we think it is not necessary even to consider previous definitions or to make out specious or unrealistic distinctions between standing uncut trees, which are parts of groves, and groves and grove-land. The proposition is well settled , under the general law, that trees, before they are cut, form parts of land. And, an inseparable part is always included in the whole. | 1[ds]We find that it is impossible for us to accept this opinion in view of the definition of the intermediarys grove-under section 3(13) of the Act which says "intermediary grove means grove-land held or occupied by an intermediary as such". This means that "grove-land" and an "intermediarys groves are equated and groves are only collections of trees in plots of land so as to preclude cultivation in them. The uncut trees are deemed to be parts of the "land".Section 18(1)(a) of the Act provides that an "intermediarys grove" is bhumidhari property. Rights in it are part of bhumidhari rights. After these clear words of the enactment. we think it is not necessary even to consider previous definitions or to make out specious or unrealistic distinctions between standing uncut trees, which are parts of groves, and groves and grove-land. The proposition is well settled , under the general law, that trees, before they are cut, form parts of land. And, an inseparable part is always included in the whole. | 1 | 580 | 205 | ### 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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BEG, C.J. 1. This appeal by certificate raises the simple question whether certain trees, said to be part of a grove, are included in grove-land, which, under section 6(a) (i) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the Act) vests in the State of Uttar Pradesh free from all encumbrances. This very question was raised by the respondent-decree holder in the execution proceedings in this very case, between the same parties which came to this Court on an earlier occasion. We have perused the judgment of this Court reported in 1962 (2) S.C.R. 441, in the case. We find that the position taken by the respond- ent-decree-holder then also was that, after the coming into force of the Act, what could still be sold in execution of the decree was the right in trees of groves as these continued to vest in the intermediary. This Court rejected that submission and held that after vesting of all the rights mentioned in. section 6 of the Act in the State of Uttar Pradesh, new bhumidhari rights came into existence under section 18 of the Act. It also held that the only way in which a mortgagee could enforce his right against the mortgage or after the Act came into force is provided in section 6(h) of the Act, read with section 73 of the Transfer of Property Act, 1882, so that nothing more than the compensation awarded to the, intermediary could be proceeded against by the mortgagee. Proceed against by the mortgagee.2. We are surprised that, even after that decision which, according to the appellant-judgment-debtor, constitutes a complete answer to any further execution proceedings in respect of any part of bhumidhari rights, execution should have proceeded against trees in groves and the view taken by the execution court, that there is a distinction between, trees and a grove and grove land, should have been upheld by a Division Bench of the Allahabad High Court (Lucknow Bench).We find that it is impossible for us to accept this opinion in view of the definition of the intermediarys grove-under section 3(13) of the Act which says "intermediary grove means grove-land held or occupied by an intermediary as such". This means that "grove-land" and an "intermediarys groves are equated and groves are only collections of trees in plots of land so as to preclude cultivation in them. The uncut trees are deemed to be parts of the "land".Section 18(1)(a) of the Act provides that an "intermediarys grove" is bhumidhari property. Rights in it are part of bhumidhari rights. After these clear words of the enactment. we think it is not necessary even to consider previous definitions or to make out specious or unrealistic distinctions between standing uncut trees, which are parts of groves, and groves and grove-land. The proposition is well settled , under the general law, that trees, before they are cut, form parts of land. And, an inseparable part is always included in the whole.
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1
### Explanation:
We find that it is impossible for us to accept this opinion in view of the definition of the intermediarys grove-under section 3(13) of the Act which says "intermediary grove means grove-land held or occupied by an intermediary as such". This means that "grove-land" and an "intermediarys groves are equated and groves are only collections of trees in plots of land so as to preclude cultivation in them. The uncut trees are deemed to be parts of the "land".Section 18(1)(a) of the Act provides that an "intermediarys grove" is bhumidhari property. Rights in it are part of bhumidhari rights. After these clear words of the enactment. we think it is not necessary even to consider previous definitions or to make out specious or unrealistic distinctions between standing uncut trees, which are parts of groves, and groves and grove-land. The proposition is well settled , under the general law, that trees, before they are cut, form parts of land. And, an inseparable part is always included in the whole.
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Ram Saran Dass Vs. State of Punjab | order was in substance an order of dismissal and as such, amounted to punishment under Art. 3 II of the Constitution and so, he contended that since the said order had been passed without complying with the mandatory provisions of Article 311(2) it was invalid Alternatively, the appellant urged that the impugned order had been pasted mala fide and in an arbitrary capricious and unconstitutional manner, and his case was that the exercise of the power by the governor to terminate his services which was mala fide was open to challenge on that ground alone.( 3 ) As we have already mentioned, the High court of Punjab dismissed the appellants petition in limine and so the respondent had no occasion to file a return in respect of the allegations made by the appellant. After the appellant was granted special leave to appeal So this court, the respondent has appeared and by C.M P. No. 865/1963 it has prayed that it should be allowed to file its counter affidavits in reply to the appellants case. We have accordingly allowed this application and taken on record the affidavits by Mr. Bhim Singh and M. S. C. Jain who is the Deputy secretary to the government of Punjab (Administration and Political Deptt).( 4 ) As we have briefly indicated, the petition filed by the appellant makes serious allegations in support of his, case that the impugned order announces to punishment and has been passed mala fide. It appears that the High court was not impressed by these allegations, and so, there to dismiss the petition summarily. In our opinion, the High court should not have adopted such as course the present case. It may sound dementary to say so, but nevertheless, we ought never to forget that justice must not only be done fairly but must always appear to be so done. When a responsible public servant holding a judicial office moves the High court under Art.226 and contends that the termination of his services, though ostensible made in exercise of the power conferred under rule 23 of the Rules, really amounts to his dismissal or that its exercise is mala fide, the High court should have called upon the respondent to make a return and then considered whether the allegations made by the appellant had been proved, and if they were what would be the result of the said finding on his argument that the impugned order amounts to dismissal, or has been pasted mala fide.( 5 ) The learned Deputy Advocate General who appeared before us on behalf of the respondent attempted to the argue that ever if all allegations made by the appellant in his writ petition are assumed to be true, that would not justify his contention that the impugned order amounts to his dismissal, or that the said order was made mala fide. We are inclined to hold that in a case of this kind, such an approach would be open to the criticism that it is casual and superficial. If the appellant is not able to prove any of the allegations which he has made in his writ petition, then, of course, there is an end of his case. If, on the other hand, the appellant is able to prove all or some of the allegations made by him two questions will fail to be considered. does the proof the said allegations justify the contention of the appellant that the impugned order, is in substance, an order of dismissal. There can be no doubt that in such cases, the form in which the order has been passed cannot be regarded as decisive. If in the light of the evidence adduced before it, the court is satisfied that not withstanding the ostensible form in which the impugned order has been passed, in substance it amounts to the appellants dismissal then the court may be driven to the conclusion that Art. 311 applied to the case and non - compliance with the mandatory, provisions of Art. 311 (2) may render the order invalid. The other question which may also require consideration is; if the appellant is able prove the allegations made by him. Would that justify his grievance.. that the Exercise of she powers conferred on the governor under Rule 23 the Rules, was mala fide. In that connection it will necessary to examine the question as to whether proof of mala fide against Mr. Bhim Singh can introduce an element of mala fides in the order ultimately passed by the governor. We wish to express no opinion on any of these points. We have set out these considerations to indicate why we think that it would have been more appropriate if the High court had called upon the respondent to file its return and then examined the merits of the writ petition filed by the appellant.( 6 ) The learned Deputy Advocate General no doubt suggested that we might deal with the appeal on the merits ourselves, but we take the view that it is necessary that the questions of facts raised by the appellant should first betrayed by the High court and if either party it aggrieved by the view that the High court may take and comes to this Court in appeal, we should have the benefit of the finding of the High Court that is why we do not propose to deal with the merits of the appeal ourselves at this stage. In a case of this kind where serious allegations are made by the appellant against responsible officers of the State, it may be desirable not to rely merely on affidavits, but to take evidence in court that however is a matter which the High court in its discretion will have to consider. If the appellant wishes that he should be allowed to give evidence in support of his allegations the High court may allow him to do so. In that extent the respondent also may be called upon to give evidence in rebuttal. | 1[ds]The main contention which has been urged before us on his behalf by Mr. Dayal is that having regard to the all gations made by the appellant in his writ petition: the High court should not have summarily rejected his petition. In our opinion, this contention is well founded and must bethe appellant was granted special leave to appeal So this court, the respondent has appeared and by C.M P. No. 865/1963 it has prayed that it should be allowed to file its counter affidavits in reply to the appellants case.We have accordingly allowed this application and taken on record the affidavits by Mr. Bhim Singh and M. S. C. Jain who is the Deputy secretary to the government of Punjab (Administration and Political Deptt).( 4 ) As we have briefly indicated, the petition filed by the appellant makes serious allegations in support of his, case that the impugned order announces to punishment and has been passed mala fide. It appears that the High court was not impressed by these allegations, and so, there to dismiss the petition summarily. In our opinion, the High court should not have adopted such as course the present case. It may sound dementary to say so, but nevertheless, we ought never to forget that justice must not only be done fairly but must always appear to be so done. When a responsible public servant holding a judicial office moves the High court under Art.226 and contends that the termination of his services, though ostensible made in exercise of the power conferred under rule 23 of the Rules, really amounts to his dismissal or that its exercise is mala fide, the High court should have called upon the respondent to make a return and then considered whether the allegations made by the appellant had been proved, and if they were what would be the result of the said finding on his argument that the impugned order amounts to dismissal, or has been pasted mala fide.( 5 ) The learned Deputy Advocate General who appeared before us on behalf of the respondent attempted to the argue that ever if all allegations made by the appellant in his writ petition are assumed to be true, that would not justify his contention that the impugned order amounts to his dismissal, or that the said order was made mala fide. We are inclined to hold that in a case of this kind, such an approach would be open to the criticism that it is casual and superficial. If the appellant is not able to prove any of the allegations which he has made in his writ petition, then, of course, there is an end of his case. If, on the other hand, the appellant is able to prove all or some of the allegations made by him two questions will fail to be considered. does the proof the said allegations justify the contention of the appellant that the impugned order, is in substance, an order of dismissal. There can be no doubt that in such cases, the form in which the order has been passed cannot be regarded as decisive. If in the light of the evidence adduced before it, the court is satisfied that not withstanding the ostensible form in which the impugned order has been passed, in substance it amounts to the appellants dismissal then the court may be driven to the conclusion that Art. 311 applied to the case and noncompliance with the mandatory, provisions of Art. 311 (2) may render the order invalid. The other question which may also require consideration is; if the appellant is able prove the allegations made by him. Would that justify his grievance.. that the Exercise of she powers conferred on the governor under Rule 23 the Rules, was mala fide. In that connection it will necessary to examine the question as to whether proof of mala fide against Mr. Bhim Singh can introduce an element of mala fides in the order ultimately passed by the governor. We wish to express no opinion on any of these points. We have set out these considerations to indicate why we think that it would have been more appropriate if the High court had called upon the respondent to file its return and then examined the merits of the writ petition filed by the appellant.( 6 ) The learned Deputy Advocate General no doubt suggested that we might deal with the appeal on the merits ourselves, but we take the view that it is necessary that the questions of facts raised by the appellant should first betrayed by the High court and if either party it aggrieved by the view that the High court may take and comes to this Court in appeal, we should have the benefit of the finding of the High Court that is why we do not propose to deal with the merits of the appeal ourselves at this stage. In a case of this kind where serious allegations are made by the appellant against responsible officers of the State, it may be desirable not to rely merely on affidavits, but to take evidence in court that however is a matter which the High court in its discretion will have to consider. If the appellant wishes that he should be allowed to give evidence in support of his allegations the High court may allow him to do so. In that extent the respondent also may be called upon to give evidence in rebuttal. | 1 | 1,589 | 988 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
order was in substance an order of dismissal and as such, amounted to punishment under Art. 3 II of the Constitution and so, he contended that since the said order had been passed without complying with the mandatory provisions of Article 311(2) it was invalid Alternatively, the appellant urged that the impugned order had been pasted mala fide and in an arbitrary capricious and unconstitutional manner, and his case was that the exercise of the power by the governor to terminate his services which was mala fide was open to challenge on that ground alone.( 3 ) As we have already mentioned, the High court of Punjab dismissed the appellants petition in limine and so the respondent had no occasion to file a return in respect of the allegations made by the appellant. After the appellant was granted special leave to appeal So this court, the respondent has appeared and by C.M P. No. 865/1963 it has prayed that it should be allowed to file its counter affidavits in reply to the appellants case. We have accordingly allowed this application and taken on record the affidavits by Mr. Bhim Singh and M. S. C. Jain who is the Deputy secretary to the government of Punjab (Administration and Political Deptt).( 4 ) As we have briefly indicated, the petition filed by the appellant makes serious allegations in support of his, case that the impugned order announces to punishment and has been passed mala fide. It appears that the High court was not impressed by these allegations, and so, there to dismiss the petition summarily. In our opinion, the High court should not have adopted such as course the present case. It may sound dementary to say so, but nevertheless, we ought never to forget that justice must not only be done fairly but must always appear to be so done. When a responsible public servant holding a judicial office moves the High court under Art.226 and contends that the termination of his services, though ostensible made in exercise of the power conferred under rule 23 of the Rules, really amounts to his dismissal or that its exercise is mala fide, the High court should have called upon the respondent to make a return and then considered whether the allegations made by the appellant had been proved, and if they were what would be the result of the said finding on his argument that the impugned order amounts to dismissal, or has been pasted mala fide.( 5 ) The learned Deputy Advocate General who appeared before us on behalf of the respondent attempted to the argue that ever if all allegations made by the appellant in his writ petition are assumed to be true, that would not justify his contention that the impugned order amounts to his dismissal, or that the said order was made mala fide. We are inclined to hold that in a case of this kind, such an approach would be open to the criticism that it is casual and superficial. If the appellant is not able to prove any of the allegations which he has made in his writ petition, then, of course, there is an end of his case. If, on the other hand, the appellant is able to prove all or some of the allegations made by him two questions will fail to be considered. does the proof the said allegations justify the contention of the appellant that the impugned order, is in substance, an order of dismissal. There can be no doubt that in such cases, the form in which the order has been passed cannot be regarded as decisive. If in the light of the evidence adduced before it, the court is satisfied that not withstanding the ostensible form in which the impugned order has been passed, in substance it amounts to the appellants dismissal then the court may be driven to the conclusion that Art. 311 applied to the case and non - compliance with the mandatory, provisions of Art. 311 (2) may render the order invalid. The other question which may also require consideration is; if the appellant is able prove the allegations made by him. Would that justify his grievance.. that the Exercise of she powers conferred on the governor under Rule 23 the Rules, was mala fide. In that connection it will necessary to examine the question as to whether proof of mala fide against Mr. Bhim Singh can introduce an element of mala fides in the order ultimately passed by the governor. We wish to express no opinion on any of these points. We have set out these considerations to indicate why we think that it would have been more appropriate if the High court had called upon the respondent to file its return and then examined the merits of the writ petition filed by the appellant.( 6 ) The learned Deputy Advocate General no doubt suggested that we might deal with the appeal on the merits ourselves, but we take the view that it is necessary that the questions of facts raised by the appellant should first betrayed by the High court and if either party it aggrieved by the view that the High court may take and comes to this Court in appeal, we should have the benefit of the finding of the High Court that is why we do not propose to deal with the merits of the appeal ourselves at this stage. In a case of this kind where serious allegations are made by the appellant against responsible officers of the State, it may be desirable not to rely merely on affidavits, but to take evidence in court that however is a matter which the High court in its discretion will have to consider. If the appellant wishes that he should be allowed to give evidence in support of his allegations the High court may allow him to do so. In that extent the respondent also may be called upon to give evidence in rebuttal.
### Response:
1
### Explanation:
The main contention which has been urged before us on his behalf by Mr. Dayal is that having regard to the all gations made by the appellant in his writ petition: the High court should not have summarily rejected his petition. In our opinion, this contention is well founded and must bethe appellant was granted special leave to appeal So this court, the respondent has appeared and by C.M P. No. 865/1963 it has prayed that it should be allowed to file its counter affidavits in reply to the appellants case.We have accordingly allowed this application and taken on record the affidavits by Mr. Bhim Singh and M. S. C. Jain who is the Deputy secretary to the government of Punjab (Administration and Political Deptt).( 4 ) As we have briefly indicated, the petition filed by the appellant makes serious allegations in support of his, case that the impugned order announces to punishment and has been passed mala fide. It appears that the High court was not impressed by these allegations, and so, there to dismiss the petition summarily. In our opinion, the High court should not have adopted such as course the present case. It may sound dementary to say so, but nevertheless, we ought never to forget that justice must not only be done fairly but must always appear to be so done. When a responsible public servant holding a judicial office moves the High court under Art.226 and contends that the termination of his services, though ostensible made in exercise of the power conferred under rule 23 of the Rules, really amounts to his dismissal or that its exercise is mala fide, the High court should have called upon the respondent to make a return and then considered whether the allegations made by the appellant had been proved, and if they were what would be the result of the said finding on his argument that the impugned order amounts to dismissal, or has been pasted mala fide.( 5 ) The learned Deputy Advocate General who appeared before us on behalf of the respondent attempted to the argue that ever if all allegations made by the appellant in his writ petition are assumed to be true, that would not justify his contention that the impugned order amounts to his dismissal, or that the said order was made mala fide. We are inclined to hold that in a case of this kind, such an approach would be open to the criticism that it is casual and superficial. If the appellant is not able to prove any of the allegations which he has made in his writ petition, then, of course, there is an end of his case. If, on the other hand, the appellant is able to prove all or some of the allegations made by him two questions will fail to be considered. does the proof the said allegations justify the contention of the appellant that the impugned order, is in substance, an order of dismissal. There can be no doubt that in such cases, the form in which the order has been passed cannot be regarded as decisive. If in the light of the evidence adduced before it, the court is satisfied that not withstanding the ostensible form in which the impugned order has been passed, in substance it amounts to the appellants dismissal then the court may be driven to the conclusion that Art. 311 applied to the case and noncompliance with the mandatory, provisions of Art. 311 (2) may render the order invalid. The other question which may also require consideration is; if the appellant is able prove the allegations made by him. Would that justify his grievance.. that the Exercise of she powers conferred on the governor under Rule 23 the Rules, was mala fide. In that connection it will necessary to examine the question as to whether proof of mala fide against Mr. Bhim Singh can introduce an element of mala fides in the order ultimately passed by the governor. We wish to express no opinion on any of these points. We have set out these considerations to indicate why we think that it would have been more appropriate if the High court had called upon the respondent to file its return and then examined the merits of the writ petition filed by the appellant.( 6 ) The learned Deputy Advocate General no doubt suggested that we might deal with the appeal on the merits ourselves, but we take the view that it is necessary that the questions of facts raised by the appellant should first betrayed by the High court and if either party it aggrieved by the view that the High court may take and comes to this Court in appeal, we should have the benefit of the finding of the High Court that is why we do not propose to deal with the merits of the appeal ourselves at this stage. In a case of this kind where serious allegations are made by the appellant against responsible officers of the State, it may be desirable not to rely merely on affidavits, but to take evidence in court that however is a matter which the High court in its discretion will have to consider. If the appellant wishes that he should be allowed to give evidence in support of his allegations the High court may allow him to do so. In that extent the respondent also may be called upon to give evidence in rebuttal.
|
Commissioner of Income Tax, Kerala & Coimbatore Vs. Krishna Warriar | part of the income of that property is utilized for religious or charitable purposes. The dichotomy between the two expressions "wholly" and "in part" is not based upon the dedication of the whole or a fractional part of the property, but between the dedication of the said property wholly for religious or charitable purposes or in part for such purposes. If so understood, the two limbs of the substantive clause fall into a piece. The first limb deals with a property or a part of it held in trust wholly for religious or charitable purposes, and the second limb provides for such a property held in trust partly for religious or charitable purposes. On the said reading of the provision it follows that the entire business of Arya Vaidya Sala is held in trust for utilizing 50 per cent of its profits i.e., a part of the income, for religious or charitable purposes. The present case, therefore, falls squarely within the scope of the substantive part of Cl. (i) of S. 4(3) of the Act.8. Even so it is contended that cl. (b) of the proviso imposes further limitations before the exemption can be granted. But the said clause of the proviso only applies to the case of income derived from business carried on on behalf of a religious or charitable institution. A business held in trust wholly or in part for religious or charitable purposes is not a business carried on on behalf of a religious or charitable institution, for the business itself is held in trust. A few decisions cited at the Bar bringing out the distinction between the substantive part of Cl.(i) of S.4 (3) and Cl.(b) of the proviso may usefully be referred to at this stage. Where a business was held in trust for charitable purposes, a Division Bench of the Bombay High Court in Dharma Vijaya Agency Bombay v. Commissioner of Income-tax, Bombay City 1, (1938) 38 ITR 392 at pp. 405, 406, 410: (AIR 1960 Bom 380 at pp. 384-385, 386) held that it was not business which was carried on on behalf of religious or charitable institutions within the meaning of, cl. (b) of the proviso. Shah, J., after considering the relevant authorities and the provisions of the Act, observed:"In our view, the business referred to in cl. (b) of the proviso need not be business which is held for religious or charitable purposes, provided it is business carried on on behalf of a religious or charitable institution.Desai, J., stated thus:. . . . . . . it is impossible to equate the scope of proviso (b) with the scope of property consisting of business held under trust wholly for religious or charitable purposes. It must of necessity mes carried on by or on behalf of a religious or charitable institution."A Division Bench of the Kerala. High Court in Dharmodayam Co. v. Commissioner of Income-tax, Kerala, 1962-45 ITR 478 (Kerala) expressed much to the same effect. A Division Bench of the Madras High Court, in Thiagesar Dharma Vanikam v. Commissioner of Income-tax, Madras, 1963-50 ITR 798 at pp 807, 809 : (AIR 1964 Mad 483 at pp.486, 487) after considering the decisions of the various High Courts and the relevant provisions of the Act, observed:When the trustee acts, it is only the trust that acts, as the trustee fully represents the trust. A business carried on on behalf of a trust rather indicates a business which is not held in trust, than a business of the trust run by the trustees."It concluded thus:"In our opinion proviso (b) to section 4 (3) (i) does not restrict the operation of the main provision in section 4(3) (i). If a trust carried on business and the business itself is held in trust and the income from such business is applied or accumulated for application for the purpose of the trust, which must of course be of a religious, or a charitable character, the conditions prescribed in section 4(3) (i) are fulfilled and the income is exempt from taxation. This exemption cannot be defeated even if the business were to be conducted by somebody else acting on behalf of the trust. Proviso (b) to section 4(3) (i) has application only to businesses which are not held in trust, and the field of its operation is, therefore, distinct and separate from that covered by section 4(3) (i)".Emphasis is laid upon the expression "such income in the opening words of the proviso and a contention is raised that the income dealt with in the proviso is income derived from property held under trust. To state it differently, the adjective "such" in the expression "such income" refers back to the income in the substantive clause. There is some plausibility in the contention, but if the interpretation be accepted, we will be attributing an intention to the Legislature to make a distinction between business and other property though both of them are held under trust. There is no acceptable reason for this distinction. That apart, the expression "such" may as well refer to the "income" in the opening sentence of sub-s. (3). The said sub-section says that the incomes mentioned thereunder shall not be included in the total income, but the proviso lifts the ban and says that such incomes shall be included in the total income if the conditions laid down are satisfied. We think that the expression “such income" only means the income accruing or arising in favour of the trust.9. The legal position may briefly be stated thus. Clause (1) of S. 4(3) of the Act takes in every property or a fractional part of it held in trust wholly for religious or charitable purposes. It also takes in such property held only in part for such purposes. Business is also property within the meaning of the said clause. Clause (b) of the proviso to S. 4(3) (i) applies only to a business not held in trust but carried on on behalf of religious or charitable institutions. | 1[ds]If business is property and is held under trust wholly or partly for religious or charitable purposes, it falls squarely under the substantive part of Cl. (i) and in that event Cl. (b) of the proviso cannot be attracted, as under that clause of the proviso the business mentioned therein is not held under trust but one carried on on behalf of a religious or charitable institution. To take a business out of the substantive Cl. (i) of S. 4 (3) and place it in Cl. (b) of the proviso, it is suggested that business is not property and that even if it is property the said property is not wholly or partly held in trust for, religious or charitable purposes. That business is property is now well settled.In our view, the expression "in part" does not refer to an aliquot part; if half a house is held in trust wholly for religious or charitable purposes, it would be covered by the first part of the substantive clause of cl. (i), for in that event the subject-matter of the trust is only the said half of the house and that half is held wholly for religious or charitable purposes. The expression "in part", therefore, must apply to a case at other than a property a part of which is wholly held for religious or charitable purposes. In India there are a variety of trusts wherein there is no complete dedication of the property but only a partial dedication. A property may be dedicated entirely to a religious or charitable institution or to a deity. This is an instance of complete dedication. A property may be dedicated to a deity, subject to a charge that part of the income shall be given to the grantors heirs. A property may be given to an individual subject to, or burdened with, a charge in favour of an idol or a religious institution or for charitable purposes. An owner of property may retain the property for himself but carve out a beneficial interest there from in favour of the public by way of easement or otherwise. There may be many other instances where though there is a trust, it involves only a partial dedication of the property held under trust in the sense that only a part of the income of that property is utilized for religious or charitable purposes. The dichotomy between the two expressions "wholly" and "in part" is not based upon the dedication of the whole or a fractional part of the property, but between the dedication of the said property wholly for religious or charitable purposes or in part for such purposes. If so understood, the two limbs of the substantive clause fall into a piece. The first limb deals with a property or a part of it held in trust wholly for religious or charitable purposes, and the second limb provides for such a property held in trust partly for religious or charitable purposes. On the said reading of the provision it follows that the entire business of Arya Vaidya Sala is held in trust for utilizing 50 per cent of its profits i.e., a part of the income, for religious or charitable purposes. The present case, therefore, falls squarely within the scope of the substantive part of Cl. (i) of S. 4(3) of theis laid upon the expression "such income in the opening words of the proviso and a contention is raised that the income dealt with in the proviso is income derived from property held under trust. To state it differently, the adjective "such" in the expression "such income" refers back to the income in the substantive clause. There is some plausibility in the contention, but if the interpretation be accepted, we will be attributing an intention to the Legislature to make a distinction between business and other property though both of them are held under trust. There is no acceptable reason for this distinction. That apart, the expression "such" may as well refer to the "income" in the opening sentence of sub-s. (3). The said sub-section says that the incomes mentioned thereunder shall not be included in the total income, but the proviso lifts the ban and says that such incomes shall be included in the total income if the conditions laid down are satisfied. We think that the expressionincome" only means the income accruing or arising in favour of the trust.9. The legal position may briefly be stated thus. Clause (1) of S. 4(3) of the Act takes in every property or a fractional part of it held in trust wholly for religious or charitable purposes. It also takes in such property held only in part for such purposes. Business is also property within the meaning of the said clause. Clause (b) of the proviso to S. 4(3) (i) applies only to a business not held in trust but carried on on behalf of religious or charitablewill be seen from the said recitals of the will that the testator created a trust in respect of his entire properties, including those mentioned in Schedules B, C and D and specifically vested them into the trustees appointed thereunder. The properties so vested included the business carried on in the name and style of Arya Vaidya Sala. The main objects of the trust were to carry on the said two institutions, namely, Arya Vaidya Sala and Arya Vaiday Hospital and also the other objects mentioned thereunder. Out of the income from the business so vested in the trustees, he directed the trustees to spend 25% for the development of Arya Vaidya Sala, 25% to meet the expenses of the Arya Vaidya Hospital, not exceeding 10% for the Arya Vaidya Patasala, 25% to be shared equally by two branches of the family of the testator for a period of 20 years and thereafter to be utilized for the purpose of the Arya Vaidya Sala and Arya Vaidya Hospital and 15% to be given to the said branches; that is to say, 60% of the total properties for a period of 20 years from the demise of the testator should be utilized for religious and charitable purposes and thereafter 85% to be utilized for the said purposes and the rest to be spent on nonreligious and noncharitable purposes. Therefore, under the will the E Schedule properties, including the business, were held under trust and the object of the trust was to utilize 60% of the profits of the business for 20 years 85% thereafter for religious and charitable purpose. The assessment years in question fell within 20 years from the death of the testator and, therefore, we are concerned only with 60% of the income from the trust properties.n so it is contended that cl. (b) of the proviso imposes further limitations before the exemption can be granted.But the said clause of the proviso only applies to the case of income derived from business carried on on behalf of a religious or charitable institution. A business held in trust wholly or in part for religious or charitable purposes is not a business carried on on behalf of a religious or charitable institution, for the business itself is held in trust. A few decisions cited at the Bar bringing out the distinction between the substantive part of Cl.(i) of S.4 (3) and Cl.(b) of the proviso may usefully be referred to at this stage. Where a business was held in trust for charitable purposes, a Division Bench of the Bombay High Court in Dharma Vijaya Agency Bombay v. Commissioner ofBombay City 1, (1938) 38 ITR 392 at pp. 405, 406, 410: (AIR 1960 Bom 380 at pp.386) held that it was not business which was carried on on behalf of religious or charitable institutions within the meaning of, cl. (b) of the proviso. | 1 | 4,933 | 1,476 | ### 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:
part of the income of that property is utilized for religious or charitable purposes. The dichotomy between the two expressions "wholly" and "in part" is not based upon the dedication of the whole or a fractional part of the property, but between the dedication of the said property wholly for religious or charitable purposes or in part for such purposes. If so understood, the two limbs of the substantive clause fall into a piece. The first limb deals with a property or a part of it held in trust wholly for religious or charitable purposes, and the second limb provides for such a property held in trust partly for religious or charitable purposes. On the said reading of the provision it follows that the entire business of Arya Vaidya Sala is held in trust for utilizing 50 per cent of its profits i.e., a part of the income, for religious or charitable purposes. The present case, therefore, falls squarely within the scope of the substantive part of Cl. (i) of S. 4(3) of the Act.8. Even so it is contended that cl. (b) of the proviso imposes further limitations before the exemption can be granted. But the said clause of the proviso only applies to the case of income derived from business carried on on behalf of a religious or charitable institution. A business held in trust wholly or in part for religious or charitable purposes is not a business carried on on behalf of a religious or charitable institution, for the business itself is held in trust. A few decisions cited at the Bar bringing out the distinction between the substantive part of Cl.(i) of S.4 (3) and Cl.(b) of the proviso may usefully be referred to at this stage. Where a business was held in trust for charitable purposes, a Division Bench of the Bombay High Court in Dharma Vijaya Agency Bombay v. Commissioner of Income-tax, Bombay City 1, (1938) 38 ITR 392 at pp. 405, 406, 410: (AIR 1960 Bom 380 at pp. 384-385, 386) held that it was not business which was carried on on behalf of religious or charitable institutions within the meaning of, cl. (b) of the proviso. Shah, J., after considering the relevant authorities and the provisions of the Act, observed:"In our view, the business referred to in cl. (b) of the proviso need not be business which is held for religious or charitable purposes, provided it is business carried on on behalf of a religious or charitable institution.Desai, J., stated thus:. . . . . . . it is impossible to equate the scope of proviso (b) with the scope of property consisting of business held under trust wholly for religious or charitable purposes. It must of necessity mes carried on by or on behalf of a religious or charitable institution."A Division Bench of the Kerala. High Court in Dharmodayam Co. v. Commissioner of Income-tax, Kerala, 1962-45 ITR 478 (Kerala) expressed much to the same effect. A Division Bench of the Madras High Court, in Thiagesar Dharma Vanikam v. Commissioner of Income-tax, Madras, 1963-50 ITR 798 at pp 807, 809 : (AIR 1964 Mad 483 at pp.486, 487) after considering the decisions of the various High Courts and the relevant provisions of the Act, observed:When the trustee acts, it is only the trust that acts, as the trustee fully represents the trust. A business carried on on behalf of a trust rather indicates a business which is not held in trust, than a business of the trust run by the trustees."It concluded thus:"In our opinion proviso (b) to section 4 (3) (i) does not restrict the operation of the main provision in section 4(3) (i). If a trust carried on business and the business itself is held in trust and the income from such business is applied or accumulated for application for the purpose of the trust, which must of course be of a religious, or a charitable character, the conditions prescribed in section 4(3) (i) are fulfilled and the income is exempt from taxation. This exemption cannot be defeated even if the business were to be conducted by somebody else acting on behalf of the trust. Proviso (b) to section 4(3) (i) has application only to businesses which are not held in trust, and the field of its operation is, therefore, distinct and separate from that covered by section 4(3) (i)".Emphasis is laid upon the expression "such income in the opening words of the proviso and a contention is raised that the income dealt with in the proviso is income derived from property held under trust. To state it differently, the adjective "such" in the expression "such income" refers back to the income in the substantive clause. There is some plausibility in the contention, but if the interpretation be accepted, we will be attributing an intention to the Legislature to make a distinction between business and other property though both of them are held under trust. There is no acceptable reason for this distinction. That apart, the expression "such" may as well refer to the "income" in the opening sentence of sub-s. (3). The said sub-section says that the incomes mentioned thereunder shall not be included in the total income, but the proviso lifts the ban and says that such incomes shall be included in the total income if the conditions laid down are satisfied. We think that the expression “such income" only means the income accruing or arising in favour of the trust.9. The legal position may briefly be stated thus. Clause (1) of S. 4(3) of the Act takes in every property or a fractional part of it held in trust wholly for religious or charitable purposes. It also takes in such property held only in part for such purposes. Business is also property within the meaning of the said clause. Clause (b) of the proviso to S. 4(3) (i) applies only to a business not held in trust but carried on on behalf of religious or charitable institutions.
### Response:
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with, a charge in favour of an idol or a religious institution or for charitable purposes. An owner of property may retain the property for himself but carve out a beneficial interest there from in favour of the public by way of easement or otherwise. There may be many other instances where though there is a trust, it involves only a partial dedication of the property held under trust in the sense that only a part of the income of that property is utilized for religious or charitable purposes. The dichotomy between the two expressions "wholly" and "in part" is not based upon the dedication of the whole or a fractional part of the property, but between the dedication of the said property wholly for religious or charitable purposes or in part for such purposes. If so understood, the two limbs of the substantive clause fall into a piece. The first limb deals with a property or a part of it held in trust wholly for religious or charitable purposes, and the second limb provides for such a property held in trust partly for religious or charitable purposes. On the said reading of the provision it follows that the entire business of Arya Vaidya Sala is held in trust for utilizing 50 per cent of its profits i.e., a part of the income, for religious or charitable purposes. The present case, therefore, falls squarely within the scope of the substantive part of Cl. (i) of S. 4(3) of theis laid upon the expression "such income in the opening words of the proviso and a contention is raised that the income dealt with in the proviso is income derived from property held under trust. To state it differently, the adjective "such" in the expression "such income" refers back to the income in the substantive clause. There is some plausibility in the contention, but if the interpretation be accepted, we will be attributing an intention to the Legislature to make a distinction between business and other property though both of them are held under trust. There is no acceptable reason for this distinction. That apart, the expression "such" may as well refer to the "income" in the opening sentence of sub-s. (3). The said sub-section says that the incomes mentioned thereunder shall not be included in the total income, but the proviso lifts the ban and says that such incomes shall be included in the total income if the conditions laid down are satisfied. We think that the expressionincome" only means the income accruing or arising in favour of the trust.9. The legal position may briefly be stated thus. Clause (1) of S. 4(3) of the Act takes in every property or a fractional part of it held in trust wholly for religious or charitable purposes. It also takes in such property held only in part for such purposes. Business is also property within the meaning of the said clause. Clause (b) of the proviso to S. 4(3) (i) applies only to a business not held in trust but carried on on behalf of religious or charitablewill be seen from the said recitals of the will that the testator created a trust in respect of his entire properties, including those mentioned in Schedules B, C and D and specifically vested them into the trustees appointed thereunder. The properties so vested included the business carried on in the name and style of Arya Vaidya Sala. The main objects of the trust were to carry on the said two institutions, namely, Arya Vaidya Sala and Arya Vaiday Hospital and also the other objects mentioned thereunder. Out of the income from the business so vested in the trustees, he directed the trustees to spend 25% for the development of Arya Vaidya Sala, 25% to meet the expenses of the Arya Vaidya Hospital, not exceeding 10% for the Arya Vaidya Patasala, 25% to be shared equally by two branches of the family of the testator for a period of 20 years and thereafter to be utilized for the purpose of the Arya Vaidya Sala and Arya Vaidya Hospital and 15% to be given to the said branches; that is to say, 60% of the total properties for a period of 20 years from the demise of the testator should be utilized for religious and charitable purposes and thereafter 85% to be utilized for the said purposes and the rest to be spent on nonreligious and noncharitable purposes. Therefore, under the will the E Schedule properties, including the business, were held under trust and the object of the trust was to utilize 60% of the profits of the business for 20 years 85% thereafter for religious and charitable purpose. The assessment years in question fell within 20 years from the death of the testator and, therefore, we are concerned only with 60% of the income from the trust properties.n so it is contended that cl. (b) of the proviso imposes further limitations before the exemption can be granted.But the said clause of the proviso only applies to the case of income derived from business carried on on behalf of a religious or charitable institution. A business held in trust wholly or in part for religious or charitable purposes is not a business carried on on behalf of a religious or charitable institution, for the business itself is held in trust. A few decisions cited at the Bar bringing out the distinction between the substantive part of Cl.(i) of S.4 (3) and Cl.(b) of the proviso may usefully be referred to at this stage. Where a business was held in trust for charitable purposes, a Division Bench of the Bombay High Court in Dharma Vijaya Agency Bombay v. Commissioner ofBombay City 1, (1938) 38 ITR 392 at pp. 405, 406, 410: (AIR 1960 Bom 380 at pp.386) held that it was not business which was carried on on behalf of religious or charitable institutions within the meaning of, cl. (b) of the proviso.
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State Bank of India, Calcutta Vs. Its Workmen, and Another | the onus on the respondents, and it felt no doubt that in terminating the services of respondent 2 the appellant was actuated by ulterior motives and that the said termination amounted to an unfair practice and victimisation. As a result of these findings the appeal preferred by the respondents was allowed and the appellant was directed to reinstate respondent 2 and to restore him to his old post. It is against this order that the appellant has come to this Court by special leave, and the only point which has been raised on its behalf by Mr. B. Sen is that in entertaining the appeal preferred before it by the respondents the Labour Appellate Tribunal has exceeded its jurisdiction under S.7 of the Act. It is common ground that the appeal before the Labour Appellate Tribunal would be competent under S. 7(1)(a) only if it involved any substantial question of law. So what we have to decide in the present appeal is : Did any substantial question of law arise in the respondents appeal before the Labour Appellate Tribunal ?It may be relevant to point out that this contention was not raised before the Labour Appellate Tribunal. It is desirable that whenever a party to the appeal before the Labour Appellate Tribunal wants to take an objection on the ground of incompetence of the appeal, the objection should be taken before the Labour Appellate Tribunal itself. It is not fair that the Labour Appellate Tribunal should not be called upon to decide this point, and an attempt should be made to obtain the decision of the said Tribunal on the merits and when it is discovered that the decision has gone against, the party should think of raising the point of jurisdiction before this Court in its appeal under Art. 136 of the Constitution. However, we have not precluded Mr. Sen from raising this contention before us because the contention is one of law, and for its decision no more evidence is required.3. Mr. Sen argues that the findings made by the industrial tribunal were alternative. It had held that S. 33 had not been contravened; and even if it was, on the merits it had found that the order of discharge was not shown to be unreasonable. We are not impressed by this argument. There is no doubt that as the appeal was presented before the Labour Appellate Tribunal the first question which it raised was whether S.33 of the Industrial Disputes Act had been contravened, and it is common ground that if this question arose for the decision of the Labour Appellate Tribunal it cannot be said that a substantial question of law did not arise. It is clear that the merits had to be considered whatever decision was reached by the tribunal on the first preliminary issue about the breach of S. 33. Now, even in regard to the merits there is another question of law which arises and that is one of onus. Mr. Sen contends that even if S. 33 has been contravened it does not follow that the employer has to take the onus of proving to the satisfaction of the tribunal that the order of respondents; discharge was justified. According to Mr. Sen, even on if S. 33 is contravened, the principles laid down by this Court in Indian Iron & Steel Company, Ltd. and another v. Their workmen [1958 - I L.L.J. 260] will apply, if the employer has held a proper enquiry after framing charges against the employee and in the said enquiry findings have been recorded against the employee; in such a case it is suggested that it is only if there is want of good faith or there is victimization or unfair labour practice or when the management has been guilty of basic error of violation of the principles of natural justice or when the findings in question are perverse that the tribunal can interfere.On the other hand, it is argued that if S. 33 is contravened by the employer then the enquiry held by him would serve no useful purpose. The tribunal would then have to be satisfied about the merits of the employers contention that the termination of the employees services is justified. The argument is that it is only if a proper enquiry has resulted in a legal order of termination that the principles applicable to domestic tribunals and their business can be legitimately invoked by the employer. Where, as in the present case, the order of discharge contravenes S. 33, the enquiry which preceded such an order can have no validity and, when an industrial dispute arises in respect of such an illegal discharge or dismissal, the whole question is open before the tribunal which must deal with its merits and satisfy itself about the employers contention that the employee deserves to be discharged or dismissed.4. In our opinion, it is unnecessary to decide the merits of these contentions because whatever view we were to take in this matter would not affect the decision of the preliminary objection raised by Mr. Sen that no appeal lay before the Labour Appellate Tribunal under S. 7(1)(a) of the Act. We have set out these rival contentions solely with the object of emphasising the fact that a substantial point of law arises even in regard to the question about the onus of proof and this question has been answered by the Labour Appellate Tribunal in favour of the respondents. Therefore even in regard to the merits of the case it cannot be denied that a substantial question of law did arise, and so the appeal before the Labour Appellate Tribunal was competent. We have already mentioned that the Labour Appellate Tribunal has made a definite finding that in discharging the services of respondent 2 the appellant was guilty of unfair labour practice and that it wanted to victimize respondent 2. We ought to add that Mr. Sen has not challenged this finding before us, and we think rightly.5. | 0[ds]Mr. Sen argues that the findings made by the industrial tribunal were alternative. It had held that S. 33 had not been contravened; and even if it was, on the merits it had found that the order of discharge was not shown to beunreasonable. We are not impressed by this argument. There is no doubt that as the appeal was presented before the Labour Appellate Tribunal the first question which it raised was whether S.33 of the Industrial Disputes Act had been contravened, and it is common ground that if this question arose for the decision of the Labour Appellate Tribunal it cannot be said that a substantial question of law did not arise. It is clear that the merits had to be considered whatever decision was reached by the tribunal on the first preliminary issue about the breach of S. 33. Now, even in regard to the merits there is another question of law which arises and that is one of onus. Mr. Sen contends that even if S. 33 has been contravened it does not follow that the employer has to take the onus of proving to the satisfaction of the tribunal that the order of respondents; discharge wasour opinion, it is unnecessary to decide the merits of these contentions because whatever view we were to take in this matter would not affect the decision of the preliminary objection raised by Mr. Sen that no appeal lay before the Labour Appellate Tribunal under S. 7(1)(a) of the Act. We have set out these rival contentions solely with the object of emphasising the fact that a substantial point of law arises even in regard to the question about the onus of proof and this question has been answered by the Labour Appellate Tribunal in favour of the respondents. Therefore even in regard to the merits of the case it cannot be denied that a substantial question of law did arise, and so the appeal before the Labour Appellate Tribunal was competent. We have already mentioned that the Labour Appellate Tribunal has made a definite finding that in discharging the services of respondent 2 the appellant was guilty of unfair labour practice and that it wanted to victimize respondent 2. | 0 | 2,088 | 399 | ### Instruction:
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the onus on the respondents, and it felt no doubt that in terminating the services of respondent 2 the appellant was actuated by ulterior motives and that the said termination amounted to an unfair practice and victimisation. As a result of these findings the appeal preferred by the respondents was allowed and the appellant was directed to reinstate respondent 2 and to restore him to his old post. It is against this order that the appellant has come to this Court by special leave, and the only point which has been raised on its behalf by Mr. B. Sen is that in entertaining the appeal preferred before it by the respondents the Labour Appellate Tribunal has exceeded its jurisdiction under S.7 of the Act. It is common ground that the appeal before the Labour Appellate Tribunal would be competent under S. 7(1)(a) only if it involved any substantial question of law. So what we have to decide in the present appeal is : Did any substantial question of law arise in the respondents appeal before the Labour Appellate Tribunal ?It may be relevant to point out that this contention was not raised before the Labour Appellate Tribunal. It is desirable that whenever a party to the appeal before the Labour Appellate Tribunal wants to take an objection on the ground of incompetence of the appeal, the objection should be taken before the Labour Appellate Tribunal itself. It is not fair that the Labour Appellate Tribunal should not be called upon to decide this point, and an attempt should be made to obtain the decision of the said Tribunal on the merits and when it is discovered that the decision has gone against, the party should think of raising the point of jurisdiction before this Court in its appeal under Art. 136 of the Constitution. However, we have not precluded Mr. Sen from raising this contention before us because the contention is one of law, and for its decision no more evidence is required.3. Mr. Sen argues that the findings made by the industrial tribunal were alternative. It had held that S. 33 had not been contravened; and even if it was, on the merits it had found that the order of discharge was not shown to be unreasonable. We are not impressed by this argument. There is no doubt that as the appeal was presented before the Labour Appellate Tribunal the first question which it raised was whether S.33 of the Industrial Disputes Act had been contravened, and it is common ground that if this question arose for the decision of the Labour Appellate Tribunal it cannot be said that a substantial question of law did not arise. It is clear that the merits had to be considered whatever decision was reached by the tribunal on the first preliminary issue about the breach of S. 33. Now, even in regard to the merits there is another question of law which arises and that is one of onus. Mr. Sen contends that even if S. 33 has been contravened it does not follow that the employer has to take the onus of proving to the satisfaction of the tribunal that the order of respondents; discharge was justified. According to Mr. Sen, even on if S. 33 is contravened, the principles laid down by this Court in Indian Iron & Steel Company, Ltd. and another v. Their workmen [1958 - I L.L.J. 260] will apply, if the employer has held a proper enquiry after framing charges against the employee and in the said enquiry findings have been recorded against the employee; in such a case it is suggested that it is only if there is want of good faith or there is victimization or unfair labour practice or when the management has been guilty of basic error of violation of the principles of natural justice or when the findings in question are perverse that the tribunal can interfere.On the other hand, it is argued that if S. 33 is contravened by the employer then the enquiry held by him would serve no useful purpose. The tribunal would then have to be satisfied about the merits of the employers contention that the termination of the employees services is justified. The argument is that it is only if a proper enquiry has resulted in a legal order of termination that the principles applicable to domestic tribunals and their business can be legitimately invoked by the employer. Where, as in the present case, the order of discharge contravenes S. 33, the enquiry which preceded such an order can have no validity and, when an industrial dispute arises in respect of such an illegal discharge or dismissal, the whole question is open before the tribunal which must deal with its merits and satisfy itself about the employers contention that the employee deserves to be discharged or dismissed.4. In our opinion, it is unnecessary to decide the merits of these contentions because whatever view we were to take in this matter would not affect the decision of the preliminary objection raised by Mr. Sen that no appeal lay before the Labour Appellate Tribunal under S. 7(1)(a) of the Act. We have set out these rival contentions solely with the object of emphasising the fact that a substantial point of law arises even in regard to the question about the onus of proof and this question has been answered by the Labour Appellate Tribunal in favour of the respondents. Therefore even in regard to the merits of the case it cannot be denied that a substantial question of law did arise, and so the appeal before the Labour Appellate Tribunal was competent. We have already mentioned that the Labour Appellate Tribunal has made a definite finding that in discharging the services of respondent 2 the appellant was guilty of unfair labour practice and that it wanted to victimize respondent 2. We ought to add that Mr. Sen has not challenged this finding before us, and we think rightly.5.
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Mr. Sen argues that the findings made by the industrial tribunal were alternative. It had held that S. 33 had not been contravened; and even if it was, on the merits it had found that the order of discharge was not shown to beunreasonable. We are not impressed by this argument. There is no doubt that as the appeal was presented before the Labour Appellate Tribunal the first question which it raised was whether S.33 of the Industrial Disputes Act had been contravened, and it is common ground that if this question arose for the decision of the Labour Appellate Tribunal it cannot be said that a substantial question of law did not arise. It is clear that the merits had to be considered whatever decision was reached by the tribunal on the first preliminary issue about the breach of S. 33. Now, even in regard to the merits there is another question of law which arises and that is one of onus. Mr. Sen contends that even if S. 33 has been contravened it does not follow that the employer has to take the onus of proving to the satisfaction of the tribunal that the order of respondents; discharge wasour opinion, it is unnecessary to decide the merits of these contentions because whatever view we were to take in this matter would not affect the decision of the preliminary objection raised by Mr. Sen that no appeal lay before the Labour Appellate Tribunal under S. 7(1)(a) of the Act. We have set out these rival contentions solely with the object of emphasising the fact that a substantial point of law arises even in regard to the question about the onus of proof and this question has been answered by the Labour Appellate Tribunal in favour of the respondents. Therefore even in regard to the merits of the case it cannot be denied that a substantial question of law did arise, and so the appeal before the Labour Appellate Tribunal was competent. We have already mentioned that the Labour Appellate Tribunal has made a definite finding that in discharging the services of respondent 2 the appellant was guilty of unfair labour practice and that it wanted to victimize respondent 2.
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L. B. Sugar Factory & Oil Mills (P) Ltd. Pilibhit Vs. C.I.T. U.P., Lucknow | of the business of the assessee and making it more efficient and profitable and it was clearly an expenditure on revenue account. 8. It was pointed out by Lord Radcliffe in Commissioner of Taxes v. Nchanga Consolidated Copper Mines Ltd. 1965 58 ITR 241 (PC), that "in considering allocations of expenditure between the capital and income accounts, it is almost unavoidable to argue from analogy". There are always cases falling indisputably on one or the other side of the line and it is a familiar argument in tax courts that the case under review bears close analogy to a case falling on the right side of the line and must, therefore, be decided in the same manner. If we apply this method, the case closest to the present one is that in Lakshmiji Sugar Mills Co. P. Ltd. v. CIT 1971 82 ITR 376(SC). The facts of this case were very similar to the facts of the present case. The assessee in this case was also a limited company carrying on business of manufacture and sale of sugar in the State of Uttar Pradesh and it paid to the Cane Development Council certain amounts by way of contribution for the construction and development of roads between sugarcane producing centres and the sugar factory of the assessee and the question arose whether this expenditure was allowable as revenue expenditure under s. 10(2)(xv). No doubt, in this case, there was a statutory obligation under which the amount in question was contributed by the assessee, but this court did not rest its decision on the circumstance that the expenditure was incurred under a statutory obligation. This court analysed the object and purpose of the expenditure and its true nature and held that it was of a revenue and not capital nature. This court observed(p. 379):"In the present case, apart from the element of compulsion, the roads which were constructed and developed were not the property of the assessee nor is it the case of the revenue that the entire cost of development of those roads was defrayed by the assessee. It only made certain contribution for road development between the various cane producing centres and the mills. The apparent object and purpose was to facilitate the running of its motor vehicles or other means employed for transportation of sugarcane to the factory. From the business point of view and on a fair appreciation of the whole situation the assessee considered that the development of the road in question could greatly facilitate the transportation of sugarcane. This was essential for the benefit of its business which was of manufacturing sugar in which the main raw material admittedly consisted of sugarcane. These facts would bring it within the second part of the principle mentioned before, namely, that the expenditure was incurred for running the business or working it with a view to produce the profits without the assessee getting any advantage of an enduring benefit to itself". 9. These observations are directly applicable in the present case and we must hold on the analogy of this decision that the amount of Rs. 50, 000 was contributed by the assessee "for running the business or working it with a view to produce the profits without the assessee getting any advantage of an enduring benefit to itself". This decision fully supports the view that the expenditure of the amount of Rs. 50, 000 incurred by the assessee was on revenue account. 10. We must also refer to the decision of this court in Travancore-Cochin Chemicals Ltd. v. CIT 1977 106 ITR 900(SC), on which strong reliance was placed on behalf of the revenue. The facts of this case are undoubtedly to some extent comparable with the facts of the present case. But ultimately in cases of this kind, where the question is whether a particular expenditure incurred by an assessee is on capital account or revenue account, the decision must ultimately depend on the facts of each case. No two cases are alike and quite often emphasis on one aspect or the other may tilt the balance in favour of capital expenditure or revenue expenditure. This court in fact, in the course of its judgment in Travancore-Cochin Chemicals Ltd.s case 1977 106 ITR 900 , 904 distinguished the decision in Lakshmiji Sugar Mills case 1971 82 ITR 376(SC) on the ground that:"On the facts of that case, this court was satisfied that the development of the roads was meant for facilitating the carrying on of the assessees business. Lakshmiji Sugar Mills case 1971 82 ITR 376(SC) is quite different on facts from the one before us and must be confined to the peculiar facts of that case." 11. We would make the same observation in regard to the decision in Travancore-Cochin Chemicals case1977 106 ITR 900 (SC), and say that that decision must be confined to the peculiar facts of that case, because Lakshmiji Sugar Mills case 1971 82 ITR 376(SC), admittedly bears a closer analogy to the present case than the Travancore-Cochin Chemicals case, and if at all we apply the method of arguing by analogy, the decision in Lakshmiji Sugar Mills case must be regarded as affording us greater guidance in the decision in the present case than the decision in Travancore-Cochin Chemicals case. Moreover, we find that the parenthetical clause in the test formulated by Lord Cave L C. in Athertons case 1925 10 TC 155(HL) was not brought to the attention of this court in Travancore-Cochin Chemicals case with the result that this court was persuaded to apply that test as if it were an absolute and universal test regardless of the question applicable in all cases irrespective of whether the advantage secured for the business was in the capital field or not. We would, therefore, prefer to follow the decision in Lakshmiji Sugar Mills case and hold on the analogy of that decision that the amount of Rs. 50, 000 contributed by the assessee represented expenditure on the revenue account. 12. We, | 0[ds]So far as the first item of expenditure of Rs. 22, 332 is concerned, the case does not present any difficulty at all, because it was common ground between the parties that this amount was contributed by the assessee long after the Deoni Dam and the Deoni-Dam-Majhala Road were constructed and there is absolutely nothing to show that the contribution of this amount had anything to do with the business of the assessee or that the construction of the Deoni Dam or the Deoni Dam-Majhala Road was in any way advantageous to the assessees business. The amount of Rs. 22, 332 was apparently contributed by the assessee without any legal obligation to do so, purely as an act of good citizenship, and it could not be said to have been laid out wholly and exclusively for the purpose of the business of the assessee. The expenditure of the amount of Rs. 22, 332 was, therefore, rightly disallowed as deductible expenditure under s.t the position is different when we come to the second item of expenditure of Rs. 50, 000. There the assessee is clearly on firmer ground. The amount of Rs. 50, 000 was contributed by the assessee under the Sugarcane Development Scheme towards meeting the cost of construction of roads in the area around the factory. Now, there can be no doubt that the construction of roads in the area around the factory was considerably advantageous to the business of the assessee, because it facilitated the running of its motor vehicles for transportation of sugarcane so necessary for its manufacturing activity. It is not as if the amount of Rs. 50, 000 was contributed by the assessee generally for the purpose of construction of roads in the State of Uttar Pradesh, but it was for the construction of roads in the area around the factory that the contribution was made and it cannot be disputed that if the roads are constructed around the factory area, they would facilitate the transport of sugarcane to the factory and the flow of manufactured sugar out of the factory. The construction of the roads was, therefore, clearly and indubitably connected with the business activity of the assessee and it is difficult to resist the conclusion that the amount of Rs. 50, 000 contributed by the assessee towards meeting the cost of construction of the roads under the Sugarcane Development Scheme was laid out wholly and exclusively for the purpose of the business of the assesseeNow it is clear on the facts of the present case that by spending the amount of Rs. 50, 000, the assessee did not acquire any asset of an enduring nature. The roads which were constructed around the factory with the help of the amount of Rs. 50, 000 contributed by the assessee belonged to the Government of Uttar Pradesh and not to the assessee. Moreover, it was only a part of the cost of construction of these roads that was contributed by the assessee, since under the sugarcane development scheme, one-third of the cost of construction was to be borne by the Central Government, one-third by the State Government and only the remaining one-third was to be divided between the sugarcane factories and sugarcane growers. These roads were undoubtedly advantageous to the business of the assessee as they facilitated the transport of sugarcane to the factory and the outflow of manufactured sugar from the factory to the market centres. There can be no doubt that the construction of these roads facilitated the business operations of the assessee and enabled the management and conduct of the assessees business to be carried on more efficiently and profitably. It is no doubt true that the advantage secured for the business of the assessee was of a long duration inasmuch as it would last so long as the roads continued to be in motorable condition, but it was not an advantage in the capital field, because no tangible or intangible asset was acquired by the assessee nor was there any addition to or expansion of the profit-making apparatus of the assessee. The amount of Rs. 50, 000 was contributed by the assessee for the purpose of facilitating the conduct of the business of the assessee and making it more efficient and profitable and it was clearly an expenditure on revenue accountThe facts of this case were very similar to the facts of the present case. This decision fully supports the view that the expenditure of the amount of Rs. 50, 000 incurred by the assessee was on revenue accountWe would make the same observation in regard to the decision in Travancore-Cochin Chemicals case1977 106 ITR 900 (SC), and say that that decision must be confined to the peculiar facts of that case, because Lakshmiji Sugar Mills case 1971 82 ITR 376(SC), admittedly bears a closer analogy to the present case than the Travancore-Cochin Chemicals case, and if at all we apply the method of arguing by analogy, the decision in Lakshmiji Sugar Mills case must be regarded as affording us greater guidance in the decision in the present case than the decision in Travancore-Cochin Chemicals case. Moreover, we find that the parenthetical clause in the test formulated by Lord Cave L C. in Athertons case 1925 10 TC 155(HL) was not brought to the attention of this court in Travancore-Cochin Chemicals case with the result that this court was persuaded to apply that test as if it were an absolute and universal test regardless of the question applicable in all cases irrespective of whether the advantage secured for the business was in the capital field or not. We would, therefore, prefer to follow the decision in Lakshmiji Sugar Mills case and hold on the analogy of that decision that the amount of Rs. 50, 000 contributed by the assessee represented expenditure on the revenue, accordingly, dismiss the appeal in so far as the expenditure of the sum of Rs. 22, 332 is concerned. But, so far as the expenditure of the sum of Rs. 50, 000 is concerned, we hold that it was in the nature of revenue expenditure laid out wholly and exclusively for the purpose of the assessees business and was, therefore, allowable as a deduction under s. 10(2)(xv) of the Act and allow the appeal to this limited extent. Since the assessee has partly won and partly lost, we think that the fair order of costs would be that each party should bear and pay its own costs throughout. | 0 | 3,498 | 1,180 | ### Instruction:
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of the business of the assessee and making it more efficient and profitable and it was clearly an expenditure on revenue account. 8. It was pointed out by Lord Radcliffe in Commissioner of Taxes v. Nchanga Consolidated Copper Mines Ltd. 1965 58 ITR 241 (PC), that "in considering allocations of expenditure between the capital and income accounts, it is almost unavoidable to argue from analogy". There are always cases falling indisputably on one or the other side of the line and it is a familiar argument in tax courts that the case under review bears close analogy to a case falling on the right side of the line and must, therefore, be decided in the same manner. If we apply this method, the case closest to the present one is that in Lakshmiji Sugar Mills Co. P. Ltd. v. CIT 1971 82 ITR 376(SC). The facts of this case were very similar to the facts of the present case. The assessee in this case was also a limited company carrying on business of manufacture and sale of sugar in the State of Uttar Pradesh and it paid to the Cane Development Council certain amounts by way of contribution for the construction and development of roads between sugarcane producing centres and the sugar factory of the assessee and the question arose whether this expenditure was allowable as revenue expenditure under s. 10(2)(xv). No doubt, in this case, there was a statutory obligation under which the amount in question was contributed by the assessee, but this court did not rest its decision on the circumstance that the expenditure was incurred under a statutory obligation. This court analysed the object and purpose of the expenditure and its true nature and held that it was of a revenue and not capital nature. This court observed(p. 379):"In the present case, apart from the element of compulsion, the roads which were constructed and developed were not the property of the assessee nor is it the case of the revenue that the entire cost of development of those roads was defrayed by the assessee. It only made certain contribution for road development between the various cane producing centres and the mills. The apparent object and purpose was to facilitate the running of its motor vehicles or other means employed for transportation of sugarcane to the factory. From the business point of view and on a fair appreciation of the whole situation the assessee considered that the development of the road in question could greatly facilitate the transportation of sugarcane. This was essential for the benefit of its business which was of manufacturing sugar in which the main raw material admittedly consisted of sugarcane. These facts would bring it within the second part of the principle mentioned before, namely, that the expenditure was incurred for running the business or working it with a view to produce the profits without the assessee getting any advantage of an enduring benefit to itself". 9. These observations are directly applicable in the present case and we must hold on the analogy of this decision that the amount of Rs. 50, 000 was contributed by the assessee "for running the business or working it with a view to produce the profits without the assessee getting any advantage of an enduring benefit to itself". This decision fully supports the view that the expenditure of the amount of Rs. 50, 000 incurred by the assessee was on revenue account. 10. We must also refer to the decision of this court in Travancore-Cochin Chemicals Ltd. v. CIT 1977 106 ITR 900(SC), on which strong reliance was placed on behalf of the revenue. The facts of this case are undoubtedly to some extent comparable with the facts of the present case. But ultimately in cases of this kind, where the question is whether a particular expenditure incurred by an assessee is on capital account or revenue account, the decision must ultimately depend on the facts of each case. No two cases are alike and quite often emphasis on one aspect or the other may tilt the balance in favour of capital expenditure or revenue expenditure. This court in fact, in the course of its judgment in Travancore-Cochin Chemicals Ltd.s case 1977 106 ITR 900 , 904 distinguished the decision in Lakshmiji Sugar Mills case 1971 82 ITR 376(SC) on the ground that:"On the facts of that case, this court was satisfied that the development of the roads was meant for facilitating the carrying on of the assessees business. Lakshmiji Sugar Mills case 1971 82 ITR 376(SC) is quite different on facts from the one before us and must be confined to the peculiar facts of that case." 11. We would make the same observation in regard to the decision in Travancore-Cochin Chemicals case1977 106 ITR 900 (SC), and say that that decision must be confined to the peculiar facts of that case, because Lakshmiji Sugar Mills case 1971 82 ITR 376(SC), admittedly bears a closer analogy to the present case than the Travancore-Cochin Chemicals case, and if at all we apply the method of arguing by analogy, the decision in Lakshmiji Sugar Mills case must be regarded as affording us greater guidance in the decision in the present case than the decision in Travancore-Cochin Chemicals case. Moreover, we find that the parenthetical clause in the test formulated by Lord Cave L C. in Athertons case 1925 10 TC 155(HL) was not brought to the attention of this court in Travancore-Cochin Chemicals case with the result that this court was persuaded to apply that test as if it were an absolute and universal test regardless of the question applicable in all cases irrespective of whether the advantage secured for the business was in the capital field or not. We would, therefore, prefer to follow the decision in Lakshmiji Sugar Mills case and hold on the analogy of that decision that the amount of Rs. 50, 000 contributed by the assessee represented expenditure on the revenue account. 12. We,
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Dam or the Deoni Dam-Majhala Road was in any way advantageous to the assessees business. The amount of Rs. 22, 332 was apparently contributed by the assessee without any legal obligation to do so, purely as an act of good citizenship, and it could not be said to have been laid out wholly and exclusively for the purpose of the business of the assessee. The expenditure of the amount of Rs. 22, 332 was, therefore, rightly disallowed as deductible expenditure under s.t the position is different when we come to the second item of expenditure of Rs. 50, 000. There the assessee is clearly on firmer ground. The amount of Rs. 50, 000 was contributed by the assessee under the Sugarcane Development Scheme towards meeting the cost of construction of roads in the area around the factory. Now, there can be no doubt that the construction of roads in the area around the factory was considerably advantageous to the business of the assessee, because it facilitated the running of its motor vehicles for transportation of sugarcane so necessary for its manufacturing activity. It is not as if the amount of Rs. 50, 000 was contributed by the assessee generally for the purpose of construction of roads in the State of Uttar Pradesh, but it was for the construction of roads in the area around the factory that the contribution was made and it cannot be disputed that if the roads are constructed around the factory area, they would facilitate the transport of sugarcane to the factory and the flow of manufactured sugar out of the factory. The construction of the roads was, therefore, clearly and indubitably connected with the business activity of the assessee and it is difficult to resist the conclusion that the amount of Rs. 50, 000 contributed by the assessee towards meeting the cost of construction of the roads under the Sugarcane Development Scheme was laid out wholly and exclusively for the purpose of the business of the assesseeNow it is clear on the facts of the present case that by spending the amount of Rs. 50, 000, the assessee did not acquire any asset of an enduring nature. The roads which were constructed around the factory with the help of the amount of Rs. 50, 000 contributed by the assessee belonged to the Government of Uttar Pradesh and not to the assessee. Moreover, it was only a part of the cost of construction of these roads that was contributed by the assessee, since under the sugarcane development scheme, one-third of the cost of construction was to be borne by the Central Government, one-third by the State Government and only the remaining one-third was to be divided between the sugarcane factories and sugarcane growers. These roads were undoubtedly advantageous to the business of the assessee as they facilitated the transport of sugarcane to the factory and the outflow of manufactured sugar from the factory to the market centres. There can be no doubt that the construction of these roads facilitated the business operations of the assessee and enabled the management and conduct of the assessees business to be carried on more efficiently and profitably. It is no doubt true that the advantage secured for the business of the assessee was of a long duration inasmuch as it would last so long as the roads continued to be in motorable condition, but it was not an advantage in the capital field, because no tangible or intangible asset was acquired by the assessee nor was there any addition to or expansion of the profit-making apparatus of the assessee. The amount of Rs. 50, 000 was contributed by the assessee for the purpose of facilitating the conduct of the business of the assessee and making it more efficient and profitable and it was clearly an expenditure on revenue accountThe facts of this case were very similar to the facts of the present case. This decision fully supports the view that the expenditure of the amount of Rs. 50, 000 incurred by the assessee was on revenue accountWe would make the same observation in regard to the decision in Travancore-Cochin Chemicals case1977 106 ITR 900 (SC), and say that that decision must be confined to the peculiar facts of that case, because Lakshmiji Sugar Mills case 1971 82 ITR 376(SC), admittedly bears a closer analogy to the present case than the Travancore-Cochin Chemicals case, and if at all we apply the method of arguing by analogy, the decision in Lakshmiji Sugar Mills case must be regarded as affording us greater guidance in the decision in the present case than the decision in Travancore-Cochin Chemicals case. Moreover, we find that the parenthetical clause in the test formulated by Lord Cave L C. in Athertons case 1925 10 TC 155(HL) was not brought to the attention of this court in Travancore-Cochin Chemicals case with the result that this court was persuaded to apply that test as if it were an absolute and universal test regardless of the question applicable in all cases irrespective of whether the advantage secured for the business was in the capital field or not. We would, therefore, prefer to follow the decision in Lakshmiji Sugar Mills case and hold on the analogy of that decision that the amount of Rs. 50, 000 contributed by the assessee represented expenditure on the revenue, accordingly, dismiss the appeal in so far as the expenditure of the sum of Rs. 22, 332 is concerned. But, so far as the expenditure of the sum of Rs. 50, 000 is concerned, we hold that it was in the nature of revenue expenditure laid out wholly and exclusively for the purpose of the assessees business and was, therefore, allowable as a deduction under s. 10(2)(xv) of the Act and allow the appeal to this limited extent. Since the assessee has partly won and partly lost, we think that the fair order of costs would be that each party should bear and pay its own costs throughout.
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State Of Orissa & Anr Vs. Murlidhar Jena | enquiry held by the Tribunal is not governed by the strict and technical rules of the Evidence Act. Rule 7(2) of the relevant rules provides that in conducting the enquiry the tribunal shall be guided by rules of equity and natural justice and shall not be bound by formal rules relating to procedure and evidence. Therefore, in deciding the question as to whether the Tribunal was justified in treating Ex 7 as a rough cash book kept for and at the instance of Mr. Patnaik we must take into account all the relevant facts and circumstances as the Tribunal did; the time and place of the search and seizure of the two account books, the fact that. Mr. Patnaik attested the seizure of the said books, the nature of the entries to be found in the two respective books and the nature of the evidence given by Sahni himself. Having regard to all these facts and circumstances the Tribunal came to the conclusion that Ex. 7 and Ex. 6 constituted co-related books of account and that Ex 6 copied from Ex. 7 entries in regard to legitimate dealings and did not deliberately copy other entries which had reference to illegitimate transactions. In this connection it would be relevant to recall that the search and seizure was effected because it was reported that Mr. Patnaik kept different books of account and that his kutcha books would show illegal gratifications given to the respondent. Therefore, if having regard to all the facts and circumstances the Tribunal came to the conclusion that it could rely on Ex 7 and in that connection incidentally referred to the statement made by Sahni in investigation after it was duly tendered, proved and exhibited in the case, we do not think that it was open to the High Court to hold that the impugned findings of the Tribunal were based on no evidence. 13. In this connection we may incidentally refer to the feet that the finding of the Tribunal in regard to the purchase of the fan can in a sense be justified apart from Ex 7. The cash memos issued by the vendor on two occasions which showed the respondent to be the purchaser have been carefully examined by the Tribunal, and after rejecting the explanation offered by the respondent the Tribunal has held that the purchase was made by Mr. Patnaik for the benefit of the respondent. Proof of this charge would thus appear to be based alternatively on evidence other than Ex 7; and if that is so, even if Ex 7 is not properly proved there would be no justification to interfere with the final conclusion of the Tribunal and with the ultimate order of dismissal passed against the respondent; but we do not think that the Tribunal has committed an illegality in holding that Ex. 7 could be taken into account having regard to the relevant circumstances and facts proved in this case. 14. There are two other considerations to which reference must be made. In its judgment the High Court has observed that the oral evidence admittedly did not support the case against the respondent. The use of the word "admittedly, in our opinion, amounts somewhat to an overstatement; and the discussion that follows this overstatement in the judgment indicates an attempt to appreciate the evidence which it would ordinarily not be open to the High Court to do in writ proceedings. The same comment falls to be made in regard to the discussion in the judgment of the High Court where it considered the question about the interpretation of the word" Chatrapur Saheb." The High Court has observed that in the absence of a clear evidence on the point the inference drawn by the Tribunal that Chatrapur Saheb meant the respondent would not be justified."This observation clearly indicates that the High Court was attempting to appreciate evidence. The judgment of the Tribunal shows that it considered several facts and circumstances in dealing with the question about the identity of the individual indicated by the expression "Chatrapur Saheb." Whether or not the evidence on which the Tribunal relied was satisfactory and sufficient for justifying its conclusion would not fall to be considered in a writ petition. That in effect is the approach initially adopted by the High Court at the beginning of its judgment. However, in the subsequent part of the judgment the High Court appears to have been persuaded to appreciate the evidence for itself and that, in our opinion, is not reasonable or legitimate. 15. The High Court has also commented on the fact that the Tribunal should have examined Barjorji before relying upon statements made by him in his letter addressed to Mr. Patnaik. There is some force in this argument; but the finding of the Tribunal in regard to the purchase of the Austin car is based on several other considerations all of which have been duly proved. In fact about the main features of this transaction there was no serious controversy between the parties. The parties were at issue on the question as to the effect of these broad features but that, clearly is a question of fact which fell within the jurisdiction of the Tribunal. We have carefully, considered the reasons given by the High Court in its judgment under appeal but we are unable to accept the contention pressed before us by Mr. Sinha, for the respondent, that the conclusion of the High Court is right when it says that the Tribunals findings against the respondent were based on no evidence. Whether or not the High Court or this court agrees with the conclusions of the Tribunal is another matter. The question to be considered is whether the said conclusions could be set aside on the narrow ground that they are not supported by any evidence. In our opinion, it is difficult to accept the view that there is no evidence in support of the conclusions recorded by the Tribunal against the respondent. | 1[ds]9. In accepting the respondents contention that the impugned findings were not supported by any evidence the High Court has been impressed by two considerations. The first consideration is that the High Court took the view that in relying upon the evidence adduced at the stage of investigation the Tribunal had gone back upon the assurance solemnly given by it to the respondent that the said evidence would not be relied upon against him; and the second consideration is that the Tribunal was not justified in relying on the entries in the rough account book Ex 7 alleged to have been kept by Mr. Patnaik because the said document had not been proved10. It appears that on December 16, 1954 the Secretary of the Tribunal told the respondent that the statements of witnesses given before the Enforcement, if any, were not in the custody of the Tribunal and would not be taken into account in the consideration of his case, and so the question of giving him copies of the evidence recorded by the Enforcement did not arise. This was in reply to the respondents application for copies of the said statements. A similar reply was again given to him on January 4, 1955. The respondent was told that the Tribunal could not supply copies of documents which were not in its possession. It is, however, necessary to point out that on January 18, 1956 the respondent was told that though the Tribunal was unable to give him copies of documents not in the possession of the Tribunal he would be supplied with such copies if and when the original documents were exhibited before the Tribunal. Thus there can be no doubt that what the Tribunal told the respondent was that it was not possible for the Tribunal to give him copies of documents unless the said documents were produced before it and he was in fact given an assurance that he would be given such copies as soon as the said documents were tendered before it. The High Court thought that the replies sent by the Secretary of the Tribunal to the respondent contained an assurance that the evidence recorded by the Enforcement in the course of the preliminary investigation would in no case be used against him. Such a construction, in our opinion, is plainly inconsistent with the terms of the assurance given. In fact as we have just indicated, the Tribunal clearly told the respondent that as soon as the documents were tendered before it he would be given copies which necessarily meant that some of the evidence recorded in the investigation may be tendered and in that case copies of the same would be given to the respondent11. In the course of the proceedings before the Tribunal occasion did arise for tendering a previous statement of the witness Sahni. We have already seen that Sahni went back upon his earlier statement in which he had admitted that he had written Ex. 7, and so that statement was put to him and exhibited in the case. If the respondent thought it necessary to obtain its cony he could have easily obtained it and could have even asked for an adjournment to enable him to cross-examine the witness on that statement. He did not do so for the obvious reason that the witness was supporting the respondent and it was with the object of helping him that he had gone back upon his earlier statement. Therefore, in our opinion, the High Court was in error in assuming that the Tribunal had given an unqualified assurance to the respondent and had gone back upon it. The first ground on which the High Court was thus inclined to interfere with the findings of the Tribunal is without any substance12. That takes us to the second ground which has reference to the proof of Ex. 7 Technically and strictly in accordance with the provisions of the Evidence Act it may be true to say that Sahni having gone back upon his earlier statement there is no evidence to prove who wrote Ex. 7; but in dealing with this point it is necessary to bear in mind that the enquiry held by the Tribunal is not governed by the strict and technical rules of the Evidence Act. Rule 7(2) of the relevant rules provides that in conducting the enquiry the tribunal shall be guided by rules of equity and natural justice and shall not be bound by formal rules relating to procedure and evidence. Therefore, in deciding the question as to whether the Tribunal was justified in treating Ex 7 as a rough cash book kept for and at the instance of Mr. Patnaik we must take into account all the relevant facts and circumstances as the Tribunal did; the time and place of the search and seizure of the two account books, the fact that. Mr. Patnaik attested the seizure of the said books, the nature of the entries to be found in the two respective books and the nature of the evidence given by Sahni himself. Having regard to all these facts and circumstances the Tribunal came to the conclusion that Ex. 7 and Ex. 6 constituted co-related books of account and that Ex 6 copied from Ex. 7 entries in regard to legitimate dealings and did not deliberately copy other entries which had reference to illegitimate transactions. In this connection it would be relevant to recall that the search and seizure was effected because it was reported that Mr. Patnaik kept different books of account and that his kutcha books would show illegal gratifications given to the respondent. Therefore, if having regard to all the facts and circumstances the Tribunal came to the conclusion that it could rely on Ex 7 and in that connection incidentally referred to the statement made by Sahni in investigation after it was duly tendered, proved and exhibited in the case, we do not think that it was open to the High Court to hold that the impugned findings of the Tribunal were based on no evidence13. In this connection we may incidentally refer to the feet that the finding of the Tribunal in regard to the purchase of the fan can in a sense be justified apart from Ex 7. The cash memos issued by the vendor on two occasions which showed the respondent to be the purchaser have been carefully examined by the Tribunal, and after rejecting the explanation offered by the respondent the Tribunal has held that the purchase was made by Mr. Patnaik for the benefit of the respondent. Proof of this charge would thus appear to be based alternatively on evidence other than Ex 7; and if that is so, even if Ex 7 is not properly proved there would be no justification to interfere with the final conclusion of the Tribunal and with the ultimate order of dismissal passed against the respondent; but we do not think that the Tribunal has committed an illegality in holding that Ex. 7 could be taken into account having regard to the relevant circumstances and facts proved in this case14. There are two other considerations to which reference must be made. In its judgment the High Court has observed that the oral evidence admittedly did not support the case against the respondent. The use of the word "admittedly, in our opinion, amounts somewhat to an overstatement; and the discussion that follows this overstatement in the judgment indicates an attempt to appreciate the evidence which it would ordinarily not be open to the High Court to do in writ proceedings. The same comment falls to be made in regard to the discussion in the judgment of the High Court where it considered the question about the interpretation of the word" Chatrapur Saheb." The High Court has observed that in the absence of a clear evidence on the point the inference drawn by the Tribunal that Chatrapur Saheb meant the respondent would not be justified."This observation clearly indicates that the High Court was attempting to appreciate evidence. The judgment of the Tribunal shows that it considered several facts and circumstances in dealing with the question about the identity of the individual indicated by the expression "Chatrapur Saheb." Whether or not the evidence on which the Tribunal relied was satisfactory and sufficient for justifying its conclusion would not fall to be considered in a writ petition. That in effect is the approach initially adopted by the High Court at the beginning of its judgment. However, in the subsequent part of the judgment the High Court appears to have been persuaded to appreciate the evidence for itself and that, in our opinion, is not reasonable or legitimate15. The High Court has also commented on the fact that the Tribunal should have examined Barjorji before relying upon statements made by him in his letter addressed to Mr. Patnaik. There is some force in this argument; but the finding of the Tribunal in regard to the purchase of the Austin car is based on several other considerations all of which have been duly proved. In fact about the main features of this transaction there was no serious controversy between the parties. The parties were at issue on the question as to the effect of these broad features but that, clearly is a question of fact which fell within the jurisdiction of the Tribunal. We have carefully, considered the reasons given by the High Court in its judgment under appeal but we are unable to accept the contention pressed before us by Mr. Sinha, for the respondent, that the conclusion of the High Court is right when it says that the Tribunals findings against the respondent were based on no evidence. Whether or not the High Court or this court agrees with the conclusions of the Tribunal is another matter. The question to be considered is whether the said conclusions could be set aside on the narrow ground that they are not supported by any evidence. In our opinion, it is difficult to accept the view that there is no evidence in support of the conclusions recorded by the Tribunal against the respondent. | 1 | 3,764 | 1,800 | ### Instruction:
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enquiry held by the Tribunal is not governed by the strict and technical rules of the Evidence Act. Rule 7(2) of the relevant rules provides that in conducting the enquiry the tribunal shall be guided by rules of equity and natural justice and shall not be bound by formal rules relating to procedure and evidence. Therefore, in deciding the question as to whether the Tribunal was justified in treating Ex 7 as a rough cash book kept for and at the instance of Mr. Patnaik we must take into account all the relevant facts and circumstances as the Tribunal did; the time and place of the search and seizure of the two account books, the fact that. Mr. Patnaik attested the seizure of the said books, the nature of the entries to be found in the two respective books and the nature of the evidence given by Sahni himself. Having regard to all these facts and circumstances the Tribunal came to the conclusion that Ex. 7 and Ex. 6 constituted co-related books of account and that Ex 6 copied from Ex. 7 entries in regard to legitimate dealings and did not deliberately copy other entries which had reference to illegitimate transactions. In this connection it would be relevant to recall that the search and seizure was effected because it was reported that Mr. Patnaik kept different books of account and that his kutcha books would show illegal gratifications given to the respondent. Therefore, if having regard to all the facts and circumstances the Tribunal came to the conclusion that it could rely on Ex 7 and in that connection incidentally referred to the statement made by Sahni in investigation after it was duly tendered, proved and exhibited in the case, we do not think that it was open to the High Court to hold that the impugned findings of the Tribunal were based on no evidence. 13. In this connection we may incidentally refer to the feet that the finding of the Tribunal in regard to the purchase of the fan can in a sense be justified apart from Ex 7. The cash memos issued by the vendor on two occasions which showed the respondent to be the purchaser have been carefully examined by the Tribunal, and after rejecting the explanation offered by the respondent the Tribunal has held that the purchase was made by Mr. Patnaik for the benefit of the respondent. Proof of this charge would thus appear to be based alternatively on evidence other than Ex 7; and if that is so, even if Ex 7 is not properly proved there would be no justification to interfere with the final conclusion of the Tribunal and with the ultimate order of dismissal passed against the respondent; but we do not think that the Tribunal has committed an illegality in holding that Ex. 7 could be taken into account having regard to the relevant circumstances and facts proved in this case. 14. There are two other considerations to which reference must be made. In its judgment the High Court has observed that the oral evidence admittedly did not support the case against the respondent. The use of the word "admittedly, in our opinion, amounts somewhat to an overstatement; and the discussion that follows this overstatement in the judgment indicates an attempt to appreciate the evidence which it would ordinarily not be open to the High Court to do in writ proceedings. The same comment falls to be made in regard to the discussion in the judgment of the High Court where it considered the question about the interpretation of the word" Chatrapur Saheb." The High Court has observed that in the absence of a clear evidence on the point the inference drawn by the Tribunal that Chatrapur Saheb meant the respondent would not be justified."This observation clearly indicates that the High Court was attempting to appreciate evidence. The judgment of the Tribunal shows that it considered several facts and circumstances in dealing with the question about the identity of the individual indicated by the expression "Chatrapur Saheb." Whether or not the evidence on which the Tribunal relied was satisfactory and sufficient for justifying its conclusion would not fall to be considered in a writ petition. That in effect is the approach initially adopted by the High Court at the beginning of its judgment. However, in the subsequent part of the judgment the High Court appears to have been persuaded to appreciate the evidence for itself and that, in our opinion, is not reasonable or legitimate. 15. The High Court has also commented on the fact that the Tribunal should have examined Barjorji before relying upon statements made by him in his letter addressed to Mr. Patnaik. There is some force in this argument; but the finding of the Tribunal in regard to the purchase of the Austin car is based on several other considerations all of which have been duly proved. In fact about the main features of this transaction there was no serious controversy between the parties. The parties were at issue on the question as to the effect of these broad features but that, clearly is a question of fact which fell within the jurisdiction of the Tribunal. We have carefully, considered the reasons given by the High Court in its judgment under appeal but we are unable to accept the contention pressed before us by Mr. Sinha, for the respondent, that the conclusion of the High Court is right when it says that the Tribunals findings against the respondent were based on no evidence. Whether or not the High Court or this court agrees with the conclusions of the Tribunal is another matter. The question to be considered is whether the said conclusions could be set aside on the narrow ground that they are not supported by any evidence. In our opinion, it is difficult to accept the view that there is no evidence in support of the conclusions recorded by the Tribunal against the respondent.
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mind that the enquiry held by the Tribunal is not governed by the strict and technical rules of the Evidence Act. Rule 7(2) of the relevant rules provides that in conducting the enquiry the tribunal shall be guided by rules of equity and natural justice and shall not be bound by formal rules relating to procedure and evidence. Therefore, in deciding the question as to whether the Tribunal was justified in treating Ex 7 as a rough cash book kept for and at the instance of Mr. Patnaik we must take into account all the relevant facts and circumstances as the Tribunal did; the time and place of the search and seizure of the two account books, the fact that. Mr. Patnaik attested the seizure of the said books, the nature of the entries to be found in the two respective books and the nature of the evidence given by Sahni himself. Having regard to all these facts and circumstances the Tribunal came to the conclusion that Ex. 7 and Ex. 6 constituted co-related books of account and that Ex 6 copied from Ex. 7 entries in regard to legitimate dealings and did not deliberately copy other entries which had reference to illegitimate transactions. In this connection it would be relevant to recall that the search and seizure was effected because it was reported that Mr. Patnaik kept different books of account and that his kutcha books would show illegal gratifications given to the respondent. Therefore, if having regard to all the facts and circumstances the Tribunal came to the conclusion that it could rely on Ex 7 and in that connection incidentally referred to the statement made by Sahni in investigation after it was duly tendered, proved and exhibited in the case, we do not think that it was open to the High Court to hold that the impugned findings of the Tribunal were based on no evidence13. In this connection we may incidentally refer to the feet that the finding of the Tribunal in regard to the purchase of the fan can in a sense be justified apart from Ex 7. The cash memos issued by the vendor on two occasions which showed the respondent to be the purchaser have been carefully examined by the Tribunal, and after rejecting the explanation offered by the respondent the Tribunal has held that the purchase was made by Mr. Patnaik for the benefit of the respondent. Proof of this charge would thus appear to be based alternatively on evidence other than Ex 7; and if that is so, even if Ex 7 is not properly proved there would be no justification to interfere with the final conclusion of the Tribunal and with the ultimate order of dismissal passed against the respondent; but we do not think that the Tribunal has committed an illegality in holding that Ex. 7 could be taken into account having regard to the relevant circumstances and facts proved in this case14. There are two other considerations to which reference must be made. In its judgment the High Court has observed that the oral evidence admittedly did not support the case against the respondent. The use of the word "admittedly, in our opinion, amounts somewhat to an overstatement; and the discussion that follows this overstatement in the judgment indicates an attempt to appreciate the evidence which it would ordinarily not be open to the High Court to do in writ proceedings. The same comment falls to be made in regard to the discussion in the judgment of the High Court where it considered the question about the interpretation of the word" Chatrapur Saheb." The High Court has observed that in the absence of a clear evidence on the point the inference drawn by the Tribunal that Chatrapur Saheb meant the respondent would not be justified."This observation clearly indicates that the High Court was attempting to appreciate evidence. The judgment of the Tribunal shows that it considered several facts and circumstances in dealing with the question about the identity of the individual indicated by the expression "Chatrapur Saheb." Whether or not the evidence on which the Tribunal relied was satisfactory and sufficient for justifying its conclusion would not fall to be considered in a writ petition. That in effect is the approach initially adopted by the High Court at the beginning of its judgment. However, in the subsequent part of the judgment the High Court appears to have been persuaded to appreciate the evidence for itself and that, in our opinion, is not reasonable or legitimate15. The High Court has also commented on the fact that the Tribunal should have examined Barjorji before relying upon statements made by him in his letter addressed to Mr. Patnaik. There is some force in this argument; but the finding of the Tribunal in regard to the purchase of the Austin car is based on several other considerations all of which have been duly proved. In fact about the main features of this transaction there was no serious controversy between the parties. The parties were at issue on the question as to the effect of these broad features but that, clearly is a question of fact which fell within the jurisdiction of the Tribunal. We have carefully, considered the reasons given by the High Court in its judgment under appeal but we are unable to accept the contention pressed before us by Mr. Sinha, for the respondent, that the conclusion of the High Court is right when it says that the Tribunals findings against the respondent were based on no evidence. Whether or not the High Court or this court agrees with the conclusions of the Tribunal is another matter. The question to be considered is whether the said conclusions could be set aside on the narrow ground that they are not supported by any evidence. In our opinion, it is difficult to accept the view that there is no evidence in support of the conclusions recorded by the Tribunal against the respondent.
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Commissioner Of Income-Tax, Calcutta Vs. Nalin Behari Lal Singha Etc | Shah, Ag. C.J.1. In a proceeding for assessment to income-tax for the year 1949-50 the respondents in these appeals claimed that the dividend distributed by the Ukhara Estate Zamindaries Ltd was exempt from tax, because the fund out of which the dividend was distributed did not form part of the "accumulated profits" of the Company. The Income-tax Officer rejected the contention and brought the dividend to tax in the hands of the respondents. The Appellate Assistant Commissioner held that Rs. 1,12,500 out of a total amount of Rs. 2,24,000 distributed by the Company, represented capital gains arising to the Company on or after April 1, 1948 and not being dividend April 1, 1948 and not being dividend within the meaning of S. 2 (6A) of the Income-tax Act, 1922, the share distributed to the shareholders out of that amount was exempt from income-tax. The order of the Appellate Assistant Commissioner was reversed in appeal by the Tribunal. In the view of the Tribunal the definition of dividend in S. 2 (6A) in force in the year of assessment was not exhaustive, and if the amount distributed was "dividend in ordinary parlance it became chargeable under the general charging section", and that Clause 2 (6A) "was concerned with deemed dividend, and exclusion of certain capital gains by the proviso had not bearing on the issue raised by the revenue."2. The following question referred by the Tribunal to the High Court of Calcutta under Section 66 (1) of the Indian Income-tax Act:"Whether on the facts and in the circumstances of the case the amount of Rs. 28,125 was rightly included as dividend in the total income of the assessee for the assessment year 1949-50?"was answered in the negative. The Commissioner has appealed to this Court with certificates granted by the High Court.3.Dividend in its ordinary connotations means the sum paid to or received by a shareholder proportionate to his share-holding in a company out of the total sum distributed.The relevant part of the definition contained in S. 2 (6A) of the Income-tax Act, 1922, in the year of assessment 1949-50 was as follows:-" Dividend includes-(a) any distribution by a company of accumulated profits whether capitalised or not, if such distribution entails the release by the company to its shareholders of all or any part of the assets of the company;* * * * * *Explanation-The words accumulated profits wherever they occur in the clause shall not include capital profit:Provided further that the expression accumulated profits, wherever it occurs in this clause, shall not include capital gains arising before the 1st day of April 1946 or after the 31st day of March 1948.Dividend distributed by a company being a share of its profits declared as distributable among the shareholders is not impressed with the character of the profits from which it reached the hands of the shareholders. It would be therefore difficult to hold that the mere fact that a distribution has been made out of the capital gains, it has the attributes of capital gains in the hands of the shareholders.But that does not assist the case of the Revenue, for the Legislature has expressly excluded from the content of dividend, capital gains arising after March 31, 1948.4. The proviso to the Explanation clearly enacted that capital gains arising after March 31, 1948 are not liable to be included within the expression "dividend". The definition is, it is true, an inclusive definition and a receipt by a shareholder which does not fall within the definition may possibly be regarded as dividend within the meaning of the Act unless the context negatives that view. But is difficult on that account to hold that capital gains excluded from the definition of dividend by express enactment still fall within the charge of tax. According to the definition in Section 2 (6A) of the Income-tax Act only the proportionate share of the member out of the accumulated profits (excluding capital gains arising in the excepted period) distributed by the Company, alone will be deemed the taxable component.5. There is no warrant for the view expressed by the Tribunal that the definition of dividend only includes deemed dividend. To hold that the capital gains within the excepted period are not part of the accumulated profits for the purpose of the definition under Section 2 (6A) and a distributive share thereof does not on that account fall within the definition of dividend and therefore of income chargeable to tax and still to regard them as a part of accumulated profits for the purpose of dividend in the popular connotation and to bring the share to tax in the hands of the shareholders is to nullify an express provision of the statute. We do not see any reason why such a strained construction should be adopted.6. We agree with the High Court that the proportionate share of the capital gains out of which the dividend was distributed to the shareholders of the Company must be deemed exempt from liability to pay tax under Section 12 as dividend income liable to tax.7. Counsel for the Revenue sought to argue that share of dividend which is not chargeable to tax by virtue of the exemption clause is still liable to tax as income other than dividend. But no such contention was raised before the Tribunal or the High Court and no question was raised in that behalf. We will not be justified in entering upon the question which was not raised or argued before the Tribunal and before the High Court. | 0[ds]4. The proviso to the Explanation clearly enacted that capital gains arising after March 31, 1948 are not liable to be included within the expression "dividend". The definition is, it is true, an inclusive definition and a receipt by a shareholder which does not fall within the definition may possibly be regarded as dividend within the meaning of the Act unless the context negatives that view. But is difficult on that account to hold that capital gains excluded from the definition of dividend by express enactment still fall within the charge of tax. According to the definition in Section 2 (6A) of the Income-tax Act only the proportionate share of the member out of the accumulated profits (excluding capital gains arising in the excepted period) distributed by the Company, alone will be deemed the taxable component.5. There is no warrant for the view expressed by the Tribunal that the definition of dividend only includes deemed dividend. To hold that the capital gains within the excepted period are not part of the accumulated profits for the purpose of the definition under Section 2 (6A) and a distributive share thereof does not on that account fall within the definition of dividend and therefore of income chargeable to tax and still to regard them as a part of accumulated profits for the purpose of dividend in the popular connotation and to bring the share to tax in the hands of the shareholders is to nullify an express provision of the statute. We do not see any reason why such a strained construction should be adopted.6. We agree with the High Court that the proportionate share of the capital gains out of which the dividend was distributed to the shareholders of the Company must be deemed exempt from liability to pay tax under Section 12 as dividend income liable tono such contention was raised before the Tribunal or the High Court and no question was raised in that behalf. We will not be justified in entering upon the question which was not raised or argued before the Tribunal and before the High Court. | 0 | 1,009 | 375 | ### 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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Shah, Ag. C.J.1. In a proceeding for assessment to income-tax for the year 1949-50 the respondents in these appeals claimed that the dividend distributed by the Ukhara Estate Zamindaries Ltd was exempt from tax, because the fund out of which the dividend was distributed did not form part of the "accumulated profits" of the Company. The Income-tax Officer rejected the contention and brought the dividend to tax in the hands of the respondents. The Appellate Assistant Commissioner held that Rs. 1,12,500 out of a total amount of Rs. 2,24,000 distributed by the Company, represented capital gains arising to the Company on or after April 1, 1948 and not being dividend April 1, 1948 and not being dividend within the meaning of S. 2 (6A) of the Income-tax Act, 1922, the share distributed to the shareholders out of that amount was exempt from income-tax. The order of the Appellate Assistant Commissioner was reversed in appeal by the Tribunal. In the view of the Tribunal the definition of dividend in S. 2 (6A) in force in the year of assessment was not exhaustive, and if the amount distributed was "dividend in ordinary parlance it became chargeable under the general charging section", and that Clause 2 (6A) "was concerned with deemed dividend, and exclusion of certain capital gains by the proviso had not bearing on the issue raised by the revenue."2. The following question referred by the Tribunal to the High Court of Calcutta under Section 66 (1) of the Indian Income-tax Act:"Whether on the facts and in the circumstances of the case the amount of Rs. 28,125 was rightly included as dividend in the total income of the assessee for the assessment year 1949-50?"was answered in the negative. The Commissioner has appealed to this Court with certificates granted by the High Court.3.Dividend in its ordinary connotations means the sum paid to or received by a shareholder proportionate to his share-holding in a company out of the total sum distributed.The relevant part of the definition contained in S. 2 (6A) of the Income-tax Act, 1922, in the year of assessment 1949-50 was as follows:-" Dividend includes-(a) any distribution by a company of accumulated profits whether capitalised or not, if such distribution entails the release by the company to its shareholders of all or any part of the assets of the company;* * * * * *Explanation-The words accumulated profits wherever they occur in the clause shall not include capital profit:Provided further that the expression accumulated profits, wherever it occurs in this clause, shall not include capital gains arising before the 1st day of April 1946 or after the 31st day of March 1948.Dividend distributed by a company being a share of its profits declared as distributable among the shareholders is not impressed with the character of the profits from which it reached the hands of the shareholders. It would be therefore difficult to hold that the mere fact that a distribution has been made out of the capital gains, it has the attributes of capital gains in the hands of the shareholders.But that does not assist the case of the Revenue, for the Legislature has expressly excluded from the content of dividend, capital gains arising after March 31, 1948.4. The proviso to the Explanation clearly enacted that capital gains arising after March 31, 1948 are not liable to be included within the expression "dividend". The definition is, it is true, an inclusive definition and a receipt by a shareholder which does not fall within the definition may possibly be regarded as dividend within the meaning of the Act unless the context negatives that view. But is difficult on that account to hold that capital gains excluded from the definition of dividend by express enactment still fall within the charge of tax. According to the definition in Section 2 (6A) of the Income-tax Act only the proportionate share of the member out of the accumulated profits (excluding capital gains arising in the excepted period) distributed by the Company, alone will be deemed the taxable component.5. There is no warrant for the view expressed by the Tribunal that the definition of dividend only includes deemed dividend. To hold that the capital gains within the excepted period are not part of the accumulated profits for the purpose of the definition under Section 2 (6A) and a distributive share thereof does not on that account fall within the definition of dividend and therefore of income chargeable to tax and still to regard them as a part of accumulated profits for the purpose of dividend in the popular connotation and to bring the share to tax in the hands of the shareholders is to nullify an express provision of the statute. We do not see any reason why such a strained construction should be adopted.6. We agree with the High Court that the proportionate share of the capital gains out of which the dividend was distributed to the shareholders of the Company must be deemed exempt from liability to pay tax under Section 12 as dividend income liable to tax.7. Counsel for the Revenue sought to argue that share of dividend which is not chargeable to tax by virtue of the exemption clause is still liable to tax as income other than dividend. But no such contention was raised before the Tribunal or the High Court and no question was raised in that behalf. We will not be justified in entering upon the question which was not raised or argued before the Tribunal and before the High Court.
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0
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4. The proviso to the Explanation clearly enacted that capital gains arising after March 31, 1948 are not liable to be included within the expression "dividend". The definition is, it is true, an inclusive definition and a receipt by a shareholder which does not fall within the definition may possibly be regarded as dividend within the meaning of the Act unless the context negatives that view. But is difficult on that account to hold that capital gains excluded from the definition of dividend by express enactment still fall within the charge of tax. According to the definition in Section 2 (6A) of the Income-tax Act only the proportionate share of the member out of the accumulated profits (excluding capital gains arising in the excepted period) distributed by the Company, alone will be deemed the taxable component.5. There is no warrant for the view expressed by the Tribunal that the definition of dividend only includes deemed dividend. To hold that the capital gains within the excepted period are not part of the accumulated profits for the purpose of the definition under Section 2 (6A) and a distributive share thereof does not on that account fall within the definition of dividend and therefore of income chargeable to tax and still to regard them as a part of accumulated profits for the purpose of dividend in the popular connotation and to bring the share to tax in the hands of the shareholders is to nullify an express provision of the statute. We do not see any reason why such a strained construction should be adopted.6. We agree with the High Court that the proportionate share of the capital gains out of which the dividend was distributed to the shareholders of the Company must be deemed exempt from liability to pay tax under Section 12 as dividend income liable tono such contention was raised before the Tribunal or the High Court and no question was raised in that behalf. We will not be justified in entering upon the question which was not raised or argued before the Tribunal and before the High Court.
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Singh Ram Vs. Nirmala & Others | should, it has been urged, be modified to fasten a joint and several liability on the insurer.6. Before we advert to the decision in Swaran Singh (supra) a brief reference to the facts as they emerge from the decision of the Tribunal is necessary. Initially before the Tribunal the appellant produced a driving licence issued by the Motor Vehicles Department, Agra (Exh.R-1). The driving licence was found to be fake. The statement of the Senior Assistant in the office of the RTO, Agra was that Exh.R-1 had not been issued by the office. The Tribunal noted that the witness had proved the report (Exh.R-2) issued by the department and concluded that the licence was fake. Faced with this situation, the appellant attempted to prove that he held a valid driving licence issued by the licencing authority at Jagadhri to drive a motor cycle. The Tribunal rejected the application filed by the appellant for producing additional evidence. The Tribunal noted that even otherwise, the licence which was issued by the licencing authority, Jagadhri for a tractor and car was valid only until 29 August 2009. The accident took place on 22 March 2010. The licence was renewed on 28 November 2011 more than two years after it had expired. On these facts, the Tribunal observed that on the date of the accident, the appellant was not holding a valid and effective driving licence nor was there any evidence to indicate that the licence was sought to be renewed as required in law, within 30 days of its expiry. The Tribunal also observed that the appellant did not hold a valid licence to drive a motor cycle. On these grounds, the insurer was absolved. The High Court has confirmed the direction of the Tribunal to pay and recover.7. In Swaran Singh (supra), this Court held that the holder of a driving licence has a period of thirty days on its expiry, to renew it:“45. Thus, a person whose licence is ordinarily renewed in terms of the Motor Vehicles Act and the Rules framed thereunder, despite the fact that during the interregnum period, namely, when the accident took place and the date of expiry of the licence, he did not have a valid licence, he could during the prescribed period apply for renewal thereof and could obtain the same automatically without undergoing any further test or without having been declared unqualified therefor. Proviso appended to Section 14 in unequivocal terms states that the licence remains valid for a period of thirty days from the day of its expiry.46. Section 15 of the Act does not empower the authorities to reject an application for renewal only on the ground that there is a break in validity or tenure of the driving licence has lapsed, as in the meantime the provisions for disqualification of the driver contained in Sections 19, 20, 21, 22, 23 and 24 will not be attracted, would indisputably confer a right upon the person to get his driving licence renewed. In that view of the matter, he cannot be said to be delicensed and the same shall remain valid for a period of thirty days after its expiry.”The following conclusion has been recorded in summation in the judgment:“(iii) The breach of policy condition e.g. disqualification of the driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of Section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time.(iv) Insurance companies, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish “breach” on the part of the owner of the vehicle; the burden of proof wherefor would be on them.(v) The court cannot lay down any criteria as to how the said burden would be discharged, inasmuch as the same would depend upon the facts and circumstances of each case.(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply “the rule of main purpose” and the concept of “fundamental breach” to allow defences available to the insurer under Section 149(2) of the Act.(vii) The question, as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case”.8. In the present case it is necessary to note, as observed by the Tribunal, that the owner did not depose in evidence and stayed away from the witness box. He produced a licence which was found to be fake. Another licence which he sought to produce had already expired before the accident and was not renewed within the prescribed period. It was renewed well after two years had expired. The appellant as owner had evidently failed to take reasonable care (proposition (vii) of Swaran Singh) since he could not have been unmindful of facts which were within his knowledge. | 0[ds]8. In the present case it is necessary to note, as observed by the Tribunal, that the owner did not depose in evidence and stayed away from the witness box. He produced a licence which was found to be fake. Another licence which he sought to produce had already expired before the accident and was not renewed within the prescribed period. It was renewed well after two years had expired. The appellant as owner had evidently failed to take reasonable care (proposition (vii) of Swaran Singh) since he could not have been unmindful of facts which were within his knowledge. | 0 | 1,679 | 116 | ### 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:
should, it has been urged, be modified to fasten a joint and several liability on the insurer.6. Before we advert to the decision in Swaran Singh (supra) a brief reference to the facts as they emerge from the decision of the Tribunal is necessary. Initially before the Tribunal the appellant produced a driving licence issued by the Motor Vehicles Department, Agra (Exh.R-1). The driving licence was found to be fake. The statement of the Senior Assistant in the office of the RTO, Agra was that Exh.R-1 had not been issued by the office. The Tribunal noted that the witness had proved the report (Exh.R-2) issued by the department and concluded that the licence was fake. Faced with this situation, the appellant attempted to prove that he held a valid driving licence issued by the licencing authority at Jagadhri to drive a motor cycle. The Tribunal rejected the application filed by the appellant for producing additional evidence. The Tribunal noted that even otherwise, the licence which was issued by the licencing authority, Jagadhri for a tractor and car was valid only until 29 August 2009. The accident took place on 22 March 2010. The licence was renewed on 28 November 2011 more than two years after it had expired. On these facts, the Tribunal observed that on the date of the accident, the appellant was not holding a valid and effective driving licence nor was there any evidence to indicate that the licence was sought to be renewed as required in law, within 30 days of its expiry. The Tribunal also observed that the appellant did not hold a valid licence to drive a motor cycle. On these grounds, the insurer was absolved. The High Court has confirmed the direction of the Tribunal to pay and recover.7. In Swaran Singh (supra), this Court held that the holder of a driving licence has a period of thirty days on its expiry, to renew it:“45. Thus, a person whose licence is ordinarily renewed in terms of the Motor Vehicles Act and the Rules framed thereunder, despite the fact that during the interregnum period, namely, when the accident took place and the date of expiry of the licence, he did not have a valid licence, he could during the prescribed period apply for renewal thereof and could obtain the same automatically without undergoing any further test or without having been declared unqualified therefor. Proviso appended to Section 14 in unequivocal terms states that the licence remains valid for a period of thirty days from the day of its expiry.46. Section 15 of the Act does not empower the authorities to reject an application for renewal only on the ground that there is a break in validity or tenure of the driving licence has lapsed, as in the meantime the provisions for disqualification of the driver contained in Sections 19, 20, 21, 22, 23 and 24 will not be attracted, would indisputably confer a right upon the person to get his driving licence renewed. In that view of the matter, he cannot be said to be delicensed and the same shall remain valid for a period of thirty days after its expiry.”The following conclusion has been recorded in summation in the judgment:“(iii) The breach of policy condition e.g. disqualification of the driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of Section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time.(iv) Insurance companies, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish “breach” on the part of the owner of the vehicle; the burden of proof wherefor would be on them.(v) The court cannot lay down any criteria as to how the said burden would be discharged, inasmuch as the same would depend upon the facts and circumstances of each case.(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply “the rule of main purpose” and the concept of “fundamental breach” to allow defences available to the insurer under Section 149(2) of the Act.(vii) The question, as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case”.8. In the present case it is necessary to note, as observed by the Tribunal, that the owner did not depose in evidence and stayed away from the witness box. He produced a licence which was found to be fake. Another licence which he sought to produce had already expired before the accident and was not renewed within the prescribed period. It was renewed well after two years had expired. The appellant as owner had evidently failed to take reasonable care (proposition (vii) of Swaran Singh) since he could not have been unmindful of facts which were within his knowledge.
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### Explanation:
8. In the present case it is necessary to note, as observed by the Tribunal, that the owner did not depose in evidence and stayed away from the witness box. He produced a licence which was found to be fake. Another licence which he sought to produce had already expired before the accident and was not renewed within the prescribed period. It was renewed well after two years had expired. The appellant as owner had evidently failed to take reasonable care (proposition (vii) of Swaran Singh) since he could not have been unmindful of facts which were within his knowledge.
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MANOJ PARIHAR & ORS Vs. STATE OF JAMMU & KASHMIR & ORS | in para 36 of the report in Bimlesh Tanwar (supra) and this Court recorded that the same was not correct. In para 40 of the report this Court eventually held as follows:- 40. An affirmative action in terms of Article 16(4) of the Constitution is meant for providing a representation of class of citizenry who are socially or economically backward. Article 16 of the Constitution of India is applicable in the case of an appointment. It does not speak of fixation of seniority. Seniority is, thus, not to be fixed in terms of the roster points. If that is done, the rule of affirmative action would be extended which would strictly not be in consonance of the constitutional schemes. We are of the opinion that the decision in P.S. Ghalaut does not lay down a good law. 26. What was done in Bimlesh Tanwar (supra) was actually a declaration of law. Therefore, the same will have retrospective effect. In P.V. George v. State of Kerala, (2007) 3 SCC 557, this Court held that the law declared by a court will have retrospective effect, if not otherwise stated to be so specifically. 27. This Court was conscious of the fact, as could be seen from paragraph 19 of the report in P.V. George (supra), that when the doctrine of stare decisis is not adhered to, a change in the law may adversely affect the interest of the citizens. But still this Court held that the power to apply the doctrine of prospective overruling (so as to remove the adverse effect) must be exercised in the clearest possible term. 28. Therefore, it is clear that anything done as a consequence of the decision of this Court in P.S. Ghalaut (supra), cannot stand since this Court did not apply the doctrine of prospective overruling in Bimlesh Tanwar (supra) in express terms. It goes as follows:- (i) In Union of India v. Virpal Singh [(1995) 6 SCC 684] , this Court upheld the stand taken by the Railways that reserved category candidates who got promotion at roster points would not be entitled to claim seniority at the promotional level as against senior general category candidates who got promoted at a later point of time to the same level. The Court held that the State was entitled to provide, what came to be known in popular terms as the catch up rule enabling the senior general category candidates who got promoted later, to claim seniority over and above the roster point promotee who got promoted earlier. (ii) The catch up rule formulated in Virpal was approved by a three member Bench in Ajit Singh Januja v. State of Punjab [(1996) 2 SCC 715] . This case came to be known as Ajit Singh (I). (iii) But, another three member Bench took a different view in Jagdish Lal v. State of Haryana [(1997) 6 SCC 538] and held that while the rights of the reserved candidates under Article 16(4) and 16(4-A) were fundamental rights, the right to promotion was a statutory right and that therefore, the roster point promotees have to be given seniority on the very same basis as those having continuous officiation in a post. (iv) Since Jagdish Lal took a view contrary to the views expressed in Virpal Singh and Ajit Singh (I), the State of Punjab filed Interlocutory Applications before this Court, seeking clarifications. These Interlocutory Applications were placed before a Constitution Bench comprising of 5 Judges, in view of the fact that two Benches of coordinate jurisdiction (both three member Benches) had taken diametrically opposite views. The decision rendered by the larger Bench of 5 Judges on these Applications came to be known as Ajit Singh (II), in Ajit Singh v. State of Punjab [(1999) 7 SCC 209] . (v) Eventually, the Constitution Bench held in Ajit Singh (II) that the roster point promotees cannot count their seniority in the promoted category, from the date of their continuous officiation in the promoted post, vis-a-vis the general category candidates who were senior to them in the lower category and who were later promoted. As a consequence, Virpal and Ajit Singh (I) were declared to have been decided correctly and Jagdish Lal was declared to be incorrect. 29. Thus, the principle of law discernible from all the aforesaid decisions of this Court is that the roster system is only for the purpose of ensuring that the quantum of reservation is reflected in the recruitment process. It has nothing to do with the inter-se seniority among those recruited. To put it in other words, the roster points do not determine the seniority of the appointees who gain simultaneous appointments; that is to say, those who are appointed collectively on the same date or are deemed to be appointed on the same date, irrespective when they joined their posts. The position of law as discussed about could be said to be prevailing even while the High Court of Jammu & Kashmir decided by a Full Court Resolution to determine the seniority on the basis of roster points. 30. We are not inclined to carve out an exception for the 2003 appointees that is the petitioners herein before us. The High Court in our view rightly applied the principle of law explained by this Court in the case of Bimlesh Tanwar (supra). 31. There is one another important aspect of this matter, we need to take notice of. The High Court in its impugned judgment and order has observed that the appointments of the selected officers were made in terms of Rule 42 of the Jammu & Kashmir Civil Services (Judicial) Recruitment Rules 1967 vide the Government order dated 06.08.2003 that is much after the pronouncement of the judgment in the case of Bimlesh Tanwar (supra). It makes all the differences. 32. In the overall view of the matter, we are convinced that there is no jurisdictional infirmity or any other infirmity in the impugned judgment passed by the High Court warranting interference at our end | 0[ds]16. The first and the foremost aspect, we would like to clarify, is that in the case of direct recruitment, the preparation of inter se merit list of the selected candidates is inevitable, even in the absence of an explicit provision in the rule or policy, the recruitment authority cannot place the candidates inter se in the select list under the rule of thumb or by adopting the methodology which is inconsistent with the spirit of Articles 14 and 16 of the Constitution. The inter se merit list of the selected candidates can be prepared as a combined effect of several factors like written test, objective test, viva-voce and/or other parameters as may have been prescribed keeping in view the special requirement of service. Similarly, though not concerned in the present case, even in a case of promotion based on merit-cum-seniority, seniority by itself is not the only qualification for promotion to a selection post. If the criteria for promotion is merit-cum-seniority, the comparative merit has to be evaluated in which seniority will be one of the factors only. However, in the case of merit-cum- seniority even a junior most person may steal a march over his seniors and jump the queue for accelerated promotion.18. In R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745, this Court said as follows:5. We see considerable force in the second con- tention raised by the learned counsel for the peti- tioners. The reservations provided under the im- pugned Government instructions are to be operated in accordance with the roster to be maintained in each Department. The roster is implemented in the form of running account from year to year. The pur- pose of running account is to make sure that the Scheduled Castes/Schedule Tribes and Backward Classes get their percentage of reserved posts. The concept of running account in the impugned in- structions has to be so interpreted that it does not result in excessive reservation. 16% of the posts… are reserved for members of the Scheduled Castes and Backward Classes. In a lot of 100 posts those falling at Serial Numbers 1, 7, 15, 22, 30, 37, 44, 51, 58, 65, 72, 80, 87 and 91 have been reserved and earmarked in the roster for the Scheduled Castes. Roster points 26 and 76 are re- served for the members of Backward Classes. It is thus obvious that when recruitment to a cadre starts then 14 posts earmarked in the roster are to be filled from amongst the members of the Sched- uled Castes. To illustrate, first post in a cadre must go to the Scheduled Caste and thereafter the said class is entitled to 7th, 15th, 22nd and onwards up to 91st post. When the total number of posts in a cadre are filled by the operation of the roster then the result envisaged by the impugned instructions is achieved. In other words, in a cadre of 100 posts when the posts earmarked in the roster for the Scheduled Castes and the Backward Classes are filled the percentage of reservation provided for the reserved categories is achieved. We see no justifi- cation to operate the roster thereafter. The running account is to operate only till the quota provided under the impugned instructions is reached and not thereafter. Once the prescribed percentage of posts is filled the numerical test of adequacy is sat- isfied and thereafter the roster does not survive. The percentage of reservation is the desired repre- sentation of the Backward Classes in the State Services and is consistent with the demographic estimate based on the proportion worked out in re- lation to their population. The numerical quota of posts is not a shifting boundary but represents a figure with due application of mind. Therefore, the only way to assure equality of opportunity to the Backward Classes and the general category is to permit the roster to operate till the time the respec- tive appointees/promotees occupy the posts meant for them in the roster. The operation of the roster and the running account must come to an end thereafter. The vacancies arising in the cadre, after the initial posts are filled, will pose no difficulty. As and when there is a vacancy whether permanent or temporary in a particular post the same has to be filled from amongst the category to which the post belonged in the roster. For example the Sched- uled Caste persons holding the posts at roster points 1, 7, 15 retire then these slots are to be filled from amongst the persons belonging to the Sched- uled Castes. Similarly, if the persons holding the post at points 8 to 14 or 23 to 29 retire then these slots are to be filled from among the general cate- gory. By following this procedure there shall nei- ther be shortfall nor excess in the percentage of reservation.19. In Bimlesh Tanwar v. State of Haryana, (2003) 5 SCC 604, this Court stated thus:19. It was submitted that having regard to the in- structions issued by the Haryana Government in its circular letter dated 27-4-1972, roster points cannot be considered as seniority points and fur- ther having regard to the fact that these instruc- tions have been followed by the High Court for a long time, there is absolutely no reason as to why such a practice should be deviated from. The learned counsel contended that this Court in Ajit Singh (II) 5 having categorically held that roster points are not intended to determine seniority be- tween general candidates and reserved candi- dates, the impugned judgment cannot be faulted with.24. The Rules, therefore, indisputably lay empha- sis on merit. It for all intent and purport excludes the applicability of rule of appointment in terms of roster points.33. The question as to whether the determination of inter se seniority would depend upon the filling up of the vacancies so far as the reserved cate- gories are concerned, having regard to the roster points, in our opinion, is no longer res integra.40. An affirmative action in terms of Article 16(4) of the Constitution is meant for providing a represen- tation of a class of citizenry who are socially or eco- nomically backward. Article 16 of the Constitution of India is applicable in the case of an appoint- ment. It does not speak of fixation of seniority. Se- niority is, thus, not to be fixed in terms of the roster points. If that is done, the rule of affirmative action would be extended which would strictly not be in consonance of the constitutional schemes. We are of the opinion that the decision in P.S. Ghalaut does not lay down a good law.22. The question as to whether the determination of inter-se seniority would depend upon the filling up of the vacancies so far as the reserved categories are concerned, having regard to the roster points, in our opinion, is no longer res integra.23. In Ajit Singh v. State of Punjab, (1999) 7 SCC 209, a five Judge Bench of this Court has laid down the law in the following terms:40. It must be noted that whenever a reserved candidate goes for recruitment at the initial level (say Level 1), he is not going through the normal process of selection which is applied to a general candidate but gets appointment to a post reserved for his group. That is what is meant by reservation. That is the effect of reservation.41. Now in a case where the reserved candidate has not opted to contest on his merit but has opted for the reserved post, if a roster is set at Level 1 for promotion of the reserved candidate at various roster points to Level 2, the reserved candidate, if he is otherwise at the end of the merit list, goes to Level 2 without competing with general candidates and he goes up by a large number of places. In a roster with 100 places, if the roster points are 8, 16, 24 etc. at each of these points the reserved candidate if he is at the end of the merit list, gets promotion to Level 2 by side-stepping several general candidates. That is the effect of the roster-point promotion.42. It deserves to be noticed that the roster points fixed at Level 1 are not intended to determine any seniority at Level 1 between general candidates and the reserved candidates. This aspect we shall consider again when we come to Mervyn Continho v. Collector of Customs (1966) 3 SCR 600 lower down. The roster point merely becomes operative whenever a vacancy reserved at Level 2 becomes available. Once such vacancies are all filled, the roster has worked itself out. Thereafter other reserved candidates can be promoted only when a vacancy at the reserved points already filled arises. That was what was decided in R.K. Sabharwal v. State of Punjab (1995) 2 SCC 745 .24. In Ajit Singh (II), the decision of this Court in R.K. Sabharwal case has, thus, been explained as under:P.S. Ghalaut v. State of Haryana [(1995) 5 SCC 625] relied upon by Dr. Chauhan, is a decision rendered by a two Judge bench. In that case Rule 13 of the Rules envisaged that the seniority inter se of members of the service shall be determined by the length of continuous service on any post in the service; provided further that in the case of two or more members appointed by direct recruitment, the order of merit determined by the Commission shall not be disturbed in fixing the seniority. Despite the said Rule, it was held as under:Take for instance Vacancies Nos. 1 and 6, as pointed out in the Chief Secretarys letter have admittedly been reserved for Scheduled Castes. Suppose recruitment was made to fill up ten vacancies, three candidates from Scheduled Castes were selected on the basis of reserved quota. The question is whether the first candidate will be put in the quota allotted to the Scheduled Castes in the roster. Having been selected as a general candidate, though he is more meritorious than the second and third candidates, he will not get the placement in the roster, reserved for Scheduled Castes i.e. Nos. 1 and 6 points. Consequently candidates Nos. 2 and 3 will get the placement at Nos. 1 and 6 and the first candidate will get the placement in the order of merit along with the general candidates according to the order of merit maintained by the Selection Committee or the Public Service Commission. He cannot complain that having been selected in the merit, he must be placed in the placement reserved for Scheduled Castes at Point No. 1 in the roster. Equally, though general candidate is more meritorious in the order of merit prepared by the Public Service Commission or the Selection Committee, when the appointments are made and the vacancies are filled up according to the roster, necessarily and inevitably the reserved candidates though less meritorious in the order of merit maintained by the Public Service Commission would occupy the respective places assigned in the roster. Thereby they steal a march over some of the general candidates and get seniority over the general candidates. This scheme is, therefore, constitutional, valid and is not arbitrary.We have not been able to persuade ourselves to the aforesaid view.25. It will be of interest to note that the hypothetical situation taken up by this Court in P.S. Ghalaut (supra) where two reserved category candidates were pitted against each other, was actually extracted by this Court in para 36 of the report in Bimlesh Tanwar (supra) and this Court recorded that the same was not correct. In para 40 of the report this Court eventually held as follows:-40. An affirmative action in terms of Article 16(4) of the Constitution is meant for providing a representation of class of citizenry who are socially or economically backward. Article 16 of the Constitution of India is applicable in the case of an appointment. It does not speak of fixation of seniority. Seniority is, thus, not to be fixed in terms of the roster points. If that is done, the rule of affirmative action would be extended which would strictly not be in consonance of the constitutional schemes. We are of the opinion that the decision in P.S. Ghalaut does not lay down a good law.26. What was done in Bimlesh Tanwar (supra) was actually a declaration of law. Therefore, the same will have retrospective effect. In P.V. George v. State of Kerala, (2007) 3 SCC 557, this Court held that the law declared by a court will have retrospective effect, if not otherwise stated to be so specifically.27. This Court was conscious of the fact, as could be seen from paragraph 19 of the report in P.V. George (supra), that when the doctrine of stare decisis is not adhered to, a change in the law may adversely affect the interest of the citizens. But still this Court held that the power to apply the doctrine of prospective overruling (so as to remove the adverse effect) must be exercised in the clearest possible term.28. Therefore, it is clear that anything done as a consequence of the decision of this Court in P.S. Ghalaut (supra), cannot stand since this Court did not apply the doctrine of prospective overruling in Bimlesh Tanwar (supra) in express terms. It goes as follows:-(i) In Union of India v. Virpal Singh [(1995) 6 SCC 684] , this Court upheld the stand taken by the Railways that reserved category candidates who got promotion at roster points would not be entitled to claim seniority at the promotional level as against senior general category candidates who got promoted at a later point of time to the same level. The Court held that the State was entitled to provide, what came to be known in popular terms as the catch up rule enabling the senior general category candidates who got promoted later, to claim seniority over and above the roster point promotee who got promoted earlier.(ii) The catch up rule formulated in Virpal was approved by a three member Bench in Ajit Singh Januja v. State of Punjab [(1996) 2 SCC 715] . This case came to be known as Ajit Singh (I).(iii) But, another three member Bench took a different view in Jagdish Lal v. State of Haryana [(1997) 6 SCC 538] and held that while the rights of the reserved candidates under Article 16(4) and 16(4-A) were fundamental rights, the right to promotion was a statutory right and that therefore, the roster point promotees have to be given seniority on the very same basis as those having continuous officiation in a post.(iv) Since Jagdish Lal took a view contrary to the views expressed in Virpal Singh and Ajit Singh (I), the State of Punjab filed Interlocutory Applications before this Court, seeking clarifications. These Interlocutory Applications were placed before a Constitution Bench comprising of 5 Judges, in view of the fact that two Benches of coordinate jurisdiction (both three member Benches) had taken diametrically opposite views. The decision rendered by the larger Bench of 5 Judges on these Applications came to be known as Ajit Singh (II), in Ajit Singh v. State of Punjab [(1999) 7 SCC 209] .(v) Eventually, the Constitution Bench held in Ajit Singh (II) that the roster point promotees cannot count their seniority in the promoted category, from the date of their continuous officiation in the promoted post, vis-a-vis the general category candidates who were senior to them in the lower category and who were later promoted. As a consequence, Virpal and Ajit Singh (I) were declared to have been decided correctly and Jagdish Lal was declared to be incorrect.29. Thus, the principle of law discernible from all the aforesaid decisions of this Court is that the roster system is only for the purpose of ensuring that the quantum of reservation is reflected in the recruitment process. It has nothing to do with the inter-se seniority among those recruited. To put it in other words, the roster points do not determine the seniority of the appointees who gain simultaneous appointments; that is to say, those who are appointed collectively on the same date or are deemed to be appointed on the same date, irrespective when they joined their posts. The position of law as discussed about could be said to be prevailing even while the High Court of Jammu & Kashmir decided by a Full Court Resolution to determine the seniority on the basis of roster points.30. We are not inclined to carve out an exception for the 2003 appointees that is the petitioners herein before us. The High Court in our view rightly applied the principle of law explained by this Court in the case of Bimlesh Tanwar (supra).31. There is one another important aspect of this matter, we need to take notice of. The High Court in its impugned judgment and order has observed that the appointments of the selected officers were made in terms of Rule 42 of the Jammu & Kashmir Civil Services (Judicial) Recruitment Rules 1967 vide the Government order dated 06.08.2003 that is much after the pronouncement of the judgment in the case of Bimlesh Tanwar (supra). It makes all the differences.32. In the overall view of the matter, we are convinced that there is no jurisdictional infirmity or any other infirmity in the impugned judgment passed by the High Court warranting interference at our end | 0 | 7,092 | 3,247 | ### Instruction:
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in para 36 of the report in Bimlesh Tanwar (supra) and this Court recorded that the same was not correct. In para 40 of the report this Court eventually held as follows:- 40. An affirmative action in terms of Article 16(4) of the Constitution is meant for providing a representation of class of citizenry who are socially or economically backward. Article 16 of the Constitution of India is applicable in the case of an appointment. It does not speak of fixation of seniority. Seniority is, thus, not to be fixed in terms of the roster points. If that is done, the rule of affirmative action would be extended which would strictly not be in consonance of the constitutional schemes. We are of the opinion that the decision in P.S. Ghalaut does not lay down a good law. 26. What was done in Bimlesh Tanwar (supra) was actually a declaration of law. Therefore, the same will have retrospective effect. In P.V. George v. State of Kerala, (2007) 3 SCC 557, this Court held that the law declared by a court will have retrospective effect, if not otherwise stated to be so specifically. 27. This Court was conscious of the fact, as could be seen from paragraph 19 of the report in P.V. George (supra), that when the doctrine of stare decisis is not adhered to, a change in the law may adversely affect the interest of the citizens. But still this Court held that the power to apply the doctrine of prospective overruling (so as to remove the adverse effect) must be exercised in the clearest possible term. 28. Therefore, it is clear that anything done as a consequence of the decision of this Court in P.S. Ghalaut (supra), cannot stand since this Court did not apply the doctrine of prospective overruling in Bimlesh Tanwar (supra) in express terms. It goes as follows:- (i) In Union of India v. Virpal Singh [(1995) 6 SCC 684] , this Court upheld the stand taken by the Railways that reserved category candidates who got promotion at roster points would not be entitled to claim seniority at the promotional level as against senior general category candidates who got promoted at a later point of time to the same level. The Court held that the State was entitled to provide, what came to be known in popular terms as the catch up rule enabling the senior general category candidates who got promoted later, to claim seniority over and above the roster point promotee who got promoted earlier. (ii) The catch up rule formulated in Virpal was approved by a three member Bench in Ajit Singh Januja v. State of Punjab [(1996) 2 SCC 715] . This case came to be known as Ajit Singh (I). (iii) But, another three member Bench took a different view in Jagdish Lal v. State of Haryana [(1997) 6 SCC 538] and held that while the rights of the reserved candidates under Article 16(4) and 16(4-A) were fundamental rights, the right to promotion was a statutory right and that therefore, the roster point promotees have to be given seniority on the very same basis as those having continuous officiation in a post. (iv) Since Jagdish Lal took a view contrary to the views expressed in Virpal Singh and Ajit Singh (I), the State of Punjab filed Interlocutory Applications before this Court, seeking clarifications. These Interlocutory Applications were placed before a Constitution Bench comprising of 5 Judges, in view of the fact that two Benches of coordinate jurisdiction (both three member Benches) had taken diametrically opposite views. The decision rendered by the larger Bench of 5 Judges on these Applications came to be known as Ajit Singh (II), in Ajit Singh v. State of Punjab [(1999) 7 SCC 209] . (v) Eventually, the Constitution Bench held in Ajit Singh (II) that the roster point promotees cannot count their seniority in the promoted category, from the date of their continuous officiation in the promoted post, vis-a-vis the general category candidates who were senior to them in the lower category and who were later promoted. As a consequence, Virpal and Ajit Singh (I) were declared to have been decided correctly and Jagdish Lal was declared to be incorrect. 29. Thus, the principle of law discernible from all the aforesaid decisions of this Court is that the roster system is only for the purpose of ensuring that the quantum of reservation is reflected in the recruitment process. It has nothing to do with the inter-se seniority among those recruited. To put it in other words, the roster points do not determine the seniority of the appointees who gain simultaneous appointments; that is to say, those who are appointed collectively on the same date or are deemed to be appointed on the same date, irrespective when they joined their posts. The position of law as discussed about could be said to be prevailing even while the High Court of Jammu & Kashmir decided by a Full Court Resolution to determine the seniority on the basis of roster points. 30. We are not inclined to carve out an exception for the 2003 appointees that is the petitioners herein before us. The High Court in our view rightly applied the principle of law explained by this Court in the case of Bimlesh Tanwar (supra). 31. There is one another important aspect of this matter, we need to take notice of. The High Court in its impugned judgment and order has observed that the appointments of the selected officers were made in terms of Rule 42 of the Jammu & Kashmir Civil Services (Judicial) Recruitment Rules 1967 vide the Government order dated 06.08.2003 that is much after the pronouncement of the judgment in the case of Bimlesh Tanwar (supra). It makes all the differences. 32. In the overall view of the matter, we are convinced that there is no jurisdictional infirmity or any other infirmity in the impugned judgment passed by the High Court warranting interference at our end
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were pitted against each other, was actually extracted by this Court in para 36 of the report in Bimlesh Tanwar (supra) and this Court recorded that the same was not correct. In para 40 of the report this Court eventually held as follows:-40. An affirmative action in terms of Article 16(4) of the Constitution is meant for providing a representation of class of citizenry who are socially or economically backward. Article 16 of the Constitution of India is applicable in the case of an appointment. It does not speak of fixation of seniority. Seniority is, thus, not to be fixed in terms of the roster points. If that is done, the rule of affirmative action would be extended which would strictly not be in consonance of the constitutional schemes. We are of the opinion that the decision in P.S. Ghalaut does not lay down a good law.26. What was done in Bimlesh Tanwar (supra) was actually a declaration of law. Therefore, the same will have retrospective effect. In P.V. George v. State of Kerala, (2007) 3 SCC 557, this Court held that the law declared by a court will have retrospective effect, if not otherwise stated to be so specifically.27. This Court was conscious of the fact, as could be seen from paragraph 19 of the report in P.V. George (supra), that when the doctrine of stare decisis is not adhered to, a change in the law may adversely affect the interest of the citizens. But still this Court held that the power to apply the doctrine of prospective overruling (so as to remove the adverse effect) must be exercised in the clearest possible term.28. Therefore, it is clear that anything done as a consequence of the decision of this Court in P.S. Ghalaut (supra), cannot stand since this Court did not apply the doctrine of prospective overruling in Bimlesh Tanwar (supra) in express terms. It goes as follows:-(i) In Union of India v. Virpal Singh [(1995) 6 SCC 684] , this Court upheld the stand taken by the Railways that reserved category candidates who got promotion at roster points would not be entitled to claim seniority at the promotional level as against senior general category candidates who got promoted at a later point of time to the same level. The Court held that the State was entitled to provide, what came to be known in popular terms as the catch up rule enabling the senior general category candidates who got promoted later, to claim seniority over and above the roster point promotee who got promoted earlier.(ii) The catch up rule formulated in Virpal was approved by a three member Bench in Ajit Singh Januja v. State of Punjab [(1996) 2 SCC 715] . This case came to be known as Ajit Singh (I).(iii) But, another three member Bench took a different view in Jagdish Lal v. State of Haryana [(1997) 6 SCC 538] and held that while the rights of the reserved candidates under Article 16(4) and 16(4-A) were fundamental rights, the right to promotion was a statutory right and that therefore, the roster point promotees have to be given seniority on the very same basis as those having continuous officiation in a post.(iv) Since Jagdish Lal took a view contrary to the views expressed in Virpal Singh and Ajit Singh (I), the State of Punjab filed Interlocutory Applications before this Court, seeking clarifications. These Interlocutory Applications were placed before a Constitution Bench comprising of 5 Judges, in view of the fact that two Benches of coordinate jurisdiction (both three member Benches) had taken diametrically opposite views. The decision rendered by the larger Bench of 5 Judges on these Applications came to be known as Ajit Singh (II), in Ajit Singh v. State of Punjab [(1999) 7 SCC 209] .(v) Eventually, the Constitution Bench held in Ajit Singh (II) that the roster point promotees cannot count their seniority in the promoted category, from the date of their continuous officiation in the promoted post, vis-a-vis the general category candidates who were senior to them in the lower category and who were later promoted. As a consequence, Virpal and Ajit Singh (I) were declared to have been decided correctly and Jagdish Lal was declared to be incorrect.29. Thus, the principle of law discernible from all the aforesaid decisions of this Court is that the roster system is only for the purpose of ensuring that the quantum of reservation is reflected in the recruitment process. It has nothing to do with the inter-se seniority among those recruited. To put it in other words, the roster points do not determine the seniority of the appointees who gain simultaneous appointments; that is to say, those who are appointed collectively on the same date or are deemed to be appointed on the same date, irrespective when they joined their posts. The position of law as discussed about could be said to be prevailing even while the High Court of Jammu & Kashmir decided by a Full Court Resolution to determine the seniority on the basis of roster points.30. We are not inclined to carve out an exception for the 2003 appointees that is the petitioners herein before us. The High Court in our view rightly applied the principle of law explained by this Court in the case of Bimlesh Tanwar (supra).31. There is one another important aspect of this matter, we need to take notice of. The High Court in its impugned judgment and order has observed that the appointments of the selected officers were made in terms of Rule 42 of the Jammu & Kashmir Civil Services (Judicial) Recruitment Rules 1967 vide the Government order dated 06.08.2003 that is much after the pronouncement of the judgment in the case of Bimlesh Tanwar (supra). It makes all the differences.32. In the overall view of the matter, we are convinced that there is no jurisdictional infirmity or any other infirmity in the impugned judgment passed by the High Court warranting interference at our end
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Royal Talkies, Hyderabad and Others Vs. Employees State Insurance Corp | of employees on the premises, whether they are there in the work or are merely in connection with the work of the establishment.9. Merely being employed in connection with the work of an establishment, in itself, does not entitle a person to be employee. He must not only be employed in connection with the work of the establishment but also be shown to be employed in one or other of the three categories mentioned in Sec. 2(9). Sec. 2(9) (i) covers only employees who are directly employed by the principal employer. Even here, there are expressions which take in a wider group of employees than traditionally so regarded, but it is imperative that any employee who is not directly employed by the principal employer cannot be eligible under Sec. 2(9) (i) . In the present case, the employees concerned are admittedly not directly employed by t he cinema proprietors.10. Therefore, we move down to Sec. 2(9) (ii). Here again, the language used is extensive and diffusive imaginatively embracing all Possible alternatives of employment by or through all independent employer. In such cases, the principal employer has no direct employment relationship since the immediate employer of the employee, concerned is some one else. Even so, such an employee, if he works (a) on the premises of the establishment, or (b) under the supervision of the Principal employer or his agent `on work which is ordinarily part of the work of the establishment or which is preliminary to the work carried on in or incidental to the purpose of the establishment", qualifies under Sec. 2(9) (ii). The plurality of persons engaged in various activities who are brought into the definitional net is wide and considerable; and all that is necessary is that the employee be on the premises or be under the supervision of the principal employer or his agent. Assuming that the last part of Sec. 2(9) (ii) qualifies both these categories, all that is needed to satisfy that requirement is that the work done by the employee must be (a) such as is ordinarily (not necessarily nor statutorily) part of the work of the establishment, or (b) which is merely preliminary to the work carried on in the establishment, or (c) is just incidental to the purpose of the establishment. No one can seriously say that a canteen or cycle stand or cinema magazine booth is not even incidental to the purpose of the theatre. The cinema goers ordinarily find such work an advantage, a facility an amenity and some times a necessity. All that the statute requires is that the work should not be irrelevant to the purpose of the establishment. It is sufficient if it is incidental to it. A thing is incidental to another if it merely appertains to something else as primary. Surely, such work should not be extraneous or contrary to the purpose of the establishment but need not be integral to it either. Much depends on time and place, habits and appetites, ordinary expectations and social circumstances. In our view, clearly the two operations in the present case, namely, keeping a cycle stand and running canteen are incidental or adjuncts to the primary purpose of the theatre.We are not concerned with Sec. 2(9) (iii) nor with the rest of the definitional provision.11. Shri Chit ale tried to convince us that on a minute dissection of the various clauses of the provision it was possible to exclude canteen employees and cycle stand attendants. May-be, punctilious sense of grammar and minute precision of language may sometimes lend unwitting support to narrow interpretation. But language is handmaid, not mistress. Maxwell and Fowler move along different streets, sometimes. When, as in Sec. 2(9), the definition has been cast deliberately in the widest terms and the draftsman has endeavoured to cover every possibility so as not to exclude even distant categories of men employed either in the primary work or cognate activities, it will defeat the object of the statute to truncate its semantic sweep and throw out of its ambit those who obviously are within the benign contemplation of the Act. Salvationary effort, when the welfare of the weaker sections of society is the statutory object and is faced with stultifying effect, is permissible judicial exercise.12. In this view we have no doubt that the findings assailed before us are correct and that the conclusion reached deserves to be affirmed. We do so.12. Learned counsel for the appellants finally submitted that, in this event of our negativing his legal contention, he should be given the benefit of natural justice. We agree. The assessment of the quantum of the employers contribution has now been made on an ad hoc basis because they merely pleaded non-vi ability and made no returns on the strength of Sec. 45A the contribution was determined without hearing. In the circumstances of the case, -and the learned Attorney General has no objection-we think it right to direct the relevant Corporation authorities to give a fresh hearing to the principal employers concerned, if sought within 2 months from to-day, to prove any errors or infirmities in the physical determination of the contribution. Such a hearing in tune with the ruling, of this Court in the Central Press case([1977] 3 S.C.R. 35.) is fair and so we order that the assessment shall be reconsidered in the light of a de novo hearing to the appellants and the quantum of contribution affirmed or modified by fresh orders.Before we formally wind up we think it apt to make a critical remark on the cumbersome definition in Sec. 2(9) of the Act when has promoted considerable argument. This reminds us of the well-known dictum or Sir James Fitzjames Stephen "that in drafting it is not enough to gain a degree of precision which a person reading in good faith can understand, hut it is necessary to attain if possible to a degree of precision which a person reading in bad faith cannot misunderstand."(Lux Gentium Lex-Than and Now 1799-1974 p. 7.)13. | 0[ds]In short, the social orientation, protective purpose and human coverage of the Act are important considerations in the statutory construction, more weighty than mere logomachy or grammaticalis common ground that there is no statutory obligation on me part of the appellants to run canteens or keep cycle stands. It is common ground? again. that the workers with whom we are concerned are not directly employed by the appellants and, if we go by the master and servant relationship under the law of contracts, there is nonexus. Even so, it has been held cone currently by the Insurance Court and the High Court that "canteens are meant primarily for the convenience and comfort of persons visiting the theatres and the cyclestands are meant exclusively for t he convenience of the persons visiting theatres" and "that the persons employed in the` canteens and cycle stands are persons employed on work which is ordinarily part of the work of the theatre or incidental to the purpose of the theatres. In relation to the person so employed, therefore, the owners of the theatres are principalis no doubt that a cinema theatre is an establishment and that the appellants, as theatre owners, are principal employers, being persons responsible for the supervision and control of the establishment. Admittedly, the canteens and cycle stands are within the theatre premises. Within this factual metrix let us see if the definition in S. 2(9) willreach and range of the definition is apparently wide and deliberately transcends pure contractual relationships. We are in the field of labour jurisprudence, welfare legislation and statutory construction which must have due regard to Part IV of the Constitution. A teleological approach and social perspective must play upon the interpretativehere is aof Sec. 2(9). The clause contains two substantive parts. Unless the person employed qualifies under both he is not an employee. Firstly he must be employed "in or in connection with the work of an establishment. The expression "in connection with the work of an establishment" ropes in a wide variety of workmen who may not be employed in the establishment but may be engaged only in connection with the work of the establishment. Some nexus must exist between the establishment and the work of the employee but it may be a loose connection. in connection with the work of an establishment only postulates some connection between what the employee does and the work of the establishment. He may not do anything directly for the establishment; he may not do anything statutorily obligatory in the establishment; he may not even do any thing which is primary or necessary for the survival or smooth running of t he establishment or integral to the adventure. It is enough if the employee does some work which is ancillary, incidental or has relevance to or link with the object of the establishment. Surely, an amenity or facility for the customers who frequent the establishment has connection with the work of the establishment. The question is not whether without that amenity or facility the establishment cannot be carried on but whether such amenity or facility, even peripheral may be, has not a l ink with the establishment. Illustrations may not be exhaustive but may be informative. Taking the present case, an establishment like a cinema theatre is not bound to run a canteen or keep a cycle stand (in Andhra Pradesh) but no one will deny that a can teen service, a toilet service, a car park or cycle stand, a booth foresail of catchy film literature on actors, song hits and the like, surely have connection with the cinema theatre and even further the venture. On the other hand, awhere scientific works or tools are A sold or stall where religious propaganda is done, may not have anything to do with the cinema establishment and may, therefore, be excluded on the score that the employees do not do any work in connection with the establishment, that is, the theatre. In the case of a fivestar hotel, for instance, a barber shop or an arcade, massage parlour, foreign exchange counter or tourist assistance counter may be run by some one other than the owner of the establishment but the employees so engaged do work in connection With the establishment or the hotel even though there is no obligation for a hotel to, maintain such an ancillary attraction. By contrast, not a lawyers chamber or architects consultancy. Nor indeed, is it a legal ingredient that such adjunct should be exclusively for the establishment, if it is mainly its ancillary.The primary test in the substantive clause being thus wide, the employees of t he canteen and the cycle stand may be correctly described as employed in connection with the work of the establishment. A narrower construction may be possible but a larger ambit is clearly imported by ainterpretation. The whole goal of the statute is to make the principal employer primarily liable for the insurance of kindred kinds of employees on the premises, whether they are there in the work or are merely in connection with the work of thebeing employed in connection with the work of an establishment, in itself, does not entitle a person to be employee. He must not only be employed in connection with the work of the establishment but also be shown to be employed in one or other of the three categories mentioned in Sec. 2(9).2(9) (i) covers only employees who are directly employed by the principal employer. Even here, there are expressions which take in a wider group of employees than traditionally so regarded, but it is imperative that any employee who is not directly employed by the principal employer cannot be eligible under Sec. 2(9) (i) . In the present case, the employees concerned are admittedly not directly employed by t he cinemawe move down to Sec. 2(9) (ii). Here again, the language used is extensive and diffusive imaginatively embracing all Possible alternatives of employment by or through all independent employer. In such cases, the principal employer has no direct employment relationship since the immediate employer of the employee, concerned is some one else. Even so, such an employee, if he works (a) on the premises of the establishment, or (b) under the supervision of the Principal employer or his agent `on work which is ordinarily part of the work of the establishment or which is preliminary to the work carried on in or incidental to the purpose of the establishment", qualifies under Sec. 2(9) (ii). The plurality of persons engaged in various activities who are brought into the definitional net is wide and considerable; and all that is necessary is that the employee be on the premises or be under the supervision of the principal employer or his agent. Assuming that the last part of Sec. 2(9) (ii) qualifies both these categories, all that is needed to satisfy that requirement is that the work done by the employee must be (a) such as is ordinarily (not necessarily nor statutorily) part of the work of the establishment, or (b) which is merely preliminary to the work carried on in the establishment, or (c) is just incidental to the purpose of the establishment. No one can seriously say that a canteen or cycle stand or cinema magazine booth is not even incidental to the purpose of the theatre. The cinema goers ordinarily find such work an advantage, a facility an amenity and some times a necessity. All that the statute requires is that the work should not be irrelevant to the purpose of the establishment. It is sufficient if it is incidental to it. A thing is incidental to another if it merely appertains to something else as primary. Surely, such work should not be extraneous or contrary to the purpose of the establishment but need not be integral to it either. Much depends on time and place, habits and appetites, ordinary expectations and social circumstances. In our view, clearly the two operations in the present case, namely, keeping a cycle stand and running canteen are incidental or adjuncts to the primary purpose of the theatre.We are not concerned with Sec. 2(9) (iii) nor with the rest of the definitionalpunctilious sense of grammar and minute precision of language may sometimes lend unwitting support to narrow interpretation. But language is handmaid, not mistress. Maxwell and Fowler move along different streets, sometimes. When, as in Sec. 2(9), the definition has been cast deliberately in the widest terms and the draftsman has endeavoured to cover every possibility so as not to exclude even distant categories of men employed either in the primary work or cognate activities, it will defeat the object of the statute to truncate its semantic sweep and throw out of its ambit those who obviously are within the benign contemplation of the Act. Salvationary effort, when the welfare of the weaker sections of society is the statutory object and is faced with stultifying effect, is permissible judicialthis view we have no doubt that the findings assailed before us are correct and that the conclusion reached deserves to be affirmed. We doagree. The assessment of the quantum of the employers contribution has now been made on an ad hoc basis because they merely pleadedability and made no returns on the strength of Sec. 45A the contribution was determined without hearing. In the circumstances of the case,and the learned Attorney General has nothink it right to direct the relevant Corporation authorities to give a fresh hearing to the principal employers concerned, if sought within 2 months fromto prove any errors or infirmities in the physical determination of the contribution. Such a hearing in tune with the ruling, of this Court in the Central Press case([1977] 3 S.C.R. 35.) is fair and so we order that the assessment shall be reconsidered in the light of a de novo hearing to the appellants and the quantum of contribution affirmed or modified by fresh orders.Before we formally wind up we think it apt to make a critical remark on the cumbersome definition in Sec. 2(9) of the Act when has promoted considerable argument. This reminds us of thedictum or Sir James Fitzjames Stephen "that in drafting it is not enough to gain a degree of precision which a person reading in good faith can understand, hut it is necessary to attain if possible to a degree of precision which a person reading in bad faith cannot misunderstand."(Lux Gentium974 p. 7.) | 0 | 4,144 | 1,969 | ### 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 employees on the premises, whether they are there in the work or are merely in connection with the work of the establishment.9. Merely being employed in connection with the work of an establishment, in itself, does not entitle a person to be employee. He must not only be employed in connection with the work of the establishment but also be shown to be employed in one or other of the three categories mentioned in Sec. 2(9). Sec. 2(9) (i) covers only employees who are directly employed by the principal employer. Even here, there are expressions which take in a wider group of employees than traditionally so regarded, but it is imperative that any employee who is not directly employed by the principal employer cannot be eligible under Sec. 2(9) (i) . In the present case, the employees concerned are admittedly not directly employed by t he cinema proprietors.10. Therefore, we move down to Sec. 2(9) (ii). Here again, the language used is extensive and diffusive imaginatively embracing all Possible alternatives of employment by or through all independent employer. In such cases, the principal employer has no direct employment relationship since the immediate employer of the employee, concerned is some one else. Even so, such an employee, if he works (a) on the premises of the establishment, or (b) under the supervision of the Principal employer or his agent `on work which is ordinarily part of the work of the establishment or which is preliminary to the work carried on in or incidental to the purpose of the establishment", qualifies under Sec. 2(9) (ii). The plurality of persons engaged in various activities who are brought into the definitional net is wide and considerable; and all that is necessary is that the employee be on the premises or be under the supervision of the principal employer or his agent. Assuming that the last part of Sec. 2(9) (ii) qualifies both these categories, all that is needed to satisfy that requirement is that the work done by the employee must be (a) such as is ordinarily (not necessarily nor statutorily) part of the work of the establishment, or (b) which is merely preliminary to the work carried on in the establishment, or (c) is just incidental to the purpose of the establishment. No one can seriously say that a canteen or cycle stand or cinema magazine booth is not even incidental to the purpose of the theatre. The cinema goers ordinarily find such work an advantage, a facility an amenity and some times a necessity. All that the statute requires is that the work should not be irrelevant to the purpose of the establishment. It is sufficient if it is incidental to it. A thing is incidental to another if it merely appertains to something else as primary. Surely, such work should not be extraneous or contrary to the purpose of the establishment but need not be integral to it either. Much depends on time and place, habits and appetites, ordinary expectations and social circumstances. In our view, clearly the two operations in the present case, namely, keeping a cycle stand and running canteen are incidental or adjuncts to the primary purpose of the theatre.We are not concerned with Sec. 2(9) (iii) nor with the rest of the definitional provision.11. Shri Chit ale tried to convince us that on a minute dissection of the various clauses of the provision it was possible to exclude canteen employees and cycle stand attendants. May-be, punctilious sense of grammar and minute precision of language may sometimes lend unwitting support to narrow interpretation. But language is handmaid, not mistress. Maxwell and Fowler move along different streets, sometimes. When, as in Sec. 2(9), the definition has been cast deliberately in the widest terms and the draftsman has endeavoured to cover every possibility so as not to exclude even distant categories of men employed either in the primary work or cognate activities, it will defeat the object of the statute to truncate its semantic sweep and throw out of its ambit those who obviously are within the benign contemplation of the Act. Salvationary effort, when the welfare of the weaker sections of society is the statutory object and is faced with stultifying effect, is permissible judicial exercise.12. In this view we have no doubt that the findings assailed before us are correct and that the conclusion reached deserves to be affirmed. We do so.12. Learned counsel for the appellants finally submitted that, in this event of our negativing his legal contention, he should be given the benefit of natural justice. We agree. The assessment of the quantum of the employers contribution has now been made on an ad hoc basis because they merely pleaded non-vi ability and made no returns on the strength of Sec. 45A the contribution was determined without hearing. In the circumstances of the case, -and the learned Attorney General has no objection-we think it right to direct the relevant Corporation authorities to give a fresh hearing to the principal employers concerned, if sought within 2 months from to-day, to prove any errors or infirmities in the physical determination of the contribution. Such a hearing in tune with the ruling, of this Court in the Central Press case([1977] 3 S.C.R. 35.) is fair and so we order that the assessment shall be reconsidered in the light of a de novo hearing to the appellants and the quantum of contribution affirmed or modified by fresh orders.Before we formally wind up we think it apt to make a critical remark on the cumbersome definition in Sec. 2(9) of the Act when has promoted considerable argument. This reminds us of the well-known dictum or Sir James Fitzjames Stephen "that in drafting it is not enough to gain a degree of precision which a person reading in good faith can understand, hut it is necessary to attain if possible to a degree of precision which a person reading in bad faith cannot misunderstand."(Lux Gentium Lex-Than and Now 1799-1974 p. 7.)13.
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a legal ingredient that such adjunct should be exclusively for the establishment, if it is mainly its ancillary.The primary test in the substantive clause being thus wide, the employees of t he canteen and the cycle stand may be correctly described as employed in connection with the work of the establishment. A narrower construction may be possible but a larger ambit is clearly imported by ainterpretation. The whole goal of the statute is to make the principal employer primarily liable for the insurance of kindred kinds of employees on the premises, whether they are there in the work or are merely in connection with the work of thebeing employed in connection with the work of an establishment, in itself, does not entitle a person to be employee. He must not only be employed in connection with the work of the establishment but also be shown to be employed in one or other of the three categories mentioned in Sec. 2(9).2(9) (i) covers only employees who are directly employed by the principal employer. Even here, there are expressions which take in a wider group of employees than traditionally so regarded, but it is imperative that any employee who is not directly employed by the principal employer cannot be eligible under Sec. 2(9) (i) . In the present case, the employees concerned are admittedly not directly employed by t he cinemawe move down to Sec. 2(9) (ii). Here again, the language used is extensive and diffusive imaginatively embracing all Possible alternatives of employment by or through all independent employer. In such cases, the principal employer has no direct employment relationship since the immediate employer of the employee, concerned is some one else. Even so, such an employee, if he works (a) on the premises of the establishment, or (b) under the supervision of the Principal employer or his agent `on work which is ordinarily part of the work of the establishment or which is preliminary to the work carried on in or incidental to the purpose of the establishment", qualifies under Sec. 2(9) (ii). The plurality of persons engaged in various activities who are brought into the definitional net is wide and considerable; and all that is necessary is that the employee be on the premises or be under the supervision of the principal employer or his agent. Assuming that the last part of Sec. 2(9) (ii) qualifies both these categories, all that is needed to satisfy that requirement is that the work done by the employee must be (a) such as is ordinarily (not necessarily nor statutorily) part of the work of the establishment, or (b) which is merely preliminary to the work carried on in the establishment, or (c) is just incidental to the purpose of the establishment. No one can seriously say that a canteen or cycle stand or cinema magazine booth is not even incidental to the purpose of the theatre. The cinema goers ordinarily find such work an advantage, a facility an amenity and some times a necessity. All that the statute requires is that the work should not be irrelevant to the purpose of the establishment. It is sufficient if it is incidental to it. A thing is incidental to another if it merely appertains to something else as primary. Surely, such work should not be extraneous or contrary to the purpose of the establishment but need not be integral to it either. Much depends on time and place, habits and appetites, ordinary expectations and social circumstances. In our view, clearly the two operations in the present case, namely, keeping a cycle stand and running canteen are incidental or adjuncts to the primary purpose of the theatre.We are not concerned with Sec. 2(9) (iii) nor with the rest of the definitionalpunctilious sense of grammar and minute precision of language may sometimes lend unwitting support to narrow interpretation. But language is handmaid, not mistress. Maxwell and Fowler move along different streets, sometimes. When, as in Sec. 2(9), the definition has been cast deliberately in the widest terms and the draftsman has endeavoured to cover every possibility so as not to exclude even distant categories of men employed either in the primary work or cognate activities, it will defeat the object of the statute to truncate its semantic sweep and throw out of its ambit those who obviously are within the benign contemplation of the Act. Salvationary effort, when the welfare of the weaker sections of society is the statutory object and is faced with stultifying effect, is permissible judicialthis view we have no doubt that the findings assailed before us are correct and that the conclusion reached deserves to be affirmed. We doagree. The assessment of the quantum of the employers contribution has now been made on an ad hoc basis because they merely pleadedability and made no returns on the strength of Sec. 45A the contribution was determined without hearing. In the circumstances of the case,and the learned Attorney General has nothink it right to direct the relevant Corporation authorities to give a fresh hearing to the principal employers concerned, if sought within 2 months fromto prove any errors or infirmities in the physical determination of the contribution. Such a hearing in tune with the ruling, of this Court in the Central Press case([1977] 3 S.C.R. 35.) is fair and so we order that the assessment shall be reconsidered in the light of a de novo hearing to the appellants and the quantum of contribution affirmed or modified by fresh orders.Before we formally wind up we think it apt to make a critical remark on the cumbersome definition in Sec. 2(9) of the Act when has promoted considerable argument. This reminds us of thedictum or Sir James Fitzjames Stephen "that in drafting it is not enough to gain a degree of precision which a person reading in good faith can understand, hut it is necessary to attain if possible to a degree of precision which a person reading in bad faith cannot misunderstand."(Lux Gentium974 p. 7.)
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Sakiri Vasu Vs. State Of U.P | 154(3) and Section 36 Cr.P.C. before the concerned police officers, and if that is of no avail, by approaching the concerned Magistrate under Section 156(3). 26. If a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under Section 154(3) Cr.P.C. or other police officer referred to in Section 36 Cr.P.C. If despite approaching the Superintendent of Police or the officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate under Section 156(3) Cr.P.C. instead of rushing to the High Court by way of a writ petition or a petition under Section 482 Cr.P.C. Moreover he has a further remedy of filing a criminal complaint under Section 200 Cr.P.C. Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies? 27. As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation, and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or petition under Section 482 Cr.P.C. simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this grievance, the remedy lies under Sections 36 and 154(3) before the concerned police officers, and if that is of no avail, under Section 156(3) Cr.P.C. before the Magistrate or by filing a criminal complaint under Section 200 Cr.P.C. and not by filing a writ petition or a petition under Section 482 Cr.P.C. 28. It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled that if there is an alternative remedy the High Court should not ordinarily interfere. 29. In Union of India vs. Prakash P. Hinduja and another 2003 (6) SCC 195 (vide para 13), it has been observed by this Court that a Magistrate cannot interfere with the investigation by the police. However, in our opinion, the ratio of this decision would only apply when a proper investigation is being done by the police. If the Magistrate on an application under Section 156(3) Cr.P.C. is satisfied that proper investigation has not been done, or is not being done by the officer-in-charge of the concerned police station, he can certainly direct the officer in charge of the police station to make a proper investigation and can further monitor the same (though he should not himself investigate). 30. It may be further mentioned that in view of Section 36 Cr.P.C. if a person is aggrieved that a proper investigation has not been made by the officer-in-charge of the concerned police station, such aggrieved person can approach the Superintendent of Police or other police officer superior in rank to the officer-in-charge of the police station and such superior officer can, if he so wishes, do the investigation vide CBI vs. State of Rajasthan and another 2001 (3) SCC 333 (vide para 11), R.P. Kapur vs. S.P. Singh AIR 1961 SC 1117 etc. Also, the State Government is competent to direct the Inspector General, Vigilance to take over the investigation of a cognizable offence registered at a police station vide State of Bihar vs. A.C. Saldanna (supra). 31. No doubt the Magistrate cannot order investigation by the CBI vide CBI vs. State of Rajasthan and another (Supra), but this Court or the High Court has power under Article 136 or Article 226 to order investigation by the CBI. That, however should be done only in some rare and exceptional case, otherwise, the CBI would be flooded with a large number of cases and would find it impossible to properly investigate all of them. 32. In the present case, there was an investigation by the G.R.P., Mathura and also two Courts of Inquiry held by the Army authorities and they found that it was a case of suicide. Hence, in our opinion, the High Court was justified in rejecting the prayer for a CBI inquiry. 33. In Secretary, Minor Irrigation & Rural Engineering Services U.P. and others vs. Sahngoo Ram Arya and another 2002 (5) SCC 521 (vide para 6), this Court observed that although the High Court has power to order a CBI inquiry, that power should only be exercised if the High Court after considering the material on record comes to a conclusion that such material discloses prima facie a case calling for investigation by the CBI or by any other similar agency. A CBI inquiry cannot be ordered as a matter of routine or merely because the party makes some allegation. 34. In the present case, we are of the opinion that the material on record does not disclose a prima facie case calling for an investigation by the CBI. The mere allegation of the appellant that his son was murdered because he had discovered some corruption cannot, in our opinion, justify a CBI inquiry, particularly when inquiries were held by the Army authorities as well as by the G.R.P. at Mathura, which revealed that it was a case of suicide. 35. It has been stated in the impugned order of the High Court that the G.R.P. at Mathura had investigated the matter and gave a detailed report on 29.8.2003. It is not clear whether this report was accepted by the Magistrate or not. If the report has been accepted by the Magistrate and no appeal/revision was filed against the order of the learned Magistrate accepting the police report, then that is the end of the matter. However, if the Magistrate has not yet passed any order on the police report, he may do so in accordance with law and in the light of the observations made above. 36. With the above observations, this | 0[ds]In the present case, we are of the opinion that the material on record does not disclose a prima facie case calling for an investigation by the CBI. The mere allegation of the appellant that his son was murdered because he had discovered some corruption cannot, in our opinion, justify a CBI inquiry, particularly when inquiries were held by the Army authorities as well as by the G.R.P. at Mathura, which revealed that it was a case ofhas been stated in the impugned order of the High Court that the G.R.P. at Mathura had investigated the matter and gave a detailed report on 29.8.2003. It is not clear whether this report was accepted by the Magistrate or not. If the report has been accepted by the Magistrate and no appeal/revision was filed against the order of the learned Magistrate accepting the police report, then that is the end of the matter. However, if the Magistrate has not yet passed any order on the police report, he may do so in accordance with law and in the light of the observations made above. | 0 | 3,264 | 202 | ### 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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154(3) and Section 36 Cr.P.C. before the concerned police officers, and if that is of no avail, by approaching the concerned Magistrate under Section 156(3). 26. If a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under Section 154(3) Cr.P.C. or other police officer referred to in Section 36 Cr.P.C. If despite approaching the Superintendent of Police or the officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate under Section 156(3) Cr.P.C. instead of rushing to the High Court by way of a writ petition or a petition under Section 482 Cr.P.C. Moreover he has a further remedy of filing a criminal complaint under Section 200 Cr.P.C. Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies? 27. As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation, and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or petition under Section 482 Cr.P.C. simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this grievance, the remedy lies under Sections 36 and 154(3) before the concerned police officers, and if that is of no avail, under Section 156(3) Cr.P.C. before the Magistrate or by filing a criminal complaint under Section 200 Cr.P.C. and not by filing a writ petition or a petition under Section 482 Cr.P.C. 28. It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled that if there is an alternative remedy the High Court should not ordinarily interfere. 29. In Union of India vs. Prakash P. Hinduja and another 2003 (6) SCC 195 (vide para 13), it has been observed by this Court that a Magistrate cannot interfere with the investigation by the police. However, in our opinion, the ratio of this decision would only apply when a proper investigation is being done by the police. If the Magistrate on an application under Section 156(3) Cr.P.C. is satisfied that proper investigation has not been done, or is not being done by the officer-in-charge of the concerned police station, he can certainly direct the officer in charge of the police station to make a proper investigation and can further monitor the same (though he should not himself investigate). 30. It may be further mentioned that in view of Section 36 Cr.P.C. if a person is aggrieved that a proper investigation has not been made by the officer-in-charge of the concerned police station, such aggrieved person can approach the Superintendent of Police or other police officer superior in rank to the officer-in-charge of the police station and such superior officer can, if he so wishes, do the investigation vide CBI vs. State of Rajasthan and another 2001 (3) SCC 333 (vide para 11), R.P. Kapur vs. S.P. Singh AIR 1961 SC 1117 etc. Also, the State Government is competent to direct the Inspector General, Vigilance to take over the investigation of a cognizable offence registered at a police station vide State of Bihar vs. A.C. Saldanna (supra). 31. No doubt the Magistrate cannot order investigation by the CBI vide CBI vs. State of Rajasthan and another (Supra), but this Court or the High Court has power under Article 136 or Article 226 to order investigation by the CBI. That, however should be done only in some rare and exceptional case, otherwise, the CBI would be flooded with a large number of cases and would find it impossible to properly investigate all of them. 32. In the present case, there was an investigation by the G.R.P., Mathura and also two Courts of Inquiry held by the Army authorities and they found that it was a case of suicide. Hence, in our opinion, the High Court was justified in rejecting the prayer for a CBI inquiry. 33. In Secretary, Minor Irrigation & Rural Engineering Services U.P. and others vs. Sahngoo Ram Arya and another 2002 (5) SCC 521 (vide para 6), this Court observed that although the High Court has power to order a CBI inquiry, that power should only be exercised if the High Court after considering the material on record comes to a conclusion that such material discloses prima facie a case calling for investigation by the CBI or by any other similar agency. A CBI inquiry cannot be ordered as a matter of routine or merely because the party makes some allegation. 34. In the present case, we are of the opinion that the material on record does not disclose a prima facie case calling for an investigation by the CBI. The mere allegation of the appellant that his son was murdered because he had discovered some corruption cannot, in our opinion, justify a CBI inquiry, particularly when inquiries were held by the Army authorities as well as by the G.R.P. at Mathura, which revealed that it was a case of suicide. 35. It has been stated in the impugned order of the High Court that the G.R.P. at Mathura had investigated the matter and gave a detailed report on 29.8.2003. It is not clear whether this report was accepted by the Magistrate or not. If the report has been accepted by the Magistrate and no appeal/revision was filed against the order of the learned Magistrate accepting the police report, then that is the end of the matter. However, if the Magistrate has not yet passed any order on the police report, he may do so in accordance with law and in the light of the observations made above. 36. With the above observations, this
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### Explanation:
In the present case, we are of the opinion that the material on record does not disclose a prima facie case calling for an investigation by the CBI. The mere allegation of the appellant that his son was murdered because he had discovered some corruption cannot, in our opinion, justify a CBI inquiry, particularly when inquiries were held by the Army authorities as well as by the G.R.P. at Mathura, which revealed that it was a case ofhas been stated in the impugned order of the High Court that the G.R.P. at Mathura had investigated the matter and gave a detailed report on 29.8.2003. It is not clear whether this report was accepted by the Magistrate or not. If the report has been accepted by the Magistrate and no appeal/revision was filed against the order of the learned Magistrate accepting the police report, then that is the end of the matter. However, if the Magistrate has not yet passed any order on the police report, he may do so in accordance with law and in the light of the observations made above.
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O. N. Bhatnagar Vs. Smt. Rukibai Narsindas & Ors | summary procedure f or the determination of the disputes relating to the internal management of the societies, the Rent Act was intended to achieve a different social objective i.e. to prevent the eviction of tenants and enhancements of rent, and then went on to s ay that it was necessary that a dispute between the landlord and tenant should be dealt with by the Courts set up under the Rent Act and in accordance with the special provisions of that Act. It then dealt with the inter-relation between the non-obstante clause in s. 91(1) of the Act and s. 28 of the Rent Act and observed that this special objective under the Act does not impinge on the objective underlying the Rent Act. It seems to us that the two Acts can be best harmonised by holding that in matters covered by the Rent Act, its provisions, rather than the provisions of the Act, should apply. But where the parties admittedly do not stand in the jural relationship of landlord and tenant, as here, the dispute would be governed b y s. 91(1) of the Act. No doubt, the appellant acquired a right to occupy the flat as a licensee, by virtue of his being a nominal member, but in the very nature of things, his rights were inchoate. In view of these considerations, we are of the opinion that the proceedings under s. 91(1) of the Act were not barred by the provisions of s. 28 of the Rent Act.A great deal of reliance has been placed by the appellants counsel on the decision in Sabharwal Brothers &Anr. v. Smt. Gun a Amrit Thandani of Bombay.(1). The importance of that case lies in the fact that it relates to the respondent No. 2 society, and the disputant there was the owner of a flat on the second floor of Bloack No. 8 "Shyam Niwas". She was a membe r of the society and had acquired the flat in question, which was let out to the appellant Sabharwal Brothers under an agreement of leave and licence, which was renewed from time to time and when she asked the appellant to vacate as she requi red the flat for her personal occupation, they did not comply with the demand as a result of which the owner of the flat filed a statement of claim before the Registrar under s. 91(1) of the Act which required adjudication. There was a challenge to the jurisdiction of the nominee of the Registrar to whom it was referred, and ultimately he made an award that the appellant Sabharwal Brothers had occupied the flat on leave and licence basis and was therefore liable to be evicted. In revision, the Bench of the Small Causes Court held that the Registrars nominee did have jurisdiction and the High Court upheld the order of the Bench. Allowing the appeal, this Court observed:"With all respect to the High Court, it seems to us that there was a fundamental error in the above approach. No doubt it was the business of the society to let out premises and a member had no unqualified right to let out his flat or tenement to another by virtue of the bye-laws and a breach of the bye-laws could affect the defaulting members right to membership. But we are not able to see how letting by a member to another member would touch the business of the society which included inter alia the trade of buying, selling, hiring and letting land in accordance with cooperative principles. The letting of flat by respondent No. 1 was a transaction of the same nature as the society itself was em powered to enter into but and letting by itself did not concern the business of the society in the matter of its letting out flats. Nothing was brought to our notice to show that such a letting would affect the business of the society once it had sold the flat to the respondent No. 1. The position might have been different if the latter had himself been a tenant of the flat under the society. "To touch" means "to come in contact with" and it doe s not appear that there is a point of contact between a letting by the respondent No. and the business of the society when the society was not itself the landlord of the flat."It is we think, important to remember that this auth ority decided only one point albeit a point of great importance namely, that the society having sold the flat, like any other vendor of immovable property, the letting out of the flat by the flat-owner was no concern of the society. There was no thing to show that such letting would affect the business of the society once it has sold the flat. With respect, we entirely agree with all that was said. But then the Court went on to say:"The position might have been different if the latter had himself been a tenant of the flat under the society."It logically follows, as a necessary corollary, that if the transaction between the society and the holder of the flat were governed by Regulations in Form-A, as here, that is to say, if the society had let out the flat to her, the decision of the Court would have been otherwise.12. The decision in Sabharwal Brothers case, supra, is distinguishable for two reasons. First, there was an outright sale of the flat by the society and not that it had been let out to her under Regulations in Form-A; and secondly, the society having sold the flat, the letting of the flat by the flat-owner did not in any way affect the business of the society in the matter of its letting out the flat. The observation made by this Court that the fact that such letting was forbidden by a regulation of the society was immaterial did not fall for decision in that case and was a mere obiter.13. | 0[ds]In our opinion, there is a felt need at the very outset to displace the appellants apprehensions that the effect of upholding the judgment of the High Court would be to throw all licensees of residential flats in multi-storeyed buildings belonging to cooperative housing societies without any protection. The apprehensions, if we may say so, appear to be wholly unfounded. The Legislature was fully aware of the acute paucity of housing accommodation in the metropolitan city of Greater Bombay and other urban areas in the State, and also the fact that lessors of ownership flats were adopting a device of inducting tenants under the garb of an agreement of leave and licence which left the licensee with noapart, the appellant brought a suit before the Court of Small Causes seeking a declaration that it was a tenant duly protected by the Rent Act and the agreement of leave and licence was only a colourable transaction. The suit was heard on merits and was dismissed by the Court of Small Causes in July 1972. Aggrieved by that decision, the appellant preferred an appeal before the Appellate Bench of the Small Causes Court but that appeal also was dismissed. The question whether or not the appellant was a licensee of the fiat or a tenant thereof was directly and substantially in issue between the parties in that suit. The finding that he was not a tenant but had only the status of a licensee operates as res judicata between the parties. The appellant having failed in his suit for declaration of his alleged status of a tenant brought in the Court of Small Causes cannot be permitted to reagitate the same question in these proceedings. Further, the licence of the appellant having been terminated by the respondent No. 1 by her notice dated March 31, 1965, the appellant was not in occupation of the flat on February 1, 1973 under a subsisting tenancy and did not acquire the status of a tenant under s. 15A and is therefore not protected under s. 13 of the Rent Act.As hereinbefore adumbrated, the respondent No. 2- society is governed by the Regulations in Form-A. It is registered as a copartner ship type housing society. The bye- laws of the society provide, inter-alia, by Bye-law 2 that one of the objects of the society would be to carry on the trade of buying, selling, hiring, letting and developing land in accordance with cooperativeview of these considerations, we are of the opinion that the proceedings under s. 91(1) of the Act were not barred by the provisions of s. 28 of the Rent Act.A great deal of reliance has been placed by the appellants counsel on the decision in Sabharwal Brothers &Anr. v. Smt. Gun a Amrit Thandani of Bombay.(1). The importance of that case lies in the fact that it relates to the respondent No. 2 society, and the disputant there was the owner of a flat on the second floor of Bloack No. 8 "Shyam Niwas". She was a membe r of the society and had acquired the flat in question, which was let out to the appellant Sabharwal Brothers under an agreement of leave and licence, which was renewed from time to time and when she asked the appellant to vacate as she requi red the flat for her personal occupation, they did not comply with the demand as a result of which the owner of the flat filed a statement of claim before the Registrar under s. 91(1) of the Act which required adjudication. There was a challenge to the jurisdiction of the nominee of the Registrar to whom it was referred, and ultimately he made an award that the appellant Sabharwal Brothers had occupied the flat on leave and licence basis and was therefore liable to be evicted. In revision, the Bench of the Small Causes Court held that the Registrars nominee did have jurisdiction and the High Court upheld the order of the Bench. | 0 | 7,326 | 724 | ### Instruction:
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summary procedure f or the determination of the disputes relating to the internal management of the societies, the Rent Act was intended to achieve a different social objective i.e. to prevent the eviction of tenants and enhancements of rent, and then went on to s ay that it was necessary that a dispute between the landlord and tenant should be dealt with by the Courts set up under the Rent Act and in accordance with the special provisions of that Act. It then dealt with the inter-relation between the non-obstante clause in s. 91(1) of the Act and s. 28 of the Rent Act and observed that this special objective under the Act does not impinge on the objective underlying the Rent Act. It seems to us that the two Acts can be best harmonised by holding that in matters covered by the Rent Act, its provisions, rather than the provisions of the Act, should apply. But where the parties admittedly do not stand in the jural relationship of landlord and tenant, as here, the dispute would be governed b y s. 91(1) of the Act. No doubt, the appellant acquired a right to occupy the flat as a licensee, by virtue of his being a nominal member, but in the very nature of things, his rights were inchoate. In view of these considerations, we are of the opinion that the proceedings under s. 91(1) of the Act were not barred by the provisions of s. 28 of the Rent Act.A great deal of reliance has been placed by the appellants counsel on the decision in Sabharwal Brothers &Anr. v. Smt. Gun a Amrit Thandani of Bombay.(1). The importance of that case lies in the fact that it relates to the respondent No. 2 society, and the disputant there was the owner of a flat on the second floor of Bloack No. 8 "Shyam Niwas". She was a membe r of the society and had acquired the flat in question, which was let out to the appellant Sabharwal Brothers under an agreement of leave and licence, which was renewed from time to time and when she asked the appellant to vacate as she requi red the flat for her personal occupation, they did not comply with the demand as a result of which the owner of the flat filed a statement of claim before the Registrar under s. 91(1) of the Act which required adjudication. There was a challenge to the jurisdiction of the nominee of the Registrar to whom it was referred, and ultimately he made an award that the appellant Sabharwal Brothers had occupied the flat on leave and licence basis and was therefore liable to be evicted. In revision, the Bench of the Small Causes Court held that the Registrars nominee did have jurisdiction and the High Court upheld the order of the Bench. Allowing the appeal, this Court observed:"With all respect to the High Court, it seems to us that there was a fundamental error in the above approach. No doubt it was the business of the society to let out premises and a member had no unqualified right to let out his flat or tenement to another by virtue of the bye-laws and a breach of the bye-laws could affect the defaulting members right to membership. But we are not able to see how letting by a member to another member would touch the business of the society which included inter alia the trade of buying, selling, hiring and letting land in accordance with cooperative principles. The letting of flat by respondent No. 1 was a transaction of the same nature as the society itself was em powered to enter into but and letting by itself did not concern the business of the society in the matter of its letting out flats. Nothing was brought to our notice to show that such a letting would affect the business of the society once it had sold the flat to the respondent No. 1. The position might have been different if the latter had himself been a tenant of the flat under the society. "To touch" means "to come in contact with" and it doe s not appear that there is a point of contact between a letting by the respondent No. and the business of the society when the society was not itself the landlord of the flat."It is we think, important to remember that this auth ority decided only one point albeit a point of great importance namely, that the society having sold the flat, like any other vendor of immovable property, the letting out of the flat by the flat-owner was no concern of the society. There was no thing to show that such letting would affect the business of the society once it has sold the flat. With respect, we entirely agree with all that was said. But then the Court went on to say:"The position might have been different if the latter had himself been a tenant of the flat under the society."It logically follows, as a necessary corollary, that if the transaction between the society and the holder of the flat were governed by Regulations in Form-A, as here, that is to say, if the society had let out the flat to her, the decision of the Court would have been otherwise.12. The decision in Sabharwal Brothers case, supra, is distinguishable for two reasons. First, there was an outright sale of the flat by the society and not that it had been let out to her under Regulations in Form-A; and secondly, the society having sold the flat, the letting of the flat by the flat-owner did not in any way affect the business of the society in the matter of its letting out the flat. The observation made by this Court that the fact that such letting was forbidden by a regulation of the society was immaterial did not fall for decision in that case and was a mere obiter.13.
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In our opinion, there is a felt need at the very outset to displace the appellants apprehensions that the effect of upholding the judgment of the High Court would be to throw all licensees of residential flats in multi-storeyed buildings belonging to cooperative housing societies without any protection. The apprehensions, if we may say so, appear to be wholly unfounded. The Legislature was fully aware of the acute paucity of housing accommodation in the metropolitan city of Greater Bombay and other urban areas in the State, and also the fact that lessors of ownership flats were adopting a device of inducting tenants under the garb of an agreement of leave and licence which left the licensee with noapart, the appellant brought a suit before the Court of Small Causes seeking a declaration that it was a tenant duly protected by the Rent Act and the agreement of leave and licence was only a colourable transaction. The suit was heard on merits and was dismissed by the Court of Small Causes in July 1972. Aggrieved by that decision, the appellant preferred an appeal before the Appellate Bench of the Small Causes Court but that appeal also was dismissed. The question whether or not the appellant was a licensee of the fiat or a tenant thereof was directly and substantially in issue between the parties in that suit. The finding that he was not a tenant but had only the status of a licensee operates as res judicata between the parties. The appellant having failed in his suit for declaration of his alleged status of a tenant brought in the Court of Small Causes cannot be permitted to reagitate the same question in these proceedings. Further, the licence of the appellant having been terminated by the respondent No. 1 by her notice dated March 31, 1965, the appellant was not in occupation of the flat on February 1, 1973 under a subsisting tenancy and did not acquire the status of a tenant under s. 15A and is therefore not protected under s. 13 of the Rent Act.As hereinbefore adumbrated, the respondent No. 2- society is governed by the Regulations in Form-A. It is registered as a copartner ship type housing society. The bye- laws of the society provide, inter-alia, by Bye-law 2 that one of the objects of the society would be to carry on the trade of buying, selling, hiring, letting and developing land in accordance with cooperativeview of these considerations, we are of the opinion that the proceedings under s. 91(1) of the Act were not barred by the provisions of s. 28 of the Rent Act.A great deal of reliance has been placed by the appellants counsel on the decision in Sabharwal Brothers &Anr. v. Smt. Gun a Amrit Thandani of Bombay.(1). The importance of that case lies in the fact that it relates to the respondent No. 2 society, and the disputant there was the owner of a flat on the second floor of Bloack No. 8 "Shyam Niwas". She was a membe r of the society and had acquired the flat in question, which was let out to the appellant Sabharwal Brothers under an agreement of leave and licence, which was renewed from time to time and when she asked the appellant to vacate as she requi red the flat for her personal occupation, they did not comply with the demand as a result of which the owner of the flat filed a statement of claim before the Registrar under s. 91(1) of the Act which required adjudication. There was a challenge to the jurisdiction of the nominee of the Registrar to whom it was referred, and ultimately he made an award that the appellant Sabharwal Brothers had occupied the flat on leave and licence basis and was therefore liable to be evicted. In revision, the Bench of the Small Causes Court held that the Registrars nominee did have jurisdiction and the High Court upheld the order of the Bench.
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Ruchi Majoo Vs. Sanjeev Majoo | and attitude on the part of the appellant or her parents can hardly be appreciated. What the appellant ought to appreciate is that feeding the minor with such dislike and despire for his father does not serve his interest or his growth as a normal child. It is important that the minor has his fathers care and guidance, at this formative and impressionable stage of his life. Nor can the role of the father in his upbringing and grooming to face the realities of life be undermined. It is in that view important for the childs healthy growth that we grant to the father visitation rights; that will enable the two to stay in touch and share moments of joy, learning and happiness with each other. Since the respondent is living in another continent such contact cannot be for obvious reasons as frequent as it may have been if they were in the same city. But the forbidding distance that separates the two would get reduced thanks to the modern technology in telecommunications. The appellant has been according to the respondent persistently preventing even telephonic contact between the father and the son. May be the son has been so poisoned against him that he does not evince any interest in the father. Be that as it may telephonic contact shall not be prevented by the appellant for any reason whatsoever and shall be encouraged at all reasonable time. Video conferencing may also be possible between the two which too shall not only be permitted but encouraged by the appellant. 39. Besides, the father shall be free to visit the minor in India at any time of the year and meet him for two hours on a daily basis, unhindered by any impediment from the mother or her parents or anyone else for that matter. The place where the meeting can take place shall be indicated by the trial Court after verifying the convenience of both the parties in this regard. The trial Court shall pass necessary orders in this regard without delay and without permitting any dilatory tactics in the matter. 40. For the vacations in summer, spring and winter the respondent shall be allowed to take the minor with him for night stay for a period of one week initially and for longer periods in later years, subject to the respondent getting the itinerary in this regard approved from the Guardian & Wards Court. The respondent shall also be free to take the minor out of Delhi subject to the same condition. The respondent shall for that purpose be given the temporary custody of the minor in presence of the trial court, on any working day on the application of the respondent. Return of the minor to the appellant shall also be accordingly before the trial court on a date to be fixed by the court for that purpose. The above directions are subject to the condition that the respondent does not remove the child from the jurisdiction of this Court pending final disposal of the application for grant of custody by the Guardian and Wards Court, Delhi. We make it clear that within the broad parameters of the directions regarding visitation rights of the respondent, the parties shall be free to seek further directions from the Court seized of the guardianship proceedings; to take care of any difficulties that may arise in the actual implementation of this order. 41. CRIMINAL APPEAL NO. 1184 OF 2011 (Arising out of SLP (Crl.) No.10362 of 2010) In this appeal the appellant has challenged the correctness of an order dated 22nd September, 2010 passed by the High Court of Delhi, quashing FIR No.97 of 2009 registered against respondent-husband and three others in Police Station, Crime against Women Cell, Nanakpura, New Delhi, for offences punishable under Sections 498A, 406 read with Section 34 IPC. The High Court has recapitulated the relevant facts and found that the appellant-complainant is a citizen of USA and had all along lived in USA with her son and husband, away from her in laws. The High Court has, on the basis of the statement made by the appellant in California Court, further found that the alleged scene of occurrence was in USA and that her in-laws had no say in the matrimonial life of the couple. The appellant had further stated that all her jewelry was lying in the couples house in USA and no part of it was with her in-laws as was subsequently stated to be the position in the FIR lodged by the appellant. No locker number of the bank was disclosed in the FIR nor any date of the opening of locker or the jewelry items lying in it. The particulars of the bank in which the alleged locker was taken by him were also not given in the FIR. The High Court further held that the appellant had not lodged any report although the appellants parents in- laws were alleged to have stated that the jewelry items were not commensurate with the status of their family as early as in the year 1996. The High Court in that view held that no offence under Section 498A and 406 IPC, was made out against her in-laws on the basis of the allegations made by the appellant in the FIR. 42. Having heard learned counsel for the parties we are of the opinion that in the light of the findings recorded by the High Court the correctness whereof were not disputed before us, the High Court was justified in quashing the FIR filed by the appellant. In fairness to the learned counsel, we must mention that although a feeble attempt was made during the course of hearing to assail the order passed by the High Court, that pursuit was soon given up by him. In that view of the matter we see no reason to interfere with the orders passed by the High Court in Crl. M.C. No.3329 of 2009. 43. In the result ( | 1[ds]he appellants case is that although the couple and their son had initially planned to return to U.S.A. that decision was taken with the mutual consent of the parties changed to allow the appellant to stay back in India and to explore career options here. Master Kush was also according to that decision of his parents, to stay back and be admitted to a school in Delhi. The decision on both counts, was free from any duress whatsoever, and had the effect of shifting the "ordinary residence" of the appellant and her son Kush from the place they were living in America to Delhi. Not only this the respondent father of the minor, had upon his return to America sent E-mails, reiterating the decision and offering his full support to the appellant. This is according to the appellant clear from the text of the E-mails exchanged between the parties and which are self-explanatory as to the context in which they arerespondents case on the contrary is that he was coerced to put in writing a tentative arrangement on the ground of appellant trying career options in dental medicine at Delhi and minor Kush allowed to stay at Delhi for the year 2008. This letter was, according to the respondent, obtained under deceit, pressure, threat and coercion. In his application challenging the jurisdiction of the Delhi Court the respondent further stated that even if it be assumed that the appellant and Kush had stayed back in India with the permission of the respondent, the same stood withdrawn. To the same effect was the stand taken by the respondent in his petition under Article 227 filed before thisis evident from the statement and the pleadings of the parties that the question whether the decision to allow the appellant and Kush to stay back in Delhi instead of returning to America was a voluntary decision as claimed by the appellant or a decision taken by the respondent under duress as alleged by him was a seriously disputed question of facts, a satisfactory answer to which could be given either by the District Court where the custody case was filed or by the High Court only after the parties had been given opportunity to adduce evidence in support of their respectivethe light of the above, we asked Mr. Pallav Shishodia, learned senior counsel for the respondent whether the respondent would adduce evidence to substantiate his charge of duress and coercion as vitiating circumstances for the Court to exclude the letter in question from consideration. Mr. Shishodia argued on instructions that the respondent had no intention of leading any evidence in support of his case that the letter was obtained under duress. In fairness to him we must mention that he beseeched us to decide the question regarding jurisdiction of the Court on the available material without remanding the matter to the Trial Court for recording of evidence from either party. Mr. Shishodia also give us an impression as though any remand on the question of duress and coercion would be futile because the respondent father was not willing to go beyond what he has already done in pursuit of his claim to the custody of the minor. In that view of the matter, therefore, we are not remanding the case for recording of evidence as we were at one stage of hearing thought of doing. We are instead taking a final view on the question of jurisdiction of the Delhi Court, to entertain the application on the basis of the available material. This material comprises the letter dated 19th July, 2008 written by the respondent and referred to by us earlier and the e- mails exchanged between the parties. That the letter in question was written by the respondent is not in dispute. What is argued is that the letter was written under duress and coercion. There is nothing before us to substantiate that allegation, and in the face of Mr. Shishodias categoric statement that the respondent does not wish to adduce any evidence to prove his charge of coercion and duress, we have no option except to hold that the said charge remainsis difficult to appreciate how the respondent could in the light of the above communications still argue that the decision to allow the appellant and master Kush to stay back in India was taken under any coercion or duress. It is also difficult to appreciate how the respondent could change his mind so soon after the above E-mails and rush to a Court in U.S. for custody of the minor accusing the appellant of illegal abduction, a charge which is belied by his letter dated 19th July, 2008 and the E-mails extracted above. The fact remains that Kush was ordinarily residing with the appellant his mother and has been admitted to a school, where he has been studying for the past nearly three years. The unilateral reversal of a decision by one of the two parents could not change the fact situation as to the minor being an ordinary resident of Delhi, when the decision was taken jointly by both thethe light of what we have stated above, the High Court was not, in our opinion, right in holding that the respondents version regarding the letter in question having been obtained under threat and coercion wasHigh Court appeared to be of the view that if the letter had not been written under duress and coercion there was no reason for the respondent to move a guardianship petition before U.S. Court. That reasoning has not appealed to us. The question whether or not the letter was obtained under duress and coercion could not be decided only on the basis of the institution of proceedings by the respondent in the U.S. Court. If the letter was under duress and coercion, there was no reason why the respondent should not have repudiated the same no sooner he landed in America and the alleged duress and coercion had ceased. Far from doing so the respondent continued to support that decision even when he was far away from any duress and coercion alleged by him till the time he suddenly changed his mind and started accusing the appellant of abduction. The High Court failed to notice these aspects and fell in error in accepting the version of the respondent and dismissing the application filed by the appellant. In the circumstances we answer question no.1 in the negative.Re: Questiondo not propose to burden this judgment by referring to a long line of other decisions which have been delivered on the subject, for they do not in our opinion state the law differently from what has been stated in the decisions already referred to by us. What, however, needs to be stated for the sake of a clear understanding of the legal position is that the cases to which we have drawn attention, as indeed any other case raising the question of jurisdiction of the court to determine mutual rights and obligation of the parties, including the question whether a court otherwise competent to entertain the proceedings concerning the custody of the minor, ought to hold a summary or a detailed enquiry into the matter and whether it ought to decline jurisdiction on the principle of comity of nations or the test of the closest contact evolved by this Court in Smt. Surinder Kaur Sandhu v. Harbax Singh Sandhu and Anr. (1984) 3 SCC 698 have arisen either out of writ proceedings filed by the aggrieved party in the High Court or this Court or out of proceedings under the Guardian & Wards Act. Decisions rendered by this Court in Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw and Anr. (1987) 1 SCC 42 , Sarita Sharmas case (supra), V. Ravi Chandrans case (supra), Shilpa Aggarwals case (supra) arose out of proceedings in the nature of habeas corpus. The rest had their origin in custody proceedings launched under the Guardian & Wards Act. Proceedings in the nature of Habeas Corpus are summary in nature, where the legality of the detention of the alleged detenue is examined on the basis of affidavits placed by the parties. Even so, nothing prevents the High Court from embarking upon a detailed enquiry in cases where the welfare of a minor is in question, which is the paramount consideration for the Court while exercising its parens patriae jurisdiction. A High Court may, therefore, invoke its extra ordinary jurisdiction to determine the validity of the detention, in cases that fall within its jurisdiction and may also issue orders as to custody of the minor depending upon how the court views the rival claims, if any, to such custody. The Court may also direct repatriation of the minor child for the country from where he/she may have been removed by a parent or other person; as was directed by this Court in Ravi Chandrans & Shilpa Agarwals cases (supra) or refuse to do so as was the position in Sarita Sharmas case (supra). What is important is that so long as the alleged detenue is within the jurisdiction of the High Court no question of its competence to pass appropriate orders arises. The writ courts jurisdiction to make appropriate orders regarding custody arises no sooner it is found that the alleged detenue is within its territorialcases arising out of proceedings under the Guardian & Wards Act, the jurisdiction of the Court is determined by whether the minor ordinarily resides within the area on which the Court exercises such jurisdiction. There is thus a significant difference between the jurisdictional facts relevant to the exercise of powers by a writ court on the one hand and a court under the Guardian & Wards Act on the other. Having said that we must make it clear that no matter a Court is exercising powers under the Guardian & Wards Act it can choose to hold a summary enquiry into the matter and pass appropriate orders provided it is otherwise competent to entertain a petition for custody of the minor under Section 9(1) of the Act. This is clear from the decision of this Court in Dhanwanti Joshi v. Madhav Unde (1998) 1 SCC 112 , which arose out of proceedings under the Guardian & Wardsdoes not require much persuasion for us to hold that the issue whether the Court should hold a summary or a detailed enquiry would arise only if the Court finds that it has the jurisdiction to entertain the matter. If the answer to the question touching jurisdiction is in the negative the logical result has to be an order of dismissal of the proceedings or return of the application for presentation before the Court competent to entertain the same. A Court that has no jurisdiction to entertain a petition for custody cannot pass any order or issue any direction for the return of the child to the country from where he has been removed, no matter such removal is found to be in violation of an order issued by a Court in that country. The party aggrieved of such removal, may seek any other remedy legally open to it. But no redress to such a party will be permissible before the Court who finds that it has no jurisdiction to entertain thehave while dealing with question No.1 above held that the Court at Delhi was in the facts and circumstances of the case competent to entertain the application filed by the appellant. What needs to be examined is whether the High Court was right in relying upon the principle of comity of courts and dismissing the application. Our answer is in the negative. The reasons are not far to seek. The first and foremost of them being that `comity of courts principle ensures that foreign judgments and orders are unconditionally conclusive of the matter in controversy. This is all the more so where the courts in this country deal with matters concerning the interest and welfare of minors including their custody. Interest and welfare of the minor being paramount, a competent court in this country is entitled and indeed duty bound to examine the matter independently, taking the foreign judgment, if any, only as an input for its final adjudication. Decisions of this Court in Dhanwanti Joshi, and Sarita Sharmas cases, (supra) clearly support that proposition.Secondly, the respondents case that the minor was removed from the jurisdiction of the American Courts in contravention of the orders passed by them, is not factually correct. Unlike V. Ravi Chandrans case (supra), where the minor was removed in violation of an order passed by the American Court there were no proceedings between the parties in any Court in America before they came to India with the minor. Such proceedings were instituted by the respondent only after he had agreed to leave the appellant and the minor behind in India, for the former to explore career options and the latter to get admitted to a school. The charge of abduction contrary to a valid order granting custody is, therefore, untenable.Thirdly, because the minor has been living in India and pursuing his studies in a reputed school in Delhi for nearly three years now. In the course of the hearing of the case, we had an occasion to interact with the minor in our chambers. He appears to be happy with his studies and school and does not evince any interest in returning to his school in America. His concern was more related to the abduction charge and consequent harassment being faced by his mother and maternal grandparents. We shall advert to this aspect a little later, but for the present we only need to mention that the minor appears to be settled in his environment including his school studies and friends. He also holds the respondent responsible for the troubles which his mother is undergoing and is quite critical about the respondent getting married to another woman. Fourthly, because even the respondent does not grudge the appellant getting custody of the minor, provided she returns to America with the minor. Mr. Shishodia was asking to make a solemn statement that the respondent would not, oppose the appellants prayer for the custody of the minor, before the American Court. All that the respondent wants is that the minor is brought up and educated in America, instead of India, as the minor would benefit from the same. The appellant was not willing to accept that proposal, for according to her she has no intentions of returning to that country in the foreseeable future especially after she has had a very traumatic period on account of matrimonial discord with the respondent. Besides, the offer was according to the appellant, only meant to score a point more than giving any real benefit to thethe light of all these circumstances, repatriation of the minor to the United States, on the principle of `comity of courts does not appear to us to be an acceptable option worthy of being exercised at this stage. Dismissal of the application for custody in disregard of the attendant circumstances referred to above was not in our view a proper exercise of discretion by the High Court. Interest of the minor shall be better served if he continued in the custody of his mother the appellant in this appeal, especially when the respondent has contracted a second marriage and did not appear to be keen for having actual custody of the minor. Question No.2 is also for the above reasons answered in the negative.Re. Questiona boy so young in years, these and other expressions suggesting a deep rooted dislike for the father could arise only because of a constant hammering of negative feeling in him against his father. This approach and attitude on the part of the appellant or her parents can hardly be appreciated. What the appellant ought to appreciate is that feeding the minor with such dislike and despire for his father does not serve his interest or his growth as a normal child. It is important that the minor has his fathers care and guidance, at this formative and impressionable stage of his life. Nor can the role of the father in his upbringing and grooming to face the realities of life be undermined. It is in that view important for the childs healthy growth that we grant to the father visitation rights; that will enable the two to stay in touch and share moments of joy, learning and happiness with each other. Since the respondent is living in another continent such contact cannot be for obvious reasons as frequent as it may have been if they were in the same city. But the forbidding distance that separates the two would get reduced thanks to the modern technology in telecommunications. The appellant has been according to the respondent persistently preventing even telephonic contact between the father and the son. May be the son has been so poisoned against him that he does not evince any interest in the father. Be that as it may telephonic contact shall not be prevented by the appellant for any reason whatsoever and shall be encouraged at all reasonable time. Video conferencing may also be possible between the two which too shall not only be permitted but encouraged by thethe father shall be free to visit the minor in India at any time of the year and meet him for two hours on a daily basis, unhindered by any impediment from the mother or her parents or anyone else for that matter. The place where the meeting can take place shall be indicated by the trial Court after verifying the convenience of both the parties in this regard. The trial Court shall pass necessary orders in this regard without delay and without permitting any dilatory tactics in thethe vacations in summer, spring and winter the respondent shall be allowed to take the minor with him for night stay for a period of one week initially and for longer periods in later years, subject to the respondent getting the itinerary in this regard approved from the Guardian & Wards Court. The respondent shall also be free to take the minor out of Delhi subject to the same condition. The respondent shall for that purpose be given the temporary custody of the minor in presence of the trial court, on any working day on the application of the respondent. Return of the minor to the appellant shall also be accordingly before the trial court on a date to be fixed by the court for that purpose. The above directions are subject to the condition that the respondent does not remove the child from the jurisdiction of this Court pending final disposal of the application for grant of custody by the Guardian and Wards Court, Delhi. We make it clear that within the broad parameters of the directions regarding visitation rights of the respondent, the parties shall be free to seek further directions from the Court seized of the guardianship proceedings; to take care of any difficulties that may arise in the actual implementation of thisL NO. 1184 OF 2011 (Arising out of SLP (Crl.) No.10362 ofheard learned counsel for the parties we are of the opinion that in the light of the findings recorded by the High Court the correctness whereof were not disputed before us, the High Court was justified in quashing the FIR filed by the appellant. In fairness to the learned counsel, we must mention that although a feeble attempt was made during the course of hearing to assail the order passed by the High Court, that pursuit was soon given up by him. In that view of the matter we see no reason to interfere with the orders passed by the High Court in Crl. M.C. No.3329 of 2009. | 1 | 11,534 | 3,517 | ### Instruction:
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and attitude on the part of the appellant or her parents can hardly be appreciated. What the appellant ought to appreciate is that feeding the minor with such dislike and despire for his father does not serve his interest or his growth as a normal child. It is important that the minor has his fathers care and guidance, at this formative and impressionable stage of his life. Nor can the role of the father in his upbringing and grooming to face the realities of life be undermined. It is in that view important for the childs healthy growth that we grant to the father visitation rights; that will enable the two to stay in touch and share moments of joy, learning and happiness with each other. Since the respondent is living in another continent such contact cannot be for obvious reasons as frequent as it may have been if they were in the same city. But the forbidding distance that separates the two would get reduced thanks to the modern technology in telecommunications. The appellant has been according to the respondent persistently preventing even telephonic contact between the father and the son. May be the son has been so poisoned against him that he does not evince any interest in the father. Be that as it may telephonic contact shall not be prevented by the appellant for any reason whatsoever and shall be encouraged at all reasonable time. Video conferencing may also be possible between the two which too shall not only be permitted but encouraged by the appellant. 39. Besides, the father shall be free to visit the minor in India at any time of the year and meet him for two hours on a daily basis, unhindered by any impediment from the mother or her parents or anyone else for that matter. The place where the meeting can take place shall be indicated by the trial Court after verifying the convenience of both the parties in this regard. The trial Court shall pass necessary orders in this regard without delay and without permitting any dilatory tactics in the matter. 40. For the vacations in summer, spring and winter the respondent shall be allowed to take the minor with him for night stay for a period of one week initially and for longer periods in later years, subject to the respondent getting the itinerary in this regard approved from the Guardian & Wards Court. The respondent shall also be free to take the minor out of Delhi subject to the same condition. The respondent shall for that purpose be given the temporary custody of the minor in presence of the trial court, on any working day on the application of the respondent. Return of the minor to the appellant shall also be accordingly before the trial court on a date to be fixed by the court for that purpose. The above directions are subject to the condition that the respondent does not remove the child from the jurisdiction of this Court pending final disposal of the application for grant of custody by the Guardian and Wards Court, Delhi. We make it clear that within the broad parameters of the directions regarding visitation rights of the respondent, the parties shall be free to seek further directions from the Court seized of the guardianship proceedings; to take care of any difficulties that may arise in the actual implementation of this order. 41. CRIMINAL APPEAL NO. 1184 OF 2011 (Arising out of SLP (Crl.) No.10362 of 2010) In this appeal the appellant has challenged the correctness of an order dated 22nd September, 2010 passed by the High Court of Delhi, quashing FIR No.97 of 2009 registered against respondent-husband and three others in Police Station, Crime against Women Cell, Nanakpura, New Delhi, for offences punishable under Sections 498A, 406 read with Section 34 IPC. The High Court has recapitulated the relevant facts and found that the appellant-complainant is a citizen of USA and had all along lived in USA with her son and husband, away from her in laws. The High Court has, on the basis of the statement made by the appellant in California Court, further found that the alleged scene of occurrence was in USA and that her in-laws had no say in the matrimonial life of the couple. The appellant had further stated that all her jewelry was lying in the couples house in USA and no part of it was with her in-laws as was subsequently stated to be the position in the FIR lodged by the appellant. No locker number of the bank was disclosed in the FIR nor any date of the opening of locker or the jewelry items lying in it. The particulars of the bank in which the alleged locker was taken by him were also not given in the FIR. The High Court further held that the appellant had not lodged any report although the appellants parents in- laws were alleged to have stated that the jewelry items were not commensurate with the status of their family as early as in the year 1996. The High Court in that view held that no offence under Section 498A and 406 IPC, was made out against her in-laws on the basis of the allegations made by the appellant in the FIR. 42. Having heard learned counsel for the parties we are of the opinion that in the light of the findings recorded by the High Court the correctness whereof were not disputed before us, the High Court was justified in quashing the FIR filed by the appellant. In fairness to the learned counsel, we must mention that although a feeble attempt was made during the course of hearing to assail the order passed by the High Court, that pursuit was soon given up by him. In that view of the matter we see no reason to interfere with the orders passed by the High Court in Crl. M.C. No.3329 of 2009. 43. In the result (
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the troubles which his mother is undergoing and is quite critical about the respondent getting married to another woman. Fourthly, because even the respondent does not grudge the appellant getting custody of the minor, provided she returns to America with the minor. Mr. Shishodia was asking to make a solemn statement that the respondent would not, oppose the appellants prayer for the custody of the minor, before the American Court. All that the respondent wants is that the minor is brought up and educated in America, instead of India, as the minor would benefit from the same. The appellant was not willing to accept that proposal, for according to her she has no intentions of returning to that country in the foreseeable future especially after she has had a very traumatic period on account of matrimonial discord with the respondent. Besides, the offer was according to the appellant, only meant to score a point more than giving any real benefit to thethe light of all these circumstances, repatriation of the minor to the United States, on the principle of `comity of courts does not appear to us to be an acceptable option worthy of being exercised at this stage. Dismissal of the application for custody in disregard of the attendant circumstances referred to above was not in our view a proper exercise of discretion by the High Court. Interest of the minor shall be better served if he continued in the custody of his mother the appellant in this appeal, especially when the respondent has contracted a second marriage and did not appear to be keen for having actual custody of the minor. Question No.2 is also for the above reasons answered in the negative.Re. Questiona boy so young in years, these and other expressions suggesting a deep rooted dislike for the father could arise only because of a constant hammering of negative feeling in him against his father. This approach and attitude on the part of the appellant or her parents can hardly be appreciated. What the appellant ought to appreciate is that feeding the minor with such dislike and despire for his father does not serve his interest or his growth as a normal child. It is important that the minor has his fathers care and guidance, at this formative and impressionable stage of his life. Nor can the role of the father in his upbringing and grooming to face the realities of life be undermined. It is in that view important for the childs healthy growth that we grant to the father visitation rights; that will enable the two to stay in touch and share moments of joy, learning and happiness with each other. Since the respondent is living in another continent such contact cannot be for obvious reasons as frequent as it may have been if they were in the same city. But the forbidding distance that separates the two would get reduced thanks to the modern technology in telecommunications. The appellant has been according to the respondent persistently preventing even telephonic contact between the father and the son. May be the son has been so poisoned against him that he does not evince any interest in the father. Be that as it may telephonic contact shall not be prevented by the appellant for any reason whatsoever and shall be encouraged at all reasonable time. Video conferencing may also be possible between the two which too shall not only be permitted but encouraged by thethe father shall be free to visit the minor in India at any time of the year and meet him for two hours on a daily basis, unhindered by any impediment from the mother or her parents or anyone else for that matter. The place where the meeting can take place shall be indicated by the trial Court after verifying the convenience of both the parties in this regard. The trial Court shall pass necessary orders in this regard without delay and without permitting any dilatory tactics in thethe vacations in summer, spring and winter the respondent shall be allowed to take the minor with him for night stay for a period of one week initially and for longer periods in later years, subject to the respondent getting the itinerary in this regard approved from the Guardian & Wards Court. The respondent shall also be free to take the minor out of Delhi subject to the same condition. The respondent shall for that purpose be given the temporary custody of the minor in presence of the trial court, on any working day on the application of the respondent. Return of the minor to the appellant shall also be accordingly before the trial court on a date to be fixed by the court for that purpose. The above directions are subject to the condition that the respondent does not remove the child from the jurisdiction of this Court pending final disposal of the application for grant of custody by the Guardian and Wards Court, Delhi. We make it clear that within the broad parameters of the directions regarding visitation rights of the respondent, the parties shall be free to seek further directions from the Court seized of the guardianship proceedings; to take care of any difficulties that may arise in the actual implementation of thisL NO. 1184 OF 2011 (Arising out of SLP (Crl.) No.10362 ofheard learned counsel for the parties we are of the opinion that in the light of the findings recorded by the High Court the correctness whereof were not disputed before us, the High Court was justified in quashing the FIR filed by the appellant. In fairness to the learned counsel, we must mention that although a feeble attempt was made during the course of hearing to assail the order passed by the High Court, that pursuit was soon given up by him. In that view of the matter we see no reason to interfere with the orders passed by the High Court in Crl. M.C. No.3329 of 2009.
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Commnr. Of Trade Tax, U.P Vs. M/S. Modipan Fibres Company | production at 12,222,827 metric tones. It disclosed sales of 313.206 metric tones in the State of U.P. and 1008.55 metric tones as interstate sales. 10,461.189 metric tones of goods were shown as stock transfer. The assessee thus claimed that total sale of the goods was 11782.945 metric tones. The base production according to the eligibility certificate granted to the dealer was 9460 metric tones. It claimed exemption from payment of tax on turnover (for the entire year) of sale of goods weighing 2,322.945 metric tones i.e. after reducing the base production from the total sale of goods in a year. The Assessing Authority, however, granted exemption to the extent of turnover on the sale of 1,321.756 metric tones of goods. The claim of the respondent was restricted on the ground that the base production was achieved on 4.1.1993 and the exemption from payment of tax can be granted on the sale of goods after the base production is achieved. 4. Aggrieved against the order passed by the Assessing Authority, respondent filed two appeals, i.e., one under the State Sales Tax Act and t he other under the Central Sales Tax Act before the Deputy Commissioner (Appeals), which were accepted by the order dated 4.2.1997. The order passed by the Assessing Authority was set aside and the respondent was granted exemption on the goods as claimed by it. Feeling aggrieved by the order passed by the Deputy Commissioner (Appeals), the Commissioner of Trade Tax, U.P. (for short the appellant) filed two appeals being Appeal Nos. 70/97 and 71/97, before the Tribunal, which by its order dated 24.9.1997 accepted the appeals, set aside the order passed by the First Appellate Authority and restored the order passed by the Assessing Officer. Aggrieved by the order passed by the Tribunal, the respondent filed revision petition in the High Court which have been accepted by the impugned order. The High Court has set aside the order passed by the Tribunal as well as the Assessing Authority and restored that of the First Appellate Authority. 5. Although before the High Court number of points were raised but the only submission advanced before us is: as to whether the assessee is entitled to avail of the exemption on the basis of the turnover of sale of goods in an assessment year minus the base production or on the sale of goods after achieving the base production. 6. Dr. Padia, learned senior counsel appearing for the appellants contends that the base production has to be achieved first, and it is only thereafter the question of exemption on the turnover of sale of goods in excess of base production can be considered. To support his submission Dr. Padia has referred to the provisions of Section 7 (1) read with Rule 41(1) and submitted that the dealer is required to file monthly return on the basis of actual turnover and not on hypothetical basis. The dealer is also required to deposit the admitted tax at the time of filing of monthly return. That in case the contention of the assessee is accepted then the provisions of Section 7(1) read with Rule 41 (1) and the notification under consideration cannot be interpreted harmoniously. 7. As against this, Shri Ganguli, learned senior counsel appearing for the respondents contends that the facility of exemption can be availed on the turnover of sale of goods in an assessment year in excess of the quantity referred to in sub-clause (a) of Clause 6 of the Notification. According to him, exemption is to be granted after taking into consideration the turnover of sale of goods of the entire assessment year. 8. Purpose of granting exemption under the dated 27.7.1999 was to promote the development of certain industries in the State. By the said notification exemption from payment of tax or reduction in rate of tax was granted to new units as also to the units which had undertaken expansion, diversification or modernization. The units of dealers in all the revisions are units, which had undertaken expansion/modernization. The units of the dealers (respondents) are covered by Clause (1-B) (a) of the Notification. Exemption granted is on the turnover of sales of quantity of goods manufactured in excess of base production. Under clause 6(a) of the said Notification, turnover of sale of goods in any assessment year to the extent of quantity covered by the base production of that year and balance stock of base production of previous years, shall be deemed to be turnover of the base production. Under clause 6(b) of the Notification, the facility of exemption can be availed on the turnover of goods in any assessment year in excess of the quantity referred to in sub-clause (a) of clause 6. 9. A conjoint reading of Clause (1-B) (a), clause 6(a) & (b) makes it clear that the dealer is entitled to claim exemption in respect of the turnover of sale of goods of an assessment year in excess of the base production. Assessment Year has been defined in Section 3 (j) to mean the twelve months ending on March 31. If that be the case then the extent of entitlement to exemption will depend on the sale of goods in the assessment year minus the base production determined under the Act. 10. Simply because dealer has to file returns from month to month and deposit the admitted tax at the time of filing of the return does not mean that question of exemption on the turnover of the production in excess of the base production can be considered only after the base production is achieved. Returns filed every month and the tax paid would be subject to adjustment at the time of the finalization of the assessment. Intention of the legislature is clear and unambiguous. Exemption is to be given on the turnover of sale of goods in an assessment year in excess of the base production. 11. We do not find any substance in the submission advanced on behalf of the appellants. 12. | 0[ds]Purpose of granting exemption under the dated 27.7.1999 was to promote the development of certain industries in the State. By the said notification exemption from payment of tax or reduction in rate of tax was granted to new units as also to the units which had undertaken expansion, diversification or modernization. The units of dealers in all the revisions are units, which had undertaken expansion/modernization. The units of the dealers (respondents) are covered by Clause (1-B) (a) of the Notification. Exemption granted is on the turnover of sales of quantity of goods manufactured in excess of base production. Under clause 6(a) of the said Notification, turnover of sale of goods in any assessment year to the extent of quantity covered by the base production of that year and balance stock of base production of previous years, shall be deemed to be turnover of the base production. Under clause 6(b) of the Notification, the facility of exemption can be availed on the turnover of goods in any assessment year in excess of the quantity referred to in sub-clause (a) of clause 6.A conjoint reading of Clause (1-B) (a), clause 6(a) & (b) makes it clear that the dealer is entitled to claim exemption in respect of the turnover of sale of goods of an assessment year in excess of the base production. Assessment Year has been defined in Section 3 (j) to mean the twelve months ending on March 31. If that be the case then the extent of entitlement to exemption will depend on the sale of goods in the assessment year minus the base production determined under the Act.Simply because dealer has to file returns from month to month and deposit the admitted tax at the time of filing of the return does not mean that question of exemption on the turnover of the production in excess of the base production can be considered only after the base production is achieved. Returns filed every month and the tax paid would be subject to adjustment at the time of the finalization of the assessment. Intention of the legislature is clear and unambiguous. Exemption is to be given on the turnover of sale of goods in an assessment year in excess of the base production.We do not find any substance in the submission advanced on behalf of the appellants | 0 | 1,987 | 434 | ### Instruction:
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production at 12,222,827 metric tones. It disclosed sales of 313.206 metric tones in the State of U.P. and 1008.55 metric tones as interstate sales. 10,461.189 metric tones of goods were shown as stock transfer. The assessee thus claimed that total sale of the goods was 11782.945 metric tones. The base production according to the eligibility certificate granted to the dealer was 9460 metric tones. It claimed exemption from payment of tax on turnover (for the entire year) of sale of goods weighing 2,322.945 metric tones i.e. after reducing the base production from the total sale of goods in a year. The Assessing Authority, however, granted exemption to the extent of turnover on the sale of 1,321.756 metric tones of goods. The claim of the respondent was restricted on the ground that the base production was achieved on 4.1.1993 and the exemption from payment of tax can be granted on the sale of goods after the base production is achieved. 4. Aggrieved against the order passed by the Assessing Authority, respondent filed two appeals, i.e., one under the State Sales Tax Act and t he other under the Central Sales Tax Act before the Deputy Commissioner (Appeals), which were accepted by the order dated 4.2.1997. The order passed by the Assessing Authority was set aside and the respondent was granted exemption on the goods as claimed by it. Feeling aggrieved by the order passed by the Deputy Commissioner (Appeals), the Commissioner of Trade Tax, U.P. (for short the appellant) filed two appeals being Appeal Nos. 70/97 and 71/97, before the Tribunal, which by its order dated 24.9.1997 accepted the appeals, set aside the order passed by the First Appellate Authority and restored the order passed by the Assessing Officer. Aggrieved by the order passed by the Tribunal, the respondent filed revision petition in the High Court which have been accepted by the impugned order. The High Court has set aside the order passed by the Tribunal as well as the Assessing Authority and restored that of the First Appellate Authority. 5. Although before the High Court number of points were raised but the only submission advanced before us is: as to whether the assessee is entitled to avail of the exemption on the basis of the turnover of sale of goods in an assessment year minus the base production or on the sale of goods after achieving the base production. 6. Dr. Padia, learned senior counsel appearing for the appellants contends that the base production has to be achieved first, and it is only thereafter the question of exemption on the turnover of sale of goods in excess of base production can be considered. To support his submission Dr. Padia has referred to the provisions of Section 7 (1) read with Rule 41(1) and submitted that the dealer is required to file monthly return on the basis of actual turnover and not on hypothetical basis. The dealer is also required to deposit the admitted tax at the time of filing of monthly return. That in case the contention of the assessee is accepted then the provisions of Section 7(1) read with Rule 41 (1) and the notification under consideration cannot be interpreted harmoniously. 7. As against this, Shri Ganguli, learned senior counsel appearing for the respondents contends that the facility of exemption can be availed on the turnover of sale of goods in an assessment year in excess of the quantity referred to in sub-clause (a) of Clause 6 of the Notification. According to him, exemption is to be granted after taking into consideration the turnover of sale of goods of the entire assessment year. 8. Purpose of granting exemption under the dated 27.7.1999 was to promote the development of certain industries in the State. By the said notification exemption from payment of tax or reduction in rate of tax was granted to new units as also to the units which had undertaken expansion, diversification or modernization. The units of dealers in all the revisions are units, which had undertaken expansion/modernization. The units of the dealers (respondents) are covered by Clause (1-B) (a) of the Notification. Exemption granted is on the turnover of sales of quantity of goods manufactured in excess of base production. Under clause 6(a) of the said Notification, turnover of sale of goods in any assessment year to the extent of quantity covered by the base production of that year and balance stock of base production of previous years, shall be deemed to be turnover of the base production. Under clause 6(b) of the Notification, the facility of exemption can be availed on the turnover of goods in any assessment year in excess of the quantity referred to in sub-clause (a) of clause 6. 9. A conjoint reading of Clause (1-B) (a), clause 6(a) & (b) makes it clear that the dealer is entitled to claim exemption in respect of the turnover of sale of goods of an assessment year in excess of the base production. Assessment Year has been defined in Section 3 (j) to mean the twelve months ending on March 31. If that be the case then the extent of entitlement to exemption will depend on the sale of goods in the assessment year minus the base production determined under the Act. 10. Simply because dealer has to file returns from month to month and deposit the admitted tax at the time of filing of the return does not mean that question of exemption on the turnover of the production in excess of the base production can be considered only after the base production is achieved. Returns filed every month and the tax paid would be subject to adjustment at the time of the finalization of the assessment. Intention of the legislature is clear and unambiguous. Exemption is to be given on the turnover of sale of goods in an assessment year in excess of the base production. 11. We do not find any substance in the submission advanced on behalf of the appellants. 12.
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Purpose of granting exemption under the dated 27.7.1999 was to promote the development of certain industries in the State. By the said notification exemption from payment of tax or reduction in rate of tax was granted to new units as also to the units which had undertaken expansion, diversification or modernization. The units of dealers in all the revisions are units, which had undertaken expansion/modernization. The units of the dealers (respondents) are covered by Clause (1-B) (a) of the Notification. Exemption granted is on the turnover of sales of quantity of goods manufactured in excess of base production. Under clause 6(a) of the said Notification, turnover of sale of goods in any assessment year to the extent of quantity covered by the base production of that year and balance stock of base production of previous years, shall be deemed to be turnover of the base production. Under clause 6(b) of the Notification, the facility of exemption can be availed on the turnover of goods in any assessment year in excess of the quantity referred to in sub-clause (a) of clause 6.A conjoint reading of Clause (1-B) (a), clause 6(a) & (b) makes it clear that the dealer is entitled to claim exemption in respect of the turnover of sale of goods of an assessment year in excess of the base production. Assessment Year has been defined in Section 3 (j) to mean the twelve months ending on March 31. If that be the case then the extent of entitlement to exemption will depend on the sale of goods in the assessment year minus the base production determined under the Act.Simply because dealer has to file returns from month to month and deposit the admitted tax at the time of filing of the return does not mean that question of exemption on the turnover of the production in excess of the base production can be considered only after the base production is achieved. Returns filed every month and the tax paid would be subject to adjustment at the time of the finalization of the assessment. Intention of the legislature is clear and unambiguous. Exemption is to be given on the turnover of sale of goods in an assessment year in excess of the base production.We do not find any substance in the submission advanced on behalf of the appellants
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Life Insurance Corporation of India Vs. K.R. Krishnamurthi | have put in at least 10 years service shall be eligible for appearing at the qualifying test."5. At the end of these administrative orders appears the following note by way of explanation of them6. Note 1. The term service where it occurs shall, unless otherwise explicitly stated, include service in the corporation, service with the previous insurer........and also service with any other insurer carrying on life insurance business provided there is no break of more than six months between successive appointments."The respondent wanted promotion to the cadres of superintendents and higher grade assistants. The question in dispute is whether the respondent had put in the requisite number of years of service under paragraphs 6 and 8 of the administrative orders7. It appears that the respondent first joined the Mysore Government of February 22, 1950. He was then employed in the food section as a purchase depot clerk at Malur. From November 16, 1953, he was appointed as a third division clerk in the taluka office at Malur. It was only on January 2, 1956, that the respondent joined the insurance department of the Mysore Government. From September 1, 1956, he has been in the employment of the appellant Corporation under section 11(1) of the Act. It is not in dispute that there was no break in his service of more than six months since he first joined the Mysore Government service on February 22, 19508. Now, the dispute in this case has arisen over the interpretation of the words "service with the previous insurer" occurring in Note 1 in the administrative orders which we have earlier set out. If these words refer to any service under the previous insurer, that is, whether in his life insurance business or not, then the entire service of the respondent from February 22, 1950, up to date has to be taken into consideration for the purposes of paragraphs 6 and 8 of the administrative orders. in that case, it must be held that the respondent had put in the requisite number of years of service prescribed in these paragraphs and that is precisely his contention9. The appellant contends that the proper interpretation of the words "service with the previous insurer" is service in the insurance business of the insurer in a case where, as in the present, the insurer had other activities also. In other words, the appellant contends that the employment of the respondent by the Mysore Government in the taluka office or in the food section was not "service with the previous insurer" within the meaning of the noteIt seems to us that the appellants reading of the note is the correct one. The Act and the Regulations, and the orders are concerned with the previous insurer and its employees only so far as the life insurance business of that insurer is concerned. With the other activities of the insurer or his other employees the Act has nothing to do. It may be pointed out that under section 11 of the Act only those employees of the insurer who are employed " wholly or mainly in connection with his controlled business immediately before the appointed day", that automatically pass into the service of the Corporation. No doubt, section 11 deals with persons employed immediately before the appointed day and is concerned with the transfer of the services of these people to the Corporation, but it certainly indicates what kind of employees of the previous insurer is contemplated by the Act. That kind consists of persons who had been wholly and mainly employed in the life insurance business of the insurer. With other employees of the insurer the Act is not concerned. When, therefore, orders are issued under powers conferred by the Act concerning the services of employees of previous insurers and the words "service with the previous insurer" are used, it is plain that they can only refer to service in the insurance business of the previous insurer10. Learned counsel for the respondent drew our attention to Regulation 13 of the Regulations made under section 49(2)(b) and (bb) of the Act, earlier mentioned. That regulation provides that " service of an employee shall be deemed to commence from the working day on which an employee reports for duty." There is an explanation to this regulation and that reads, " In the case of a transferred employee, his service shall be deemed to have commenced from the date on which his service commenced with the insurer." Learned counsel contends that this explanation shows that any service under the insurer would do and such service need not be only in the life insurance business of the insurer. We do not think that the explanation shows that. In our view, it raises the same question which has arisen in the present case and is of no assistance in answering that questionThe High Court thought that as under sub-section (1) of section 11 an employee whose services were transferred was entitled to the same rights and privileges in all matters relating to his service as prevailed before his services were transferred and the respondent was entitled under the Mysore Government Service Regulations to contend that his service had commenced on February 22, 1950, that right cannot be taken away by Administrative Orders or Regulations. The learned judge of the High Court, however, did not consider sub-section (2) of section 11 which gives the Central Government the power to alter the conditions of service notwithstanding anything contained in sub-section (1). It is under that power that paragraphs 6 and 8 of the administrative orders and the notes appended to them had been made. However, as we have said earlier, no question as to the validity of any of these orders and regulations was raised on behalf of the respondent at the hearing before us. In fact the respondent has proceeded on the basis of these orders and regulations and claimed to be entitled to certain rights under them. We also, therefore, decide the appeal on that basis | 1[ds]7. It appears that the respondent first joined the Mysore Government of February 22, 1950. He was then employed in the food section as a purchase depot clerk at Malur. From November 16, 1953, he was appointed as a third division clerk in the taluka office at Malur. It was only on January 2, 1956, that the respondent joined the insurance department of the Mysore Government. From September 1, 1956, he has been in the employment of the appellant Corporation under section 11(1) of the Act. It is not in dispute that there was no break in his service of more than six months since he first joined the Mysore Government service on February 22,seems to us that the appellants reading of the note is the correct one. The Act and the Regulations, and the orders are concerned with the previous insurer and its employees only so far as the life insurance business of that insurer is concerned. With the other activities of the insurer or his other employees the Act has nothing to do. It may be pointed out that under section 11 of the Act only those employees of the insurer who are employed " wholly or mainly in connection with his controlled business immediately before the appointed day", that automatically pass into the service of the Corporation. No doubt, section 11 deals with persons employed immediately before the appointed day and is concerned with the transfer of the services of these people to the Corporation, but it certainly indicates what kind of employees of the previous insurer is contemplated by the Act. That kind consists of persons who had been wholly and mainly employed in the life insurance business of the insurer. With other employees of the insurer the Act is not concerned. When, therefore, orders are issued under powers conferred by the Act concerning the services of employees of previous insurers and the words "service with the previous insurer" are used, it is plain that they can only refer to service in the insurance business of the previousregulation provides that " service of an employee shall be deemed to commence from the working day on which an employee reports for duty." There is an explanation to this regulation and that reads, " In the case of a transferred employee, his service shall be deemed to have commenced from the date on which his service commenced with thedo not think that the explanation shows that. In our view, it raises the same question which has arisen in the present case and is of no assistance in answering that questionThe High Court thought that as under sub-section (1) of section 11 an employee whose services were transferred was entitled to the same rights and privileges in all matters relating to his service as prevailed before his services were transferred and the respondent was entitled under the Mysore Government Service Regulations to contend that his service had commenced on February 22, 1950, that right cannot be taken away by Administrative Orders or Regulations. The learned judge of the High Court, however, did not consider sub-section (2) of section 11 which gives the Central Government the power to alter the conditions of service notwithstanding anything contained in sub-section (1). It is under that power that paragraphs 6 and 8 of the administrative orders and the notes appended to them had been made. However, as we have said earlier, no question as to the validity of any of these orders and regulations was raised on behalf of the respondent at the hearing before us. In fact the respondent has proceeded on the basis of these orders and regulations and claimed to be entitled to certain rights under them. We also, therefore, decide the appeal on that basis | 1 | 2,091 | 691 | ### Instruction:
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have put in at least 10 years service shall be eligible for appearing at the qualifying test."5. At the end of these administrative orders appears the following note by way of explanation of them6. Note 1. The term service where it occurs shall, unless otherwise explicitly stated, include service in the corporation, service with the previous insurer........and also service with any other insurer carrying on life insurance business provided there is no break of more than six months between successive appointments."The respondent wanted promotion to the cadres of superintendents and higher grade assistants. The question in dispute is whether the respondent had put in the requisite number of years of service under paragraphs 6 and 8 of the administrative orders7. It appears that the respondent first joined the Mysore Government of February 22, 1950. He was then employed in the food section as a purchase depot clerk at Malur. From November 16, 1953, he was appointed as a third division clerk in the taluka office at Malur. It was only on January 2, 1956, that the respondent joined the insurance department of the Mysore Government. From September 1, 1956, he has been in the employment of the appellant Corporation under section 11(1) of the Act. It is not in dispute that there was no break in his service of more than six months since he first joined the Mysore Government service on February 22, 19508. Now, the dispute in this case has arisen over the interpretation of the words "service with the previous insurer" occurring in Note 1 in the administrative orders which we have earlier set out. If these words refer to any service under the previous insurer, that is, whether in his life insurance business or not, then the entire service of the respondent from February 22, 1950, up to date has to be taken into consideration for the purposes of paragraphs 6 and 8 of the administrative orders. in that case, it must be held that the respondent had put in the requisite number of years of service prescribed in these paragraphs and that is precisely his contention9. The appellant contends that the proper interpretation of the words "service with the previous insurer" is service in the insurance business of the insurer in a case where, as in the present, the insurer had other activities also. In other words, the appellant contends that the employment of the respondent by the Mysore Government in the taluka office or in the food section was not "service with the previous insurer" within the meaning of the noteIt seems to us that the appellants reading of the note is the correct one. The Act and the Regulations, and the orders are concerned with the previous insurer and its employees only so far as the life insurance business of that insurer is concerned. With the other activities of the insurer or his other employees the Act has nothing to do. It may be pointed out that under section 11 of the Act only those employees of the insurer who are employed " wholly or mainly in connection with his controlled business immediately before the appointed day", that automatically pass into the service of the Corporation. No doubt, section 11 deals with persons employed immediately before the appointed day and is concerned with the transfer of the services of these people to the Corporation, but it certainly indicates what kind of employees of the previous insurer is contemplated by the Act. That kind consists of persons who had been wholly and mainly employed in the life insurance business of the insurer. With other employees of the insurer the Act is not concerned. When, therefore, orders are issued under powers conferred by the Act concerning the services of employees of previous insurers and the words "service with the previous insurer" are used, it is plain that they can only refer to service in the insurance business of the previous insurer10. Learned counsel for the respondent drew our attention to Regulation 13 of the Regulations made under section 49(2)(b) and (bb) of the Act, earlier mentioned. That regulation provides that " service of an employee shall be deemed to commence from the working day on which an employee reports for duty." There is an explanation to this regulation and that reads, " In the case of a transferred employee, his service shall be deemed to have commenced from the date on which his service commenced with the insurer." Learned counsel contends that this explanation shows that any service under the insurer would do and such service need not be only in the life insurance business of the insurer. We do not think that the explanation shows that. In our view, it raises the same question which has arisen in the present case and is of no assistance in answering that questionThe High Court thought that as under sub-section (1) of section 11 an employee whose services were transferred was entitled to the same rights and privileges in all matters relating to his service as prevailed before his services were transferred and the respondent was entitled under the Mysore Government Service Regulations to contend that his service had commenced on February 22, 1950, that right cannot be taken away by Administrative Orders or Regulations. The learned judge of the High Court, however, did not consider sub-section (2) of section 11 which gives the Central Government the power to alter the conditions of service notwithstanding anything contained in sub-section (1). It is under that power that paragraphs 6 and 8 of the administrative orders and the notes appended to them had been made. However, as we have said earlier, no question as to the validity of any of these orders and regulations was raised on behalf of the respondent at the hearing before us. In fact the respondent has proceeded on the basis of these orders and regulations and claimed to be entitled to certain rights under them. We also, therefore, decide the appeal on that basis
### Response:
1
### Explanation:
7. It appears that the respondent first joined the Mysore Government of February 22, 1950. He was then employed in the food section as a purchase depot clerk at Malur. From November 16, 1953, he was appointed as a third division clerk in the taluka office at Malur. It was only on January 2, 1956, that the respondent joined the insurance department of the Mysore Government. From September 1, 1956, he has been in the employment of the appellant Corporation under section 11(1) of the Act. It is not in dispute that there was no break in his service of more than six months since he first joined the Mysore Government service on February 22,seems to us that the appellants reading of the note is the correct one. The Act and the Regulations, and the orders are concerned with the previous insurer and its employees only so far as the life insurance business of that insurer is concerned. With the other activities of the insurer or his other employees the Act has nothing to do. It may be pointed out that under section 11 of the Act only those employees of the insurer who are employed " wholly or mainly in connection with his controlled business immediately before the appointed day", that automatically pass into the service of the Corporation. No doubt, section 11 deals with persons employed immediately before the appointed day and is concerned with the transfer of the services of these people to the Corporation, but it certainly indicates what kind of employees of the previous insurer is contemplated by the Act. That kind consists of persons who had been wholly and mainly employed in the life insurance business of the insurer. With other employees of the insurer the Act is not concerned. When, therefore, orders are issued under powers conferred by the Act concerning the services of employees of previous insurers and the words "service with the previous insurer" are used, it is plain that they can only refer to service in the insurance business of the previousregulation provides that " service of an employee shall be deemed to commence from the working day on which an employee reports for duty." There is an explanation to this regulation and that reads, " In the case of a transferred employee, his service shall be deemed to have commenced from the date on which his service commenced with thedo not think that the explanation shows that. In our view, it raises the same question which has arisen in the present case and is of no assistance in answering that questionThe High Court thought that as under sub-section (1) of section 11 an employee whose services were transferred was entitled to the same rights and privileges in all matters relating to his service as prevailed before his services were transferred and the respondent was entitled under the Mysore Government Service Regulations to contend that his service had commenced on February 22, 1950, that right cannot be taken away by Administrative Orders or Regulations. The learned judge of the High Court, however, did not consider sub-section (2) of section 11 which gives the Central Government the power to alter the conditions of service notwithstanding anything contained in sub-section (1). It is under that power that paragraphs 6 and 8 of the administrative orders and the notes appended to them had been made. However, as we have said earlier, no question as to the validity of any of these orders and regulations was raised on behalf of the respondent at the hearing before us. In fact the respondent has proceeded on the basis of these orders and regulations and claimed to be entitled to certain rights under them. We also, therefore, decide the appeal on that basis
|
V.C., Banaras Hindu University Vs. Shrikant | Standing Orders which reads as under: "9.(f) Any workman who,* * *(ii) absents himself for ten consecutive working days without leave shall be deemed to have left the firms service without notice, thereby terminating his service." 59. The workman therein offered an explanation and having regard thereto, the Labour Court came to the conclusion that the action of the management in terminating the services of the workman therein was not justified. When the matter reached this Court, it was opined:- "Let us, therefore, analyse as to whether this particular Standing Order in fact warrants a conclusion without anything further on record or to put it differently does it survive on its own and that being a part of the contract of employment ought to govern the situation as is covered in the contextual facts." 60. Referring to the decisions noticed by us hereinbefore, it was held : "It is thus in this context one ought to read the doctrine of natural justice being an inbuilt requirement on the Standing Orders. Significantly, the facts depict that the respondent workman remained absent from duty from 13.10.1990 and it is within a period of four days that a letter was sent to the workman informing him that since he was absenting himself from duty without authorized leave he was advised to report back within 48 hours and also to tender his explanation for his absence, otherwise his disinterestedness would thus be presumed." 61. The well settled principle of law as regards necessity to comply with the principles of natural justice was again reiterated, stating:- "Arbitrariness is an antithesis to rule of law, equity, fair play and justice contract of employment there may be but it cannot be devoid of the basic principles of the concept of justice. Justice-oriented approach as is the present trend in Indian jurisprudence shall have to read as an inbuilt requirement of the basic of concept of justice, to wit, the doctrine of natural justice, fairness, equality and rule of law." 62. A provision relating to abandonment of service came up for consideration yet again in Viveka Nand Sethi v. Chairman, J&K Bank Ltd. & Ors. [(2005) 5 SCC 337] before a Division Bench of this Court. This Court opined that although in a case of that nature, principles of natural justice were required to be complied with, a full-fledged departmental enquiry may not be necessary, holding : "A limited enquiry as to whether the employee concerned had sufficient explanation for not reporting to duties after the period of leave had expired or failure on his part on being asked so to do, in our considered view, amounts to sufficient compliance with the requirements of the principles of natural justice." 63. Mr. Dwivedi placed strong reliance upon the decision of this Court in Aligarh Muslim University v. Mansoor Ali Khan [(2000) 7 SCC 529] . In that case, interpretation of Rule 5(8)(ii) came up for consideration which is in the following term : "Rule 5(8)(ii) An officer or other employee who absents himself without leave or remains absent without leave after the expiry of the leave granted to him, shall, if he is permitted to rejoin duty, be entitled to no leave allowance or salary for the period of such absence and such period will be debited against his leave account as leave without pay unless his leave is extended by the authority empowered to grant the leave. Wilful absence from duty after the expiry of leave may be treated as misconduct for the purpose of clause 12 of Chapter IV of the Executive Ordinances of AMU and para 10 of Chapter IX of Regulations of the Executive Council." 64. It was held that a show cause notice and reply would be necessary. If no show cause notice had been given, this Court held that the principles of natural justice would be held to be complied with.65. This Court, however, in the special facts and circumstances of this case and particularly in view of the fact that admittedly leave was initially granted for a period of two years and an application for extension thereof was made by the Respondent therein for a further period of three years which was acceded to only for one year, this Court opined that on the admitted facts, the absence of a notice to show cause would not make any difference as the employee admittedly continuing to live in Libya, the extension of leave sought for was bound to be refused.66. The parties in this case proceeded on the basis that it was not a case of misconduct. The High Court, therefore, in our opinion, wrongly arrived at the conclusion that the Respondent was guilty of misconduct. In that view of the matter, it is also not necessary for us to advert to the question as to whether in the facts and circumstances of this case, the High Court could have directed modification in the quantum of punishment without arriving at a finding that the same was shockingly disproportionate to the gravity of the charges made against the Respondent herein.67. The fact situation obtaining in this case is entirely different. Not only the Respondent made all attempts to join his duties, but, the situation prevented him from doing so beyond his control. Furthermore, in this case, the Vice Chancellor had no jurisdiction at all. Even the notification dated 25.03.1998 had no application.68. For the reasons abovementioned, we do not find any merit in the appeal filed by the University. However, so far as appeal of the Respondent is concerned, although the conduct of the University is deplorable having regard to the fact that the Respondent has suffered a lot and has not been allowed to join his duties for a long time and keeping in view the facts and circumstances of this case, we are of the opinion that his back wages should be restricted to 75%. The Respondent shall also be entitled to costs of the appeal. Counsels fee is assessed at Rs.10,000/-.69 | 0[ds]61. The well settled principle of law as regards necessity to comply with the principles of natural justice was again reiterated,is an antithesis to rule of law, equity, fair play and justice contract of employment there may be but it cannot be devoid of the basic principles of the concept of justice. Justice-oriented approach as is the present trend in Indian jurisprudence shall have to read as an inbuilt requirement of the basic of concept of justice, to wit, the doctrine of natural justice, fairness, equality and rule of law.A provision relating to abandonment of service came up for consideration yet again in Viveka Nand Sethi v. Chairman, J&K Bank Ltd. & Ors. [(2005) 5 SCC 337] before a Division Bench of this Court. This Court opined that although in a case of that nature, principles of natural justice were required to be complied with, a full-fledged departmental enquiry may not be necessary, holdinglimited enquiry as to whether the employee concerned had sufficient explanation for not reporting to duties after the period of leave had expired or failure on his part on being asked so to do, in our considered view, amounts to sufficient compliance with the requirements of the principles of natural justice.Mr. Dwivedi placed strong reliance upon the decision of this Court in Aligarh Muslim University v. Mansoor Ali Khan [(2000) 7 SCC 529] . In that case, interpretation of Rule 5(8)(ii) came up for consideration which is in the following term5(8)(ii) An officer or other employee who absents himself without leave or remains absent without leave after the expiry of the leave granted to him, shall, if he is permitted to rejoin duty, be entitled to no leave allowance or salary for the period of such absence and such period will be debited against his leave account as leave without pay unless his leave is extended by the authority empowered to grant the leave. Wilful absence from duty after the expiry of leave may be treated as misconduct for the purpose of clause 12 of Chapter IV of the Executive Ordinances of AMU and para 10 of Chapter IX of Regulations of the Executive Council.It was held that a show cause notice and reply would be necessary. If no show cause notice had been given, this Court held that the principles of natural justice would be held to be complied with.65. This Court, however, in the special facts and circumstances of this case and particularly in view of the fact that admittedly leave was initially granted for a period of two years and an application for extension thereof was made by the Respondent therein for a further period of three years which was acceded to only for one year, this Court opined that on the admitted facts, the absence of a notice to show cause would not make any difference as the employee admittedly continuing to live in Libya, the extension of leave sought for was bound to be refused.66. The parties in this case proceeded on the basis that it was not a case of misconduct. The High Court, therefore, in our opinion, wrongly arrived at the conclusion that the Respondent was guilty of misconduct. In that view of the matter, it is also not necessary for us to advert to the question as to whether in the facts and circumstances of this case, the High Court could have directed modification in the quantum of punishment without arriving at a finding that the same was shockingly disproportionate to the gravity of the charges made against the Respondent herein.67. The fact situation obtaining in this case is entirely different. Not only the Respondent made all attempts to join his duties, but, the situation prevented him from doing so beyond his control. Furthermore, in this case, the Vice Chancellor had no jurisdiction at all. Even the notification dated 25.03.1998 had no application.68. For the reasons abovementioned, we do not find any merit in the appeal filed by the University. However, so far as appeal of the Respondent is concerned, although the conduct of the University is deplorable having regard to the fact that the Respondent has suffered a lot and has not been allowed to join his duties for a long time and keeping in view the facts and circumstances of this case, we are of the opinion that his back wages should be restricted to 75%. The Respondent shall also be entitled to costs of the appeal. Counsels fee is assessed at Rs.10,000/-. | 0 | 9,073 | 831 | ### 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:
Standing Orders which reads as under: "9.(f) Any workman who,* * *(ii) absents himself for ten consecutive working days without leave shall be deemed to have left the firms service without notice, thereby terminating his service." 59. The workman therein offered an explanation and having regard thereto, the Labour Court came to the conclusion that the action of the management in terminating the services of the workman therein was not justified. When the matter reached this Court, it was opined:- "Let us, therefore, analyse as to whether this particular Standing Order in fact warrants a conclusion without anything further on record or to put it differently does it survive on its own and that being a part of the contract of employment ought to govern the situation as is covered in the contextual facts." 60. Referring to the decisions noticed by us hereinbefore, it was held : "It is thus in this context one ought to read the doctrine of natural justice being an inbuilt requirement on the Standing Orders. Significantly, the facts depict that the respondent workman remained absent from duty from 13.10.1990 and it is within a period of four days that a letter was sent to the workman informing him that since he was absenting himself from duty without authorized leave he was advised to report back within 48 hours and also to tender his explanation for his absence, otherwise his disinterestedness would thus be presumed." 61. The well settled principle of law as regards necessity to comply with the principles of natural justice was again reiterated, stating:- "Arbitrariness is an antithesis to rule of law, equity, fair play and justice contract of employment there may be but it cannot be devoid of the basic principles of the concept of justice. Justice-oriented approach as is the present trend in Indian jurisprudence shall have to read as an inbuilt requirement of the basic of concept of justice, to wit, the doctrine of natural justice, fairness, equality and rule of law." 62. A provision relating to abandonment of service came up for consideration yet again in Viveka Nand Sethi v. Chairman, J&K Bank Ltd. & Ors. [(2005) 5 SCC 337] before a Division Bench of this Court. This Court opined that although in a case of that nature, principles of natural justice were required to be complied with, a full-fledged departmental enquiry may not be necessary, holding : "A limited enquiry as to whether the employee concerned had sufficient explanation for not reporting to duties after the period of leave had expired or failure on his part on being asked so to do, in our considered view, amounts to sufficient compliance with the requirements of the principles of natural justice." 63. Mr. Dwivedi placed strong reliance upon the decision of this Court in Aligarh Muslim University v. Mansoor Ali Khan [(2000) 7 SCC 529] . In that case, interpretation of Rule 5(8)(ii) came up for consideration which is in the following term : "Rule 5(8)(ii) An officer or other employee who absents himself without leave or remains absent without leave after the expiry of the leave granted to him, shall, if he is permitted to rejoin duty, be entitled to no leave allowance or salary for the period of such absence and such period will be debited against his leave account as leave without pay unless his leave is extended by the authority empowered to grant the leave. Wilful absence from duty after the expiry of leave may be treated as misconduct for the purpose of clause 12 of Chapter IV of the Executive Ordinances of AMU and para 10 of Chapter IX of Regulations of the Executive Council." 64. It was held that a show cause notice and reply would be necessary. If no show cause notice had been given, this Court held that the principles of natural justice would be held to be complied with.65. This Court, however, in the special facts and circumstances of this case and particularly in view of the fact that admittedly leave was initially granted for a period of two years and an application for extension thereof was made by the Respondent therein for a further period of three years which was acceded to only for one year, this Court opined that on the admitted facts, the absence of a notice to show cause would not make any difference as the employee admittedly continuing to live in Libya, the extension of leave sought for was bound to be refused.66. The parties in this case proceeded on the basis that it was not a case of misconduct. The High Court, therefore, in our opinion, wrongly arrived at the conclusion that the Respondent was guilty of misconduct. In that view of the matter, it is also not necessary for us to advert to the question as to whether in the facts and circumstances of this case, the High Court could have directed modification in the quantum of punishment without arriving at a finding that the same was shockingly disproportionate to the gravity of the charges made against the Respondent herein.67. The fact situation obtaining in this case is entirely different. Not only the Respondent made all attempts to join his duties, but, the situation prevented him from doing so beyond his control. Furthermore, in this case, the Vice Chancellor had no jurisdiction at all. Even the notification dated 25.03.1998 had no application.68. For the reasons abovementioned, we do not find any merit in the appeal filed by the University. However, so far as appeal of the Respondent is concerned, although the conduct of the University is deplorable having regard to the fact that the Respondent has suffered a lot and has not been allowed to join his duties for a long time and keeping in view the facts and circumstances of this case, we are of the opinion that his back wages should be restricted to 75%. The Respondent shall also be entitled to costs of the appeal. Counsels fee is assessed at Rs.10,000/-.69
### Response:
0
### Explanation:
61. The well settled principle of law as regards necessity to comply with the principles of natural justice was again reiterated,is an antithesis to rule of law, equity, fair play and justice contract of employment there may be but it cannot be devoid of the basic principles of the concept of justice. Justice-oriented approach as is the present trend in Indian jurisprudence shall have to read as an inbuilt requirement of the basic of concept of justice, to wit, the doctrine of natural justice, fairness, equality and rule of law.A provision relating to abandonment of service came up for consideration yet again in Viveka Nand Sethi v. Chairman, J&K Bank Ltd. & Ors. [(2005) 5 SCC 337] before a Division Bench of this Court. This Court opined that although in a case of that nature, principles of natural justice were required to be complied with, a full-fledged departmental enquiry may not be necessary, holdinglimited enquiry as to whether the employee concerned had sufficient explanation for not reporting to duties after the period of leave had expired or failure on his part on being asked so to do, in our considered view, amounts to sufficient compliance with the requirements of the principles of natural justice.Mr. Dwivedi placed strong reliance upon the decision of this Court in Aligarh Muslim University v. Mansoor Ali Khan [(2000) 7 SCC 529] . In that case, interpretation of Rule 5(8)(ii) came up for consideration which is in the following term5(8)(ii) An officer or other employee who absents himself without leave or remains absent without leave after the expiry of the leave granted to him, shall, if he is permitted to rejoin duty, be entitled to no leave allowance or salary for the period of such absence and such period will be debited against his leave account as leave without pay unless his leave is extended by the authority empowered to grant the leave. Wilful absence from duty after the expiry of leave may be treated as misconduct for the purpose of clause 12 of Chapter IV of the Executive Ordinances of AMU and para 10 of Chapter IX of Regulations of the Executive Council.It was held that a show cause notice and reply would be necessary. If no show cause notice had been given, this Court held that the principles of natural justice would be held to be complied with.65. This Court, however, in the special facts and circumstances of this case and particularly in view of the fact that admittedly leave was initially granted for a period of two years and an application for extension thereof was made by the Respondent therein for a further period of three years which was acceded to only for one year, this Court opined that on the admitted facts, the absence of a notice to show cause would not make any difference as the employee admittedly continuing to live in Libya, the extension of leave sought for was bound to be refused.66. The parties in this case proceeded on the basis that it was not a case of misconduct. The High Court, therefore, in our opinion, wrongly arrived at the conclusion that the Respondent was guilty of misconduct. In that view of the matter, it is also not necessary for us to advert to the question as to whether in the facts and circumstances of this case, the High Court could have directed modification in the quantum of punishment without arriving at a finding that the same was shockingly disproportionate to the gravity of the charges made against the Respondent herein.67. The fact situation obtaining in this case is entirely different. Not only the Respondent made all attempts to join his duties, but, the situation prevented him from doing so beyond his control. Furthermore, in this case, the Vice Chancellor had no jurisdiction at all. Even the notification dated 25.03.1998 had no application.68. For the reasons abovementioned, we do not find any merit in the appeal filed by the University. However, so far as appeal of the Respondent is concerned, although the conduct of the University is deplorable having regard to the fact that the Respondent has suffered a lot and has not been allowed to join his duties for a long time and keeping in view the facts and circumstances of this case, we are of the opinion that his back wages should be restricted to 75%. The Respondent shall also be entitled to costs of the appeal. Counsels fee is assessed at Rs.10,000/-.
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Sanat Kumar Auddy and Another Vs. Prodyot Kumar Auddy and Others | KHANNA, J.1. This appeal by special leave is against the judgment of the Calcutta High Court affirming on revision the decision of the trial Court whereby certain amounts had been ordered to be paid to the defendant-respondents.2. The appeal arises out of a suit for partition and rendition of accounts instituted on August 19, 1937. In that suit, there was a compromise between the parties and on June 18, 1953 a decree was awarded in terms of that compromise. According to the compromise-decree, the predecessors-in-interest of some of the defendant cosharers had overdrawn out of the joint family funds to the extent of Rs. 2, 86, 000. Those defendant cosharers would hereinafter be described as debtor cosharers. It was agreed that the aforesaid amount would be payable by the debtor cosharers to the other cosharers, hereinafter referred to as the creditor cosharers. Clause (3) of the compromise-decree provided that the aforesaid sum of Rs. 2, 86, 000 would be paid by the debtor cosharers to the creditor cosharers, within three years from the date of the final decree. Certain further concessions were also in the matter of payment to the debtor cosharers in the even of their paying half of the amount within the stipulated period. No final decree, it is stated, has so far been passed.3. It appears that some of the joint properties were acquired and an amount of Rs. 4, 48, 571.67 was paid as compensation for those properties. On the application of the creditor cosharers, an order was made that they be paid their share of the compensation money. An application was thereafter made on behalf of the debtor cosharers for payment of their share of the compensation amount. This application was resisted by the creditor cosharers. The trial Court repelled the objections of the creditor cosharers and directed that the debtor cosharers be paid their share of the compensation amount. Revision filed by the creditor cosharers against that order was dismissed by the High Court. It is this order of the High Court which is subject-matter of the present appeal.4. We have heard Mr. Mookerjee on behalf of the appellant and Mr. Sukumar Ghose and Mr. Majumdar on behalf of the respondents and are of the view that the order of the High Court under appeal cannot be sustained. Clause (8) of the compromise-decree specifically deal with the amount of compensation paid in connection with the acquisition of immovable property jointly held by the parties. It is provided in that clause that so far as such compensation amount is concerned, the debtor cosharers would be entitled to that part of it as constitutes the surplus after the payment of the amount due to the creditor cosharers. In view of this clause, the High Court, in our opinion, was in error in directing the payment of the share of the debtor cosharers straightway to those cosharers. Any such payment to the debtor cosharers without first satisfying the money claim of the creditor cosharers against those debtor cosharers would be contrary to clause (8) of the compromise decree. We, therefore, are of view that the impugned order should be set aside. To obviate the possibility of the amount of compensation on account of the share of the debtor cosharers not earning any interest, we direct that the same may be deposited in the bank in fixed deposit. This order would not stand in the way of the trial Court making payment to the creditor cosharers in respect of their share in the compensation which may be awarded on account of the acquisition of the joint property. | 1[ds]4. We have heard Mr. Mookerjee on behalf of the appellant and Mr. Sukumar Ghose and Mr. Majumdar on behalf of the respondents and are of the view that the order of the High Court under appeal cannot be sustained. Clause (8) of thespecifically deal with the amount of compensation paid in connection with the acquisition of immovable property jointly held by the parties. It is provided in that clause that so far as such compensation amount is concerned, the debtor cosharers would be entitled to that part of it as constitutes the surplus after the payment of the amount due to the creditor cosharers. In view of this clause, the High Court, in our opinion, was in error in directing the payment of the share of the debtor cosharers straightway to those cosharers. Any such payment to the debtor cosharers without first satisfying the money claim of the creditor cosharers against those debtor cosharers would be contrary to clause (8) of the compromise decree. We, therefore, are of view that the impugned order should be set aside. To obviate the possibility of the amount of compensation on account of the share of the debtor cosharers not earning any interest, we direct that the same may be deposited in the bank in fixed deposit. This order would not stand in the way of the trial Court making payment to the creditor cosharers in respect of their share in the compensation which may be awarded on account of the acquisition of the joint property. | 1 | 657 | 278 | ### 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:
KHANNA, J.1. This appeal by special leave is against the judgment of the Calcutta High Court affirming on revision the decision of the trial Court whereby certain amounts had been ordered to be paid to the defendant-respondents.2. The appeal arises out of a suit for partition and rendition of accounts instituted on August 19, 1937. In that suit, there was a compromise between the parties and on June 18, 1953 a decree was awarded in terms of that compromise. According to the compromise-decree, the predecessors-in-interest of some of the defendant cosharers had overdrawn out of the joint family funds to the extent of Rs. 2, 86, 000. Those defendant cosharers would hereinafter be described as debtor cosharers. It was agreed that the aforesaid amount would be payable by the debtor cosharers to the other cosharers, hereinafter referred to as the creditor cosharers. Clause (3) of the compromise-decree provided that the aforesaid sum of Rs. 2, 86, 000 would be paid by the debtor cosharers to the creditor cosharers, within three years from the date of the final decree. Certain further concessions were also in the matter of payment to the debtor cosharers in the even of their paying half of the amount within the stipulated period. No final decree, it is stated, has so far been passed.3. It appears that some of the joint properties were acquired and an amount of Rs. 4, 48, 571.67 was paid as compensation for those properties. On the application of the creditor cosharers, an order was made that they be paid their share of the compensation money. An application was thereafter made on behalf of the debtor cosharers for payment of their share of the compensation amount. This application was resisted by the creditor cosharers. The trial Court repelled the objections of the creditor cosharers and directed that the debtor cosharers be paid their share of the compensation amount. Revision filed by the creditor cosharers against that order was dismissed by the High Court. It is this order of the High Court which is subject-matter of the present appeal.4. We have heard Mr. Mookerjee on behalf of the appellant and Mr. Sukumar Ghose and Mr. Majumdar on behalf of the respondents and are of the view that the order of the High Court under appeal cannot be sustained. Clause (8) of the compromise-decree specifically deal with the amount of compensation paid in connection with the acquisition of immovable property jointly held by the parties. It is provided in that clause that so far as such compensation amount is concerned, the debtor cosharers would be entitled to that part of it as constitutes the surplus after the payment of the amount due to the creditor cosharers. In view of this clause, the High Court, in our opinion, was in error in directing the payment of the share of the debtor cosharers straightway to those cosharers. Any such payment to the debtor cosharers without first satisfying the money claim of the creditor cosharers against those debtor cosharers would be contrary to clause (8) of the compromise decree. We, therefore, are of view that the impugned order should be set aside. To obviate the possibility of the amount of compensation on account of the share of the debtor cosharers not earning any interest, we direct that the same may be deposited in the bank in fixed deposit. This order would not stand in the way of the trial Court making payment to the creditor cosharers in respect of their share in the compensation which may be awarded on account of the acquisition of the joint property.
### Response:
1
### Explanation:
4. We have heard Mr. Mookerjee on behalf of the appellant and Mr. Sukumar Ghose and Mr. Majumdar on behalf of the respondents and are of the view that the order of the High Court under appeal cannot be sustained. Clause (8) of thespecifically deal with the amount of compensation paid in connection with the acquisition of immovable property jointly held by the parties. It is provided in that clause that so far as such compensation amount is concerned, the debtor cosharers would be entitled to that part of it as constitutes the surplus after the payment of the amount due to the creditor cosharers. In view of this clause, the High Court, in our opinion, was in error in directing the payment of the share of the debtor cosharers straightway to those cosharers. Any such payment to the debtor cosharers without first satisfying the money claim of the creditor cosharers against those debtor cosharers would be contrary to clause (8) of the compromise decree. We, therefore, are of view that the impugned order should be set aside. To obviate the possibility of the amount of compensation on account of the share of the debtor cosharers not earning any interest, we direct that the same may be deposited in the bank in fixed deposit. This order would not stand in the way of the trial Court making payment to the creditor cosharers in respect of their share in the compensation which may be awarded on account of the acquisition of the joint property.
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Pankaj Kumar Chakrabarty And Ors Vs. State Of West Bengal | 1968, D/- 31-1-1969 = (AIR 1969 C 1028) (supra) show that Cl. (5) of Article 22 not only contains the obligation of the appropriate Government to furnish the grounds and to give the earliest opportunity to make a representation but also by necessary implication the obligation to consider that representation. Such an obligation is evidently provided for to give an opportunity to the detenu to show and a corresponding opportunity to the appropriate Government to consider any objections against the order which the detenu may raise so that no person is, though error or otherwise, wrongly arrested and detained. If it was intended that such a representation need not be considered by the Government where an Advisory Board is constituted and that representation in such cases is to be considered by the Board and not by the appropriate Government, Clause (5) would not have directed the detaining authority to afford the earliest opportunity to the detenu. In that case the words would more appropriately have been that the authority should obtain the opinion of the Board after giving an opportunity to the detenu to make a representation and communicate the same to the Board.11. But what would happen in cases where the detention is for less than 3 months and there is no necessity of having the opinion of the Board? If counsels contention were to be right the representation in such case would not have to be considered either by the appropriate Government or by the appropriate Government or by the Board and the right of representation and the corresponding obligation of the appropriate Government to give the earliest opportunity to make such representation would be rendered nugatory. In imposing the obligation to afford the opportunity to make a representation Clause (5) does not make any distinction between orders of detention for only 3 months or less and those for a longer duration. The obligation applies to both kinds of orders. The clause does not say that the representation is to be considered by the appropriate Government in the former class of cases and by the Board in the latter class of cases.In our view it is clear from Cls. (4) and (5) of Article 22 that there is a dual obligation on the appropriate Government and a dual right in favour of the detenu, namely, (1) to have his representation irrespective of the length of detention considered by the appropriate Government and (2) to have once again the representation in the light of the circumstances of the case considered by the Board before it gives its opinion.If in the light of that representation the board finds that there is no sufficient cause for detention the Government has to revoke the order of detention and set at liberty the detenu. Thus, whereas the Government considers the representation to ascertain whether the order is in conformity with its power under the relevant law, the Board considers such representation from the point of view of arriving at its opinion whether there is sufficient cause for detention.The obligation of the appropriate Government to afford to the detenu the opportunity to make a representation and to consider that representation is distinct from the Governments obligation to constitute a Board and to communicate the representation amongst other materials to the Board to enable it to form its opinion and to obtain such opinion.12. This conclusion is strengthened by the other provisions of the Act. In conformity with clause (4) and (5) of Art. 22, Section 7 of the Act enjoins upon the detaining authority to furnish to the detenu grounds of detention within five days from the date of his detention and to afford to the detenu the earliest opportunity to make his representation to the appropriate Government. Section 8 and 9 enjoin upon the appropriate Government to constitute an Advisory Board and to place within 30 days from the date of the detention the grounds for detention, the detenus representation and also the report of the officer where the order of detention is made by an officer and not by the Government. The obligation under Section 7 is quite distinct from that under Section 8 and 9.If the representation was for the consideration not by the Government but by the Board only as contended, there was no necessity to provide that it should be addressed to the Government and not directly to the Board. The Government could not have been intended to be only a transmitting authority nor could it have been contemplated that it should sit tight on that representation and remit it to the Board after it is constituted. The peremptory language in Clause (5) of Article 22 and Section 7 of the Act would not have been necessary if the Board and not the Government had to consider the representation. Section 13 also furnishes an answer to the argument of counsel for the State.Under that section the State Government and the Central Government are empowered to revoke or modify an order of detention. That power is evidently provided for to enable the Government to take appropriate action where on a representation made to it finds that the order in question should be modified or even revoked. Obviously, the intention of Parliament could not have been that the appropriate Government should pass an order under Section 13 without considering the representation which has under Section 7 been addressed to it.13. For the reasons aforesaid we are in agreement, with the decision in Sk. Abdul Karims case, W. P. No. 327 of 1968, D/- 31-1-1969 = (AIR 1969 SC 1028 ) (supra).Consequently, the petitioner had a constitutional right and there was on the State Government a corresponding constitutional obligation to consider their representation irrespective of whether they were made before or after their cases were referred to the Advisory Board and that not having been done the order of detention against them cannot be sustained.In this view it is not necessary for us to examine the other objections raised against these orders. | 1[ds]10. It is true that Clause (5) does not in positive language provide as to whom the representation is to be made and by whom, when made, it is to be considered. But the expressions "as soon as may be" and "the earliest opportunity" in that clause clearly indicate that the grounds are to be served and the opportunity to make a representation are provided for to enable the detenu to show that his detention is unwarranted and since no other authority who should consider such representation is mentioned it can only be the detaining authority to whom it is to be made which has to consider it. Though Cl. (5) does not in express terms say so it follows from its provisions that it is the detaining authority which has to give to the detenu the earliest opportunity to make a representation and to consider it when so made whether its order is wrongly or contrary to the law enabling it is detain him. The illustrations given in Sk. Abdul Karims case, W. P. No. 327 of 1968, D/= (AIR 1969 C 1028) (supra) show that Cl. (5) of Article 22 not only contains the obligation of the appropriate Government to furnish the grounds and to give the earliest opportunity to make a representation but also by necessary implication the obligation to consider that representation. Such an obligation is evidently provided for to give an opportunity to the detenu to show and a corresponding opportunity to the appropriate Government to consider any objections against the order which the detenu may raise so that no person is, though error or otherwise, wrongly arrested and detained. If it was intended that such a representation need not be considered by the Government where an Advisory Board is constituted and that representation in such cases is to be considered by the Board and not by the appropriate Government, Clause (5) would not have directed the detaining authority to afford the earliest opportunity to the detenu. In that case the words would more appropriately have been that the authority should obtain the opinion of the Board after giving an opportunity to the detenu to make a representation and communicate the same to the Board.But what would happen in cases where the detention is for less than 3 months and there is no necessity of having the opinion of the Board? If counsels contention were to be right the representation in such case would not have to be considered either by the appropriate Government or by the appropriate Government or by the Board and the right of representation and the corresponding obligation of the appropriate Government to give the earliest opportunity to make such representation would be rendered nugatory. In imposing the obligation to afford the opportunity to make a representation Clause (5) does not make any distinction between orders of detention for only 3 months or less and those for a longer duration. The obligation applies to both kinds of orders. The clause does not say that the representation is to be considered by the appropriate Government in the former class of cases and by the Board in the latter class of cases.In our view it is clear from Cls. (4) and (5) of Article 22 that there is a dual obligation on the appropriate Government and a dual right in favour of the detenu, namely, (1) to have his representation irrespective of the length of detention considered by the appropriate Government and (2) to have once again the representation in the light of the circumstances of the case considered by the Board before it gives its opinion.If in the light of that representation the board finds that there is no sufficient cause for detention the Government has to revoke the order of detention and set at liberty the detenu. Thus, whereas the Government considers the representation to ascertain whether the order is in conformity with its power under the relevant law, the Board considers such representation from the point of view of arriving at its opinion whether there is sufficient cause for detention.The obligation of the appropriate Government to afford to the detenu the opportunity to make a representation and to consider that representation is distinct from the Governments obligation to constitute a Board and to communicate the representation amongst other materials to the Board to enable it to form its opinion and to obtain such opinion.This conclusion is strengthened by the other provisions of the Act. In conformity with clause (4) and (5) of Art. 22, Section 7 of the Act enjoins upon the detaining authority to furnish to the detenu grounds of detention within five days from the date of his detention and to afford to the detenu the earliest opportunity to make his representation to the appropriate Government. Section 8 and 9 enjoin upon the appropriate Government to constitute an Advisory Board and to place within 30 days from the date of the detention the grounds for detention, the detenus representation and also the report of the officer where the order of detention is made by an officer and not by the Government. The obligation under Section 7 is quite distinct from that under Section 8 and 9.If the representation was for the consideration not by the Government but by the Board only as contended, there was no necessity to provide that it should be addressed to the Government and not directly to the Board. The Government could not have been intended to be only a transmitting authority nor could it have been contemplated that it should sit tight on that representation and remit it to the Board after it is constituted. The peremptory language in Clause (5) of Article 22 and Section 7 of the Act would not have been necessary if the Board and not the Government had to consider the representation. Section 13 also furnishes an answer to the argument of counsel for the State.Under that section the State Government and the Central Government are empowered to revoke or modify an order of detention. That power is evidently provided for to enable the Government to take appropriate action where on a representation made to it finds that the order in question should be modified or even revoked. Obviously, the intention of Parliament could not have been that the appropriate Government should pass an order under Section 13 without considering the representation which has under Section 7 been addressed to it.For the reasons aforesaid we are in agreement, with the decision in Sk. Abdul Karims case, W. P. No. 327 of 1968, D/= (AIR 1969 SC 1028 ) (supra).Consequently, the petitioner had a constitutional right and there was on the State Government a corresponding constitutional obligation to consider their representation irrespective of whether they were made before or after their cases were referred to the Advisory Board and that not having been done the order of detention against them cannot be sustained. | 1 | 3,525 | 1,243 | ### 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:
1968, D/- 31-1-1969 = (AIR 1969 C 1028) (supra) show that Cl. (5) of Article 22 not only contains the obligation of the appropriate Government to furnish the grounds and to give the earliest opportunity to make a representation but also by necessary implication the obligation to consider that representation. Such an obligation is evidently provided for to give an opportunity to the detenu to show and a corresponding opportunity to the appropriate Government to consider any objections against the order which the detenu may raise so that no person is, though error or otherwise, wrongly arrested and detained. If it was intended that such a representation need not be considered by the Government where an Advisory Board is constituted and that representation in such cases is to be considered by the Board and not by the appropriate Government, Clause (5) would not have directed the detaining authority to afford the earliest opportunity to the detenu. In that case the words would more appropriately have been that the authority should obtain the opinion of the Board after giving an opportunity to the detenu to make a representation and communicate the same to the Board.11. But what would happen in cases where the detention is for less than 3 months and there is no necessity of having the opinion of the Board? If counsels contention were to be right the representation in such case would not have to be considered either by the appropriate Government or by the appropriate Government or by the Board and the right of representation and the corresponding obligation of the appropriate Government to give the earliest opportunity to make such representation would be rendered nugatory. In imposing the obligation to afford the opportunity to make a representation Clause (5) does not make any distinction between orders of detention for only 3 months or less and those for a longer duration. The obligation applies to both kinds of orders. The clause does not say that the representation is to be considered by the appropriate Government in the former class of cases and by the Board in the latter class of cases.In our view it is clear from Cls. (4) and (5) of Article 22 that there is a dual obligation on the appropriate Government and a dual right in favour of the detenu, namely, (1) to have his representation irrespective of the length of detention considered by the appropriate Government and (2) to have once again the representation in the light of the circumstances of the case considered by the Board before it gives its opinion.If in the light of that representation the board finds that there is no sufficient cause for detention the Government has to revoke the order of detention and set at liberty the detenu. Thus, whereas the Government considers the representation to ascertain whether the order is in conformity with its power under the relevant law, the Board considers such representation from the point of view of arriving at its opinion whether there is sufficient cause for detention.The obligation of the appropriate Government to afford to the detenu the opportunity to make a representation and to consider that representation is distinct from the Governments obligation to constitute a Board and to communicate the representation amongst other materials to the Board to enable it to form its opinion and to obtain such opinion.12. This conclusion is strengthened by the other provisions of the Act. In conformity with clause (4) and (5) of Art. 22, Section 7 of the Act enjoins upon the detaining authority to furnish to the detenu grounds of detention within five days from the date of his detention and to afford to the detenu the earliest opportunity to make his representation to the appropriate Government. Section 8 and 9 enjoin upon the appropriate Government to constitute an Advisory Board and to place within 30 days from the date of the detention the grounds for detention, the detenus representation and also the report of the officer where the order of detention is made by an officer and not by the Government. The obligation under Section 7 is quite distinct from that under Section 8 and 9.If the representation was for the consideration not by the Government but by the Board only as contended, there was no necessity to provide that it should be addressed to the Government and not directly to the Board. The Government could not have been intended to be only a transmitting authority nor could it have been contemplated that it should sit tight on that representation and remit it to the Board after it is constituted. The peremptory language in Clause (5) of Article 22 and Section 7 of the Act would not have been necessary if the Board and not the Government had to consider the representation. Section 13 also furnishes an answer to the argument of counsel for the State.Under that section the State Government and the Central Government are empowered to revoke or modify an order of detention. That power is evidently provided for to enable the Government to take appropriate action where on a representation made to it finds that the order in question should be modified or even revoked. Obviously, the intention of Parliament could not have been that the appropriate Government should pass an order under Section 13 without considering the representation which has under Section 7 been addressed to it.13. For the reasons aforesaid we are in agreement, with the decision in Sk. Abdul Karims case, W. P. No. 327 of 1968, D/- 31-1-1969 = (AIR 1969 SC 1028 ) (supra).Consequently, the petitioner had a constitutional right and there was on the State Government a corresponding constitutional obligation to consider their representation irrespective of whether they were made before or after their cases were referred to the Advisory Board and that not having been done the order of detention against them cannot be sustained.In this view it is not necessary for us to examine the other objections raised against these orders.
### Response:
1
### Explanation:
or contrary to the law enabling it is detain him. The illustrations given in Sk. Abdul Karims case, W. P. No. 327 of 1968, D/= (AIR 1969 C 1028) (supra) show that Cl. (5) of Article 22 not only contains the obligation of the appropriate Government to furnish the grounds and to give the earliest opportunity to make a representation but also by necessary implication the obligation to consider that representation. Such an obligation is evidently provided for to give an opportunity to the detenu to show and a corresponding opportunity to the appropriate Government to consider any objections against the order which the detenu may raise so that no person is, though error or otherwise, wrongly arrested and detained. If it was intended that such a representation need not be considered by the Government where an Advisory Board is constituted and that representation in such cases is to be considered by the Board and not by the appropriate Government, Clause (5) would not have directed the detaining authority to afford the earliest opportunity to the detenu. In that case the words would more appropriately have been that the authority should obtain the opinion of the Board after giving an opportunity to the detenu to make a representation and communicate the same to the Board.But what would happen in cases where the detention is for less than 3 months and there is no necessity of having the opinion of the Board? If counsels contention were to be right the representation in such case would not have to be considered either by the appropriate Government or by the appropriate Government or by the Board and the right of representation and the corresponding obligation of the appropriate Government to give the earliest opportunity to make such representation would be rendered nugatory. In imposing the obligation to afford the opportunity to make a representation Clause (5) does not make any distinction between orders of detention for only 3 months or less and those for a longer duration. The obligation applies to both kinds of orders. The clause does not say that the representation is to be considered by the appropriate Government in the former class of cases and by the Board in the latter class of cases.In our view it is clear from Cls. (4) and (5) of Article 22 that there is a dual obligation on the appropriate Government and a dual right in favour of the detenu, namely, (1) to have his representation irrespective of the length of detention considered by the appropriate Government and (2) to have once again the representation in the light of the circumstances of the case considered by the Board before it gives its opinion.If in the light of that representation the board finds that there is no sufficient cause for detention the Government has to revoke the order of detention and set at liberty the detenu. Thus, whereas the Government considers the representation to ascertain whether the order is in conformity with its power under the relevant law, the Board considers such representation from the point of view of arriving at its opinion whether there is sufficient cause for detention.The obligation of the appropriate Government to afford to the detenu the opportunity to make a representation and to consider that representation is distinct from the Governments obligation to constitute a Board and to communicate the representation amongst other materials to the Board to enable it to form its opinion and to obtain such opinion.This conclusion is strengthened by the other provisions of the Act. In conformity with clause (4) and (5) of Art. 22, Section 7 of the Act enjoins upon the detaining authority to furnish to the detenu grounds of detention within five days from the date of his detention and to afford to the detenu the earliest opportunity to make his representation to the appropriate Government. Section 8 and 9 enjoin upon the appropriate Government to constitute an Advisory Board and to place within 30 days from the date of the detention the grounds for detention, the detenus representation and also the report of the officer where the order of detention is made by an officer and not by the Government. The obligation under Section 7 is quite distinct from that under Section 8 and 9.If the representation was for the consideration not by the Government but by the Board only as contended, there was no necessity to provide that it should be addressed to the Government and not directly to the Board. The Government could not have been intended to be only a transmitting authority nor could it have been contemplated that it should sit tight on that representation and remit it to the Board after it is constituted. The peremptory language in Clause (5) of Article 22 and Section 7 of the Act would not have been necessary if the Board and not the Government had to consider the representation. Section 13 also furnishes an answer to the argument of counsel for the State.Under that section the State Government and the Central Government are empowered to revoke or modify an order of detention. That power is evidently provided for to enable the Government to take appropriate action where on a representation made to it finds that the order in question should be modified or even revoked. Obviously, the intention of Parliament could not have been that the appropriate Government should pass an order under Section 13 without considering the representation which has under Section 7 been addressed to it.For the reasons aforesaid we are in agreement, with the decision in Sk. Abdul Karims case, W. P. No. 327 of 1968, D/= (AIR 1969 SC 1028 ) (supra).Consequently, the petitioner had a constitutional right and there was on the State Government a corresponding constitutional obligation to consider their representation irrespective of whether they were made before or after their cases were referred to the Advisory Board and that not having been done the order of detention against them cannot be sustained.
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The Branch Manager, M/s. Magma Leasing & Finance Limited & Another Vs. Potluri Madhavilata & Another | the arbitration clause." 17. Recently, in the case of P.Manohar Reddy & Bros. vs. Maharashtra Krishna Valley Development Corporation And Ors (2009) 2 SCC 494. , while dealing with the argument of the respondent therein that in terms of the contract the claim for extra work or additional work should have been raised during the pendency of the contract itself and not after it came to an end, this Court considered the concept of separability of the arbitration clause from the contract and made the following observations: "27. An arbitration clause, as is well known, is a part of the contract. It being a collateral term need not, in all situations, perish with coming to an end of the contract. It may survive. This concept of separability of the arbitration clause is now widely accepted. In line with this thinking, the UNCITRAL Model Law on International Commercial Arbitration incorporates the doctrine of separability in Article 16(1). The Indian law -- the Arbitration and Conciliation Act, 1996, which is based on the UNCITRAL Model Law, also explicitly adopts this approach in Section 16(1)(b), which reads as under:"16. Competence of Arbitral Tribunal to rule on its jurisdiction.--(1) The Arbitral Tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement, and for that purpose,--(a) an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract; and(b) a decision by the Arbitral Tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause." (emphasis supplied)Modern laws on arbitration confirm the concept.28. The United States Supreme Court in a recent judgment in Buckeye Check Cashing Inc. v. Cardegna [546 US 460 (2005)] acknowledged that the separability rule permits a court "to enforce an arbitration agreement in a contract that the arbitrator later finds to be void". The Court, referring to its earlier judgments in Prima Paint Corpn. v. Flood & Conklin Mfg. Co.[18 L.Ed. 2d 1270] and Southland Corpn. v. Keating [465 US 1 (1984)], inter alia, held:"Prima Paint and Southland answer the question presented here by establishing three propositions. First, as a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract." But this must be distinguished from the situation where the claim itself was to be raised during the subsistence of a contract so as to invoke the arbitration agreement would not apply." 18. The statement of law expounded by Viscount Simon, L.C. in the case of Heyman as noticed above, in our view, equally applies to situation where the contract is terminated by one party on account of the breach committed by the other particularly in a case where the clause is framed in wide and general terms. Merely because the contract has come to an end by its termination due to breach, the arbitration clause does not get perished nor rendered inoperative; rather it survives for resolution of disputes arising "in respect of" or "with regard to" or "under" the contract. This is in line with the earlier decisions of this Court, particularly as laid down in Kishori Lal Gupta & Bros.19. In the instant case, clause 22 of the hire purchase agreement that provides for arbitration has been couched in widest possible terms as can well be imagined. It embraces all disputes, differences, claims and questions between the parties arising out of the said agreement or in any way relating thereto. The hire purchase agreement having been admittedly entered into between the parties and the disputes and differences have since arisen between them, we hold, as it must be, that the arbitration clause 22 survives for the purpose of their resolution although the contract has come to an end on account of its termination. 20. The next question, an incidental one, that arises for consideration is whether the trial court must refer the parties to arbitration under Section 8 of the Act, 1996. 21. Section 8 reads thus: "8. Power to refer parties to arbitration where there is an arbitration agreement.--(1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.(2) The application referred to in sub-section(1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made." 22. An analysis of Section 8 would show that for its applicability, the following conditions must be satisfied: (a) that there exists an arbitration agreement; (b) that action has been brought to the court by one party to the arbitration agreement against the other party; (c) that the subject matter of the suit is same as the subject matter of the arbitration agreement; (d) that the other party before he submits his first statement of the substance of the dispute, moves the court for referring the parties to arbitration; and (e) that along with the application the other party tenders the original arbitration agreement or duly certified copy thereof. 23. Section 8 is in the form of legislative command to the court and once the pre-requisite conditions as aforestated are satisfied, the court must refer the parties to arbitration. As a matter of fact, on fulfillment of conditions of Section 8, no option is left to the court and the court has to refer the parties to arbitration.24. There is nothing on record that the pre-requisite conditions of Section 8 are not fully satisfied in the present case. The trial court, in the circumstances, ought to have referred the parties to arbitration as per arbitration clause 22. | 1[ds]18. The statement of law expounded by Viscount Simon, L.C. in the case of Heyman as noticed above, in our view, equally applies to situation where the contract is terminated by one party on account of the breach committed by the other particularly in a case where the clause is framed in wide and general terms. Merely because the contract has come to an end by its termination due to breach, the arbitration clause does not get perished nor rendered inoperative; rather it survives for resolution of disputes arising "in respect of" or "with regard to" or "under" the contract. This is in line with the earlier decisions of this Court, particularly as laid down in Kishori Lal Gupta & Bros.19. In the instant case, clause 22 of the hire purchase agreement that provides for arbitration has been couched in widest possible terms as can well be imagined. It embraces all disputes, differences, claims and questions between the parties arising out of the said agreement or in any way relating thereto. The hire purchase agreement having been admittedly entered into between the parties and the disputes and differences have since arisen between them, we hold, as it must be, that the arbitration clause 22 survives for the purpose of their resolution although the contract has come to an end on account of its termination.Section 8 is in the form of legislative command to the court and once theconditions as aforestated are satisfied, the court must refer the parties to arbitration. As a matter of fact, on fulfillment of conditions of Section 8, no option is left to the court and the court has to refer the parties to arbitration.24. There is nothing on record that theconditions of Section 8 are not fully satisfied in the present case. The trial court, in the circumstances, ought to have referred the parties to arbitration as per arbitration clause 22. | 1 | 5,826 | 354 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
the arbitration clause." 17. Recently, in the case of P.Manohar Reddy & Bros. vs. Maharashtra Krishna Valley Development Corporation And Ors (2009) 2 SCC 494. , while dealing with the argument of the respondent therein that in terms of the contract the claim for extra work or additional work should have been raised during the pendency of the contract itself and not after it came to an end, this Court considered the concept of separability of the arbitration clause from the contract and made the following observations: "27. An arbitration clause, as is well known, is a part of the contract. It being a collateral term need not, in all situations, perish with coming to an end of the contract. It may survive. This concept of separability of the arbitration clause is now widely accepted. In line with this thinking, the UNCITRAL Model Law on International Commercial Arbitration incorporates the doctrine of separability in Article 16(1). The Indian law -- the Arbitration and Conciliation Act, 1996, which is based on the UNCITRAL Model Law, also explicitly adopts this approach in Section 16(1)(b), which reads as under:"16. Competence of Arbitral Tribunal to rule on its jurisdiction.--(1) The Arbitral Tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement, and for that purpose,--(a) an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract; and(b) a decision by the Arbitral Tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause." (emphasis supplied)Modern laws on arbitration confirm the concept.28. The United States Supreme Court in a recent judgment in Buckeye Check Cashing Inc. v. Cardegna [546 US 460 (2005)] acknowledged that the separability rule permits a court "to enforce an arbitration agreement in a contract that the arbitrator later finds to be void". The Court, referring to its earlier judgments in Prima Paint Corpn. v. Flood & Conklin Mfg. Co.[18 L.Ed. 2d 1270] and Southland Corpn. v. Keating [465 US 1 (1984)], inter alia, held:"Prima Paint and Southland answer the question presented here by establishing three propositions. First, as a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract." But this must be distinguished from the situation where the claim itself was to be raised during the subsistence of a contract so as to invoke the arbitration agreement would not apply." 18. The statement of law expounded by Viscount Simon, L.C. in the case of Heyman as noticed above, in our view, equally applies to situation where the contract is terminated by one party on account of the breach committed by the other particularly in a case where the clause is framed in wide and general terms. Merely because the contract has come to an end by its termination due to breach, the arbitration clause does not get perished nor rendered inoperative; rather it survives for resolution of disputes arising "in respect of" or "with regard to" or "under" the contract. This is in line with the earlier decisions of this Court, particularly as laid down in Kishori Lal Gupta & Bros.19. In the instant case, clause 22 of the hire purchase agreement that provides for arbitration has been couched in widest possible terms as can well be imagined. It embraces all disputes, differences, claims and questions between the parties arising out of the said agreement or in any way relating thereto. The hire purchase agreement having been admittedly entered into between the parties and the disputes and differences have since arisen between them, we hold, as it must be, that the arbitration clause 22 survives for the purpose of their resolution although the contract has come to an end on account of its termination. 20. The next question, an incidental one, that arises for consideration is whether the trial court must refer the parties to arbitration under Section 8 of the Act, 1996. 21. Section 8 reads thus: "8. Power to refer parties to arbitration where there is an arbitration agreement.--(1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.(2) The application referred to in sub-section(1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made." 22. An analysis of Section 8 would show that for its applicability, the following conditions must be satisfied: (a) that there exists an arbitration agreement; (b) that action has been brought to the court by one party to the arbitration agreement against the other party; (c) that the subject matter of the suit is same as the subject matter of the arbitration agreement; (d) that the other party before he submits his first statement of the substance of the dispute, moves the court for referring the parties to arbitration; and (e) that along with the application the other party tenders the original arbitration agreement or duly certified copy thereof. 23. Section 8 is in the form of legislative command to the court and once the pre-requisite conditions as aforestated are satisfied, the court must refer the parties to arbitration. As a matter of fact, on fulfillment of conditions of Section 8, no option is left to the court and the court has to refer the parties to arbitration.24. There is nothing on record that the pre-requisite conditions of Section 8 are not fully satisfied in the present case. The trial court, in the circumstances, ought to have referred the parties to arbitration as per arbitration clause 22.
### Response:
1
### Explanation:
18. The statement of law expounded by Viscount Simon, L.C. in the case of Heyman as noticed above, in our view, equally applies to situation where the contract is terminated by one party on account of the breach committed by the other particularly in a case where the clause is framed in wide and general terms. Merely because the contract has come to an end by its termination due to breach, the arbitration clause does not get perished nor rendered inoperative; rather it survives for resolution of disputes arising "in respect of" or "with regard to" or "under" the contract. This is in line with the earlier decisions of this Court, particularly as laid down in Kishori Lal Gupta & Bros.19. In the instant case, clause 22 of the hire purchase agreement that provides for arbitration has been couched in widest possible terms as can well be imagined. It embraces all disputes, differences, claims and questions between the parties arising out of the said agreement or in any way relating thereto. The hire purchase agreement having been admittedly entered into between the parties and the disputes and differences have since arisen between them, we hold, as it must be, that the arbitration clause 22 survives for the purpose of their resolution although the contract has come to an end on account of its termination.Section 8 is in the form of legislative command to the court and once theconditions as aforestated are satisfied, the court must refer the parties to arbitration. As a matter of fact, on fulfillment of conditions of Section 8, no option is left to the court and the court has to refer the parties to arbitration.24. There is nothing on record that theconditions of Section 8 are not fully satisfied in the present case. The trial court, in the circumstances, ought to have referred the parties to arbitration as per arbitration clause 22.
|
I.C.D.S. Ltd Vs. Beena Shabeer | Negotiable Instruments Act." (6) After having noted the interpretation of the High Court as regards Section 138 of the Act, time has thus now come for us to assess the acceptability of such a wisdom. Before however doing so, a brief factual reference would be convenient.The facts reveal : The appellant herein is a Company incorporated under the provisions of the Companies Act, 1956, having its registered and administrative office at Syndicate House, P.B. No. 46, Upendra Nagar, Manipal-576119 and branches among other places at Palayam, Trivandrum. The husband of respondent No. 1 entered into a hire-purchase agreement with the appellant for the purposes of the purchase of a Maruti car on hire purchase basis. The respondent No. 1, his wife stood as a guarantor in respect of the hire purchase facilities being made available to her husband. The facts further reveal that the respondent No. 1, on account of the aforesaid transaction and towards part payment issued a cheque bearing No. 672501 dated 29-8-1998 for Rs. 80,490.00 drawn on Catholic Syrian Bank Limited, St. Marys School, Pattom, Trivandrum to the Appellant. Admittedly, the said cheque was dishonoured and returned to the appellant with a remark "insufficient funds".(7) The factual matrix depict that the appellant issued a statutory notice on 2-9-1998 as contemplated under Section 138 of the Negotiable Instruments Act, calling upon the respondent No. 1 to pay the amount covered under the cheque within a period of 15 days and since the respondent No. 1 did not think it fit and proper to reply to the said notice in spite of receipt thereof, the appellant thereafter filed a complaint under Section 138 of the Act before the Chief Judicial Magistrates Court, Thiruvananthapuram. The complaint has been registered as S. T. No. 141/1999 in the Court of the Additional Chief Judicial Magistrate, Thiruvanantha-puram and subsequently the case was taken on file for the purposes of the complaint and immediately thereafter, the respondents herein moved a petition under Section 482 of the Code of Criminal Procedure for quashing of the complaint and the proceedings noticed above pending before the Additional Chief Judicial Magistrates Court, Thiruvananthapuram.(8) The High Court, as noticed above, did allow the Petition upon a categorical finding that being a cheque from the guarantor it could not be said to have been issued for the purpose of discharging any debt or liability and the complaint under Section 138 of the Negotiable Instruments Act, 1881, thus cannot be maintained.(9) As noticed hereinbefore, the principal reason for quashing of the proceeding as also the complaint by the High Court was by reason of the fact that Section 138 of the Act provides for issuance of a cheque to another person towards the discharge in whole or in part of any debt or liability and on the factual context, the High Court came to a conclusion that issuance of the cheque cannot be co-related for the purpose of discharging any debt or liability and as such complaint under Section 138 cannot be maintainable. (10) The language, however, has been rather specific as regards the intent of the legislature. The commencement of the Section stands with the words "Where any cheque". The above noted three words are of extreme significance, in particular, by reason of the user of the word "any" the first three words suggest that in fact for whatever reason if a cheque is drawn on an account maintained by him with a banker in favour of another person for the discharge of any of debt or other liability, the highlighed words if read with the first three words at the commencement of Section 138, leave no manner of doubt that for whatever reason it may be, the liability under this provision cannot be avoided in the event the same stands returned by the banker unpaid. The legislature has been careful enough to record not only discharge in whole or in part of any debt but the same includes other liability as well. This aspect of the matter has not been appreciated by the High Court, neither been dealt with or even referred to in the impugned judgment. (11) The issue as regards the co-extensive liability of the guarantor and the principal debtor, in our view, is totally out of the purview of Section 138 of the Act, neither the same calls for any discussion therein. The language of the Statute depicts the intent of the law-makers to the effect that wherever there is a default on the part of one in favour of another and in the event a cheque is issued in discharge of any debt or other liability there cannot be any restriction or embagro in the matter of application of the provisions of Section 138 of the Act : Any cheque and other liability are the two key expressions which stands as clarifying the legislative intent so as to bring the factual context within the ambit of the provisions of the Statute. Any contra interpretation would defeat the intent of the legisalture. The High Court, it seems, got carried away by the issue of guarantee and guarantors liability and thus has overlooked the true intent and purport of Section 138 of the Act. The judgments recorded in the order of the High Court do not have any relevance in the contextual facts and the same thus does not lend any assistance to the contentions raised by the respondents.(12) It is to be noted, however, that both the parties during the course of arguments have made elaborate submissions on Sections 126 and 128 of the Contract Act, but in our view, by reason of the specific language used by the legislature, question of consideration of the matter from the point of view of another Statute would not arise, neither we would like to express any view since that may have some effect as regards the merits.(13) In our view the High Court fell into a manifest error and as such the judgment impugned cannot obtain our concurrence. | 1[ds](11) The issue as regards the co-extensive liability of the guarantor and the principal debtor, in our view, is totally out of the purview of Section 138 of the Act, neither the same calls for any discussion therein. The language of the Statute depicts the intent of the law-makers to the effect that wherever there is a default on the part of one in favour of another and in the event a cheque is issued in discharge of any debt or other liability there cannot be any restriction or embagro in the matter of application of the provisions of Section 138 of the Act : Any cheque and other liability are the two key expressions which stands as clarifying the legislative intent so as to bring the factual context within the ambit of the provisions of the Statute. Any contra interpretation would defeat the intent of the legisalture. The High Court, it seems, got carried away by the issue of guarantee and guarantors liability and thus has overlooked the true intent and purport of Section 138 of the Act. The judgments recorded in the order of the High Court do not have any relevance in the contextual facts and the same thus does not lend any assistance to the contentions raised by the respondents.(12) It is to be noted, however, that both the parties during the course of arguments have made elaborate submissions on Sections 126 and 128 of the Contract Act, but in our view, by reason of the specific language used by the legislature, question of consideration of the matter from the point of view of another Statute would not arise, neither we would like to express any view since that may have some effect as regards the merits.(13) In our view the High Court fell into a manifest error and as such the judgment impugned cannot obtain our concurrence. | 1 | 2,065 | 344 | ### 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:
Negotiable Instruments Act." (6) After having noted the interpretation of the High Court as regards Section 138 of the Act, time has thus now come for us to assess the acceptability of such a wisdom. Before however doing so, a brief factual reference would be convenient.The facts reveal : The appellant herein is a Company incorporated under the provisions of the Companies Act, 1956, having its registered and administrative office at Syndicate House, P.B. No. 46, Upendra Nagar, Manipal-576119 and branches among other places at Palayam, Trivandrum. The husband of respondent No. 1 entered into a hire-purchase agreement with the appellant for the purposes of the purchase of a Maruti car on hire purchase basis. The respondent No. 1, his wife stood as a guarantor in respect of the hire purchase facilities being made available to her husband. The facts further reveal that the respondent No. 1, on account of the aforesaid transaction and towards part payment issued a cheque bearing No. 672501 dated 29-8-1998 for Rs. 80,490.00 drawn on Catholic Syrian Bank Limited, St. Marys School, Pattom, Trivandrum to the Appellant. Admittedly, the said cheque was dishonoured and returned to the appellant with a remark "insufficient funds".(7) The factual matrix depict that the appellant issued a statutory notice on 2-9-1998 as contemplated under Section 138 of the Negotiable Instruments Act, calling upon the respondent No. 1 to pay the amount covered under the cheque within a period of 15 days and since the respondent No. 1 did not think it fit and proper to reply to the said notice in spite of receipt thereof, the appellant thereafter filed a complaint under Section 138 of the Act before the Chief Judicial Magistrates Court, Thiruvananthapuram. The complaint has been registered as S. T. No. 141/1999 in the Court of the Additional Chief Judicial Magistrate, Thiruvanantha-puram and subsequently the case was taken on file for the purposes of the complaint and immediately thereafter, the respondents herein moved a petition under Section 482 of the Code of Criminal Procedure for quashing of the complaint and the proceedings noticed above pending before the Additional Chief Judicial Magistrates Court, Thiruvananthapuram.(8) The High Court, as noticed above, did allow the Petition upon a categorical finding that being a cheque from the guarantor it could not be said to have been issued for the purpose of discharging any debt or liability and the complaint under Section 138 of the Negotiable Instruments Act, 1881, thus cannot be maintained.(9) As noticed hereinbefore, the principal reason for quashing of the proceeding as also the complaint by the High Court was by reason of the fact that Section 138 of the Act provides for issuance of a cheque to another person towards the discharge in whole or in part of any debt or liability and on the factual context, the High Court came to a conclusion that issuance of the cheque cannot be co-related for the purpose of discharging any debt or liability and as such complaint under Section 138 cannot be maintainable. (10) The language, however, has been rather specific as regards the intent of the legislature. The commencement of the Section stands with the words "Where any cheque". The above noted three words are of extreme significance, in particular, by reason of the user of the word "any" the first three words suggest that in fact for whatever reason if a cheque is drawn on an account maintained by him with a banker in favour of another person for the discharge of any of debt or other liability, the highlighed words if read with the first three words at the commencement of Section 138, leave no manner of doubt that for whatever reason it may be, the liability under this provision cannot be avoided in the event the same stands returned by the banker unpaid. The legislature has been careful enough to record not only discharge in whole or in part of any debt but the same includes other liability as well. This aspect of the matter has not been appreciated by the High Court, neither been dealt with or even referred to in the impugned judgment. (11) The issue as regards the co-extensive liability of the guarantor and the principal debtor, in our view, is totally out of the purview of Section 138 of the Act, neither the same calls for any discussion therein. The language of the Statute depicts the intent of the law-makers to the effect that wherever there is a default on the part of one in favour of another and in the event a cheque is issued in discharge of any debt or other liability there cannot be any restriction or embagro in the matter of application of the provisions of Section 138 of the Act : Any cheque and other liability are the two key expressions which stands as clarifying the legislative intent so as to bring the factual context within the ambit of the provisions of the Statute. Any contra interpretation would defeat the intent of the legisalture. The High Court, it seems, got carried away by the issue of guarantee and guarantors liability and thus has overlooked the true intent and purport of Section 138 of the Act. The judgments recorded in the order of the High Court do not have any relevance in the contextual facts and the same thus does not lend any assistance to the contentions raised by the respondents.(12) It is to be noted, however, that both the parties during the course of arguments have made elaborate submissions on Sections 126 and 128 of the Contract Act, but in our view, by reason of the specific language used by the legislature, question of consideration of the matter from the point of view of another Statute would not arise, neither we would like to express any view since that may have some effect as regards the merits.(13) In our view the High Court fell into a manifest error and as such the judgment impugned cannot obtain our concurrence.
### Response:
1
### Explanation:
(11) The issue as regards the co-extensive liability of the guarantor and the principal debtor, in our view, is totally out of the purview of Section 138 of the Act, neither the same calls for any discussion therein. The language of the Statute depicts the intent of the law-makers to the effect that wherever there is a default on the part of one in favour of another and in the event a cheque is issued in discharge of any debt or other liability there cannot be any restriction or embagro in the matter of application of the provisions of Section 138 of the Act : Any cheque and other liability are the two key expressions which stands as clarifying the legislative intent so as to bring the factual context within the ambit of the provisions of the Statute. Any contra interpretation would defeat the intent of the legisalture. The High Court, it seems, got carried away by the issue of guarantee and guarantors liability and thus has overlooked the true intent and purport of Section 138 of the Act. The judgments recorded in the order of the High Court do not have any relevance in the contextual facts and the same thus does not lend any assistance to the contentions raised by the respondents.(12) It is to be noted, however, that both the parties during the course of arguments have made elaborate submissions on Sections 126 and 128 of the Contract Act, but in our view, by reason of the specific language used by the legislature, question of consideration of the matter from the point of view of another Statute would not arise, neither we would like to express any view since that may have some effect as regards the merits.(13) In our view the High Court fell into a manifest error and as such the judgment impugned cannot obtain our concurrence.
|
K. Srinivas Rao Vs. D.A. Deepa | Being trained in the skill of mediation, they produce good results. 33. The idea of pre-litigation mediation is also catching up. Some mediation centres have, after giving wide publicity, set up Help Desks at prominent places including facilitation centres at court complexes to conduct pre-litigation mediation. We are informed that in Delhi Government Mediation and Conciliation Centres, and in Delhi High Court Mediation Centre, several matrimonial disputes are settled. These centres have a good success rate in pre-litigation mediation. If all mediation centres set up pre-litigation desks/clinics by giving sufficient publicity and matrimonial disputes are taken up for pre-litigation settlement, many families will be saved of hardship if, at least, some of them are settled. 34. While purely a civil matrimonial dispute can be amicably settled by a Family Court either by itself or by directing the parties to explore the possibility of settlement through mediation, a complaint under Section 498-A of the IPC presents difficulty because the said offence is not compoundable except in the State of Andhra Pradesh where by a State amendment, it has been made compoundable. Though in Ramgopal & Anr. v. State of Madhya Pradesh & Anr. [(2010) 13 SCC 540] , this Court requested the Law Commission and the Government of India to examine whether offence punishable under Section 498-A of the IPC could be made compoundable, it has not been made compoundable as yet. The courts direct parties to approach mediation centres where offences are compoundable. Offence punishable under Section 498-A being a non-compoundable offence, such a course is not followed in respect thereof. This Court has always adopted a positive approach and encouraged settlement of matrimonial disputes and discouraged their escalation. In this connection, we must refer to the relevant paragraph from G.V. Rao v. L.H.V. Prasad & Ors. [(2000) 3 SCC 693] , where the complaint appeared to be the result of matrimonial dispute, while refusing to interfere with the High Courts order quashing the complaint, this court made very pertinent observations, which read thus: 12. There has been an outburst of matrimonial disputes in recent times. Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their young days in chasing their cases in different courts. In B.S. Joshi & Ors. v. State of Haryana & Anr. [AIR 2003 SC 1386 ], after referring to the above observations, this Court stated that the said observations are required to be kept in view by courts while dealing with matrimonial disputes and held that complaint involving offence under Section 498-A of the IPC can be quashed by the High Court in exercise of its powers under Section 482 of the Code if the parties settle their dispute. Even in Gian Singh v. State of Punjab & Anr. [(2012) 10 SCC 303] , this Court expressed that certain offences which overwhelmingly and predominantly bear civil flavour like those arising out of matrimony, particularly relating to dowry, etc. or the family dispute and where the offender and the victim had settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may quash the criminal proceedings if it feels that by not quashing the same, the ends of justice shall be defeated. 35. We, therefore, feel that though offence punishable under Section 498-A of the IPC is not compoundable, in appropriate cases if the parties are willing and if it appears to the criminal court that there exist elements of settlement, it should direct the parties to explore the possibility of settlement through mediation. This is, obviously, not to dilute the rigour, efficacy and purport of Section 498-A of the IPC, but to locate cases where the matrimonial dispute can be nipped in bud in an equitable manner. The judges, with their expertise, must ensure that this exercise does not lead to the erring spouse using mediation process to get out of clutches of the law. During mediation, the parties can either decide to part company on mutually agreed terms or they may decide to patch up and stay together. In either case for the settlement to come through, the complaint will have to be quashed. In that event, they can approach the High Court and get the complaint quashed. If however they chose not to settle, they can proceed with the complaint. In this exercise, there is no loss to anyone. If there is settlement, the parties will be saved from the trials and tribulations of a criminal case and that will reduce the burden on the courts which will be in the larger public interest. Obviously, the High Court will quash the complaint only if after considering all circumstances it finds the settlement to be equitable and genuine. Such a course, in our opinion, will be beneficial to those who genuinely want to accord a quietus to their matrimonial disputes. We would, however, like to clarify that reduction of burden of cases on the courts will, however, be merely an incidental benefit and not the reason for sending the parties for mediation. We recognize mediation as an effective method of alternative dispute resolution in matrimonial matters and that is the reason why we want the parties to explore the possibility of settlement through mediation in matrimonial disputes. 36. | 0[ds]28. In the ultimate analysis, we hold that the respondent-wife has caused by her conduct mental cruelty to the appellant-husband and the marriage has irretrievably broken down. Dissolution of marriage will relieve both sides of pain and anguish. In this Court the respondent-wife expressed that she wants to go back to the appellant-husband, but, that is not possible now. The appellant-husband is not willing to take her back. Even if we refuse decree of divorce to the appellant-husband, there are hardly any chances of the respondent-wife leading a happy life with the appellant-husband because a lot of bitterness is created by the conduct of the respondent-wife29. In Vijay Kumar, it was submitted that if the decree of divorce is set aside, there may be fresh avenues and scope for reconciliation between parties. This court observed that judged in the background of all surrounding circumstances, the claim appeared to be too desolate, merely born out of despair rather than based upon any real, concrete or genuine purpose or aim. In the facts of this case we feel the same30. While we are of the opinion that decree of divorce must be granted, we are alive to the plight of the respondent-wife. The appellant-husband is working as an Assistant Registrar in the Andhra Pradesh High Court. He is getting a good salary. The respondent-wife fought the litigation for more than 10 years. She appears to be entirely dependent on her parents and on her brother, therefore, her future must be secured by directing the appellant-husband to give her permanent alimony. In the facts and circumstance of this case, we are of the opinion that the appellant-husband should be directed to pay a sum of Rs.15,00,000/- (Rupees Fifteen Lakhs only) to the respondent-wife as and by way of permanent alimony. In the result, the impugned judgment is quashed and set aside. The marriage between the appellant-husband - K. Srinivas Rao and the respondent-wife -D.A. Deepa is dissolved by a decree of divorce. The appellant-husband shall pay to the respondent-wife permanent alimony in the sum of Rs.15,00,000/-, in three instalments. The first instalment of Rs.5,00,000/- (Rupees Five Lakhs only) should be paid on 15/03/2013 and the remaining amount of Rs.10,00,000/- (Rupees Ten Lakhs only) should be paid in instalments of Rs.5,00,000/- each after a gap of two months i.e. on 15/05/2013 and 15/07/2013 respectively. Each instalment of Rs.5,00,000/- be paid by a demand draft drawn in favour of the respondent-wife D.A. Deepa31. Before parting, we wish to touch upon an issue which needs to be discussed in the interest of victims of matrimonial disputes. Though in this case, we have recorded a finding that by her conduct, the respondent- wife has caused mental cruelty to the appellant-husband, we may not be understood, however, to have said that the fault lies only with the respondent-wife. In matrimonial disputes there is hardly any case where one spouse is entirely at fault. But, then, before the dispute assumes alarming proportions, someone must make efforts to make parties see reasonIn this case, if at the earliest stage, before the respondent-wife filed the complaint making indecent allegation against her mother-in-law, she were to be counselled by an independent and sensible elder or if the parties were sent to a mediation centre or if they had access to a pre-litigation clinic, perhaps the bitterness would not have escalated. Things would not have come to such a pass if, at the earliest, somebody had mediated between the two. It is possible that the respondent-wife was desperate to save the marriage. Perhaps, in desperation, she lost balance and went on filing complaints. It is possible that she was misguided. Perhaps, the appellant-husband should have forgiven her indiscretion in filing complaints in the larger interest of matrimony. But, the way the respondent-wife approached the problem was wrong. It portrays a vindictive mind. She caused extreme mental cruelty to the appellant-husband. Now the marriage is beyond repairWe, therefore, feel that though offence punishable under Section 498-A of the IPC is not compoundable, in appropriate cases if the parties are willing and if it appears to the criminal court that there exist elements of settlement, it should direct the parties to explore the possibility of settlement through mediation. This is, obviously, not to dilute the rigour, efficacy and purport of Section 498-A of the IPC, but to locate cases where the matrimonial dispute can be nipped in bud in an equitable manner. The judges, with their expertise, must ensure that this exercise does not lead to the erring spouse using mediation process to get out of clutches of the law. During mediation, the parties can either decide to part company on mutually agreed terms or they may decide to patch up and stay together. In either case for the settlement to come through, the complaint will have to be quashed. In that event, they can approach the High Court and get the complaint quashed. If however they chose not to settle, they can proceed with the complaint. In this exercise, there is no loss to anyone. If there is settlement, the parties will be saved from the trials and tribulations of a criminal case and that will reduce the burden on the courts which will be in the larger public interest. Obviously, the High Court will quash the complaint only if after considering all circumstances it finds the settlement to be equitable and genuine. Such a course, in our opinion, will be beneficial to those who genuinely want to accord a quietus to their matrimonial disputes. We would, however, like to clarify that reduction of burden of cases on the courts will, however, be merely an incidental benefit and not the reason for sending the parties for mediation. We recognize mediation as an effective method of alternative dispute resolution in matrimonial matters and that is the reason why we want the parties to explore the possibility of settlement through mediation in matrimonial disputes | 0 | 6,795 | 1,102 | ### 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:
Being trained in the skill of mediation, they produce good results. 33. The idea of pre-litigation mediation is also catching up. Some mediation centres have, after giving wide publicity, set up Help Desks at prominent places including facilitation centres at court complexes to conduct pre-litigation mediation. We are informed that in Delhi Government Mediation and Conciliation Centres, and in Delhi High Court Mediation Centre, several matrimonial disputes are settled. These centres have a good success rate in pre-litigation mediation. If all mediation centres set up pre-litigation desks/clinics by giving sufficient publicity and matrimonial disputes are taken up for pre-litigation settlement, many families will be saved of hardship if, at least, some of them are settled. 34. While purely a civil matrimonial dispute can be amicably settled by a Family Court either by itself or by directing the parties to explore the possibility of settlement through mediation, a complaint under Section 498-A of the IPC presents difficulty because the said offence is not compoundable except in the State of Andhra Pradesh where by a State amendment, it has been made compoundable. Though in Ramgopal & Anr. v. State of Madhya Pradesh & Anr. [(2010) 13 SCC 540] , this Court requested the Law Commission and the Government of India to examine whether offence punishable under Section 498-A of the IPC could be made compoundable, it has not been made compoundable as yet. The courts direct parties to approach mediation centres where offences are compoundable. Offence punishable under Section 498-A being a non-compoundable offence, such a course is not followed in respect thereof. This Court has always adopted a positive approach and encouraged settlement of matrimonial disputes and discouraged their escalation. In this connection, we must refer to the relevant paragraph from G.V. Rao v. L.H.V. Prasad & Ors. [(2000) 3 SCC 693] , where the complaint appeared to be the result of matrimonial dispute, while refusing to interfere with the High Courts order quashing the complaint, this court made very pertinent observations, which read thus: 12. There has been an outburst of matrimonial disputes in recent times. Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their young days in chasing their cases in different courts. In B.S. Joshi & Ors. v. State of Haryana & Anr. [AIR 2003 SC 1386 ], after referring to the above observations, this Court stated that the said observations are required to be kept in view by courts while dealing with matrimonial disputes and held that complaint involving offence under Section 498-A of the IPC can be quashed by the High Court in exercise of its powers under Section 482 of the Code if the parties settle their dispute. Even in Gian Singh v. State of Punjab & Anr. [(2012) 10 SCC 303] , this Court expressed that certain offences which overwhelmingly and predominantly bear civil flavour like those arising out of matrimony, particularly relating to dowry, etc. or the family dispute and where the offender and the victim had settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may quash the criminal proceedings if it feels that by not quashing the same, the ends of justice shall be defeated. 35. We, therefore, feel that though offence punishable under Section 498-A of the IPC is not compoundable, in appropriate cases if the parties are willing and if it appears to the criminal court that there exist elements of settlement, it should direct the parties to explore the possibility of settlement through mediation. This is, obviously, not to dilute the rigour, efficacy and purport of Section 498-A of the IPC, but to locate cases where the matrimonial dispute can be nipped in bud in an equitable manner. The judges, with their expertise, must ensure that this exercise does not lead to the erring spouse using mediation process to get out of clutches of the law. During mediation, the parties can either decide to part company on mutually agreed terms or they may decide to patch up and stay together. In either case for the settlement to come through, the complaint will have to be quashed. In that event, they can approach the High Court and get the complaint quashed. If however they chose not to settle, they can proceed with the complaint. In this exercise, there is no loss to anyone. If there is settlement, the parties will be saved from the trials and tribulations of a criminal case and that will reduce the burden on the courts which will be in the larger public interest. Obviously, the High Court will quash the complaint only if after considering all circumstances it finds the settlement to be equitable and genuine. Such a course, in our opinion, will be beneficial to those who genuinely want to accord a quietus to their matrimonial disputes. We would, however, like to clarify that reduction of burden of cases on the courts will, however, be merely an incidental benefit and not the reason for sending the parties for mediation. We recognize mediation as an effective method of alternative dispute resolution in matrimonial matters and that is the reason why we want the parties to explore the possibility of settlement through mediation in matrimonial disputes. 36.
### Response:
0
### Explanation:
28. In the ultimate analysis, we hold that the respondent-wife has caused by her conduct mental cruelty to the appellant-husband and the marriage has irretrievably broken down. Dissolution of marriage will relieve both sides of pain and anguish. In this Court the respondent-wife expressed that she wants to go back to the appellant-husband, but, that is not possible now. The appellant-husband is not willing to take her back. Even if we refuse decree of divorce to the appellant-husband, there are hardly any chances of the respondent-wife leading a happy life with the appellant-husband because a lot of bitterness is created by the conduct of the respondent-wife29. In Vijay Kumar, it was submitted that if the decree of divorce is set aside, there may be fresh avenues and scope for reconciliation between parties. This court observed that judged in the background of all surrounding circumstances, the claim appeared to be too desolate, merely born out of despair rather than based upon any real, concrete or genuine purpose or aim. In the facts of this case we feel the same30. While we are of the opinion that decree of divorce must be granted, we are alive to the plight of the respondent-wife. The appellant-husband is working as an Assistant Registrar in the Andhra Pradesh High Court. He is getting a good salary. The respondent-wife fought the litigation for more than 10 years. She appears to be entirely dependent on her parents and on her brother, therefore, her future must be secured by directing the appellant-husband to give her permanent alimony. In the facts and circumstance of this case, we are of the opinion that the appellant-husband should be directed to pay a sum of Rs.15,00,000/- (Rupees Fifteen Lakhs only) to the respondent-wife as and by way of permanent alimony. In the result, the impugned judgment is quashed and set aside. The marriage between the appellant-husband - K. Srinivas Rao and the respondent-wife -D.A. Deepa is dissolved by a decree of divorce. The appellant-husband shall pay to the respondent-wife permanent alimony in the sum of Rs.15,00,000/-, in three instalments. The first instalment of Rs.5,00,000/- (Rupees Five Lakhs only) should be paid on 15/03/2013 and the remaining amount of Rs.10,00,000/- (Rupees Ten Lakhs only) should be paid in instalments of Rs.5,00,000/- each after a gap of two months i.e. on 15/05/2013 and 15/07/2013 respectively. Each instalment of Rs.5,00,000/- be paid by a demand draft drawn in favour of the respondent-wife D.A. Deepa31. Before parting, we wish to touch upon an issue which needs to be discussed in the interest of victims of matrimonial disputes. Though in this case, we have recorded a finding that by her conduct, the respondent- wife has caused mental cruelty to the appellant-husband, we may not be understood, however, to have said that the fault lies only with the respondent-wife. In matrimonial disputes there is hardly any case where one spouse is entirely at fault. But, then, before the dispute assumes alarming proportions, someone must make efforts to make parties see reasonIn this case, if at the earliest stage, before the respondent-wife filed the complaint making indecent allegation against her mother-in-law, she were to be counselled by an independent and sensible elder or if the parties were sent to a mediation centre or if they had access to a pre-litigation clinic, perhaps the bitterness would not have escalated. Things would not have come to such a pass if, at the earliest, somebody had mediated between the two. It is possible that the respondent-wife was desperate to save the marriage. Perhaps, in desperation, she lost balance and went on filing complaints. It is possible that she was misguided. Perhaps, the appellant-husband should have forgiven her indiscretion in filing complaints in the larger interest of matrimony. But, the way the respondent-wife approached the problem was wrong. It portrays a vindictive mind. She caused extreme mental cruelty to the appellant-husband. Now the marriage is beyond repairWe, therefore, feel that though offence punishable under Section 498-A of the IPC is not compoundable, in appropriate cases if the parties are willing and if it appears to the criminal court that there exist elements of settlement, it should direct the parties to explore the possibility of settlement through mediation. This is, obviously, not to dilute the rigour, efficacy and purport of Section 498-A of the IPC, but to locate cases where the matrimonial dispute can be nipped in bud in an equitable manner. The judges, with their expertise, must ensure that this exercise does not lead to the erring spouse using mediation process to get out of clutches of the law. During mediation, the parties can either decide to part company on mutually agreed terms or they may decide to patch up and stay together. In either case for the settlement to come through, the complaint will have to be quashed. In that event, they can approach the High Court and get the complaint quashed. If however they chose not to settle, they can proceed with the complaint. In this exercise, there is no loss to anyone. If there is settlement, the parties will be saved from the trials and tribulations of a criminal case and that will reduce the burden on the courts which will be in the larger public interest. Obviously, the High Court will quash the complaint only if after considering all circumstances it finds the settlement to be equitable and genuine. Such a course, in our opinion, will be beneficial to those who genuinely want to accord a quietus to their matrimonial disputes. We would, however, like to clarify that reduction of burden of cases on the courts will, however, be merely an incidental benefit and not the reason for sending the parties for mediation. We recognize mediation as an effective method of alternative dispute resolution in matrimonial matters and that is the reason why we want the parties to explore the possibility of settlement through mediation in matrimonial disputes
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M.D.Jacob Vs. United India Insurance Ltd | Shiva Kirti Singh, J. 1. Heard learned Counsel for the appellant and learned Counsel for the respondent-Insurance Company. 2. The appellant was a victim of road accident on 27th July, 1997. On account of several serious injuries including amputation of complete left hand, severe injuries in head, dislocation of bones in hip and both knees and severe injuries in foot, the Doctor assessed his disability at 100%.3. The appellant preferred a claim petition before the Motor Accident Claims Tribunal at Chennai and sought compensation of Rs. 26,00,000 (Rupees twenty-six lacs). The Claims Tribunal allowed a claim for Rs. 14,20,000 (Rupees fourteen lacs and twenty thousand only)vide judgment dated 9.8.2000 rendered in M.C.O.P. No. 3365 of 1997. The claim allowed on different heads includes: (i)Loss of income for one year as—Rs. 60,000(ii)Special diet and transportation—Rs. 50,000(iii)Medical expenses—Rs. 50,000(iv)Pain and suffering—Rs. 2,00,000(v)Permanent disability—Rs. 4,00,000(vi)Loss of future earning—Rs. 6,60,000 4. The Insurance Company preferred appeal before the High Court Madras and by the order under appeal dated 13.11.2006 passed in C.M.A. Nos. 1963 of 2000 and 12 of 2001 the High Court, while maintaining the Award under the first three heads, reduced the amount of Rs. 2,00 000 for pain and suffering to Rs. 1,00,000, Rs. 4,00,000 for permanent disability to Rs. 3,00,000 and Rs. 6,60,000 as loss of future earning to Rs. 3,96,000. As a result of aforesaid reduction, appellant has been held entitled only to Rs. 9,56,000 (Rupees nine lacs and fifty six thousand only) in place of Rs. 14,20,000 (Rupees fourteen lacs and twenty thousands only). Assailing order under appeal on account of reduction of compensation under the three heads noted above, learned Counsel for the appellant has taken us through the materials on record including the judgment of the Tribunal and the judgment of the High Court under appeal. 5. It has been shown that the Tribunal has discussed all the available materials in detail for coming to a cogent and well reasoned finding for calculating the loss of future earning on the basis of monthly income of Rs. 5,000 whereas the High Court reduced the monthly income to Rs. 3,000 without specifying any reasons for reversing the finding of the Tribunal. The Tribunal considered oral evidence of the claimant as well as documents such Ext. and Ext. P. 5 showing that the applicant had experience of working as Electrician and was employed as such. In the light of all the relevant materials the Tribunal assessed the earning capacity of the appellant as Rs. 5,000 p.m. and accordingly allowed a sum of Rs. 60,000 as loss of earning capacity for a period of one year and by adopting the multiplier of 11 allowed Rs. 6,60,000 as loss of future earning. 6. The High Court did not interfere with the multiplier and as indicated above, without good reasons treated the monthly income of the appellant to be Rs. 3,000 in place of Rs. 5,000. Inexplicably the High Court has retained loss of income for one year to Rs. 60,000 which is possible only if the monthly income is accepted to be Rs. 5,000. There is reason assigned even for reducing the compensation of Rs. 2,00,000 for pain and suffering to Rs. 1,00,000 and of Rs. 4,00,000 for permanent disability to Rs. 3,00,000. 7. Considering that the appellant had suffered 100% disability, in our view, the learned Tribunal was quite justified in allowing Rs. 14,20,000 as total compensation on the basis of monthly income of Rs. 5,000. | 1[ds]the Tribunal assessed the earning capacity of the appellant as Rs. 5,000 p.m. and accordingly allowed a sum of Rs. 60,000 as loss of earning capacity for a period of one year and by adopting the multiplier of 11 allowed Rs. 6,60,000 as loss of futuregood reasons treated the monthly income of the appellant to be Rs. 3,000 in place of Rs. 5,000. Inexplicably the High Court has retained loss of income for one year to Rs. 60,000 which is possible only if the monthly income is accepted to be Rs. 5,000. There is reason assigned even for reducing the compensation of Rs. 2,00,000 for pain and suffering to Rs. 1,00,000 and of Rs. 4,00,000 for permanent disability to Rs.learned Tribunal was quite justified in allowing Rs. 14,20,000 as total compensation on the basis of monthly income of Rs. 5,000 | 1 | 684 | 158 | ### 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:
Shiva Kirti Singh, J. 1. Heard learned Counsel for the appellant and learned Counsel for the respondent-Insurance Company. 2. The appellant was a victim of road accident on 27th July, 1997. On account of several serious injuries including amputation of complete left hand, severe injuries in head, dislocation of bones in hip and both knees and severe injuries in foot, the Doctor assessed his disability at 100%.3. The appellant preferred a claim petition before the Motor Accident Claims Tribunal at Chennai and sought compensation of Rs. 26,00,000 (Rupees twenty-six lacs). The Claims Tribunal allowed a claim for Rs. 14,20,000 (Rupees fourteen lacs and twenty thousand only)vide judgment dated 9.8.2000 rendered in M.C.O.P. No. 3365 of 1997. The claim allowed on different heads includes: (i)Loss of income for one year as—Rs. 60,000(ii)Special diet and transportation—Rs. 50,000(iii)Medical expenses—Rs. 50,000(iv)Pain and suffering—Rs. 2,00,000(v)Permanent disability—Rs. 4,00,000(vi)Loss of future earning—Rs. 6,60,000 4. The Insurance Company preferred appeal before the High Court Madras and by the order under appeal dated 13.11.2006 passed in C.M.A. Nos. 1963 of 2000 and 12 of 2001 the High Court, while maintaining the Award under the first three heads, reduced the amount of Rs. 2,00 000 for pain and suffering to Rs. 1,00,000, Rs. 4,00,000 for permanent disability to Rs. 3,00,000 and Rs. 6,60,000 as loss of future earning to Rs. 3,96,000. As a result of aforesaid reduction, appellant has been held entitled only to Rs. 9,56,000 (Rupees nine lacs and fifty six thousand only) in place of Rs. 14,20,000 (Rupees fourteen lacs and twenty thousands only). Assailing order under appeal on account of reduction of compensation under the three heads noted above, learned Counsel for the appellant has taken us through the materials on record including the judgment of the Tribunal and the judgment of the High Court under appeal. 5. It has been shown that the Tribunal has discussed all the available materials in detail for coming to a cogent and well reasoned finding for calculating the loss of future earning on the basis of monthly income of Rs. 5,000 whereas the High Court reduced the monthly income to Rs. 3,000 without specifying any reasons for reversing the finding of the Tribunal. The Tribunal considered oral evidence of the claimant as well as documents such Ext. and Ext. P. 5 showing that the applicant had experience of working as Electrician and was employed as such. In the light of all the relevant materials the Tribunal assessed the earning capacity of the appellant as Rs. 5,000 p.m. and accordingly allowed a sum of Rs. 60,000 as loss of earning capacity for a period of one year and by adopting the multiplier of 11 allowed Rs. 6,60,000 as loss of future earning. 6. The High Court did not interfere with the multiplier and as indicated above, without good reasons treated the monthly income of the appellant to be Rs. 3,000 in place of Rs. 5,000. Inexplicably the High Court has retained loss of income for one year to Rs. 60,000 which is possible only if the monthly income is accepted to be Rs. 5,000. There is reason assigned even for reducing the compensation of Rs. 2,00,000 for pain and suffering to Rs. 1,00,000 and of Rs. 4,00,000 for permanent disability to Rs. 3,00,000. 7. Considering that the appellant had suffered 100% disability, in our view, the learned Tribunal was quite justified in allowing Rs. 14,20,000 as total compensation on the basis of monthly income of Rs. 5,000.
### Response:
1
### Explanation:
the Tribunal assessed the earning capacity of the appellant as Rs. 5,000 p.m. and accordingly allowed a sum of Rs. 60,000 as loss of earning capacity for a period of one year and by adopting the multiplier of 11 allowed Rs. 6,60,000 as loss of futuregood reasons treated the monthly income of the appellant to be Rs. 3,000 in place of Rs. 5,000. Inexplicably the High Court has retained loss of income for one year to Rs. 60,000 which is possible only if the monthly income is accepted to be Rs. 5,000. There is reason assigned even for reducing the compensation of Rs. 2,00,000 for pain and suffering to Rs. 1,00,000 and of Rs. 4,00,000 for permanent disability to Rs.learned Tribunal was quite justified in allowing Rs. 14,20,000 as total compensation on the basis of monthly income of Rs. 5,000
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Narendrakumar J. Modi Vs. Commissioner of Income Tax, Gujarat II, Ahmedabad | portions, each member getting an equal share, on October, 1954; (c) directing the respondent and his subordinates to cancel or withdraw the impugned orders and all steps taken for the recovery of the amounts so. assessed; (d) directing the respondent and his subordinates not to take any further steps for the recovery of the tax so assessed; (e) quashing all the penalty orders and such other orders passed in pursuance of the assessment proceedings aforesaid; (f) quashing all the orders of attachment or in the nature attachment passed by the Income tax Authorities in these proceedings for the assessment year 1955-56 onwards, and (g) to pass such other and further orders as your Lordships deem just and expedient in the circumstances of the case." It seems to us that the High Court rightly dismissed the appellants petition in limine. Since the valuation under Article 133(1)(b) was beyond Rs. 20, 000/-, the appellant was granted a certificate as a matter of course. 5. It was pointed out to. the appellants counsel that so many proceedings and orders could not be challenged in one writ petition and he was asked to make his submissions in the appeal confining the writ petition to one matter only. Counsel chose to confine it to the attack on the attachment order of the Income tax Officer in respect of the money lying in the Savings Bank Account. While doing so, he traversed the entire allegations in the petition by adopting an ingenious method. Counsel submitted that the attachment had been mad e for realization of the income tax dues based upon various orders which were void and ultra vires. All those orders could be attacked collaterally while attacking the attachment order.Mr. Iyengar urged the following points in, support of the appeal:"(1 ) That the orders of the various authorities rejecting the claim of the partition under section 25A of the Income tax Act, 1922 were without jurisdiction and on their face suffered from many infirmities of law. (2) That after Bapalal relinquished his interest in the joint family properties and ceased to be the karta, there was no karta of the family. Gulabchand--a junior member of the family could not act as a karta. Other members of the family did not accept him to be the karta. (3) That even after the death of Bapalal in the year 1958 various notices under the Income tax Act were issued and served in the name of Bapalal Purshottamdas Modi--a dead person--and hence the entire proceedings and assessment orders were nullities. (4) That the appellant had no opportunity of taking any part in the income tax proceedings and his property cannot be made liable for realization of the dues determined in such proceedings." 6. None of the points urged on behalf of the appellant merits any detailed discussion. We were taken through the power of attorney executed by Bapalal in favour of Gulabchand, the deed of relinquishment executed by him o n October 22, 1954 and the alleged memorandum of partition of October 24, 1954; the orders of the Income tax officer, the Appellate Commissioner and the Tribunal in the proceedings under section 25A of the Income tax Act, 1922. In our opinion. the orders do not suffer from any infirmity of law or any such defect which will make them void. Notice of the enquiry had been given to all the members as admitted by the appellant himself. He had been examined in the proceedings. Sub-section (3) of Section 25A provides. that where an order accepting partition had not been passed in respect of a Hindu family assessed as undivided such family shall be deemed for the purposes of the Act to continue to be Hindu undivide family. A partition preliminary decree came much later. The income tax authorities had their own view to take. They were not bound by the decree. No reference was taken under the income tax Act challenging the order of the Tribunal dismissing the appeal.It was clear from some of the assessment orders that Gulabchand was acting as a karta even during the life time of Bapalal as he had retired to live in Brindaban. At the relevant time no body disputed his authority to act as karta. His eldest brother Vadilal was an old man of about 70 years of age. His eider brother Jayantilal--father of the appellant died in the year 1956. In these circumstances he appears to have acted as the karta with consent of all the other members. A junior member of the family could do so. See Mullas Hindu Law 296, fourteenth edn. Where occurs the following passage:"So long as the members of a family remain undivided, the senior member of the family is entitled to manage the family properties, " including even charitable properties (q); and is presumed to be the manager until the contrary is shown(r). But the senior member may give up his right of management, and a junior member may be appointed manager(s) ." 7. Notices were being issued in the name of the family which was carrying on the business in the assumed name of Bapalal Purshottamdas Modi. They were neither issued to nor served on Bapajal the dead person. In response to the notices returns were being filed by the managing member of the family. At no stage before the income tax authorities a contention was raised that the notice was served on a dead person. There is no substance in the third point. Coming to the fourth and the last point urged on behalf of the appellant we find that the appellant is bound by the assessment made in respect of the income of his family which continued in the eye of law to be joint. The share of the appellants properties received by him from the joint family or the income thereof is liable for the income tax dues in question. 8. The appellant, as we have said above, was ill-advised to file a misconceived petition on wholly untenable grounds. | 0[ds]It seems to us that the High Court rightly dismissed the appellants petition in limine. Since the valuation under Article 133(1)(b) was beyond Rs. 20, 000/-, the appellant was granted a certificate as a matter of courseNone of the points urged on behalf of the appellant merits any detailed discussion. We were taken through the power of attorney executed by Bapalal in favour of Gulabchand, the deed of relinquishment executed by him o n October 22, 1954 and the alleged memorandum of partition of October 24, 1954; the orders of the Income tax officer, the Appellate Commissioner and the Tribunal in the proceedings under section 25A ofthe Income tax Act, 1922. In our opinion. the orders do not suffer from any infirmity of law or any such defect which will make them void. Notice of the enquiry had been given to all the members as admitted by the appellant himself. He had been examined in the proceedings. Sub-section (3) of Section 25A provides. that where an order accepting partition had not been passed in respect of a Hindu family assessed as undivided such family shall be deemed for the purposes of the Act to continue to be Hindu undivide family. A partition preliminary decree came much later. The income tax authorities had their own view to take. They were not bound by the decree. No reference was taken under the income tax Act challenging the order of the Tribunal dismissing the appeal.It was clear from some of the assessment orders that Gulabchand was acting as a karta even during the life time of Bapalal as he had retired to live in Brindaban. At the relevant time no body disputed his authority to act as karta. His eldest brother Vadilal was an old man of about 70 years of age. His eider brother Jayantilal--father of the appellant died in the year 1956. In these circumstances he appears to have acted as the karta with consent of all the other members. A junior member of the family could do so. See Mullas Hindu Law 296, fourteenth edn. Where occurs the following passage:"So long as the members of a family remain undivided, the senior member of the family is entitled to manage the family properties, " including even charitable properties (q); and is presumed to be the manager until the contrary is shown(r). But the senior member may give up his right of management, and a junior member may be appointed manager(s) ."Notices were being issued in the name of the family which was carrying on the business in the assumed name of Bapalal Purshottamdas Modi. They were neither issued to nor served on Bapajal the dead person. In response to the notices returns were being filed by the managing member of the family. At no stage before the income tax authorities a contention was raised that the notice was served on a dead person. There is no substance in the third point. Coming to the fourth and the last point urged on behalf of the appellant we find that the appellant is bound by the assessment made in respect of the income of his family which continued in the eye of law to be joint. The share of the appellants properties received by him from the joint family or the income thereof is liable for the income tax dues in question.The appellant, as we have said above, was ill-advised to file a misconceived petition on wholly untenable grounds. | 0 | 2,160 | 646 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
portions, each member getting an equal share, on October, 1954; (c) directing the respondent and his subordinates to cancel or withdraw the impugned orders and all steps taken for the recovery of the amounts so. assessed; (d) directing the respondent and his subordinates not to take any further steps for the recovery of the tax so assessed; (e) quashing all the penalty orders and such other orders passed in pursuance of the assessment proceedings aforesaid; (f) quashing all the orders of attachment or in the nature attachment passed by the Income tax Authorities in these proceedings for the assessment year 1955-56 onwards, and (g) to pass such other and further orders as your Lordships deem just and expedient in the circumstances of the case." It seems to us that the High Court rightly dismissed the appellants petition in limine. Since the valuation under Article 133(1)(b) was beyond Rs. 20, 000/-, the appellant was granted a certificate as a matter of course. 5. It was pointed out to. the appellants counsel that so many proceedings and orders could not be challenged in one writ petition and he was asked to make his submissions in the appeal confining the writ petition to one matter only. Counsel chose to confine it to the attack on the attachment order of the Income tax Officer in respect of the money lying in the Savings Bank Account. While doing so, he traversed the entire allegations in the petition by adopting an ingenious method. Counsel submitted that the attachment had been mad e for realization of the income tax dues based upon various orders which were void and ultra vires. All those orders could be attacked collaterally while attacking the attachment order.Mr. Iyengar urged the following points in, support of the appeal:"(1 ) That the orders of the various authorities rejecting the claim of the partition under section 25A of the Income tax Act, 1922 were without jurisdiction and on their face suffered from many infirmities of law. (2) That after Bapalal relinquished his interest in the joint family properties and ceased to be the karta, there was no karta of the family. Gulabchand--a junior member of the family could not act as a karta. Other members of the family did not accept him to be the karta. (3) That even after the death of Bapalal in the year 1958 various notices under the Income tax Act were issued and served in the name of Bapalal Purshottamdas Modi--a dead person--and hence the entire proceedings and assessment orders were nullities. (4) That the appellant had no opportunity of taking any part in the income tax proceedings and his property cannot be made liable for realization of the dues determined in such proceedings." 6. None of the points urged on behalf of the appellant merits any detailed discussion. We were taken through the power of attorney executed by Bapalal in favour of Gulabchand, the deed of relinquishment executed by him o n October 22, 1954 and the alleged memorandum of partition of October 24, 1954; the orders of the Income tax officer, the Appellate Commissioner and the Tribunal in the proceedings under section 25A of the Income tax Act, 1922. In our opinion. the orders do not suffer from any infirmity of law or any such defect which will make them void. Notice of the enquiry had been given to all the members as admitted by the appellant himself. He had been examined in the proceedings. Sub-section (3) of Section 25A provides. that where an order accepting partition had not been passed in respect of a Hindu family assessed as undivided such family shall be deemed for the purposes of the Act to continue to be Hindu undivide family. A partition preliminary decree came much later. The income tax authorities had their own view to take. They were not bound by the decree. No reference was taken under the income tax Act challenging the order of the Tribunal dismissing the appeal.It was clear from some of the assessment orders that Gulabchand was acting as a karta even during the life time of Bapalal as he had retired to live in Brindaban. At the relevant time no body disputed his authority to act as karta. His eldest brother Vadilal was an old man of about 70 years of age. His eider brother Jayantilal--father of the appellant died in the year 1956. In these circumstances he appears to have acted as the karta with consent of all the other members. A junior member of the family could do so. See Mullas Hindu Law 296, fourteenth edn. Where occurs the following passage:"So long as the members of a family remain undivided, the senior member of the family is entitled to manage the family properties, " including even charitable properties (q); and is presumed to be the manager until the contrary is shown(r). But the senior member may give up his right of management, and a junior member may be appointed manager(s) ." 7. Notices were being issued in the name of the family which was carrying on the business in the assumed name of Bapalal Purshottamdas Modi. They were neither issued to nor served on Bapajal the dead person. In response to the notices returns were being filed by the managing member of the family. At no stage before the income tax authorities a contention was raised that the notice was served on a dead person. There is no substance in the third point. Coming to the fourth and the last point urged on behalf of the appellant we find that the appellant is bound by the assessment made in respect of the income of his family which continued in the eye of law to be joint. The share of the appellants properties received by him from the joint family or the income thereof is liable for the income tax dues in question. 8. The appellant, as we have said above, was ill-advised to file a misconceived petition on wholly untenable grounds.
### Response:
0
### Explanation:
It seems to us that the High Court rightly dismissed the appellants petition in limine. Since the valuation under Article 133(1)(b) was beyond Rs. 20, 000/-, the appellant was granted a certificate as a matter of courseNone of the points urged on behalf of the appellant merits any detailed discussion. We were taken through the power of attorney executed by Bapalal in favour of Gulabchand, the deed of relinquishment executed by him o n October 22, 1954 and the alleged memorandum of partition of October 24, 1954; the orders of the Income tax officer, the Appellate Commissioner and the Tribunal in the proceedings under section 25A ofthe Income tax Act, 1922. In our opinion. the orders do not suffer from any infirmity of law or any such defect which will make them void. Notice of the enquiry had been given to all the members as admitted by the appellant himself. He had been examined in the proceedings. Sub-section (3) of Section 25A provides. that where an order accepting partition had not been passed in respect of a Hindu family assessed as undivided such family shall be deemed for the purposes of the Act to continue to be Hindu undivide family. A partition preliminary decree came much later. The income tax authorities had their own view to take. They were not bound by the decree. No reference was taken under the income tax Act challenging the order of the Tribunal dismissing the appeal.It was clear from some of the assessment orders that Gulabchand was acting as a karta even during the life time of Bapalal as he had retired to live in Brindaban. At the relevant time no body disputed his authority to act as karta. His eldest brother Vadilal was an old man of about 70 years of age. His eider brother Jayantilal--father of the appellant died in the year 1956. In these circumstances he appears to have acted as the karta with consent of all the other members. A junior member of the family could do so. See Mullas Hindu Law 296, fourteenth edn. Where occurs the following passage:"So long as the members of a family remain undivided, the senior member of the family is entitled to manage the family properties, " including even charitable properties (q); and is presumed to be the manager until the contrary is shown(r). But the senior member may give up his right of management, and a junior member may be appointed manager(s) ."Notices were being issued in the name of the family which was carrying on the business in the assumed name of Bapalal Purshottamdas Modi. They were neither issued to nor served on Bapajal the dead person. In response to the notices returns were being filed by the managing member of the family. At no stage before the income tax authorities a contention was raised that the notice was served on a dead person. There is no substance in the third point. Coming to the fourth and the last point urged on behalf of the appellant we find that the appellant is bound by the assessment made in respect of the income of his family which continued in the eye of law to be joint. The share of the appellants properties received by him from the joint family or the income thereof is liable for the income tax dues in question.The appellant, as we have said above, was ill-advised to file a misconceived petition on wholly untenable grounds.
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Sejal Glass Ltd Vs. Navilan Merchants Pvt. Ltd. And Ors | Judge was in error in upholding the rejection as to a part and setting aside the rejection in regard to the other part. This appeal which I am treating as a petition for revision must therefore be allowed and the rule made absolute, and I order accordingly." 8. In (Sree Rajah) Venkata Rangiah Appa Rao Bahadur and another v. Secretary of State and others, A.I.R. 1931 Madras 175 at 176, the Madras High Court held:- "Referring to S. 54 of the old Civil Procedure Code, the learned Judge states that that section only provides for the rejection of a plaint in the event of any matters specified in that section not being complied with and it does not justify the rejection of any particular portion of a plaint. S. 54 now corresponds to O. 7, R. 11, Civil Procedure Code. The plain meaning of that rule seems to be that if any of the defects mentioned therein is found to exist in any case, the plaint shall be rejected as a whole. It does not imply any reservation in the matter of the rejection of the plaint. Non-compliance with the requisites of S. 80, Civil Procedure Code, was taken to be a ground covered by Cl. (d) of R. 11, above referred to. Even if it should be taken that that clause does not strictly apply to the present case, I must hold that the suits are liable to dismissal on account of non-compliance with S. 80, Civil Procedure Code." It was further found that if the suit was dismissed for want of notice against the Government under Section 80 CPC, it cannot be allowed to proceed against the other defendants for the reason that the Governments right to resume inam lands, on the facts of that case, stands unaffected, and that being so, the plaintiffs claim to recover possession of such lands from other defendants would also fall to the ground for the simple reason that they have no right then to resume those inams. It was, therefore, held on the peculiar facts of that case that for the reasons given the suit would fail as a whole. 9. However, in Kalepu Pala Subrahmanyan v. Tiguti Venkata Peddiraju and others, A.I.R. 1971 A.P. 313, a single Judge referred to AIR 1931 Madras 175, and then held that the suit was barred by time in respect of only certain items of property and not in respect of others. Despite this, it was held that since the plaint as a whole should have been rejected, the baby was thrown out with the bathwater, and the entirety of the plaint and not merely the properties against which the suit could not proceed (as it was barred by limitation), was rejected. 10. We are afraid that this is a misreading of the Madras High Court judgment. It was only on the peculiar facts of that case that want of Section 80 CPC against one defendant led to the rejection of the plaint as a whole, as no cause of action would remain against the other defendants. This cannot elevate itself into a rule of law, that once a part of a plaint cannot proceed, the other part also cannot proceed, and the plaint as a whole must be rejected under Order VII Rule 11. In all such cases, if the plaint survives against certain defendants and/or properties, Order VII Rule 11 will have no application at all, and the suit as a whole must then proceed to trial. 11. If only a portion of the plaint, as opposed to the plaint as a whole is to be struck out, Order VI Rule 16 of the CPC would apply. Order VI Rule 16 states as follows:- "16. Striking out pleadings.- The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading-a) which may be unnecessary, scandalous, frivolous or vexatious, orb) which may tend to prejudice, embarrass or delay the fair trial of the suit, orc) which is otherwise an abuse of the process of the Court." It is clear that Order VI Rule 16 would not apply in the facts of the present case. There is no plea or averment to the effect that, as against the Directors, pleadings should be struck out on the ground that they are unnecessary, scandalous, frivolous, vexatious or that they may otherwise tend to prejudice, embarrass or delay the fair trial of the suit or that it is otherwise an abuse of the process of the Court. 12. In contrast to the above provisions, which apply on a demurrer, the provisions of Order XIV Rule 2, read as follows; "2. Court to pronounce judgment on all issues.-(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to-(a) the jurisdiction of the Court, or(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue." 13. The Court is vested with a discretion under this order to deal with an issue of law, which it may try as a preliminary issue if it relates to the jurisdiction of the Court, or is a bar to the suit created for the time being in force. Obviously, this provision would apply after issues are struck i.e. after a written statement is filed. This provision again cannot come to the rescue of learned counsel for the respondent. | 1[ds]5. In our view, the impugned judgment is wrong on principle.It is settled law that the plaint as a whole alone can be rejected under Order VII Rule 11.We are afraid that this is a misreading of the Madras High Court judgment. It was only on the peculiar facts of that case that want of Section 80 CPC against one defendant led to the rejection of the plaint as a whole, as no cause of action would remain against the other defendants. This cannot elevate itself into a rule of law, that once a part of a plaint cannot proceed, the other part also cannot proceed, and the plaint as a whole must be rejected under Order VII Rule 11. In all such cases, if the plaint survives against certain defendants and/or properties, Order VII Rule 11 will have no application at all, and the suit as a whole must then proceed tois clear that Order VI Rule 16 would not apply in the facts of the present case. There is no plea or averment to the effect that, as against the Directors, pleadings should be struck out on the ground that they are unnecessary, scandalous, frivolous, vexatious or that they may otherwise tend to prejudice, embarrass or delay the fair trial of the suit or that it is otherwise an abuse of the process of the Court.The Court is vested with a discretion under this order to deal with an issue of law, which it may try as a preliminary issue if it relates to the jurisdiction of the Court, or is a bar to the suit created for the time being in force. Obviously, this provision would apply after issues are struck i.e. after a written statement is filed. This provision again cannot come to the rescue of learned counsel for the respondent. | 1 | 2,147 | 339 | ### Instruction:
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Judge was in error in upholding the rejection as to a part and setting aside the rejection in regard to the other part. This appeal which I am treating as a petition for revision must therefore be allowed and the rule made absolute, and I order accordingly." 8. In (Sree Rajah) Venkata Rangiah Appa Rao Bahadur and another v. Secretary of State and others, A.I.R. 1931 Madras 175 at 176, the Madras High Court held:- "Referring to S. 54 of the old Civil Procedure Code, the learned Judge states that that section only provides for the rejection of a plaint in the event of any matters specified in that section not being complied with and it does not justify the rejection of any particular portion of a plaint. S. 54 now corresponds to O. 7, R. 11, Civil Procedure Code. The plain meaning of that rule seems to be that if any of the defects mentioned therein is found to exist in any case, the plaint shall be rejected as a whole. It does not imply any reservation in the matter of the rejection of the plaint. Non-compliance with the requisites of S. 80, Civil Procedure Code, was taken to be a ground covered by Cl. (d) of R. 11, above referred to. Even if it should be taken that that clause does not strictly apply to the present case, I must hold that the suits are liable to dismissal on account of non-compliance with S. 80, Civil Procedure Code." It was further found that if the suit was dismissed for want of notice against the Government under Section 80 CPC, it cannot be allowed to proceed against the other defendants for the reason that the Governments right to resume inam lands, on the facts of that case, stands unaffected, and that being so, the plaintiffs claim to recover possession of such lands from other defendants would also fall to the ground for the simple reason that they have no right then to resume those inams. It was, therefore, held on the peculiar facts of that case that for the reasons given the suit would fail as a whole. 9. However, in Kalepu Pala Subrahmanyan v. Tiguti Venkata Peddiraju and others, A.I.R. 1971 A.P. 313, a single Judge referred to AIR 1931 Madras 175, and then held that the suit was barred by time in respect of only certain items of property and not in respect of others. Despite this, it was held that since the plaint as a whole should have been rejected, the baby was thrown out with the bathwater, and the entirety of the plaint and not merely the properties against which the suit could not proceed (as it was barred by limitation), was rejected. 10. We are afraid that this is a misreading of the Madras High Court judgment. It was only on the peculiar facts of that case that want of Section 80 CPC against one defendant led to the rejection of the plaint as a whole, as no cause of action would remain against the other defendants. This cannot elevate itself into a rule of law, that once a part of a plaint cannot proceed, the other part also cannot proceed, and the plaint as a whole must be rejected under Order VII Rule 11. In all such cases, if the plaint survives against certain defendants and/or properties, Order VII Rule 11 will have no application at all, and the suit as a whole must then proceed to trial. 11. If only a portion of the plaint, as opposed to the plaint as a whole is to be struck out, Order VI Rule 16 of the CPC would apply. Order VI Rule 16 states as follows:- "16. Striking out pleadings.- The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading-a) which may be unnecessary, scandalous, frivolous or vexatious, orb) which may tend to prejudice, embarrass or delay the fair trial of the suit, orc) which is otherwise an abuse of the process of the Court." It is clear that Order VI Rule 16 would not apply in the facts of the present case. There is no plea or averment to the effect that, as against the Directors, pleadings should be struck out on the ground that they are unnecessary, scandalous, frivolous, vexatious or that they may otherwise tend to prejudice, embarrass or delay the fair trial of the suit or that it is otherwise an abuse of the process of the Court. 12. In contrast to the above provisions, which apply on a demurrer, the provisions of Order XIV Rule 2, read as follows; "2. Court to pronounce judgment on all issues.-(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to-(a) the jurisdiction of the Court, or(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue." 13. The Court is vested with a discretion under this order to deal with an issue of law, which it may try as a preliminary issue if it relates to the jurisdiction of the Court, or is a bar to the suit created for the time being in force. Obviously, this provision would apply after issues are struck i.e. after a written statement is filed. This provision again cannot come to the rescue of learned counsel for the respondent.
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5. In our view, the impugned judgment is wrong on principle.It is settled law that the plaint as a whole alone can be rejected under Order VII Rule 11.We are afraid that this is a misreading of the Madras High Court judgment. It was only on the peculiar facts of that case that want of Section 80 CPC against one defendant led to the rejection of the plaint as a whole, as no cause of action would remain against the other defendants. This cannot elevate itself into a rule of law, that once a part of a plaint cannot proceed, the other part also cannot proceed, and the plaint as a whole must be rejected under Order VII Rule 11. In all such cases, if the plaint survives against certain defendants and/or properties, Order VII Rule 11 will have no application at all, and the suit as a whole must then proceed tois clear that Order VI Rule 16 would not apply in the facts of the present case. There is no plea or averment to the effect that, as against the Directors, pleadings should be struck out on the ground that they are unnecessary, scandalous, frivolous, vexatious or that they may otherwise tend to prejudice, embarrass or delay the fair trial of the suit or that it is otherwise an abuse of the process of the Court.The Court is vested with a discretion under this order to deal with an issue of law, which it may try as a preliminary issue if it relates to the jurisdiction of the Court, or is a bar to the suit created for the time being in force. Obviously, this provision would apply after issues are struck i.e. after a written statement is filed. This provision again cannot come to the rescue of learned counsel for the respondent.
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Baroda Borough Municipality Vs. Its Workman | not dealt with by the Municipal Act; it is dealt with by the Industrial Act, 1947. Therefore, it is not relevant consideration whether there are provisions in the Municipal Act with regard to payment of bonus. The provisions of the Municipal Act are relevant only for the purposes of determining the quality or nature municipal property or fund; those provisions cannot be stretched beyond that limited purpose for defeating a claim of bonus. We do not, therefore, think that the absence of provisions in the Municipal Act for the payment of bonus through municipal employees is a consideration which is either determinative or conclusive of the question at issue before us.If we had come to a different conclusion as respects the first contention of the learned Attorney-General and his third contention to be referred to presently the absence of suitable provisions relating to payment of bonus to municipal employees in the Municipal Act would not have stood in the way of our allowing the claim of the respondents for the payment of bonus.14. We now proceed to consider the third and last contention of the learned Attorney-General. This contention centres round the question whether one department of the municipality can be isolated and a distinction made between the employees of that department and other departments in the matter of the payment of bonus. We have already pointed out that under the Municipality Act a municipality may perform various functions, some obligatory and some discretional. The activities may be of a composite nature; some of the departments may be mostly earning departments and some mostly spending departments. For example, the department which collects municipal taxes or other municipal revenue, is essentially an earning department whereas the sanitary department or other service department is essentially a spending department. There may indeed be departments where the earning and spending may almost balance each other. In spite of these distinctions in the internal arrangement of departments within a municipality, the property or income of the municipality remains of the same nature, or quality and it will be obviously unfair to draw a distinction between the employees of one department and the employees of another department for the payment of bonus.The result of such distinction will be that the staff of the spending departments will never be entitled to any bonus at all and instead of promoting peace and harmony amongst the employees of the municipality, a distinction like the one suggested by learned counsel for the respondents will create unrest and discontent. Learned counsel for the respondents submitted before us that beyond the fact of single ownership, there was no other connection between the electricity department of the municipality and its other departments. We do not think that this submission is correct. Under the Municipal Act, the total income and expenditure of the municipality form one integrated whole; they are both for the purposes of the Act; and if the workmen of a service or spending department do not work efficiently with the result that the expenses on the obligatory functions of the municipality increases, that in efficiency is bound to affect - even to dwindle or wipe out the surplus of an earning department. For a true appreciation of the financial position of a municipality, its total income, and expenditure must be considered; we must look at the whole picture the part which is in shade as well as the part which has caught the sun, for a correct appraisal of the picture.15. Learned counsel for the respondents, referred us to a number of decisions of Labour Tribunals where a distinction was made between a parent concern and subsidiary concerns or even between different units of the same concern, in the matter of payment of bonus:Rohit Mills Ltd. Ahmedabad v. Sri R. S. Parmar,1951-1 Lab. L. J. 463 (C).Mackinnon Mackenzie and Companys Indian Staff Organization v Mackinnon Mackenzie and Co. Ltd.1955-1 Lab. L. J. 154 (D),Ahmedabad Mfg. and Calico Ptg. Co. Ltd. v. Their Workmen,1951-2 Lab. L. J. 765 (E),Shaparia Dock and Steel Co. v. Their Workers1954-2 Lab. L. J. 208 (F) andMinakshi Mills Ltd. v. Their Workmen,1953-2 Lab. L. J. 520 (g). Recently, we have had occasion to consider the question inBurn and Co., Calcutta v. Their EmployeesC A. No. 325 of 1955, D/-11 Oct. 1956: ((S) A. I. R. 1957 S. C. 38) (H)where we pointed out the harmful consequences p73 which might arise if an invidious distinction were made amongst employees of the same industry. Considering the question with reference to the facts of the present case, it is clear to us that the different activities of the Baroda Municipality constituted one integrated whole and the activities of the different department of the Municipality were not distinct or unconnected activities of the different departments of the Municipality were not distinct or unconnected with activities so as to permit the isolation of one department from another or of an earning department from another or of an earning department from a spending department. From this point of view also, the claim of bonus was not maintainable.16. Some decisions were brought to our notice in which the question of the payment of bonus to their employees by Electric Supply Companies, not run as a state or municipal under taking, was considered with reference to the provisions of the Electricity (Supply) Act, 1948, and one of the points which fell for consideration there was the interpretation of clause XVII(-) (b) (xi) of Schedule VI of the Electricity (Supply) Act, 1948. It is not necessary to consider those decisions in the present case, because they have no bearing on the questions which we have to consider in this case.17. For the reasons given above, we hold that the Industrial Tribunal came to the correct decision that the respondents p73 employed in the electricity department of the Baroda Municipality were not entitled to the bonus claimed, and the Labour Appellate Tribunal came to an erroneous decision on that question in its order dated November 23, 1955. | 1[ds]4. It is now finally settled by the decision of this Court in D. N. Banerjee v. P.R. Mukerjee (A) (supra) that a municipal undertaking of the nature, we have under consideration here is an industry within the meaning of the definition of that word in S.2 (j) of the Industrial Disputes Act 1947 and that the expression industrial dispute in that Act includes disputes between municipalities and their employees in branches of work that can be regarded as analogous to the carrying on of a trade or business.It is clear to us that having regard to the provisions of the Bombay Municipal Boroughs Act,1925 (Bombay Act XVIII of 1925) hereinafter called the Municipal Act under which the appellant Municipality is constituted and functions, the earnings of one department of the Municipality cannot be held to be gross profits in the ordinary commercial or trading sense; nor can the principles governing the grant of bonus out of such profits after meeting necessary or prior charges be applied to the presentscrutiny of these provisions clearly establishes two propositions: one is that all municipal property, including moneys, etc., received by way of gift, is vested in the municipality and shall be held and applied by it as trustee subject to the provisions and for the purposes of the Municipal Act, and it is not open to the municipality to treat some of its property separately from other property and divert it for purposes other than those sanctioned by the Municipal Act; the other proposition is that there are some obligatory functions which a municipality must perform and one of these is the lighting of public streets, places and buildings, and there are some other functions which the municipality may at its discretion perform either wholly or partly out of municipal property and fund, and one of these discretional functions is the supply of electrical energy which is for the use of the inhabitants of the municipal borough or for the benefit of any person, buildings or lands in any place whether such place is or is not within the limits of the municipal borough.In our opinion, such a treatment of the income of one department of the Municipality would be clearly against the provision of the Municipal Act. It is pertinent to refer here to Chapter XI of the Municipal Act dealing with Municipal Accounts. Under S.209 a complete account of all receipts and expenditure, of the municipality and a complete account of the actual and expected receipts and expenditure, together with a budget estimate of the income and expenditure of the municipality, have to be prepared for each year and these have to be prepared and laid before the municipality on or before a particular date. These budget estimates have then to be sanctioned at a special general meeting of thesound point stressed was that the distinction between the obligatory and discretional functions of the municipality showed that in the exercise of discretional functions the municipality might engage in an undertaking with p73 a profit makingour opinion, these submissions are based on a misappreciation of the true position in law.With regard to the first point, it is worthy of note that the maintenance of separate accounts of a particular department by the Municipality does not alter the nature or quality of the property or income therefrom. The property or income is still municipal property within the meaning of Ss.63 and 65 of the Municipal Act and it can be utilised only for the purposes of the Act as laid down by S.66. Maintenance of a separate account for a particular department is in the nature of an internal accounting arrangement; it does not really alter the quality or nature of the property or income: and for the purposes of S.209 of the Act the property or income has to be treated like all other property or income of the Municipality inhave already pointed out that in the present case also, the claim of the Municipality was that,even including the income of its electricity department, municipal budget for the relevant year was a deficit one. With regard, to the second submission of learned counsel for the respondents, nothing turns upon the distinction between obligatory and discretional functions of the municipality so far as the nature or quality of municipal property or municipal income is concerned.The distinction referred to above does not entitle the municipality to treat the income from one, department as though it were not part of the whole income of the municipality. Moreover, in its true nature or quality, such income is not profit in the sense in which that expression has been held to be the basis for the grant of bonus in the, Muir Mills case (B) (supra), though the word "Profits" occurs in S.65 of the Municipal Act and has been loosely used in connection with State or municipalare not concerned with those refinements and it is unnecessary to discuss them here. For our purpose it is sufficient to state that what the Baroda Municipality got from the State Government of Baroda merged in and became municipal property or municipal fund under the provision of the Municipal Act and was not capital on which a return had to be earned in accordance with the principles laid down in theMuir Millscase p73 (B) (supra). In our opinion, it is impossible to apply these principles in the case of a municipal undertaking of the nature we have under consideration here.The argument of learned counsel for the respondents that once it is found that there was capital and actual profit in the sense of excess of earnings over outgoings from the undertaking in question no distinction can be drawn between private enterprise, and municipal enterprise cannot, therefore, be accepted. In the case before us, there was neither capital nor profit on which the principles laid down in Muir Mills case (B) (supra) could operate. We must make it clear that the question is not merely one of terminology;that is, whether the more appropriate word to use in connection with a municipal undertaking is surplus or profit; it is the nature or quality of the municipal property or fund which must be determinative of the question at issue, and it is on that basis that we have come to the conclusion that in the present case there were no profits of one single department of the municipality out of which the respondents could claim ado not take those observations as deciding any question of principle; at best they express an opinion of the members of the committee -an opinion which is expressly confined to undertakings organised in the form of corporations with the aim of making a profit in the ordinary trading or business sense. In our opinion, those observations have no apt application to a municipal undertaking meant for the purpose of augmenting municipal revenues in order to meet the municipal service demands and improve the amenities of the inhabitants of a modern municipal borough.13. We proceed now to consider the second argument of the learned Attorney General. This argument depends on the provisions of S.58 of the Municipal Act. That section deals with the rule-making power of the municipality and proviso (a) lays down that no rule or alteration or rescission of a rule made shall have effect unless and until it has been approved by the Statecannot accept this argument as correct. The demand for bonus as an industrial claim is not dealt with by the Municipal Act; it is dealt with by the Industrial Act, 1947. Therefore, it is not relevant consideration whether there are provisions in the Municipal Act with regard to payment of bonus. The provisions of the Municipal Act are relevant only for the purposes of determining the quality or nature municipal property or fund; those provisions cannot be stretched beyond that limited purpose for defeating a claim of bonus. We do not, therefore, think that the absence of provisions in the Municipal Act for the payment of bonus through municipal employees is a consideration which is either determinative or conclusive of the question at issue before us.If we had come to a different conclusion as respects the first contention of the learned Attorney-General and his third contention to be referred to presently the absence of suitable provisions relating to payment of bonus to municipal employees in the Municipal Act would not have stood in the way of our allowing the claim of the respondents for the payment ofspite of these distinctions in the internal arrangement of departments within a municipality, the property or income of the municipality remains of the same nature, or quality and it will be obviously unfair to draw a distinction between the employees of one department and the employees of another department for the payment of bonus.The result of such distinction will be that the staff of the spending departments will never be entitled to any bonus at all and instead of promoting peace and harmony amongst the employees of the municipality, a distinction like the one suggested by learned counsel for the respondents will create unrest anddo not think that this submission is correct. Under the Municipal Act, the total income and expenditure of the municipality form one integrated whole; they are both for the purposes of the Act; and if the workmen of a service or spending department do not work efficiently with the result that the expenses on the obligatory functions of the municipality increases, that in efficiency is bound to affect - even to dwindle or wipe out the surplus of an earning department. For a true appreciation of the financial position of a municipality, its total income, and expenditure must be considered; we must look at the whole picture the part which is in shade as well as the part which has caught the sun, for a correct appraisal of thethe question with reference to the facts of the present case, it is clear to us that the different activities of the Baroda Municipality constituted one integrated whole and the activities of the different department of the Municipality were not distinct or unconnected activities of the different departments of the Municipality were not distinct or unconnected with activities so as to permit the isolation of one department from another or of an earning department from another or of an earning department from a spending department. From this point of view also, the claim of bonus was notis not necessary to consider those decisions in the present case, because they have no bearing on the questions which we have to consider in this case.17. For the reasons given above, we hold that the Industrial Tribunal came to the correct decision that the respondents p73 employed in the electricity department of the Baroda Municipality were not entitled to the bonus claimed, and the Labour Appellate Tribunal came to an erroneous decision on that question in its order dated November 23, 1955. | 1 | 6,541 | 1,950 | ### Instruction:
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not dealt with by the Municipal Act; it is dealt with by the Industrial Act, 1947. Therefore, it is not relevant consideration whether there are provisions in the Municipal Act with regard to payment of bonus. The provisions of the Municipal Act are relevant only for the purposes of determining the quality or nature municipal property or fund; those provisions cannot be stretched beyond that limited purpose for defeating a claim of bonus. We do not, therefore, think that the absence of provisions in the Municipal Act for the payment of bonus through municipal employees is a consideration which is either determinative or conclusive of the question at issue before us.If we had come to a different conclusion as respects the first contention of the learned Attorney-General and his third contention to be referred to presently the absence of suitable provisions relating to payment of bonus to municipal employees in the Municipal Act would not have stood in the way of our allowing the claim of the respondents for the payment of bonus.14. We now proceed to consider the third and last contention of the learned Attorney-General. This contention centres round the question whether one department of the municipality can be isolated and a distinction made between the employees of that department and other departments in the matter of the payment of bonus. We have already pointed out that under the Municipality Act a municipality may perform various functions, some obligatory and some discretional. The activities may be of a composite nature; some of the departments may be mostly earning departments and some mostly spending departments. For example, the department which collects municipal taxes or other municipal revenue, is essentially an earning department whereas the sanitary department or other service department is essentially a spending department. There may indeed be departments where the earning and spending may almost balance each other. In spite of these distinctions in the internal arrangement of departments within a municipality, the property or income of the municipality remains of the same nature, or quality and it will be obviously unfair to draw a distinction between the employees of one department and the employees of another department for the payment of bonus.The result of such distinction will be that the staff of the spending departments will never be entitled to any bonus at all and instead of promoting peace and harmony amongst the employees of the municipality, a distinction like the one suggested by learned counsel for the respondents will create unrest and discontent. Learned counsel for the respondents submitted before us that beyond the fact of single ownership, there was no other connection between the electricity department of the municipality and its other departments. We do not think that this submission is correct. Under the Municipal Act, the total income and expenditure of the municipality form one integrated whole; they are both for the purposes of the Act; and if the workmen of a service or spending department do not work efficiently with the result that the expenses on the obligatory functions of the municipality increases, that in efficiency is bound to affect - even to dwindle or wipe out the surplus of an earning department. For a true appreciation of the financial position of a municipality, its total income, and expenditure must be considered; we must look at the whole picture the part which is in shade as well as the part which has caught the sun, for a correct appraisal of the picture.15. Learned counsel for the respondents, referred us to a number of decisions of Labour Tribunals where a distinction was made between a parent concern and subsidiary concerns or even between different units of the same concern, in the matter of payment of bonus:Rohit Mills Ltd. Ahmedabad v. Sri R. S. Parmar,1951-1 Lab. L. J. 463 (C).Mackinnon Mackenzie and Companys Indian Staff Organization v Mackinnon Mackenzie and Co. Ltd.1955-1 Lab. L. J. 154 (D),Ahmedabad Mfg. and Calico Ptg. Co. Ltd. v. Their Workmen,1951-2 Lab. L. J. 765 (E),Shaparia Dock and Steel Co. v. Their Workers1954-2 Lab. L. J. 208 (F) andMinakshi Mills Ltd. v. Their Workmen,1953-2 Lab. L. J. 520 (g). Recently, we have had occasion to consider the question inBurn and Co., Calcutta v. Their EmployeesC A. No. 325 of 1955, D/-11 Oct. 1956: ((S) A. I. R. 1957 S. C. 38) (H)where we pointed out the harmful consequences p73 which might arise if an invidious distinction were made amongst employees of the same industry. Considering the question with reference to the facts of the present case, it is clear to us that the different activities of the Baroda Municipality constituted one integrated whole and the activities of the different department of the Municipality were not distinct or unconnected activities of the different departments of the Municipality were not distinct or unconnected with activities so as to permit the isolation of one department from another or of an earning department from another or of an earning department from a spending department. From this point of view also, the claim of bonus was not maintainable.16. Some decisions were brought to our notice in which the question of the payment of bonus to their employees by Electric Supply Companies, not run as a state or municipal under taking, was considered with reference to the provisions of the Electricity (Supply) Act, 1948, and one of the points which fell for consideration there was the interpretation of clause XVII(-) (b) (xi) of Schedule VI of the Electricity (Supply) Act, 1948. It is not necessary to consider those decisions in the present case, because they have no bearing on the questions which we have to consider in this case.17. For the reasons given above, we hold that the Industrial Tribunal came to the correct decision that the respondents p73 employed in the electricity department of the Baroda Municipality were not entitled to the bonus claimed, and the Labour Appellate Tribunal came to an erroneous decision on that question in its order dated November 23, 1955.
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For our purpose it is sufficient to state that what the Baroda Municipality got from the State Government of Baroda merged in and became municipal property or municipal fund under the provision of the Municipal Act and was not capital on which a return had to be earned in accordance with the principles laid down in theMuir Millscase p73 (B) (supra). In our opinion, it is impossible to apply these principles in the case of a municipal undertaking of the nature we have under consideration here.The argument of learned counsel for the respondents that once it is found that there was capital and actual profit in the sense of excess of earnings over outgoings from the undertaking in question no distinction can be drawn between private enterprise, and municipal enterprise cannot, therefore, be accepted. In the case before us, there was neither capital nor profit on which the principles laid down in Muir Mills case (B) (supra) could operate. We must make it clear that the question is not merely one of terminology;that is, whether the more appropriate word to use in connection with a municipal undertaking is surplus or profit; it is the nature or quality of the municipal property or fund which must be determinative of the question at issue, and it is on that basis that we have come to the conclusion that in the present case there were no profits of one single department of the municipality out of which the respondents could claim ado not take those observations as deciding any question of principle; at best they express an opinion of the members of the committee -an opinion which is expressly confined to undertakings organised in the form of corporations with the aim of making a profit in the ordinary trading or business sense. In our opinion, those observations have no apt application to a municipal undertaking meant for the purpose of augmenting municipal revenues in order to meet the municipal service demands and improve the amenities of the inhabitants of a modern municipal borough.13. We proceed now to consider the second argument of the learned Attorney General. This argument depends on the provisions of S.58 of the Municipal Act. That section deals with the rule-making power of the municipality and proviso (a) lays down that no rule or alteration or rescission of a rule made shall have effect unless and until it has been approved by the Statecannot accept this argument as correct. The demand for bonus as an industrial claim is not dealt with by the Municipal Act; it is dealt with by the Industrial Act, 1947. Therefore, it is not relevant consideration whether there are provisions in the Municipal Act with regard to payment of bonus. The provisions of the Municipal Act are relevant only for the purposes of determining the quality or nature municipal property or fund; those provisions cannot be stretched beyond that limited purpose for defeating a claim of bonus. We do not, therefore, think that the absence of provisions in the Municipal Act for the payment of bonus through municipal employees is a consideration which is either determinative or conclusive of the question at issue before us.If we had come to a different conclusion as respects the first contention of the learned Attorney-General and his third contention to be referred to presently the absence of suitable provisions relating to payment of bonus to municipal employees in the Municipal Act would not have stood in the way of our allowing the claim of the respondents for the payment ofspite of these distinctions in the internal arrangement of departments within a municipality, the property or income of the municipality remains of the same nature, or quality and it will be obviously unfair to draw a distinction between the employees of one department and the employees of another department for the payment of bonus.The result of such distinction will be that the staff of the spending departments will never be entitled to any bonus at all and instead of promoting peace and harmony amongst the employees of the municipality, a distinction like the one suggested by learned counsel for the respondents will create unrest anddo not think that this submission is correct. Under the Municipal Act, the total income and expenditure of the municipality form one integrated whole; they are both for the purposes of the Act; and if the workmen of a service or spending department do not work efficiently with the result that the expenses on the obligatory functions of the municipality increases, that in efficiency is bound to affect - even to dwindle or wipe out the surplus of an earning department. For a true appreciation of the financial position of a municipality, its total income, and expenditure must be considered; we must look at the whole picture the part which is in shade as well as the part which has caught the sun, for a correct appraisal of thethe question with reference to the facts of the present case, it is clear to us that the different activities of the Baroda Municipality constituted one integrated whole and the activities of the different department of the Municipality were not distinct or unconnected activities of the different departments of the Municipality were not distinct or unconnected with activities so as to permit the isolation of one department from another or of an earning department from another or of an earning department from a spending department. From this point of view also, the claim of bonus was notis not necessary to consider those decisions in the present case, because they have no bearing on the questions which we have to consider in this case.17. For the reasons given above, we hold that the Industrial Tribunal came to the correct decision that the respondents p73 employed in the electricity department of the Baroda Municipality were not entitled to the bonus claimed, and the Labour Appellate Tribunal came to an erroneous decision on that question in its order dated November 23, 1955.
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Kt. N. Rm. Thenappa Chettiar & Ors Vs. N. S. Kr. Karuppan Chettiar & Ors | of the Report the (Mad LJ) = (at p. 1152 of AIR) the High Court stated as follows :"If persons invite subscriptions on a representation that they would devote the subscriptions so collected to a particular purpose and they divert the subscriptions to some other purpose the subscribers have to object to the funds being diverted to other purposes than those for which they were collected. But so long as the subscribers do not object to the person or persons collecting subscriptions for building or endowing any particular institution, the person or persons so building or and endowing it have the right to provide for its management for all time to come. There is nothing in the evidence to show that the persons who gave subscriptions gave them on the understanding that the founders should not have the hereditary right of management. All that appears from Ex. A is, that subscriptions were collected, funds were raised, a temple was built and idols were installed and the management was in the hands of Venkatarama Chetti and others and all of them." 5. As we have already stated, the appellants have failed to prove that all the contributories were the joint founders of the trust and that they were all in turns entitled to management in proportion to the amounts that they had contributed. On the other hand, the evidence makes it quite clear that the contributories agreed to leave the management of the trust solely in the hands of the senior Chockalingam and subsequently of defendant No. 2. We are accordingly of the opinion that Mr. N. C. Chatterjee has been unable to make good his argument on this aspect of the case. 6. We proceed to consider the next question arising in the appeal, viz., whether the plaintiffs are entitled to ask for the settlement of a scheme even on the assumption that they were not cofounders of the trust.The parties in the case have proceeded on the footing that the trust is a private trust, but the authorities establish that even in the case of a private trust a suit can be filed for the removal of the trustee or for settlement of a scheme for the purpose of effectively carrying out the objects of the trust. If there is a breach of trust or mismanagement on the part of the trustee, a suit can be brought in a civil court by any person interested for the removal of the trustee and for the proper administration of the endowment.-(See, for example, Pramatha Nath Mullicks case, 52 Ind App 245 = (AIR 1925 PC 139 ) and Manohar Mookerjee v. Peary Mohan, 24 Cal WN 478 = (AIR 1920 Cal 210) ).There are also authorities to the effect that a Civil Court may frame a scheme in the case of a private endowment at the instance of the parties interested. The question has been discussed by the Calcutta High Court in Bimal Krishnas case, 41 Cal WN 728 = (AIR 1937 Cal 338 ) and it was held in that case that a scheme for the administration of a private endowment can be framed by a Civil Court. Mookerjee, J. observed in that case that in India the Crown is the constitutional protector of all infants and as the deity occupies in law the position of an infant, the shebaits who represent the deity are entitled to seek the assistance of the Court in case of mismanagement, fraud or maladministration on the part of the shebait and to have a proper scheme for management framed for the administration of the private trust. In Pramatha Nath Mullicks case, 52 Ind App 245 = (AIR 1925 PC 139 ) to which we have already made reference, the Judicial Committee itself directed the framing of a scheme in the case of a private endowment and the case was expressly remanded to the trial courts for that purpose. In the present case the appellants being contributors to the trust are interested in the proper administration of the trust and in our opinion, they have a sufficient right to bring a suit in a Civil Court in case there is mismanagement or breach of trust on the part of the managing trustee and for framing of a scheme 7. But the question in the present appeal is whether the appellants have made out any grounds for framing of a scheme or for the removal of the second defendant from the management of the trust. It was alleged by the appellants in the plaint that the trust had been mismanaged by the senior Chockalingam and by his grand-son, 2nd defendant and both have been guilty of breach of trust. The main charge levelled against defendant No 2 was the non-performance of the pujas and the closing down of the Thevara Patasala and the feeding of the pupils. The Subordinate Judge has examined the evidence dealing with the charge and found that it was not established. The High Court, upon analysis of the evidence has reached the same conclusion. It was also alleged by the appellants that Account Books Exs. A-9 and A-10 have been fabricated by defendant No. 2 but the Subordinate Judge and the High Court both held that the allegation was not true. Certain other charges were also levelled by the plaintiffs against defendant No. 2 and senior Chockalingam but the High Court as well as the Subordinate Judge found that these charges were not substantiated.The question whether defendant No. 2 or the senior Chockalingam was guilty of breach of trust or of acts of mismanagement is a question of fact and in view of the concurrent finding of both the lower courts on this question we are of opinion that no ground has been made out on behalf of the appellants for framing of a scheme or for removal of defendant No. 2 from the office of the managing trustee. It follows that the suit brought by the appellants has been rightly dismissed. | 1[ds]5. As we have already stated, the appellants have failed to prove that all the contributories were the joint founders of the trust and that they were all in turns entitled to management in proportion to the amounts that they had contributed. On the other hand, the evidence makes it quite clear that the contributories agreed to leave the management of the trust solely in the hands of the senior Chockalingam and subsequently of defendant No. 2. We are accordingly of the opinion that Mr. N. C. Chatterjee has been unable to make good his argument on this aspect of the case6. We proceed to consider the next question arising in the appeal, viz., whether the plaintiffs are entitled to ask for the settlement of a scheme even on the assumption that they were not cofounders of thee parties in the case have proceeded on the footing that the trust is a private trust, but the authorities establish that even in the case of a private trust a suit can be filed for the removal of the trustee or for settlement of a scheme for the purpose of effectively carrying out the objects of the trust. If there is a breach of trust or mismanagement on the part of the trustee, a suit can be brought in a civil court by any person interested for the removal of the trustee and for the proper administration of the, for example, Pramatha Nath Mullicks case, 52 Ind App 245 = (AIR 1925 PC 139 ) and Manohar Mookerjee v. Peary Mohan, 24 Cal WN 478 = (AIR 1920 Cal 210) ).There are also authorities to the effect that a Civil Court may frame a scheme in the case of a private endowment at the instance of the parties interested. The question has been discussed by the Calcutta High Court in Bimal Krishnas case, 41 Cal WN 728 = (AIR 1937 Cal 338 ) and it was held in that case that a scheme for the administration of a private endowment can be framed by a Civil Court. Mookerjee, J. observed in that case that in India the Crown is the constitutional protector of all infants and as the deity occupies in law the position of an infant, the shebaits who represent the deity are entitled to seek the assistance of the Court in case of mismanagement, fraud or maladministration on the part of the shebait and to have a proper scheme for management framed for the administration of the private trust. In Pramatha Nath Mullicks case, 52 Ind App 245 = (AIR 1925 PC 139 ) to which we have already made reference, the Judicial Committee itself directed the framing of a scheme in the case of a private endowment and the case was expressly remanded to the trial courts for that purpose. In the present case the appellants being contributors to the trust are interested in the proper administration of the trust and in our opinion, they have a sufficient right to bring a suit in a Civil Court in case there is mismanagement or breach of trust on the part of the managing trustee and for framing of a scheme7. But the question in the present appeal is whether the appellants have made out any grounds for framing of a scheme or for the removal of the second defendant from the management of the trust.It was alleged by the appellants in the plaint that the trust had been mismanaged by the senior Chockalingam and by his, 2nd defendant and both have been guilty of breach of trust. The main charge levelled against defendant No 2 was thee of the pujas and the closing down of the Thevara Patasala and the feeding of the pupils. The Subordinate Judge has examined the evidence dealing with the charge and found that it was not established. The High Court, upon analysis of the evidence has reached the same conclusion. It was also alleged by the appellants that Account Books Exs.9 and0 have been fabricated by defendant No. 2 but the Subordinate Judge and the High Court both held that the allegation was not true. Certain other charges were also levelled by the plaintiffs against defendant No. 2 and senior Chockalingam but the High Court as well as the Subordinate Judge found that these charges were not substantiated.The question whether defendant No. 2 or the senior Chockalingam was guilty of breach of trust or of acts of mismanagement is a question of fact and in view of the concurrent finding of both the lower courts on this question we are of opinion that no ground has been made out on behalf of the appellants for framing of a scheme or for removal of defendant No. 2 from the office of the managing trustee. It follows that the suit brought by the appellants has been rightly dismissed. | 1 | 3,568 | 862 | ### Instruction:
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of the Report the (Mad LJ) = (at p. 1152 of AIR) the High Court stated as follows :"If persons invite subscriptions on a representation that they would devote the subscriptions so collected to a particular purpose and they divert the subscriptions to some other purpose the subscribers have to object to the funds being diverted to other purposes than those for which they were collected. But so long as the subscribers do not object to the person or persons collecting subscriptions for building or endowing any particular institution, the person or persons so building or and endowing it have the right to provide for its management for all time to come. There is nothing in the evidence to show that the persons who gave subscriptions gave them on the understanding that the founders should not have the hereditary right of management. All that appears from Ex. A is, that subscriptions were collected, funds were raised, a temple was built and idols were installed and the management was in the hands of Venkatarama Chetti and others and all of them." 5. As we have already stated, the appellants have failed to prove that all the contributories were the joint founders of the trust and that they were all in turns entitled to management in proportion to the amounts that they had contributed. On the other hand, the evidence makes it quite clear that the contributories agreed to leave the management of the trust solely in the hands of the senior Chockalingam and subsequently of defendant No. 2. We are accordingly of the opinion that Mr. N. C. Chatterjee has been unable to make good his argument on this aspect of the case. 6. We proceed to consider the next question arising in the appeal, viz., whether the plaintiffs are entitled to ask for the settlement of a scheme even on the assumption that they were not cofounders of the trust.The parties in the case have proceeded on the footing that the trust is a private trust, but the authorities establish that even in the case of a private trust a suit can be filed for the removal of the trustee or for settlement of a scheme for the purpose of effectively carrying out the objects of the trust. If there is a breach of trust or mismanagement on the part of the trustee, a suit can be brought in a civil court by any person interested for the removal of the trustee and for the proper administration of the endowment.-(See, for example, Pramatha Nath Mullicks case, 52 Ind App 245 = (AIR 1925 PC 139 ) and Manohar Mookerjee v. Peary Mohan, 24 Cal WN 478 = (AIR 1920 Cal 210) ).There are also authorities to the effect that a Civil Court may frame a scheme in the case of a private endowment at the instance of the parties interested. The question has been discussed by the Calcutta High Court in Bimal Krishnas case, 41 Cal WN 728 = (AIR 1937 Cal 338 ) and it was held in that case that a scheme for the administration of a private endowment can be framed by a Civil Court. Mookerjee, J. observed in that case that in India the Crown is the constitutional protector of all infants and as the deity occupies in law the position of an infant, the shebaits who represent the deity are entitled to seek the assistance of the Court in case of mismanagement, fraud or maladministration on the part of the shebait and to have a proper scheme for management framed for the administration of the private trust. In Pramatha Nath Mullicks case, 52 Ind App 245 = (AIR 1925 PC 139 ) to which we have already made reference, the Judicial Committee itself directed the framing of a scheme in the case of a private endowment and the case was expressly remanded to the trial courts for that purpose. In the present case the appellants being contributors to the trust are interested in the proper administration of the trust and in our opinion, they have a sufficient right to bring a suit in a Civil Court in case there is mismanagement or breach of trust on the part of the managing trustee and for framing of a scheme 7. But the question in the present appeal is whether the appellants have made out any grounds for framing of a scheme or for the removal of the second defendant from the management of the trust. It was alleged by the appellants in the plaint that the trust had been mismanaged by the senior Chockalingam and by his grand-son, 2nd defendant and both have been guilty of breach of trust. The main charge levelled against defendant No 2 was the non-performance of the pujas and the closing down of the Thevara Patasala and the feeding of the pupils. The Subordinate Judge has examined the evidence dealing with the charge and found that it was not established. The High Court, upon analysis of the evidence has reached the same conclusion. It was also alleged by the appellants that Account Books Exs. A-9 and A-10 have been fabricated by defendant No. 2 but the Subordinate Judge and the High Court both held that the allegation was not true. Certain other charges were also levelled by the plaintiffs against defendant No. 2 and senior Chockalingam but the High Court as well as the Subordinate Judge found that these charges were not substantiated.The question whether defendant No. 2 or the senior Chockalingam was guilty of breach of trust or of acts of mismanagement is a question of fact and in view of the concurrent finding of both the lower courts on this question we are of opinion that no ground has been made out on behalf of the appellants for framing of a scheme or for removal of defendant No. 2 from the office of the managing trustee. It follows that the suit brought by the appellants has been rightly dismissed.
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5. As we have already stated, the appellants have failed to prove that all the contributories were the joint founders of the trust and that they were all in turns entitled to management in proportion to the amounts that they had contributed. On the other hand, the evidence makes it quite clear that the contributories agreed to leave the management of the trust solely in the hands of the senior Chockalingam and subsequently of defendant No. 2. We are accordingly of the opinion that Mr. N. C. Chatterjee has been unable to make good his argument on this aspect of the case6. We proceed to consider the next question arising in the appeal, viz., whether the plaintiffs are entitled to ask for the settlement of a scheme even on the assumption that they were not cofounders of thee parties in the case have proceeded on the footing that the trust is a private trust, but the authorities establish that even in the case of a private trust a suit can be filed for the removal of the trustee or for settlement of a scheme for the purpose of effectively carrying out the objects of the trust. If there is a breach of trust or mismanagement on the part of the trustee, a suit can be brought in a civil court by any person interested for the removal of the trustee and for the proper administration of the, for example, Pramatha Nath Mullicks case, 52 Ind App 245 = (AIR 1925 PC 139 ) and Manohar Mookerjee v. Peary Mohan, 24 Cal WN 478 = (AIR 1920 Cal 210) ).There are also authorities to the effect that a Civil Court may frame a scheme in the case of a private endowment at the instance of the parties interested. The question has been discussed by the Calcutta High Court in Bimal Krishnas case, 41 Cal WN 728 = (AIR 1937 Cal 338 ) and it was held in that case that a scheme for the administration of a private endowment can be framed by a Civil Court. Mookerjee, J. observed in that case that in India the Crown is the constitutional protector of all infants and as the deity occupies in law the position of an infant, the shebaits who represent the deity are entitled to seek the assistance of the Court in case of mismanagement, fraud or maladministration on the part of the shebait and to have a proper scheme for management framed for the administration of the private trust. In Pramatha Nath Mullicks case, 52 Ind App 245 = (AIR 1925 PC 139 ) to which we have already made reference, the Judicial Committee itself directed the framing of a scheme in the case of a private endowment and the case was expressly remanded to the trial courts for that purpose. In the present case the appellants being contributors to the trust are interested in the proper administration of the trust and in our opinion, they have a sufficient right to bring a suit in a Civil Court in case there is mismanagement or breach of trust on the part of the managing trustee and for framing of a scheme7. But the question in the present appeal is whether the appellants have made out any grounds for framing of a scheme or for the removal of the second defendant from the management of the trust.It was alleged by the appellants in the plaint that the trust had been mismanaged by the senior Chockalingam and by his, 2nd defendant and both have been guilty of breach of trust. The main charge levelled against defendant No 2 was thee of the pujas and the closing down of the Thevara Patasala and the feeding of the pupils. The Subordinate Judge has examined the evidence dealing with the charge and found that it was not established. The High Court, upon analysis of the evidence has reached the same conclusion. It was also alleged by the appellants that Account Books Exs.9 and0 have been fabricated by defendant No. 2 but the Subordinate Judge and the High Court both held that the allegation was not true. Certain other charges were also levelled by the plaintiffs against defendant No. 2 and senior Chockalingam but the High Court as well as the Subordinate Judge found that these charges were not substantiated.The question whether defendant No. 2 or the senior Chockalingam was guilty of breach of trust or of acts of mismanagement is a question of fact and in view of the concurrent finding of both the lower courts on this question we are of opinion that no ground has been made out on behalf of the appellants for framing of a scheme or for removal of defendant No. 2 from the office of the managing trustee. It follows that the suit brought by the appellants has been rightly dismissed.
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B.D. Bharucha,Bombay Vs. Commissioner Of Income-Tax, Central Bombay | by the appellant was, therefore, a capital loss and not a revenue loss. As required by the appellant the Tribunal stated a case to the High Court under S. 66 (1) of the Income-tax Act on the following question of law:"Whether the aforesaid loss of Rupees 80,759 is deductible under any of the provisions of the Act?" By its judgment, dated August 27, 1962, the High Court answered the Reference in the negative and against the appellant. 3. On behalf of the respondent it was submitted that the High Court was right in taking the view that the appellant had advanced a sum of Rs. 1,00,000 not with a view to earn interest thereon but with a view to making an investment in the business of Tarachand Pictures and get a return on the said investment by way of a share of profits in the said business. It was contended that the money was not lent for any definite term and no rate of interest had been fixed under Cl. 3. The argument was also stressed that Cl. 3 of the agreement stipulated that the appellant was to share with the distributors not only the profit but also the loss of the business, and in the case of no money-lending transaction is there a covenant between the parties that the money-lender will share the loss of the business for which the money is lent. In other words, it was argued that no money lending transaction can have the attribute of the money-lender sharing the risk of the loss of the business for which the money is lent, nor could it be a feature of any purely financial deal.We are unable to accept the argument of the respondent that the transaction between the parties under the agreement, dated January 5, 1953 was not a money-lending transaction or a transaction in the nature of a financial deal in the course of the appellants business.If Cl. 3 of the agreement is taken in isolation there may be some force in the contention of the respondent that the term under which the appellant undertook to share the loss took the transaction out of the category of money lending transaction and the loss suffered by the appellant was, therefore, a capital loss.In the present case, however, Cl. 3 of the agreement, dated January 5, 1953 cannot be read in isolation but it must be construed in the context of Cl. 7 which provides that in case the picture was not released in Bombay within 15 months from the date of the agreement, the distributors will return all the moneys so far advanced to them by the appellant together with interest thereon at 9 per cent per annum. It is the admitted position in the present case that the picture was not released by the distributors till the stipulated date, namely, April 4, 1954 but it was released on May 28, 1954 and Cl. 7 of the agreement, therefore, came into operation. The result, therefore, is that on and from April 4, 1954 there was a contract of loan between the parties in terms of Cl. 7 of the agreement and the principal amount became repayable from that date to the appellant with interest thereon at 9 per cent per annum. It follows, therefore. that the appellant is entitled to claim the amount of Rs. 80,759 as a bad debt under S. 10 (2) (xi) of the Income-tax Act and the loss suffered by the appellant was not a loss of capital but a revenue loss. 4. To find out whether an expenditure is on the capital account or on revenue account, one must consider the expenditure in relation to the business. Since all payments reduce capital in the ultimate analysis, one is apt to consider a loss as amounting to a loss of capital.But it is not true of all losses, because losses in the running of the business cannot be said to be of capital. The distinction is brought out for example, in Reids Brewery Co. Ltd. v. Male, (1891) 3 Tax Cas 279. In that case, the brewery company carried on, in addition to the business of a brewery, a business of bankers and money-lenders making loans and advances to their customers. This helped the customers pushing sales of the product of the brewery company. Certain sums had to be written off and the amount was held to be deductible. In the course of his judgment Pollock B. said:"Of course, if it be capital invested, then it comes within the express provision of the Income-tax Act, that no deduction is to be made on that amount." but held that:".. no person who is acquainted with the habits of business can doubt that this is not capital invested. What it is, is this. It is capital used by the Appellants but used only in the sense that all money which is laid out by persons who are traders, whether it be in the purchase of goods be they traders alone, whether it be in the purchase of raw material be they manufacturers, or in the case of money-lenders, be they pawnbrokers or money-lenders, whether It be money lent in the course of their trade, it is used and it comes out of capital, but it is not an investment in the ordinary sense of the word." In the present case, the conditions for the grant of the allowance under S. 10 (2) (xi) of the Income-tax Act are satisfied. In the first place, the debt is in respect of the business which is carried on by the appellant in the relevant accounting year and accounts of the business are admittedly kept on mercantile basis. In the second place, the debt is in respect of and incidental to the business of the appellant. It has also been found that the debt had become irrecoverable in the relevant accounting year and the amount had been actually written off as irrecoverable in the books of the appellant. | 1[ds]We are unable to accept the argument of the respondent that the transaction between the parties under the agreement, dated January 5, 1953 was not a money-lending transaction or a transaction in the nature of a financial deal in the course of the appellants business.If Cl. 3 of the agreement is taken in isolation there may be some force in the contention of the respondent that the term under which the appellant undertook to share the loss took the transaction out of the category of money lending transaction and the loss suffered by the appellant was, therefore, a capital loss.In the present case, however, Cl. 3 of the agreement, dated January 5, 1953 cannot be read in isolation but it must be construed in the context of Cl. 7 which provides that in case the picture was not released in Bombay within 15 months from the date of the agreement, the distributors will return all the moneys so far advanced to them by the appellant together with interest thereon at 9 per cent per annum. It is the admitted position in the present case that the picture was not released by the distributors till the stipulated date, namely, April 4, 1954 but it was released on May 28, 1954 and Cl. 7 of the agreement, therefore, came into operation. The result, therefore, is that on and from April 4, 1954 there was a contract of loan between the parties in terms of Cl. 7 of the agreement and the principal amount became repayable from that date to the appellant with interest thereon at 9 per cent per annum. It follows, therefore. that the appellant is entitled to claim the amount of Rs. 80,759 as a bad debt under S. 10 (2) (xi) of the Income-tax Act and the loss suffered by the appellant was not a loss of capital but a revenue loss4. To find out whether an expenditure is on the capital account or on revenue account, one must consider the expenditure in relation to the business. Since all payments reduce capital in the ultimate analysis, one is apt to consider a loss as amounting to a loss of capital.But it is not true of all losses, because losses in the running of the business cannot be said to be of capitalIn the present case, the conditions for the grant of the allowance under S. 10 (2) (xi) of the Income-tax Act are satisfied. In the first place, the debt is in respect of the business which is carried on by the appellant in the relevant accounting year and accounts of the business are admittedly kept on mercantile basis. In the second place, the debt is in respect of and incidental to the business of the appellant. It has also been found that the debt had become irrecoverable in the relevant accounting year and the amount had been actually written off as irrecoverable in the books of the appellant. | 1 | 1,977 | 545 | ### Instruction:
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by the appellant was, therefore, a capital loss and not a revenue loss. As required by the appellant the Tribunal stated a case to the High Court under S. 66 (1) of the Income-tax Act on the following question of law:"Whether the aforesaid loss of Rupees 80,759 is deductible under any of the provisions of the Act?" By its judgment, dated August 27, 1962, the High Court answered the Reference in the negative and against the appellant. 3. On behalf of the respondent it was submitted that the High Court was right in taking the view that the appellant had advanced a sum of Rs. 1,00,000 not with a view to earn interest thereon but with a view to making an investment in the business of Tarachand Pictures and get a return on the said investment by way of a share of profits in the said business. It was contended that the money was not lent for any definite term and no rate of interest had been fixed under Cl. 3. The argument was also stressed that Cl. 3 of the agreement stipulated that the appellant was to share with the distributors not only the profit but also the loss of the business, and in the case of no money-lending transaction is there a covenant between the parties that the money-lender will share the loss of the business for which the money is lent. In other words, it was argued that no money lending transaction can have the attribute of the money-lender sharing the risk of the loss of the business for which the money is lent, nor could it be a feature of any purely financial deal.We are unable to accept the argument of the respondent that the transaction between the parties under the agreement, dated January 5, 1953 was not a money-lending transaction or a transaction in the nature of a financial deal in the course of the appellants business.If Cl. 3 of the agreement is taken in isolation there may be some force in the contention of the respondent that the term under which the appellant undertook to share the loss took the transaction out of the category of money lending transaction and the loss suffered by the appellant was, therefore, a capital loss.In the present case, however, Cl. 3 of the agreement, dated January 5, 1953 cannot be read in isolation but it must be construed in the context of Cl. 7 which provides that in case the picture was not released in Bombay within 15 months from the date of the agreement, the distributors will return all the moneys so far advanced to them by the appellant together with interest thereon at 9 per cent per annum. It is the admitted position in the present case that the picture was not released by the distributors till the stipulated date, namely, April 4, 1954 but it was released on May 28, 1954 and Cl. 7 of the agreement, therefore, came into operation. The result, therefore, is that on and from April 4, 1954 there was a contract of loan between the parties in terms of Cl. 7 of the agreement and the principal amount became repayable from that date to the appellant with interest thereon at 9 per cent per annum. It follows, therefore. that the appellant is entitled to claim the amount of Rs. 80,759 as a bad debt under S. 10 (2) (xi) of the Income-tax Act and the loss suffered by the appellant was not a loss of capital but a revenue loss. 4. To find out whether an expenditure is on the capital account or on revenue account, one must consider the expenditure in relation to the business. Since all payments reduce capital in the ultimate analysis, one is apt to consider a loss as amounting to a loss of capital.But it is not true of all losses, because losses in the running of the business cannot be said to be of capital. The distinction is brought out for example, in Reids Brewery Co. Ltd. v. Male, (1891) 3 Tax Cas 279. In that case, the brewery company carried on, in addition to the business of a brewery, a business of bankers and money-lenders making loans and advances to their customers. This helped the customers pushing sales of the product of the brewery company. Certain sums had to be written off and the amount was held to be deductible. In the course of his judgment Pollock B. said:"Of course, if it be capital invested, then it comes within the express provision of the Income-tax Act, that no deduction is to be made on that amount." but held that:".. no person who is acquainted with the habits of business can doubt that this is not capital invested. What it is, is this. It is capital used by the Appellants but used only in the sense that all money which is laid out by persons who are traders, whether it be in the purchase of goods be they traders alone, whether it be in the purchase of raw material be they manufacturers, or in the case of money-lenders, be they pawnbrokers or money-lenders, whether It be money lent in the course of their trade, it is used and it comes out of capital, but it is not an investment in the ordinary sense of the word." In the present case, the conditions for the grant of the allowance under S. 10 (2) (xi) of the Income-tax Act are satisfied. In the first place, the debt is in respect of the business which is carried on by the appellant in the relevant accounting year and accounts of the business are admittedly kept on mercantile basis. In the second place, the debt is in respect of and incidental to the business of the appellant. It has also been found that the debt had become irrecoverable in the relevant accounting year and the amount had been actually written off as irrecoverable in the books of the appellant.
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We are unable to accept the argument of the respondent that the transaction between the parties under the agreement, dated January 5, 1953 was not a money-lending transaction or a transaction in the nature of a financial deal in the course of the appellants business.If Cl. 3 of the agreement is taken in isolation there may be some force in the contention of the respondent that the term under which the appellant undertook to share the loss took the transaction out of the category of money lending transaction and the loss suffered by the appellant was, therefore, a capital loss.In the present case, however, Cl. 3 of the agreement, dated January 5, 1953 cannot be read in isolation but it must be construed in the context of Cl. 7 which provides that in case the picture was not released in Bombay within 15 months from the date of the agreement, the distributors will return all the moneys so far advanced to them by the appellant together with interest thereon at 9 per cent per annum. It is the admitted position in the present case that the picture was not released by the distributors till the stipulated date, namely, April 4, 1954 but it was released on May 28, 1954 and Cl. 7 of the agreement, therefore, came into operation. The result, therefore, is that on and from April 4, 1954 there was a contract of loan between the parties in terms of Cl. 7 of the agreement and the principal amount became repayable from that date to the appellant with interest thereon at 9 per cent per annum. It follows, therefore. that the appellant is entitled to claim the amount of Rs. 80,759 as a bad debt under S. 10 (2) (xi) of the Income-tax Act and the loss suffered by the appellant was not a loss of capital but a revenue loss4. To find out whether an expenditure is on the capital account or on revenue account, one must consider the expenditure in relation to the business. Since all payments reduce capital in the ultimate analysis, one is apt to consider a loss as amounting to a loss of capital.But it is not true of all losses, because losses in the running of the business cannot be said to be of capitalIn the present case, the conditions for the grant of the allowance under S. 10 (2) (xi) of the Income-tax Act are satisfied. In the first place, the debt is in respect of the business which is carried on by the appellant in the relevant accounting year and accounts of the business are admittedly kept on mercantile basis. In the second place, the debt is in respect of and incidental to the business of the appellant. It has also been found that the debt had become irrecoverable in the relevant accounting year and the amount had been actually written off as irrecoverable in the books of the appellant.
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Villayati Ram Mittal P.Ltd Vs. Union Of India | the Writ Petition after holding that the correction of the bid made by the petitioner amounted to revocation of its original offer and hence the respondent No.2 was entitled to forfeit the earnest money furnished by the petitioner in terms of Clause 6 of the Notice. 4. Learned counsel for the petitioner submitted that the High Court failed to appreciate that the tender of the petitioner was initially defective in as much as the earnest money, which was furnished by the petitioner, was not in accordance with Clause 6 of the Notice. He explained that Clause 6 of the Notice provided that the earnest money was to be in the form of FDR from a nationalized bank, but the FDR of Rs.40 lacs furnished by the petitioner was from UTI Bank, which was not a nationalized bank. He further submitted that the petitioner had to make the correction in the figure so as to read as Rs.32,76,000/- instead of Rs.23,76,000/- because a mistake had been committed by the petitioner while calculating the figure and, therefore, soon after the tender was opened on 05.05.2004 the petitioner submitted the letter dated 06.05.2004 to the respondent No.2 correcting the aforesaid mistake in the calculation of the figure. He submitted that the respondent No.2 ought not to have treated the letter dated 06.05.2004 as revocation of the offer of the petitioner. Learned counsel for the petitioner further submitted that in any case the entire Notice was recalled and a fresh Notice was issued by respondent No.2 inviting tenders at a revised estimated cost. According to learned counsel for the petitioner, since the tender process in respect of which the petitioner had furnished the earnest money was cancelled, respondent No.2 should have refunded the earnest money to the petitioner. 5. Learned counsel for the respondents, on the other hand, supported the impugned judgment of the High Court and relied on the counter affidavit filed on behalf of the respondents in the High Court as well as in this Court. 6. We find that Clause 6 of the Notice clearly stipulated that "if any firm revokes its offer during the validity period, its earnest money shall be forfeited". Hence, the question that arose before the High Court for decision was whether the petitioner by revising one of the figures in its tender from Rs.23,76,000/- to Rs.32,76,000/- revoked its offer and the High Court has taken the view in the impugned judgment that as a consequence of the change in the figures, the offer of the petitioner for the work was enhanced from Rs.32 crores to Rs.41 crores and, therefore, the original offer of Rs.32 crores for the work stood revoked. In para 12 of the counter affidavit filed in reply to the Writ Petition in the High Court the respondents have stated that after receiving the letter dated 06.05.2004 of the petitioner correcting the figures in its tender, the respondents sent letters to the petitioner giving opportunity to the petitioner to withdraw its letter dated 06.05.2004 on or before 04.06.2004 and yet the petitioner did not withdraw its letter dated 06.05.2004. These facts clearly establish that the petitioner was not willing to stand by its original offer of Rs.32 crores for the work and was willing to do the work only at the revised bid of Rs.41 crores. The High Court was thus right in coming to the conclusion that the petitioner had revoked its offer of Rs.32 crores for the work. 7. The legal principles relating to "Earnest Money are well settled. In Chiranjit Singh v. Har Swarup [AIR 1926 PC 1], the Judicial Committee of the Privy Council held: "Earnest money is part of the purchase price when the transaction goes forward: it is forfeited when the transaction falls through, by reasons of the fault or failure of the vendee". These observations of the Judicial Committee have been quoted in the judgment of this Court in Shri Hanuman Cotton Mills & Ors. v. Tata Air Craft Limited [(1969) 3 SCC 522] in which the principles relating to earnest money have been laid down. 8. Similarly, in H.U.D.A. & Anr. v. Kewal Krishan Goel & Ors.,etc. [(1996) 4 SCC 249] , this Court quoted the following observations of Hamilton, J. in Summer and Leivesley v. John Brown & Co. [25 Times LR 745] with regard to the meaning of `earnest : "`Earnest ... meant something given for the purpose of binding a contract, something to be used to put pressure on the defaulter if he failed to carry out his part. If the contract went through, the thing given in earnest was returned to the giver, or, if money, was deducted from the price. If the contract went off through the givers fault the thing given in earnest was forfeited."9. It is thus clear that when earnest money is furnished by a tenderer it forms part of the price if the offer of the tenderer is accepted or it is refunded to the tenderer if someone elses offer is accepted, but if for some fault or failure on the part of the tenderer the transaction or the contract does not come through, the party inviting the tender is entitled to forfeit the earnest money furnished by that tenderer.10. In facts of the present case, the respondents have stated in their reply to the Writ Petition before the High Court that as a consequence of the failure of the petitioner to stand by its offer dated 05.05.2004 the tender for the work had to be re- invited by the respondent No.2 on revised costs of the construction and in the circumstances, the respondent No.2 had to forfeit the earnest money of the petitioner. This was thus a case where on account of failure on the part of the petitioner to stand by its offer, the transaction or the contract did not come through and therefore the respondents were entitled to forfeit the earnest money furnished by the petitioner in terms of Clause 6 of the Notice. | 0[ds]6. We find that Clause 6 of the Notice clearly stipulated that "if any firm revokes its offer during the validity period, its earnest money shall be forfeited". Hence, the question that arose before the High Court for decision was whether the petitioner by revising one of the figures in its tender from Rs.23,76,000/- to Rs.32,76,000/- revoked its offer and the High Court has taken the view in the impugned judgment that as a consequence of the change in the figures, the offer of the petitioner for the work was enhanced from Rs.32 crores to Rs.41 crores and, therefore, the original offer of Rs.32 crores for the work stood revoked. In para 12 of the counter affidavit filed in reply to the Writ Petition in the High Court the respondents have stated that after receiving the letter dated 06.05.2004 of the petitioner correcting the figures in its tender, the respondents sent letters to the petitioner giving opportunity to the petitioner to withdraw its letter dated 06.05.2004 on or before 04.06.2004 and yet the petitioner did not withdraw its letter dated 06.05.2004. These facts clearly establish that the petitioner was not willing to stand by its original offer of Rs.32 crores for the work and was willing to do the work only at the revised bid of Rs.41 crores. The High Court was thus right in coming to the conclusion that the petitioner had revoked its offer of Rs.32 crores for the work.9. It is thus clear that when earnest money is furnished by a tenderer it forms part of the price if the offer of the tenderer is accepted or it is refunded to the tenderer if someone elses offer is accepted, but if for some fault or failure on the part of the tenderer the transaction or the contract does not come through, the party inviting the tender is entitled to forfeit the earnest money furnished by that tenderer.10. In facts of the present case, the respondents have stated in their reply to the Writ Petition before the High Court that as a consequence of the failure of the petitioner to stand by its offer dated 05.05.2004 the tender for the work had to be re- invited by the respondent No.2 on revised costs of the construction and in the circumstances, the respondent No.2 had to forfeit the earnest money of the petitioner. This was thus a case where on account of failure on the part of the petitioner to stand by its offer, the transaction or the contract did not come through and therefore the respondents were entitled to forfeit the earnest money furnished by the petitioner in terms of Clause 6 of the Notice. | 0 | 1,438 | 473 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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the Writ Petition after holding that the correction of the bid made by the petitioner amounted to revocation of its original offer and hence the respondent No.2 was entitled to forfeit the earnest money furnished by the petitioner in terms of Clause 6 of the Notice. 4. Learned counsel for the petitioner submitted that the High Court failed to appreciate that the tender of the petitioner was initially defective in as much as the earnest money, which was furnished by the petitioner, was not in accordance with Clause 6 of the Notice. He explained that Clause 6 of the Notice provided that the earnest money was to be in the form of FDR from a nationalized bank, but the FDR of Rs.40 lacs furnished by the petitioner was from UTI Bank, which was not a nationalized bank. He further submitted that the petitioner had to make the correction in the figure so as to read as Rs.32,76,000/- instead of Rs.23,76,000/- because a mistake had been committed by the petitioner while calculating the figure and, therefore, soon after the tender was opened on 05.05.2004 the petitioner submitted the letter dated 06.05.2004 to the respondent No.2 correcting the aforesaid mistake in the calculation of the figure. He submitted that the respondent No.2 ought not to have treated the letter dated 06.05.2004 as revocation of the offer of the petitioner. Learned counsel for the petitioner further submitted that in any case the entire Notice was recalled and a fresh Notice was issued by respondent No.2 inviting tenders at a revised estimated cost. According to learned counsel for the petitioner, since the tender process in respect of which the petitioner had furnished the earnest money was cancelled, respondent No.2 should have refunded the earnest money to the petitioner. 5. Learned counsel for the respondents, on the other hand, supported the impugned judgment of the High Court and relied on the counter affidavit filed on behalf of the respondents in the High Court as well as in this Court. 6. We find that Clause 6 of the Notice clearly stipulated that "if any firm revokes its offer during the validity period, its earnest money shall be forfeited". Hence, the question that arose before the High Court for decision was whether the petitioner by revising one of the figures in its tender from Rs.23,76,000/- to Rs.32,76,000/- revoked its offer and the High Court has taken the view in the impugned judgment that as a consequence of the change in the figures, the offer of the petitioner for the work was enhanced from Rs.32 crores to Rs.41 crores and, therefore, the original offer of Rs.32 crores for the work stood revoked. In para 12 of the counter affidavit filed in reply to the Writ Petition in the High Court the respondents have stated that after receiving the letter dated 06.05.2004 of the petitioner correcting the figures in its tender, the respondents sent letters to the petitioner giving opportunity to the petitioner to withdraw its letter dated 06.05.2004 on or before 04.06.2004 and yet the petitioner did not withdraw its letter dated 06.05.2004. These facts clearly establish that the petitioner was not willing to stand by its original offer of Rs.32 crores for the work and was willing to do the work only at the revised bid of Rs.41 crores. The High Court was thus right in coming to the conclusion that the petitioner had revoked its offer of Rs.32 crores for the work. 7. The legal principles relating to "Earnest Money are well settled. In Chiranjit Singh v. Har Swarup [AIR 1926 PC 1], the Judicial Committee of the Privy Council held: "Earnest money is part of the purchase price when the transaction goes forward: it is forfeited when the transaction falls through, by reasons of the fault or failure of the vendee". These observations of the Judicial Committee have been quoted in the judgment of this Court in Shri Hanuman Cotton Mills & Ors. v. Tata Air Craft Limited [(1969) 3 SCC 522] in which the principles relating to earnest money have been laid down. 8. Similarly, in H.U.D.A. & Anr. v. Kewal Krishan Goel & Ors.,etc. [(1996) 4 SCC 249] , this Court quoted the following observations of Hamilton, J. in Summer and Leivesley v. John Brown & Co. [25 Times LR 745] with regard to the meaning of `earnest : "`Earnest ... meant something given for the purpose of binding a contract, something to be used to put pressure on the defaulter if he failed to carry out his part. If the contract went through, the thing given in earnest was returned to the giver, or, if money, was deducted from the price. If the contract went off through the givers fault the thing given in earnest was forfeited."9. It is thus clear that when earnest money is furnished by a tenderer it forms part of the price if the offer of the tenderer is accepted or it is refunded to the tenderer if someone elses offer is accepted, but if for some fault or failure on the part of the tenderer the transaction or the contract does not come through, the party inviting the tender is entitled to forfeit the earnest money furnished by that tenderer.10. In facts of the present case, the respondents have stated in their reply to the Writ Petition before the High Court that as a consequence of the failure of the petitioner to stand by its offer dated 05.05.2004 the tender for the work had to be re- invited by the respondent No.2 on revised costs of the construction and in the circumstances, the respondent No.2 had to forfeit the earnest money of the petitioner. This was thus a case where on account of failure on the part of the petitioner to stand by its offer, the transaction or the contract did not come through and therefore the respondents were entitled to forfeit the earnest money furnished by the petitioner in terms of Clause 6 of the Notice.
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6. We find that Clause 6 of the Notice clearly stipulated that "if any firm revokes its offer during the validity period, its earnest money shall be forfeited". Hence, the question that arose before the High Court for decision was whether the petitioner by revising one of the figures in its tender from Rs.23,76,000/- to Rs.32,76,000/- revoked its offer and the High Court has taken the view in the impugned judgment that as a consequence of the change in the figures, the offer of the petitioner for the work was enhanced from Rs.32 crores to Rs.41 crores and, therefore, the original offer of Rs.32 crores for the work stood revoked. In para 12 of the counter affidavit filed in reply to the Writ Petition in the High Court the respondents have stated that after receiving the letter dated 06.05.2004 of the petitioner correcting the figures in its tender, the respondents sent letters to the petitioner giving opportunity to the petitioner to withdraw its letter dated 06.05.2004 on or before 04.06.2004 and yet the petitioner did not withdraw its letter dated 06.05.2004. These facts clearly establish that the petitioner was not willing to stand by its original offer of Rs.32 crores for the work and was willing to do the work only at the revised bid of Rs.41 crores. The High Court was thus right in coming to the conclusion that the petitioner had revoked its offer of Rs.32 crores for the work.9. It is thus clear that when earnest money is furnished by a tenderer it forms part of the price if the offer of the tenderer is accepted or it is refunded to the tenderer if someone elses offer is accepted, but if for some fault or failure on the part of the tenderer the transaction or the contract does not come through, the party inviting the tender is entitled to forfeit the earnest money furnished by that tenderer.10. In facts of the present case, the respondents have stated in their reply to the Writ Petition before the High Court that as a consequence of the failure of the petitioner to stand by its offer dated 05.05.2004 the tender for the work had to be re- invited by the respondent No.2 on revised costs of the construction and in the circumstances, the respondent No.2 had to forfeit the earnest money of the petitioner. This was thus a case where on account of failure on the part of the petitioner to stand by its offer, the transaction or the contract did not come through and therefore the respondents were entitled to forfeit the earnest money furnished by the petitioner in terms of Clause 6 of the Notice.
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Hindustan Antibiotics Ltd Vs. The Workmen & Ors | such as to be described as a flagrant violation of the fixation of the wage structure. Almost always no Tribunal fixes nor can fix the wage structure to reach the perfection point. If no principle is violated, this Court will no interfere on the ground that it would have fixed the wages at a lower level than the Tribunal did. We do not find any such abnormal variation of wages from those obtaining in other companies. We do not, therefore think that this is such an exceptional case as to call for a departure from our usual practice of not interfering with the award of the Tribunal in the fixation of wage structure. 37. Now, coming to the Cross Appeal the first question is, what is the status of a foreman in the industry in question. The definition of workman in S. 2 (s) of the Industrial Disputes Act excludes therefrom any person who is employed mainly in a managerial or administrative capacity or who being employed in a supervisory capacity draws wages exceeding Rs. 500 per mensem. It was contended that a foreman was a supervisor within the meaning of the said definition and as, in the instant case, he was drawing less than Rs. 500 per mensem, he would be a workman within the meaning of the definition. The Tribunal held that he was not a workman on the ground that his work was predominantly managerial and administrative in nature. It has come to that conclusion on a consideration of the various duties allotted to the foreman. The finding is one of fact and therefore must be accepted. 38. The next question raised on behalf of the workmen relates to the daily-rate workers. The Union demanded the following scales of pay for daily-rate workmen:-"Unskilled Rs. 3.00-0.75- 4.50 Skilled Rs. 4.50-1.00- 6.50." The Company claimed that the existing rates were adequate but the Tribunal, having regard to the rates of wages for casual workmen in the concerns in the neighbourhood, increased the rates of female casual labour to Rs. 2.75 and the female casual labour to Rs. 2.25. It also directed that if any semiskilled or skilled person was employed as casual worker he should be paid at the rate of the months wage and dearness allowance fixed for the particular category divided by 26. The Tribunal having regard to the relevant circumstances, fixed the rates and we do not see any error or principle in arriving at that figure. We accept the findings. 39. The next question is the fixation of the age of retirement for the employees. The existing age of retirement is 55 extendable to 60 years at the discretion of the management if the workmen are considered suitable and if they are medically fit and mentally alert. The Tribunal raised the age of retirement from 55 years to 58 years but gave a discretion on to the Company to continue employee after that age. The learned counsel for the Workmen contended that the superannuation age fixed by the Tribunal does not reflect the social changes that have taken place in the country and has also ignored the judicial trend in that regard. Reliance is placed upon the decision of this Court in G. M. Talang v. Shaw Wallace and Co. Ltd., (1964) 7 SCR 424 : (AIR 1964 SC 1886 ). Therein this Court held that the opinion furnished by the several documents on record clearly showed a consistent trend in the Bombay region to fix the retirement age of clerical and subordinate staff at 60 years. In the course of the judgments this Court noticed the Report of the Norms Committee in which the following opinion was expressed:"After taking into consideration the views of the earlier Committees and Commissions including those of the Second Pay Commission the report of which has been released recently, we feel that the retirement age for workmen in all industries should be fixed at 60. Accordingly, the norm for retirement age is fixed at 60." But it is said that the Scope of the judgment was confined only to the Bombay region and it should not be extended to the Poona region. A perusal of the Tribunals Award shows that it followed the decision given by it in the dispute of Shaw Wallace and Co. Ltd., which was reversed by this Court. That apart, the Tribunal also recognized that the retirement age should be raised from 55 years to 58 years and that even thereafter discretion should he given to the employers to continue the employees or not to do so. This indicates that in the view of the Tribunal, the retirement age in the case of the employees of the industry in question could reasonably be raised beyond, 58 years. We do not think it is proper to give a discretion to the Company to raise the age of retirement or not to do so, for, the vesting of such uncontrolled discretion in the employer might lead to manipulation and victimisation. We would, therefore, following the trend of judicial opinion, hold that the retirement age of the employees of the Company should be raised to 60 years. 40. On behalf of the workmen it was contended that the linkage should be done with effect from January 1, 1962. The Tribunal pointed out that it had no intention of giving retrospective effect to the linkage for the following reasons: (1) It had substantially increased the wages: (2) a long retrospective effect would unduly increase the burden on the Company; and (3) the workmen had been getting handsome bonuses. But, having regard to the fact that the Poona index figures had been published from April 1964 it held that the linkage should he from April 1, 1965 and not from the earlier date; that is to say, it had given, having regard to the aforesaid circumstances, a limited retrospective operation to the linkage. The employees have not made out any case for giving a further retrospective effect to the linkage. | 0[ds]11. A combined reading of these provisions indicates-indeed it is not disputed that the Act regulates the relationship of employer and employee irrespective of the fact that the employer is the State Government or not. But what is stated is that though the said Act governs the relationship between the employers and workmen irrespective of the fact whether the employer is Government or Government-aided corporation, the pattern of wage structure need not necessarily be the same; but the fact that the disputes between the employers and employees, irrespective of the character of the employer are made the subject of industrial adjudication is indicative, though not decisive of the legislative intention to treat workmen similarly situated alike in the matter of wage structure and other conditions of service. Section 20 of the Payment of Bonus Act of 1965 directs the application of the Act to establishments in pubic sector in certain cases21. Nor the service conditions of the employees in public sector undertakings are analogous to those of the Government employees. There is no security of service; the fundamental rules do not apply to them, there is no constitutional protection; there is no pension; they are covered by service standing orders; their service conditions are more similar to those employees in the private sector than those in Government departments22. In Ex. U-13, a letter dated May 31, 1961 from the Financial Adviser of the Company to Shri R. P. Sharma the Financial Adviser, informed Shri Sharma, who was an U. D. C., Internal Audit Section of the Company, that the Pay Commission recommendations were not applicable to the employees of the Company. Indeed, the Pay Commission Report does not deal at all with Government undertakings in the public sector23. Nor can we appreciate how there would be any repercussions on other public sector undertakings situated in different parts of the country because of the said differential in the wage structure of the Government undertakings in the public sector. The labour who have by now accepted the region-cum-industry principle, will not raise any dispute if their wages are similar to those obtaining in comparable concerns in the region. On the other hand, in a vast country like India, the labour cannot appreciate the uniform structure of wages on an All-India basis, if they find that in the region where they are working, employees similarly situated are getting higher wages than theirs. So too, in a particular region, the pay structure of a Government industry may happen to be better than that obtaining in comparable concerns in the same locality. This will lead to industrial unrest, for the labour force in the comparable concerns may demand that their wages should be equalised with those obtaining in Government concerns. By and large, therefore, the acceptance of the principle of region-cum-industry will be more conducive to industrial relations than that of the governmental wage structure framed on an All India basis. Nor can we appreciate the argument that the principle of region-cum-industry will dead to discrimination. But, if the expression "labour force" is understood to mean the labour force employed in both the sectors, the alleged discrimination between different parts of the public sector will disappear, for, as far as possible, the labour to whichever sector it may belong in a particular region and in a particular industry, will be treated on equal basis27. The first argument is based upon a fallacy. The doctrine of dearness allowance was only evolved in India. Instead of increasing wages as it is done in other countries, dearness allowance is paid to neutralise the rise in prices.This process was adopted in expectation that one day or other we would go back to the original price levels. But, when it was found that it was only a vain hope or at any rate, it could not be expected to fall below a particular mark, a part of the dearness allowance was added to the basic wages, that is to say, the wages, to that extent, were increased. While the Tribunal increased the wages, in fixing the dearness allowance, it looked into the overall picture, namely, whether the total wage packet would approximate to the total packet wages in comparable industries. There is no question, therefore, of paying dearness allowance on dearness allowance, but it was only a payment of dearness allowance in addition to the increased wages. Even on the basis of the increased wages, dearness allowance was necessary to neutralise the rise in prices. That is exactly what the Tribunal has done. The Tribunal adverting to this argument stated:"I am, however, of opinion that in linking the dearness allowance a portion of which has been merged in the basic wage, the totality of emoluments should not be ignored, otherwise in the case of a market increase in the cost of living, if the linkage is done without bearing in mind the total emoluments, the total emoluments would not be satisfactory and may even become out of line with those in other large concerns in the region. Again the linkage need not be done so as to provide increase in dearness allowance at a uniform rate. Otherwise increase in dearness allowance on account of rise in the cost of living for employees drawing wages and salaries above certain ranges of basic wage or pay as would vary inadequately neutralise the rise in cost of living."28. Nor can we accede to the argument that there was a double provision for house rent. The fact that in the Index for Poona one of the components is house rent only means that the rise in the house rent wag also taken into consideration in arriving at the Index. Unless it is established that the house rent was a major item which went in inflating the price index, it cannot be said that the Tribunal by awarding house rent allowance has given a double advantage to the employees in question. It has not been established before us that the Index for Poona was inflated because of its rent component. Indeed, this argument does not appear to have been raised before the Tribunal. We cannot, therefore, accept this argument29. In the result, the contentions raised in respect of dearness allowance are rejectedThat apart, from the standpoint of the employee the said two schemes give him something to fall back upon after his retirement. It is commonplace that industrial adjudication under the present circumstances is not able to provide the labour a living wage. At the best, they get only a little more than the necessities of life. If the industry is a flourishing one, we do not see any reason why the labour shall not have the benefit of both the schemes. Doubtless, the provident fund gives him relief, but to earn it, he contributes a part of his wages. But that in itself may not be sufficient to meet the requirements of his old age or to provide for his dependants during his lifetime or after his death. Gratuity is an additional form of relief for him to fall back upon. If the industry can bear the burden, there is no reason why he shall not be entitled to both the retirement benefits. The Tribunal considered all the relevant circumstances: the stability of the concern, the profits made by it in the past, its future prospects and its capacity and came to the conclusion that in the concern in question, the labour should be provided with a gratuity scheme in addition to that of a provident fund scheme. We see no justification to disturb this conclusion34. The learned counsel took objection to the part of the award where the Tribunal gave retrospective operation to it from 1st January,1962. Thereference of the dispute to the Tribunal was made on 11th August, 1962.The first award was made on 8th October. 1963. A Tribunal ordinarily makes its award operative from the date of reference; but, in exceptional circumstances it gives retroactive operation to some of its proposals. It will be seen from the record that the original demand emanated as early as 6th February, 1957, but because of some technical difficulties, namely, whether the Central Government Authorities or the State Government Authorities were the appropriate authorities for entertaining the dispute in conciliation proceedings, the said proceedings took a long time for reaching the stage of reference. Having regard to that fact and also to the fact that the totality of the emoluments, particularly, in the case of lower categories of manual, technical and clerical staff were on the lower side in the company, the Tribunal in its discretion came to the conclusion that the revised scales should come into effect from 1st January, 1962. We do not see any reason to interfere with its discretionThe Tribunal gave the workmen an allowance of Rs. 5 per month from the date the award became enforceable. While the workers say that to work in the sections of closed area is a health hazard and reduces the life-span, the Company admits that the workers functioning therein are easily fatigued but states they are given the necessary safety equipment, food and rest. It is therefore common case that the work in the closed area involves a great physical strain on the workmen. In the circumstances, when the Tribunal gave them a reasonable allowance, it is not possible for this court to take a different viewThe award discloses that the Tribunal accepted the principles generally applied in fixing wages. It has not been brought to our notice that any principle has been violated. We have also scrutinised, with some care, the tabular statements placed before us. It is true in some cases the total emoluments of a particular category of employees of the Company is higher than those of the other concerns, but the difference is not such as to be described as a flagrant violation of the fixation of the wage structure. Almost always no Tribunal fixes nor can fix the wage structure to reach the perfection point. If no principle is violated, this Court will no interfere on the ground that it would have fixed the wages at a lower level than the Tribunal did. We do not find any such abnormal variation of wages from those obtaining in other companies. We do not, therefore think that this is such an exceptional case as to call for a departure from our usual practice of not interfering with the award of the Tribunal in the fixation of wage structureThe definition of workman in S. 2 (s) of the Industrial Disputes Act excludes therefrom any person who is employed mainly in a managerial or administrative capacity or who being employed in a supervisory capacity draws wages exceeding Rs. 500 per mensem. It was contended that a foreman was a supervisor within the meaning of the said definition and as, in the instant case, he was drawing less than Rs. 500 per mensem, he would be a workman within the meaning of the definition. The Tribunal held that he was not a workman on the ground that his work was predominantly managerial and administrative in nature. It has come to that conclusion on a consideration of the various duties allotted to the foreman. The finding is one of fact and therefore must be acceptedBut it is said that the Scope of the judgment was confined only to the Bombay region and it should not be extended to the Poona region. A perusal of the Tribunals Award shows that it followed the decision given by it in the dispute of Shaw Wallace and Co. Ltd., which was reversed by this Court. That apart, the Tribunal also recognized that the retirement age should be raised from 55 years to 58 years and that even thereafter discretion should he given to the employers to continue the employees or not to do so. This indicates that in the view of the Tribunal, the retirement age in the case of the employees of the industry in question could reasonably be raised beyond, 58 years. We do not think it is proper to give a discretion to the Company to raise the age of retirement or not to do so, for, the vesting of such uncontrolled discretion in the employer might lead to manipulation and victimisation. We would, therefore, following the trend of judicial opinion, hold that the retirement age of the employees of the Company should be raised to 60 years40. On behalf of the workmen it was contended that the linkage should be done with effect from January 1,1962. TheTribunal pointed out that it had no intention of giving retrospective effect to the linkage for the following reasons: (1) It had substantially increased the wages: (2) a long retrospective effect would unduly increase the burden on the Company; and (3) the workmen had been getting handsome bonuses. But, having regard to the fact that the Poona index figures had been published from April 1964 it held that the linkage should he from April 1, 1965 and not from the earlier date; that is to say, it had given, having regard to the aforesaid circumstances, a limited retrospective operation to the linkage. The employees have not made out any case for giving a further retrospective effect to the linkage. | 0 | 11,093 | 2,422 | ### 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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such as to be described as a flagrant violation of the fixation of the wage structure. Almost always no Tribunal fixes nor can fix the wage structure to reach the perfection point. If no principle is violated, this Court will no interfere on the ground that it would have fixed the wages at a lower level than the Tribunal did. We do not find any such abnormal variation of wages from those obtaining in other companies. We do not, therefore think that this is such an exceptional case as to call for a departure from our usual practice of not interfering with the award of the Tribunal in the fixation of wage structure. 37. Now, coming to the Cross Appeal the first question is, what is the status of a foreman in the industry in question. The definition of workman in S. 2 (s) of the Industrial Disputes Act excludes therefrom any person who is employed mainly in a managerial or administrative capacity or who being employed in a supervisory capacity draws wages exceeding Rs. 500 per mensem. It was contended that a foreman was a supervisor within the meaning of the said definition and as, in the instant case, he was drawing less than Rs. 500 per mensem, he would be a workman within the meaning of the definition. The Tribunal held that he was not a workman on the ground that his work was predominantly managerial and administrative in nature. It has come to that conclusion on a consideration of the various duties allotted to the foreman. The finding is one of fact and therefore must be accepted. 38. The next question raised on behalf of the workmen relates to the daily-rate workers. The Union demanded the following scales of pay for daily-rate workmen:-"Unskilled Rs. 3.00-0.75- 4.50 Skilled Rs. 4.50-1.00- 6.50." The Company claimed that the existing rates were adequate but the Tribunal, having regard to the rates of wages for casual workmen in the concerns in the neighbourhood, increased the rates of female casual labour to Rs. 2.75 and the female casual labour to Rs. 2.25. It also directed that if any semiskilled or skilled person was employed as casual worker he should be paid at the rate of the months wage and dearness allowance fixed for the particular category divided by 26. The Tribunal having regard to the relevant circumstances, fixed the rates and we do not see any error or principle in arriving at that figure. We accept the findings. 39. The next question is the fixation of the age of retirement for the employees. The existing age of retirement is 55 extendable to 60 years at the discretion of the management if the workmen are considered suitable and if they are medically fit and mentally alert. The Tribunal raised the age of retirement from 55 years to 58 years but gave a discretion on to the Company to continue employee after that age. The learned counsel for the Workmen contended that the superannuation age fixed by the Tribunal does not reflect the social changes that have taken place in the country and has also ignored the judicial trend in that regard. Reliance is placed upon the decision of this Court in G. M. Talang v. Shaw Wallace and Co. Ltd., (1964) 7 SCR 424 : (AIR 1964 SC 1886 ). Therein this Court held that the opinion furnished by the several documents on record clearly showed a consistent trend in the Bombay region to fix the retirement age of clerical and subordinate staff at 60 years. In the course of the judgments this Court noticed the Report of the Norms Committee in which the following opinion was expressed:"After taking into consideration the views of the earlier Committees and Commissions including those of the Second Pay Commission the report of which has been released recently, we feel that the retirement age for workmen in all industries should be fixed at 60. Accordingly, the norm for retirement age is fixed at 60." But it is said that the Scope of the judgment was confined only to the Bombay region and it should not be extended to the Poona region. A perusal of the Tribunals Award shows that it followed the decision given by it in the dispute of Shaw Wallace and Co. Ltd., which was reversed by this Court. That apart, the Tribunal also recognized that the retirement age should be raised from 55 years to 58 years and that even thereafter discretion should he given to the employers to continue the employees or not to do so. This indicates that in the view of the Tribunal, the retirement age in the case of the employees of the industry in question could reasonably be raised beyond, 58 years. We do not think it is proper to give a discretion to the Company to raise the age of retirement or not to do so, for, the vesting of such uncontrolled discretion in the employer might lead to manipulation and victimisation. We would, therefore, following the trend of judicial opinion, hold that the retirement age of the employees of the Company should be raised to 60 years. 40. On behalf of the workmen it was contended that the linkage should be done with effect from January 1, 1962. The Tribunal pointed out that it had no intention of giving retrospective effect to the linkage for the following reasons: (1) It had substantially increased the wages: (2) a long retrospective effect would unduly increase the burden on the Company; and (3) the workmen had been getting handsome bonuses. But, having regard to the fact that the Poona index figures had been published from April 1964 it held that the linkage should he from April 1, 1965 and not from the earlier date; that is to say, it had given, having regard to the aforesaid circumstances, a limited retrospective operation to the linkage. The employees have not made out any case for giving a further retrospective effect to the linkage.
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concern, the profits made by it in the past, its future prospects and its capacity and came to the conclusion that in the concern in question, the labour should be provided with a gratuity scheme in addition to that of a provident fund scheme. We see no justification to disturb this conclusion34. The learned counsel took objection to the part of the award where the Tribunal gave retrospective operation to it from 1st January,1962. Thereference of the dispute to the Tribunal was made on 11th August, 1962.The first award was made on 8th October. 1963. A Tribunal ordinarily makes its award operative from the date of reference; but, in exceptional circumstances it gives retroactive operation to some of its proposals. It will be seen from the record that the original demand emanated as early as 6th February, 1957, but because of some technical difficulties, namely, whether the Central Government Authorities or the State Government Authorities were the appropriate authorities for entertaining the dispute in conciliation proceedings, the said proceedings took a long time for reaching the stage of reference. Having regard to that fact and also to the fact that the totality of the emoluments, particularly, in the case of lower categories of manual, technical and clerical staff were on the lower side in the company, the Tribunal in its discretion came to the conclusion that the revised scales should come into effect from 1st January, 1962. We do not see any reason to interfere with its discretionThe Tribunal gave the workmen an allowance of Rs. 5 per month from the date the award became enforceable. While the workers say that to work in the sections of closed area is a health hazard and reduces the life-span, the Company admits that the workers functioning therein are easily fatigued but states they are given the necessary safety equipment, food and rest. It is therefore common case that the work in the closed area involves a great physical strain on the workmen. In the circumstances, when the Tribunal gave them a reasonable allowance, it is not possible for this court to take a different viewThe award discloses that the Tribunal accepted the principles generally applied in fixing wages. It has not been brought to our notice that any principle has been violated. We have also scrutinised, with some care, the tabular statements placed before us. It is true in some cases the total emoluments of a particular category of employees of the Company is higher than those of the other concerns, but the difference is not such as to be described as a flagrant violation of the fixation of the wage structure. Almost always no Tribunal fixes nor can fix the wage structure to reach the perfection point. If no principle is violated, this Court will no interfere on the ground that it would have fixed the wages at a lower level than the Tribunal did. We do not find any such abnormal variation of wages from those obtaining in other companies. We do not, therefore think that this is such an exceptional case as to call for a departure from our usual practice of not interfering with the award of the Tribunal in the fixation of wage structureThe definition of workman in S. 2 (s) of the Industrial Disputes Act excludes therefrom any person who is employed mainly in a managerial or administrative capacity or who being employed in a supervisory capacity draws wages exceeding Rs. 500 per mensem. It was contended that a foreman was a supervisor within the meaning of the said definition and as, in the instant case, he was drawing less than Rs. 500 per mensem, he would be a workman within the meaning of the definition. The Tribunal held that he was not a workman on the ground that his work was predominantly managerial and administrative in nature. It has come to that conclusion on a consideration of the various duties allotted to the foreman. The finding is one of fact and therefore must be acceptedBut it is said that the Scope of the judgment was confined only to the Bombay region and it should not be extended to the Poona region. A perusal of the Tribunals Award shows that it followed the decision given by it in the dispute of Shaw Wallace and Co. Ltd., which was reversed by this Court. That apart, the Tribunal also recognized that the retirement age should be raised from 55 years to 58 years and that even thereafter discretion should he given to the employers to continue the employees or not to do so. This indicates that in the view of the Tribunal, the retirement age in the case of the employees of the industry in question could reasonably be raised beyond, 58 years. We do not think it is proper to give a discretion to the Company to raise the age of retirement or not to do so, for, the vesting of such uncontrolled discretion in the employer might lead to manipulation and victimisation. We would, therefore, following the trend of judicial opinion, hold that the retirement age of the employees of the Company should be raised to 60 years40. On behalf of the workmen it was contended that the linkage should be done with effect from January 1,1962. TheTribunal pointed out that it had no intention of giving retrospective effect to the linkage for the following reasons: (1) It had substantially increased the wages: (2) a long retrospective effect would unduly increase the burden on the Company; and (3) the workmen had been getting handsome bonuses. But, having regard to the fact that the Poona index figures had been published from April 1964 it held that the linkage should he from April 1, 1965 and not from the earlier date; that is to say, it had given, having regard to the aforesaid circumstances, a limited retrospective operation to the linkage. The employees have not made out any case for giving a further retrospective effect to the linkage.
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Saroj Kumar Poddar Vs. State (Nct Of Delhi) | the complaint petition but the same principally relate to the purported offence made by the Company. With a view to make a Director of a Company vicariously liable for the acts of the Company, it was obligatory on the part of the complainant to make specific allegations as are required in law. 16. The question came up for consideration before a 3-Judge Bench of this Court in S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla and Another [(2005) 8 SCC 89] wherein upon consideration of a large number of decisions this Court opined: While analyzing Section 141 of the Act, it will be seen that it operates in cases where an offence under Section 138 is committed by a company. The key words which occur in the Section are every person. These are general words and take every person connected with a company within their sweep. Therefore, these words have been rightly qualified by use of the words who, at the time the offence was committed, was in charge of and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence etc. What is required is that the persons who are sought to be made criminally liable under Section 141 should be at the time the offence was committed, in charge of and responsible to the company for the conduct of the business of the company. Every person connected with the company shall not fall within the ambit of the provision. It is only those persons who were in charge of and responsible for conduct of business of the company at the time of commission of an offence, who will be liable for criminal action. It follows from this that if a director of a Company who was not in charge of and was not responsible for the conduct of the business of the company at the relevant time, will not be liable under the provision. The liability arises from being in charge of and responsible for conduct of business of the company at the relevant time when the offence was committed and not on the basis of merely holding a designation or office in a company. Conversely, a person not holding any office or designation in a Company may be liable if he satisfies the main requirement of being in charge of and responsible for conduct of business of a Company at the relevant time. Liability depends on the role one plays in the affairs of a Company and not on designation or status. If being a Director or Manager or Secretary was enough to cast criminal liability, the Section would have said so. Instead of every person the section would have said every Director, Manager or Secretary in a Company is liable....etc. The legislature is aware that it is a case of criminal liability which means serious consequences so far as the person sought to be made liable is concerned. Therefore, only persons who can be said to be connected with the commission of a crime at the relevant time have been subjected to action. A reference to Sub-section (2) of Section 141 fortifies the above reasoning because Sub-section (2) envisages direct involvement of any Director, Manager, Secretary or other officer of a company in commission of an offence. This section operates when in a trial it is proved that the offence has been committed with the consent or connivance or is attributable to neglect on the part of any of the holders of these offices in a company. In such a case, such persons are to be held liable. Provision has been made for Directors, Managers, Secretaries and other officers of a company to cover them in cases of their proved involvement. 17. It was further opined: To sum up, there is almost unanimous judicial opinion that necessary averments ought to be contained in a complaint before a persons can be subjected to criminal process. A liability under Section 141 of the Act is sought to be fastened vicariously on a person connected with a Company, the principal accused being the company itself. It is a departure from the rule in criminal law against vicarious liability. A clear case should be spelled out in the complaint against the person sought to be made liable. Section 141 of the Act contains the requirements for making a person liable under the said provision. That respondent tails within parameters of Section 141 has to be spelled out. A complaint has to be examined by the Magistrate in the first instance on the basis of averments contained therein. If the Magistrate is satisfied that there are averments which bring the case within Section 141 he would issue the process. We have seen that merely being described as a director in a company is not sufficient to satisfy the requirement of Section 141. Even a non director can be liable under Section 141 of the Act. The averments in the complaint would also serve the purpose that the person sought to be made liable would know what is the case which is alleged against him. This will enable him to meet the case at the trial. 18. This aspect of the matter has also been considered recently by this Court in Sabitha Ramamurthy & Anr. v. R.B.S. Channabasavaradhya [2006 (9) SCALE 212 ] stating: Section 141 raises a legal fiction. By reason of the said provision, a person although is not personally liable for commission of such an offence would be vicariously liable therefor. Such vicarious liability can be inferred so far as a company registered or incorporated under the Companies Act, 1956 is concerned only if the requisite statements, which are required to be averred in the complaint petition, are made so as to make the accused therein vicariously liable for the offence committed by the company. Before a person can be made vicariously liable, strict compliance of the statutory requirements would be insisted. 19. | 1[ds]and all other Directors were also made accused. The appellant did not issue any cheque. He, as noticed hereinbefore, had resigned from the Directorship of the Company. It may be true that as to exactly on what date the said resignation was accepted by the Company is not known, but, even otherwise, there is no averment in the complaint petitions as to how and in what manner the appellant was responsible for the conduct of the business of the Company or otherwise responsible to it in regard to its functioning. He had not issued any cheque. How he is responsible for dishonour of the cheque has not been stated. The allegations made in paragraph 3, thus, in our opinion do not satisfy the requirements of Section 141 of the Act. | 1 | 2,771 | 148 | ### 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 complaint petition but the same principally relate to the purported offence made by the Company. With a view to make a Director of a Company vicariously liable for the acts of the Company, it was obligatory on the part of the complainant to make specific allegations as are required in law. 16. The question came up for consideration before a 3-Judge Bench of this Court in S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla and Another [(2005) 8 SCC 89] wherein upon consideration of a large number of decisions this Court opined: While analyzing Section 141 of the Act, it will be seen that it operates in cases where an offence under Section 138 is committed by a company. The key words which occur in the Section are every person. These are general words and take every person connected with a company within their sweep. Therefore, these words have been rightly qualified by use of the words who, at the time the offence was committed, was in charge of and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence etc. What is required is that the persons who are sought to be made criminally liable under Section 141 should be at the time the offence was committed, in charge of and responsible to the company for the conduct of the business of the company. Every person connected with the company shall not fall within the ambit of the provision. It is only those persons who were in charge of and responsible for conduct of business of the company at the time of commission of an offence, who will be liable for criminal action. It follows from this that if a director of a Company who was not in charge of and was not responsible for the conduct of the business of the company at the relevant time, will not be liable under the provision. The liability arises from being in charge of and responsible for conduct of business of the company at the relevant time when the offence was committed and not on the basis of merely holding a designation or office in a company. Conversely, a person not holding any office or designation in a Company may be liable if he satisfies the main requirement of being in charge of and responsible for conduct of business of a Company at the relevant time. Liability depends on the role one plays in the affairs of a Company and not on designation or status. If being a Director or Manager or Secretary was enough to cast criminal liability, the Section would have said so. Instead of every person the section would have said every Director, Manager or Secretary in a Company is liable....etc. The legislature is aware that it is a case of criminal liability which means serious consequences so far as the person sought to be made liable is concerned. Therefore, only persons who can be said to be connected with the commission of a crime at the relevant time have been subjected to action. A reference to Sub-section (2) of Section 141 fortifies the above reasoning because Sub-section (2) envisages direct involvement of any Director, Manager, Secretary or other officer of a company in commission of an offence. This section operates when in a trial it is proved that the offence has been committed with the consent or connivance or is attributable to neglect on the part of any of the holders of these offices in a company. In such a case, such persons are to be held liable. Provision has been made for Directors, Managers, Secretaries and other officers of a company to cover them in cases of their proved involvement. 17. It was further opined: To sum up, there is almost unanimous judicial opinion that necessary averments ought to be contained in a complaint before a persons can be subjected to criminal process. A liability under Section 141 of the Act is sought to be fastened vicariously on a person connected with a Company, the principal accused being the company itself. It is a departure from the rule in criminal law against vicarious liability. A clear case should be spelled out in the complaint against the person sought to be made liable. Section 141 of the Act contains the requirements for making a person liable under the said provision. That respondent tails within parameters of Section 141 has to be spelled out. A complaint has to be examined by the Magistrate in the first instance on the basis of averments contained therein. If the Magistrate is satisfied that there are averments which bring the case within Section 141 he would issue the process. We have seen that merely being described as a director in a company is not sufficient to satisfy the requirement of Section 141. Even a non director can be liable under Section 141 of the Act. The averments in the complaint would also serve the purpose that the person sought to be made liable would know what is the case which is alleged against him. This will enable him to meet the case at the trial. 18. This aspect of the matter has also been considered recently by this Court in Sabitha Ramamurthy & Anr. v. R.B.S. Channabasavaradhya [2006 (9) SCALE 212 ] stating: Section 141 raises a legal fiction. By reason of the said provision, a person although is not personally liable for commission of such an offence would be vicariously liable therefor. Such vicarious liability can be inferred so far as a company registered or incorporated under the Companies Act, 1956 is concerned only if the requisite statements, which are required to be averred in the complaint petition, are made so as to make the accused therein vicariously liable for the offence committed by the company. Before a person can be made vicariously liable, strict compliance of the statutory requirements would be insisted. 19.
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and all other Directors were also made accused. The appellant did not issue any cheque. He, as noticed hereinbefore, had resigned from the Directorship of the Company. It may be true that as to exactly on what date the said resignation was accepted by the Company is not known, but, even otherwise, there is no averment in the complaint petitions as to how and in what manner the appellant was responsible for the conduct of the business of the Company or otherwise responsible to it in regard to its functioning. He had not issued any cheque. How he is responsible for dishonour of the cheque has not been stated. The allegations made in paragraph 3, thus, in our opinion do not satisfy the requirements of Section 141 of the Act.
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M/S Kss Kssipl Consortium Thro. Its Constituted Attorney Mr. Devendra Kumar Vs. M/S Gail (India) Ltd | a sole arbitrator in respect of the disputes arising from each of the two agreements. The said demand was repeated in several communications which were not responded to. The petitioner, therefore, has lodged the present applications under Section 11(6) of the Arbitration Act for the reliefs earlier noticed.7. The claims made by the petitioner have been resisted by the respondent by filing separate counter affidavits in both the cases. A reading of the affidavits filed by the respondent indicate that insofar as the claim for extended stay compensation is concerned, the respondent contend that the said claim does not give rise to any arbitrable issue inasmuch as under clause 42.1.1 the bidder is required to mention the rate for extended stay compensation per month in the “Priced Part”. Under Clause 42.1.2 in case the bidder did not indicate such rate it is to be presumed that no extended stay compensation is required to be paid. Under clause 42.1.4 it was expressly mentioned that “Bidder to note that in case they dont indicate the rate for extended stay compensation as per proforma, provisions of clause No.42.0 will not be applicable to them”. According to the respondent in the relevant proforma relating to “Compensation for Extended Stay”, the petitioner had mentioned/quoted “NIL”. Thus, according to the clauses 42.1.2 and 42.1.4, no extended stay compensation is required to be paid to the petitioner. The above position was also expressly stated in clause 12 of the detailed letter of acceptance dated 13th December, 2010, which is in the following terms: “12.0COMPENSATION FOR EXTENDED STAYExtended stay compensation is not applicable and shall not be payable to the Contractor as per clause no. 42.0 of Special Conditions of Contract.” 8. According to the respondent, the aforesaid clause was further amplified in Annexure -1 to the said detailed letter of acceptance which was not placed before the Court though the detailed letter of acceptance dated 13th December, 2010 formed a part of the petitions filed by the petitioner. 9. Insofar as the claim of payments for additional works is concerned, according to the respondent, clause 91.0 of the GCC deals with such claims. Clauses 91.1 and 91.2 contemplate that such claims will be verified by the Engineer-in-charge whose decision will be final. The respondent further states that the claims made by the petitioner for additional costs had been rejected by the Engineer-in-charge and in terms of clause 91.2 of the GCC such a decision(s) must be construed to be final and binding between the parties and therefore would stand excluded from arbitration.10. There can be no manner of doubt that before exercising the power under Section 11(6) of the Arbitration Act to make appointment of an arbitrator the Court will have to decide on the existence of an arbitrable dispute/enforceable claim by and between the parties to the contract. The existence of a claim and denial thereof giving rise to a dispute is required to be determined on the basis of what the parties had agreed upon as embodied in the terms of the contract and only for the purpose of a decision on the question of arbitrability and nothing beyond. It is from the aforesaid standpoint that the issues raised in the present proceedings will have to be considered.11. Clause 42.0 deals with “Compensation for extended stay”. Under clause 42.1.1 the contractor is required to mention the rate for extended stay of compensation in the event the contract is to be prolonged/extended beyond the contemplated date of completion. Clauses 42.1.2 and 42.1.4 of the SCC contemplate that in the event the contractor/bidder does not indicate the rate of extended stay, it will be presumed that no extended stay compensation is required to be paid. In the present case, admittedly, the petitioner had quoted “NIL” against compensation for extended stay in its bid. If that is so, it must be understood that the petitioner had agreed to forego its claim to extended stay compensation in the event the period of performance of the contract is to be extended as had happened in the present case. This position was conveyed to the petitioner by the letter of acceptance dated 13th December, 2010. The petitioner did not raise any objection on the aforesaid score. If the petitioner had voluntarily and consciously agreed to the above situation, it will be difficult to accept the contrary position that has sought to be now adopted by seeking to claim extended stay compensation which was earlier agreed to be foregone. It must therefore be held that the claim against the aforesaid Head i.e. extended stay compensation does not give rise to an arbitrable dispute so as to permit/require reference to arbitration under clause 59.12. The second issue i.e. claim for payment of additional works however would stand on a different footing. Clause 91.1 and 91.2 contemplate the making/raising of claims by the contractor for additional works and consideration thereof by the Engineer-in-chief. The decision of the Engineer-in-chief is final and binding. The finality attached to such a decision cannot be an unilateral act beyond the pale of further scrutiny. Such a view would negate the arbitration clause in the agreement. Justifiability of such a decision though stated to be final, must, be subject to a process of enquiry/adjudication which the parties in the present case have agreed would be by way of arbitration. The objections raised by the respondent on the aforesaid score, therefore, does not commend to the Court for acceptance and is hereby rejected.13. Accordingly, the claims made by the petitioner for payment of additional works under both the contracts are referred to arbitration by Shri Justice M.M. Kumar, Chief Justice (Retd.), Jammu & Kashmir High Court, who is hereby appointed as the sole arbitrator. The learned sole arbitrator is requested to enter upon the reference and conclude the same at an early date. The terms of appointment of the sole arbitrator as well as the venue of arbitration will be decided by the parties in consultation with the learned Arbitrator. | 1[ds]9. Insofar as the claim of payments for additional works is concerned, according to the respondent, clause 91.0 of the GCC deals with such claims. Clauses 91.1 and 91.2 contemplate that such claims will be verified by thewhose decision will be final. The respondent further states that the claims made by the petitioner for additional costs had been rejected by theand in terms of clause 91.2 of the GCC such a decision(s) must be construed to be final and binding between the parties and therefore would stand excluded from arbitration.10. There can be no manner of doubt that before exercising the power under Section 11(6) of the Arbitration Act to make appointment of an arbitrator the Court will have to decide on the existence of an arbitrable dispute/enforceable claim by and between the parties to the contract. The existence of a claim and denial thereof giving rise to a dispute is required to be determined on the basis of what the parties had agreed upon as embodied in the terms of the contract and only for the purpose of a decision on the question of arbitrability and nothing beyond. It is from the aforesaid standpoint that the issues raised in the present proceedings will have to be considered.11. Clause 42.0 deals withUnder clause 42.1.1 the contractor is required to mention the rate for extended stay of compensation in the event the contract is to be prolonged/extended beyond the contemplated date of completion. Clauses 42.1.2 and 42.1.4 of the SCC contemplate that in the event the contractor/bidder does not indicate the rate of extended stay, it will be presumed that no extended stay compensation is required to be paid. In the present case, admittedly, the petitioner had quotedagainst compensation for extended stay in its bid. If that is so, it must be understood that the petitioner had agreed to forego its claim to extended stay compensation in the event the period of performance of the contract is to be extended as had happened in the present case. This position was conveyed to the petitioner by the letter of acceptance dated 13th December, 2010. The petitioner did not raise any objection on the aforesaid score. If the petitioner had voluntarily and consciously agreed to the above situation, it will be difficult to accept the contrary position that has sought to be now adopted by seeking to claim extended stay compensation which was earlier agreed to be foregone. It must therefore be held that the claim against the aforesaid Head i.e. extended stay compensation does not give rise to an arbitrable dispute so as to permit/require reference to arbitration under clause 59.12. The second issue i.e. claim for payment of additional works however would stand on a different footing. Clause 91.1 and 91.2 contemplate the making/raising of claims by the contractor for additional works and consideration thereof by theThe decision of theis final and binding. The finality attached to such a decision cannot be an unilateral act beyond the pale of further scrutiny. Such a view would negate the arbitration clause in the agreement. Justifiability of such a decision though stated to be final, must, be subject to a process of enquiry/adjudication which the parties in the present case have agreed would be by way of arbitration. The objections raised by the respondent on the aforesaid score, therefore, does not commend to the Court for acceptance and is hereby rejected.13. Accordingly, the claims made by the petitioner for payment of additional works under both the contracts are referred to arbitration by Shri Justice M.M. Kumar, Chief Justice (Retd.), Jammu & Kashmir High Court, who is hereby appointed as the sole arbitrator. The learned sole arbitrator is requested to enter upon the reference and conclude the same at an early date. The terms of appointment of the sole arbitrator as well as the venue of arbitration will be decided by the parties in consultation with the learned Arbitrator. | 1 | 1,735 | 711 | ### 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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a sole arbitrator in respect of the disputes arising from each of the two agreements. The said demand was repeated in several communications which were not responded to. The petitioner, therefore, has lodged the present applications under Section 11(6) of the Arbitration Act for the reliefs earlier noticed.7. The claims made by the petitioner have been resisted by the respondent by filing separate counter affidavits in both the cases. A reading of the affidavits filed by the respondent indicate that insofar as the claim for extended stay compensation is concerned, the respondent contend that the said claim does not give rise to any arbitrable issue inasmuch as under clause 42.1.1 the bidder is required to mention the rate for extended stay compensation per month in the “Priced Part”. Under Clause 42.1.2 in case the bidder did not indicate such rate it is to be presumed that no extended stay compensation is required to be paid. Under clause 42.1.4 it was expressly mentioned that “Bidder to note that in case they dont indicate the rate for extended stay compensation as per proforma, provisions of clause No.42.0 will not be applicable to them”. According to the respondent in the relevant proforma relating to “Compensation for Extended Stay”, the petitioner had mentioned/quoted “NIL”. Thus, according to the clauses 42.1.2 and 42.1.4, no extended stay compensation is required to be paid to the petitioner. The above position was also expressly stated in clause 12 of the detailed letter of acceptance dated 13th December, 2010, which is in the following terms: “12.0COMPENSATION FOR EXTENDED STAYExtended stay compensation is not applicable and shall not be payable to the Contractor as per clause no. 42.0 of Special Conditions of Contract.” 8. According to the respondent, the aforesaid clause was further amplified in Annexure -1 to the said detailed letter of acceptance which was not placed before the Court though the detailed letter of acceptance dated 13th December, 2010 formed a part of the petitions filed by the petitioner. 9. Insofar as the claim of payments for additional works is concerned, according to the respondent, clause 91.0 of the GCC deals with such claims. Clauses 91.1 and 91.2 contemplate that such claims will be verified by the Engineer-in-charge whose decision will be final. The respondent further states that the claims made by the petitioner for additional costs had been rejected by the Engineer-in-charge and in terms of clause 91.2 of the GCC such a decision(s) must be construed to be final and binding between the parties and therefore would stand excluded from arbitration.10. There can be no manner of doubt that before exercising the power under Section 11(6) of the Arbitration Act to make appointment of an arbitrator the Court will have to decide on the existence of an arbitrable dispute/enforceable claim by and between the parties to the contract. The existence of a claim and denial thereof giving rise to a dispute is required to be determined on the basis of what the parties had agreed upon as embodied in the terms of the contract and only for the purpose of a decision on the question of arbitrability and nothing beyond. It is from the aforesaid standpoint that the issues raised in the present proceedings will have to be considered.11. Clause 42.0 deals with “Compensation for extended stay”. Under clause 42.1.1 the contractor is required to mention the rate for extended stay of compensation in the event the contract is to be prolonged/extended beyond the contemplated date of completion. Clauses 42.1.2 and 42.1.4 of the SCC contemplate that in the event the contractor/bidder does not indicate the rate of extended stay, it will be presumed that no extended stay compensation is required to be paid. In the present case, admittedly, the petitioner had quoted “NIL” against compensation for extended stay in its bid. If that is so, it must be understood that the petitioner had agreed to forego its claim to extended stay compensation in the event the period of performance of the contract is to be extended as had happened in the present case. This position was conveyed to the petitioner by the letter of acceptance dated 13th December, 2010. The petitioner did not raise any objection on the aforesaid score. If the petitioner had voluntarily and consciously agreed to the above situation, it will be difficult to accept the contrary position that has sought to be now adopted by seeking to claim extended stay compensation which was earlier agreed to be foregone. It must therefore be held that the claim against the aforesaid Head i.e. extended stay compensation does not give rise to an arbitrable dispute so as to permit/require reference to arbitration under clause 59.12. The second issue i.e. claim for payment of additional works however would stand on a different footing. Clause 91.1 and 91.2 contemplate the making/raising of claims by the contractor for additional works and consideration thereof by the Engineer-in-chief. The decision of the Engineer-in-chief is final and binding. The finality attached to such a decision cannot be an unilateral act beyond the pale of further scrutiny. Such a view would negate the arbitration clause in the agreement. Justifiability of such a decision though stated to be final, must, be subject to a process of enquiry/adjudication which the parties in the present case have agreed would be by way of arbitration. The objections raised by the respondent on the aforesaid score, therefore, does not commend to the Court for acceptance and is hereby rejected.13. Accordingly, the claims made by the petitioner for payment of additional works under both the contracts are referred to arbitration by Shri Justice M.M. Kumar, Chief Justice (Retd.), Jammu & Kashmir High Court, who is hereby appointed as the sole arbitrator. The learned sole arbitrator is requested to enter upon the reference and conclude the same at an early date. The terms of appointment of the sole arbitrator as well as the venue of arbitration will be decided by the parties in consultation with the learned Arbitrator.
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9. Insofar as the claim of payments for additional works is concerned, according to the respondent, clause 91.0 of the GCC deals with such claims. Clauses 91.1 and 91.2 contemplate that such claims will be verified by thewhose decision will be final. The respondent further states that the claims made by the petitioner for additional costs had been rejected by theand in terms of clause 91.2 of the GCC such a decision(s) must be construed to be final and binding between the parties and therefore would stand excluded from arbitration.10. There can be no manner of doubt that before exercising the power under Section 11(6) of the Arbitration Act to make appointment of an arbitrator the Court will have to decide on the existence of an arbitrable dispute/enforceable claim by and between the parties to the contract. The existence of a claim and denial thereof giving rise to a dispute is required to be determined on the basis of what the parties had agreed upon as embodied in the terms of the contract and only for the purpose of a decision on the question of arbitrability and nothing beyond. It is from the aforesaid standpoint that the issues raised in the present proceedings will have to be considered.11. Clause 42.0 deals withUnder clause 42.1.1 the contractor is required to mention the rate for extended stay of compensation in the event the contract is to be prolonged/extended beyond the contemplated date of completion. Clauses 42.1.2 and 42.1.4 of the SCC contemplate that in the event the contractor/bidder does not indicate the rate of extended stay, it will be presumed that no extended stay compensation is required to be paid. In the present case, admittedly, the petitioner had quotedagainst compensation for extended stay in its bid. If that is so, it must be understood that the petitioner had agreed to forego its claim to extended stay compensation in the event the period of performance of the contract is to be extended as had happened in the present case. This position was conveyed to the petitioner by the letter of acceptance dated 13th December, 2010. The petitioner did not raise any objection on the aforesaid score. If the petitioner had voluntarily and consciously agreed to the above situation, it will be difficult to accept the contrary position that has sought to be now adopted by seeking to claim extended stay compensation which was earlier agreed to be foregone. It must therefore be held that the claim against the aforesaid Head i.e. extended stay compensation does not give rise to an arbitrable dispute so as to permit/require reference to arbitration under clause 59.12. The second issue i.e. claim for payment of additional works however would stand on a different footing. Clause 91.1 and 91.2 contemplate the making/raising of claims by the contractor for additional works and consideration thereof by theThe decision of theis final and binding. The finality attached to such a decision cannot be an unilateral act beyond the pale of further scrutiny. Such a view would negate the arbitration clause in the agreement. Justifiability of such a decision though stated to be final, must, be subject to a process of enquiry/adjudication which the parties in the present case have agreed would be by way of arbitration. The objections raised by the respondent on the aforesaid score, therefore, does not commend to the Court for acceptance and is hereby rejected.13. Accordingly, the claims made by the petitioner for payment of additional works under both the contracts are referred to arbitration by Shri Justice M.M. Kumar, Chief Justice (Retd.), Jammu & Kashmir High Court, who is hereby appointed as the sole arbitrator. The learned sole arbitrator is requested to enter upon the reference and conclude the same at an early date. The terms of appointment of the sole arbitrator as well as the venue of arbitration will be decided by the parties in consultation with the learned Arbitrator.
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CLP INDIA PVT LTD Vs. GUJARAT URJA VIKAS NIGAM LTD. | recent projects such as Mejina, it was assigned debt equity ratio of 70:30 on capital structure as specified in the Regulations. This finding has become final. It was contended on behalf of the Appellant that equity has been the primary source of capital. Thereafter,in paragraph A-10, it was found by the Appellate Tribunal that owners take upon themselves business related risk and are entitled to interest on capital investment,but the return is to be governed by the scheme of determination of tariff for the supply of electricity as mandated by the law in place. The Appellate Tribunal further proceeds to hold that the scheme provides for assured Return on Equity (ROE) which is at the rate of 14% on the equity employed for the purpose of supplying electricity. The scheme does not permit return on investment made on projects other than for supply of electricity to be recovered from supply of electricity. The Tribunal went on to hold that the DVC Act does not recognise capital as borrowings and there is no reference about repayment of such capital to the participating Governments. The Appellate Tribunal proceeds to hold that the capital infused by participating Governments is in the nature of equity capital and for the determination of tariff, the same would be eligible for return on equity but the Appellate Tribunal does not end there. It clearly provides that the return on equity is as may be permitted by the tariff Regulation of 2004. It is thereafter that the Appellate Tribunal in para 15 proceeded to hold that the DVC Act provides for interest on capital which is contributed by the participating Governments. The accrued interest due to the Governments apparently has been allowed to be retained by the Appellant. The same however came to be ploughed back into the capital with the tacit consent of the participating Governments. Thereafter, it is stated that this has to be provided to the DVC as per the provisions of Section 38 of the DVC Act. It is thereafter paragraph A-16 which we have already extracted, the Tribunal proceeded to observe that under the DVC Act if there is any deficit in the capital contributed by the participating Governments,it is to be made good by taking loan on behalf of the participating Governments. The said debt would attract interest. The average interest rate of the repayment payable is to be applied on a 50:50 normative debt capital. This means that out of the aggregate equity including reserves, equity considering the normative debt ratio of 50:50 would be eligible for return on equity as specified in the Regulations and the excess of equity,if any, over the equity earning ratio of 14% is to be considered as interest bearing debt. In the example which has been given it is shown that if the debt equity ratio is 40:60, return on equity at 14% will be available on 50% equity whereas interest would be available at 10% portion of equity and 40% loan which were reduced by repayments. 21. On the basis of the remand, the Commission has worked out the debt equity ratio as directed by the Appellate Tribunal. It has further provided return on equity at the rate of 14% on the equity portion, namely 50%. In respect of the debt portion, interest has been calculated no doubt after deducting depreciation, the legality of which is the subject matter of the other contention which we will deal with separately. It is quite clear to us that Appellant has already been given return on equity in terms of the tariff Regulation in respect of capital on the basis of debt equity ratio which has been fixed by the Appellate Tribunal on a ratio which has become final between the parties. 22. Though a perusal of para A-9 of order dated 23.11.2007 may appear to show that equity has been found to be the main source of capital, a perusal of paragraph A-10,A-16 and more importantly E-13 would show that capital Under Section 38 of the DVC Act has been understood as the value of the operating assets when they were first put to commercial use. Capital is also understood not as equity alone but it has been understood both as loan and equity. The ratio between loan and equity is also fixed in respect of the old projects at 50:50 and under the new projects it is at 70:30.It is further clear from paragraph E-13 of the order of the Appellate Tribunal dated 23.11.2007 that the appellate Tribunal contemplated that the equity component would remain static and it would earn the rate of return as provided in the tariff Regulation. As far as the loan component is concerned, it would get reduced on account of repayments. Therefore, the recovery as contemplated under the Regulations was found to be in two forms, namely, either as return on equity in respect of the equity portion and as interest on the loan component. 31. In the present case, the clear agreement between the parties was that interest on the sum of `53.90 crores was payable for the specified period 01.07.2003 to 31.12.2009.Therefore, CLPs claim that any amount was payable, for any period prior to 01.07.2003, was not tenable. Had CLP wished so, nothing prevented it to claim for it during negotiations and have it included as a term of the contract. Once having settled for a specified sum, on an amount (`53.90 crores) that was only fictionally a loan - and treated as such, for purpose of fixing interest payable, considering the equity infused, in excess of the tariff regulations, the absence of any like item, such as interest for prior period, precludes a claim. But it was really part of the equity component. Therefore, interest was per se not payable, but could be paid in terms of the tariff notification or the agreement. No claim on any other legal or equitable considerations could have been made. The findings of the lower authorities are therefore, sound and reasonable. | 0[ds]15. At the outset, it is noticeable that on the issue, whether amounts paid to CLP, for the period 1998 to 2005 onwards, were in excess of what was actually payable by Gujarat Urja, the findings of GERC and the APTEL are concurrent. This court does not discern any unreasonableness or facial omission of material factors, to warrant appellate review19. The submissions of parties are with respect to two notifications dated 30.03.1992 and 06.11.1995. These Notifications were under Section 43(A) of the Supply Act. Concededly, these notifications are statutory and are binding on the parties. Any PPA between a generating company and the purchaser of electricity is subject to such statutory notifications; parties by agreement cannot override statutory provisions, or such notifications, as far as they relate to matters of tariff20. Therefore, the rights and obligations of the parties under the PPA have to be read subject to the statutory provisions. The provisions of the PPA, if they are contrary to the statutory provisions, cannot be given effect to22. The argument of CLP that its unit was essentially gas-based and that the definition of naphtha-based unit meant only that unit which depended entirely on naphtha as a fuel, or that which used naphtha at least to the extent of 50%, in our opinion is not correct25. There is no dispute that the PPA which the parties entered into specifically referred to the notification of 30.03.1992 and further went on to state that for the first Kwh/KW, a plant load factor of 68.5% fixed charges and variable charges were deployed. For generation achieved over and above this by the concerned unit – CLP, an incentive @ 5.75% for every 1% increase over and above the fixed and variable charge payable was agreed to. Significantly, the fixed and variable charges are in consonance with the statutory notification of 30.03.1992 (which was also later amended on 17.01.1994). This much is clear from a plain reading of clause 7.1 of the Schedule VII to the PPA itself. In view of the fact that the notification amended on 06.11.1995 was a statutory one, there cannot be any doubt that it was binding upon the parties. Therefore, the earlier notification which left it free to the parties to negotiate on various aspects, including on the incentive payable, stood amended by Note 2, which was added to clause 1.6 of the tariff. The effect of this statutory incorporation by way of amendment was that incentive no longer became payable. The arguments by the CLP, in the opinion of the Court, that the parties were bound only by the terms of the agreement and that the amendment notification being prospective, could not have altered the terms of the tariff, especially the incentive payable, are insubstantial and have no force. The concurrent findings on this aspect, therefore, are sound and do not call for interference. Likewise, the change of law provision (Clause 6.5 of the PPA) clearly contemplated that any amendment to the prevailing tariff notification (dated 30.03.1992) would bind the parties. Since Note (2) was an amendment, which dealt with the issue of incentive, it cannot now be said that it was inapplicable. The findings of the lower authorities, therefore, are correct; no interference is called forThe concurred findings on this aspect, in the opinion of this court, are reasonable. There is merit in CPLs submission that the earliest point in time, when the cause of action arose, was in May,1996, when Gujarat Urja rejected its contention that incentive was payable in terms of the PPA, notwithstanding the notification of 06.11.1995. Despite this stated position, meetings continued to be held and, what is more, incentive amounts, were paid to CLP. No doubt, no document conclusively stated that CLPs claim was accepted. We do not find any merit in the submission of Gujarat Urja that the issue was kept alive, due to a series of communications. In this regard, APTELs findings about inapplicability of Section 18 of the Limitation Act, are correct. There was no admission on the part of CLP, at least of the kind, that extended the time for preferring an application for recovery of excess payments. It has been consistently ruled by this court that repeated letters, or exchange of communications, do not extend the period of limitation, provided by law.27. The third, and last issue, is with respect to payment of interest on deemed equity. Clause 1.5 of the 30.03.1992 notification provided for interest on loan, as a component of tariff; it stipulated that interest (on outstanding loan) shall be computed as per financial package approved by the Authority (CEA). The PPA of 03.02.1994 (Schedule VII) clause 7.5.10 defined interest on loan capital as the sum of all payments of interest along with bank charges and all associated financing costs paid to the bank annually on the outstanding loans paid by GTEC. … The Central Commissions order of 21.02.2000 led to a stipulation in the tariff regulations of 2001. Eventually, the Tariff Regulations of 2004 was brought into force; it provided for a debt ratio of 70:30 for determination of tariff29. It is thus apparent, that the parties did not harbor any doubt about the period for which the specified interest was payable on such deemed loan. The rate of interest was fixed; likewise, the date from which payment obligations were to arise, too were known. Also, the date upto which the interest on such deemed loan payments were to be made, was known and fixed. In these circumstances, CLPs claim that the payment of interest for a prior period was outstanding, and constituted Gujarat Urjas liability, is insubstantial. In a recent judgment (Uttar Haryana Bijli Vitran Nigam Ltd.and Ors. vs. Adani Power Ltd. and Ors. 2019 (5) SCC 325 ) a similar issue had arisen. The court quoted from the decision in National Thermal Power Corporation Ltd. v. Madhya Pradesh State Electricity Board ((2011)15 SCC 580) where another previous decision was cited with approval on the issue that the express provision for something, in an agreement, meant that other similar matters stood excluded31. In the present case, the clear agreement between the parties was that interest on the sum of `53.90 crores was payable for the specified period 01.07.2003 to 31.12.2009.Therefore, CLPs claim that any amount was payable, for any period prior to 01.07.2003, was not tenable. Had CLP wished so, nothing prevented it to claim for it during negotiations and have it included as a term of the contract. Once having settled for a specified sum, on an amount (`53.90 crores) that was only fictionally a loan - and treated as such, for purpose of fixing interest payable, considering the equity infused, in excess of the tariff regulations, the absence of any like item, such as interest for prior period, precludes a claim. But it was really part of the equity component. Therefore, interest was per se not payable, but could be paid in terms of the tariff notification or the agreement. No claim on any other legal or equitable considerations could have been made. The findings of the lower authorities are therefore, sound and reasonable | 0 | 6,296 | 1,359 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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recent projects such as Mejina, it was assigned debt equity ratio of 70:30 on capital structure as specified in the Regulations. This finding has become final. It was contended on behalf of the Appellant that equity has been the primary source of capital. Thereafter,in paragraph A-10, it was found by the Appellate Tribunal that owners take upon themselves business related risk and are entitled to interest on capital investment,but the return is to be governed by the scheme of determination of tariff for the supply of electricity as mandated by the law in place. The Appellate Tribunal further proceeds to hold that the scheme provides for assured Return on Equity (ROE) which is at the rate of 14% on the equity employed for the purpose of supplying electricity. The scheme does not permit return on investment made on projects other than for supply of electricity to be recovered from supply of electricity. The Tribunal went on to hold that the DVC Act does not recognise capital as borrowings and there is no reference about repayment of such capital to the participating Governments. The Appellate Tribunal proceeds to hold that the capital infused by participating Governments is in the nature of equity capital and for the determination of tariff, the same would be eligible for return on equity but the Appellate Tribunal does not end there. It clearly provides that the return on equity is as may be permitted by the tariff Regulation of 2004. It is thereafter that the Appellate Tribunal in para 15 proceeded to hold that the DVC Act provides for interest on capital which is contributed by the participating Governments. The accrued interest due to the Governments apparently has been allowed to be retained by the Appellant. The same however came to be ploughed back into the capital with the tacit consent of the participating Governments. Thereafter, it is stated that this has to be provided to the DVC as per the provisions of Section 38 of the DVC Act. It is thereafter paragraph A-16 which we have already extracted, the Tribunal proceeded to observe that under the DVC Act if there is any deficit in the capital contributed by the participating Governments,it is to be made good by taking loan on behalf of the participating Governments. The said debt would attract interest. The average interest rate of the repayment payable is to be applied on a 50:50 normative debt capital. This means that out of the aggregate equity including reserves, equity considering the normative debt ratio of 50:50 would be eligible for return on equity as specified in the Regulations and the excess of equity,if any, over the equity earning ratio of 14% is to be considered as interest bearing debt. In the example which has been given it is shown that if the debt equity ratio is 40:60, return on equity at 14% will be available on 50% equity whereas interest would be available at 10% portion of equity and 40% loan which were reduced by repayments. 21. On the basis of the remand, the Commission has worked out the debt equity ratio as directed by the Appellate Tribunal. It has further provided return on equity at the rate of 14% on the equity portion, namely 50%. In respect of the debt portion, interest has been calculated no doubt after deducting depreciation, the legality of which is the subject matter of the other contention which we will deal with separately. It is quite clear to us that Appellant has already been given return on equity in terms of the tariff Regulation in respect of capital on the basis of debt equity ratio which has been fixed by the Appellate Tribunal on a ratio which has become final between the parties. 22. Though a perusal of para A-9 of order dated 23.11.2007 may appear to show that equity has been found to be the main source of capital, a perusal of paragraph A-10,A-16 and more importantly E-13 would show that capital Under Section 38 of the DVC Act has been understood as the value of the operating assets when they were first put to commercial use. Capital is also understood not as equity alone but it has been understood both as loan and equity. The ratio between loan and equity is also fixed in respect of the old projects at 50:50 and under the new projects it is at 70:30.It is further clear from paragraph E-13 of the order of the Appellate Tribunal dated 23.11.2007 that the appellate Tribunal contemplated that the equity component would remain static and it would earn the rate of return as provided in the tariff Regulation. As far as the loan component is concerned, it would get reduced on account of repayments. Therefore, the recovery as contemplated under the Regulations was found to be in two forms, namely, either as return on equity in respect of the equity portion and as interest on the loan component. 31. In the present case, the clear agreement between the parties was that interest on the sum of `53.90 crores was payable for the specified period 01.07.2003 to 31.12.2009.Therefore, CLPs claim that any amount was payable, for any period prior to 01.07.2003, was not tenable. Had CLP wished so, nothing prevented it to claim for it during negotiations and have it included as a term of the contract. Once having settled for a specified sum, on an amount (`53.90 crores) that was only fictionally a loan - and treated as such, for purpose of fixing interest payable, considering the equity infused, in excess of the tariff regulations, the absence of any like item, such as interest for prior period, precludes a claim. But it was really part of the equity component. Therefore, interest was per se not payable, but could be paid in terms of the tariff notification or the agreement. No claim on any other legal or equitable considerations could have been made. The findings of the lower authorities are therefore, sound and reasonable.
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of naphtha-based unit meant only that unit which depended entirely on naphtha as a fuel, or that which used naphtha at least to the extent of 50%, in our opinion is not correct25. There is no dispute that the PPA which the parties entered into specifically referred to the notification of 30.03.1992 and further went on to state that for the first Kwh/KW, a plant load factor of 68.5% fixed charges and variable charges were deployed. For generation achieved over and above this by the concerned unit – CLP, an incentive @ 5.75% for every 1% increase over and above the fixed and variable charge payable was agreed to. Significantly, the fixed and variable charges are in consonance with the statutory notification of 30.03.1992 (which was also later amended on 17.01.1994). This much is clear from a plain reading of clause 7.1 of the Schedule VII to the PPA itself. In view of the fact that the notification amended on 06.11.1995 was a statutory one, there cannot be any doubt that it was binding upon the parties. Therefore, the earlier notification which left it free to the parties to negotiate on various aspects, including on the incentive payable, stood amended by Note 2, which was added to clause 1.6 of the tariff. The effect of this statutory incorporation by way of amendment was that incentive no longer became payable. The arguments by the CLP, in the opinion of the Court, that the parties were bound only by the terms of the agreement and that the amendment notification being prospective, could not have altered the terms of the tariff, especially the incentive payable, are insubstantial and have no force. The concurrent findings on this aspect, therefore, are sound and do not call for interference. Likewise, the change of law provision (Clause 6.5 of the PPA) clearly contemplated that any amendment to the prevailing tariff notification (dated 30.03.1992) would bind the parties. Since Note (2) was an amendment, which dealt with the issue of incentive, it cannot now be said that it was inapplicable. The findings of the lower authorities, therefore, are correct; no interference is called forThe concurred findings on this aspect, in the opinion of this court, are reasonable. There is merit in CPLs submission that the earliest point in time, when the cause of action arose, was in May,1996, when Gujarat Urja rejected its contention that incentive was payable in terms of the PPA, notwithstanding the notification of 06.11.1995. Despite this stated position, meetings continued to be held and, what is more, incentive amounts, were paid to CLP. No doubt, no document conclusively stated that CLPs claim was accepted. We do not find any merit in the submission of Gujarat Urja that the issue was kept alive, due to a series of communications. In this regard, APTELs findings about inapplicability of Section 18 of the Limitation Act, are correct. There was no admission on the part of CLP, at least of the kind, that extended the time for preferring an application for recovery of excess payments. It has been consistently ruled by this court that repeated letters, or exchange of communications, do not extend the period of limitation, provided by law.27. The third, and last issue, is with respect to payment of interest on deemed equity. Clause 1.5 of the 30.03.1992 notification provided for interest on loan, as a component of tariff; it stipulated that interest (on outstanding loan) shall be computed as per financial package approved by the Authority (CEA). The PPA of 03.02.1994 (Schedule VII) clause 7.5.10 defined interest on loan capital as the sum of all payments of interest along with bank charges and all associated financing costs paid to the bank annually on the outstanding loans paid by GTEC. … The Central Commissions order of 21.02.2000 led to a stipulation in the tariff regulations of 2001. Eventually, the Tariff Regulations of 2004 was brought into force; it provided for a debt ratio of 70:30 for determination of tariff29. It is thus apparent, that the parties did not harbor any doubt about the period for which the specified interest was payable on such deemed loan. The rate of interest was fixed; likewise, the date from which payment obligations were to arise, too were known. Also, the date upto which the interest on such deemed loan payments were to be made, was known and fixed. In these circumstances, CLPs claim that the payment of interest for a prior period was outstanding, and constituted Gujarat Urjas liability, is insubstantial. In a recent judgment (Uttar Haryana Bijli Vitran Nigam Ltd.and Ors. vs. Adani Power Ltd. and Ors. 2019 (5) SCC 325 ) a similar issue had arisen. The court quoted from the decision in National Thermal Power Corporation Ltd. v. Madhya Pradesh State Electricity Board ((2011)15 SCC 580) where another previous decision was cited with approval on the issue that the express provision for something, in an agreement, meant that other similar matters stood excluded31. In the present case, the clear agreement between the parties was that interest on the sum of `53.90 crores was payable for the specified period 01.07.2003 to 31.12.2009.Therefore, CLPs claim that any amount was payable, for any period prior to 01.07.2003, was not tenable. Had CLP wished so, nothing prevented it to claim for it during negotiations and have it included as a term of the contract. Once having settled for a specified sum, on an amount (`53.90 crores) that was only fictionally a loan - and treated as such, for purpose of fixing interest payable, considering the equity infused, in excess of the tariff regulations, the absence of any like item, such as interest for prior period, precludes a claim. But it was really part of the equity component. Therefore, interest was per se not payable, but could be paid in terms of the tariff notification or the agreement. No claim on any other legal or equitable considerations could have been made. The findings of the lower authorities are therefore, sound and reasonable
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GURNAM SINGH (D) BY LRS Vs. LEHNA SINGH(D) BY LRS | confined only when the second appeal involves a substantial question of law. The existence of ‘a substantial question of law? is a sine qua non for the exercise of the jurisdiction under Section 100 of the CPC. As observed and held by this Court in the case of Kondiba Dagadu Kadam (Supra), in a second appeal under Section 100 of the CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneous being:(i) Contrary to the mandatory provisions of the applicable law; OR(ii) Contrary to the law as pronounced by the Apex Court; OR(iii) Based on in-admissible evidence or no evidence.It is further observed by this Court in the aforesaid decision that if First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in second appeal. It is further observed that the Trial Court could have decided differently is not a question of law justifying interference in second appeal.14. When a substantial question of law can be said to have arisen, has been dealt with and considered by this Court in the case of Ishwar Dass Jain (Supra). In the aforesaid decision, this Court has specifically observed and held :?Under Section 100 CPC, after the 1976 amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In either of the above situations, a substantial question of law can arise.?15. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that the High Court has erred in re¬appreciating the evidence on record in the second appeal under Section 100 of the CPC. The High Court has materially erred in interfering with the findings recorded by the First Appellate Court, which were on re¬ appreciation of evidence, which was permissible by the First Appellate Court in exercise of powers under Section 96 of the CPC. Cogent reasons, on appreciation of the evidence, were given by the First Appellate Court. First Appellate Court dealt with, in detail, the so-called suspicious circumstance which weighed with the learned Trial Court and thereafter it came to the conclusion that the Will, which as such was a registered Will, was genuine and do not suffer from any suspicious circumstances. The findings recorded by the First Appellate Court are reproduced hereinabove. Therefore, while passing the impugned judgment and order, the High Court has exceeded in its jurisdiction while deciding the second appeal under Section 100 CPC.15.1 As observed hereinabove and as held by this Court in a catena of decisions and even as per Section 100 CPC, the jurisdiction of the High Court to entertain the second appeal under Section 100 CPC is confined only to such appeals which involve a substantial question of law. On going through the substantial questions of law framed by the High Court, we are of the opinion that the question of law framed by the High Court while deciding the second appeal, cannot be said to be substantial questions of law at all. The substantial questions of law framed by the High Court are as under :?(i) Whether the Appellate Court can reverse the findings recorded by the learned trial court without adverting to the specific finding of the trial Court?(ii) Whether the judgment passed by the learned lower Appellate Court is perverse and outcome of misreading of evidence??The aforesaid cannot be said to be substantial questions of law at all. In the circumstances, the impugned judgment and order passed by the High Court cannot be sustained and the same deserves to be quashed and set aside. At this stage, decision of this Court in the case of Madamanchi Ramappa v. Muthaluru Bojappa, AIR 1963 SC 1633 , is required to be referred to. In the aforesaid decision, this Court has observed and held as under:?Whenever this Court is satisfied that in dealing with a second appeal, the High Court has, either unwittingly and in a casual manner, or deliberately as in this case, contravened the limits prescribed by S.100, it becomes the duty of this Court to intervene and give effect to the said provisions. It may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has not been served by the findings of fact recorded by Courts of fact; but on such occasions it is necessary to remember that what is administered in Courts is justice according to law and considerations of fair play and equity however important they may be, must yield to clear and express provisions of the law. If in reaching its decisions in second appeals, the High Court contravenes the express provisions of S.100, it would inevitably introduce in such decisions an element of disconcerting unpredictability which is usually associated with gambling; and that is a reproach which judicial process must constantly and scrupulously endeavour to avoid.?16. Therefore, we are of the opinion that this is a fit case to interfere with the impugned judgment and order passed by the High Court, as, as observed hereinabove, the High Court has exceeded in its jurisdiction, while allowing the second appeal under Section 100 of the CPC. | 1[ds]13. At the outset, it is required to be noted that the learned Trial Court held the Will dated 17.01.1980, which was executed in favour of original defendant Nos. 2 to 6, surrounded by suspicious circumstances and therefore did not believe the said Will.13.1. The suspicious circumstances which were considered by the learned Trial Court are narrated/stated hereinabove. On re-appreciation of evidence on record and after dealing with each alleged suspicious circumstances, which were dealt with by the learned Trial Court, the First Appellate Court by giving cogent reasons held the Will genuine and consequently did not agree with the findings recorded by the learned Trial Court. However, in Second Appeal under Section 100 of the CPC, the High Court, by impugned judgment and order has interfered with the Judgment and Decree passed by the First Appellate Court. While interfering with the judgment and order passed by the first Appellate Court, it appears that while upsetting the judgment and decree passed by the First Appellate Court, the High Court has again appreciated the entire evidence on record, which in exercise of powers under Section 100 CPC is not permissible. While passing the impugned judgment and order, it appears that High Court has not at all appreciated the fact that the High Court was deciding the Second Appeal under Section 100 of the CPC and not first appeal under Section 96 of the CPC. As per the law laid down by this Court in a catena of decisions, the jurisdiction of High Court to entertain second appeal under Section 100 CPC after the 1976 Amendment, is confined only when the second appeal involves a substantial question of law. The existence of ‘a substantial question of law? is a sine qua non for the exercise of the jurisdiction under Section 100 of the CPC. As observed and held by this Court in the case of Kondiba Dagadu Kadam (Supra), in a second appeal under Section 100 of the CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneousContrary to the mandatory provisions of the applicable law; OR(ii) Contrary to the law as pronounced by the Apex Court; OR(iii) Based on in-admissible evidence or nois further observed by this Court in the aforesaid decision that if First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in second appeal. It is further observed that the Trial Court could have decided differently is not a question of law justifying interference in second appeal.When a substantial question of law can be said to have arisen, has been dealt with and considered by this Court in the case of Ishwar Dass Jain (Supra). In the aforesaid decision, this Court has specifically observed and heldSection 100 CPC, after the 1976 amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In either of the above situations, a substantial question of law can arise.Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that the High Court has erred in re¬appreciating the evidence on record in the second appeal under Section 100 of the CPC. The High Court has materially erred in interfering with the findings recorded by the First Appellate Court, which were on re¬ appreciation of evidence, which was permissible by the First Appellate Court in exercise of powers under Section 96 of the CPC. Cogent reasons, on appreciation of the evidence, were given by the First Appellate Court. First Appellate Court dealt with, in detail, the so-called suspicious circumstance which weighed with the learned Trial Court and thereafter it came to the conclusion that the Will, which as such was a registered Will, was genuine and do not suffer from any suspicious circumstances. The findings recorded by the First Appellate Court are reproduced hereinabove. Therefore, while passing the impugned judgment and order, the High Court has exceeded in its jurisdiction while deciding the second appeal under Section 100 CPC.15.1 As observed hereinabove and as held by this Court in a catena of decisions and even as per Section 100 CPC, the jurisdiction of the High Court to entertain the second appeal under Section 100 CPC is confined only to such appeals which involve a substantial question of law. On going through the substantial questions of law framed by the High Court, we are of the opinion that the question of law framed by the High Court while deciding the second appeal, cannot be said to be substantial questions of law at all. The substantial questions of law framed by the High Court are as underWhether the Appellate Court can reverse the findings recorded by the learned trial court without adverting to the specific finding of the trial Court?(ii) Whether the judgment passed by the learned lower Appellate Court is perverse and outcome of misreading ofaforesaid cannot be said to be substantial questions of law at all. In the circumstances, the impugned judgment and order passed by the High Court cannot be sustained and the same deserves to be quashed and set aside.Therefore, we are of the opinion that this is a fit case to interfere with the impugned judgment and order passed by the High Court, as, as observed hereinabove, the High Court has exceeded in its jurisdiction, while allowing the second appeal under Section 100 of the CPC. | 1 | 4,341 | 1,122 | ### 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:
confined only when the second appeal involves a substantial question of law. The existence of ‘a substantial question of law? is a sine qua non for the exercise of the jurisdiction under Section 100 of the CPC. As observed and held by this Court in the case of Kondiba Dagadu Kadam (Supra), in a second appeal under Section 100 of the CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneous being:(i) Contrary to the mandatory provisions of the applicable law; OR(ii) Contrary to the law as pronounced by the Apex Court; OR(iii) Based on in-admissible evidence or no evidence.It is further observed by this Court in the aforesaid decision that if First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in second appeal. It is further observed that the Trial Court could have decided differently is not a question of law justifying interference in second appeal.14. When a substantial question of law can be said to have arisen, has been dealt with and considered by this Court in the case of Ishwar Dass Jain (Supra). In the aforesaid decision, this Court has specifically observed and held :?Under Section 100 CPC, after the 1976 amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In either of the above situations, a substantial question of law can arise.?15. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that the High Court has erred in re¬appreciating the evidence on record in the second appeal under Section 100 of the CPC. The High Court has materially erred in interfering with the findings recorded by the First Appellate Court, which were on re¬ appreciation of evidence, which was permissible by the First Appellate Court in exercise of powers under Section 96 of the CPC. Cogent reasons, on appreciation of the evidence, were given by the First Appellate Court. First Appellate Court dealt with, in detail, the so-called suspicious circumstance which weighed with the learned Trial Court and thereafter it came to the conclusion that the Will, which as such was a registered Will, was genuine and do not suffer from any suspicious circumstances. The findings recorded by the First Appellate Court are reproduced hereinabove. Therefore, while passing the impugned judgment and order, the High Court has exceeded in its jurisdiction while deciding the second appeal under Section 100 CPC.15.1 As observed hereinabove and as held by this Court in a catena of decisions and even as per Section 100 CPC, the jurisdiction of the High Court to entertain the second appeal under Section 100 CPC is confined only to such appeals which involve a substantial question of law. On going through the substantial questions of law framed by the High Court, we are of the opinion that the question of law framed by the High Court while deciding the second appeal, cannot be said to be substantial questions of law at all. The substantial questions of law framed by the High Court are as under :?(i) Whether the Appellate Court can reverse the findings recorded by the learned trial court without adverting to the specific finding of the trial Court?(ii) Whether the judgment passed by the learned lower Appellate Court is perverse and outcome of misreading of evidence??The aforesaid cannot be said to be substantial questions of law at all. In the circumstances, the impugned judgment and order passed by the High Court cannot be sustained and the same deserves to be quashed and set aside. At this stage, decision of this Court in the case of Madamanchi Ramappa v. Muthaluru Bojappa, AIR 1963 SC 1633 , is required to be referred to. In the aforesaid decision, this Court has observed and held as under:?Whenever this Court is satisfied that in dealing with a second appeal, the High Court has, either unwittingly and in a casual manner, or deliberately as in this case, contravened the limits prescribed by S.100, it becomes the duty of this Court to intervene and give effect to the said provisions. It may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has not been served by the findings of fact recorded by Courts of fact; but on such occasions it is necessary to remember that what is administered in Courts is justice according to law and considerations of fair play and equity however important they may be, must yield to clear and express provisions of the law. If in reaching its decisions in second appeals, the High Court contravenes the express provisions of S.100, it would inevitably introduce in such decisions an element of disconcerting unpredictability which is usually associated with gambling; and that is a reproach which judicial process must constantly and scrupulously endeavour to avoid.?16. Therefore, we are of the opinion that this is a fit case to interfere with the impugned judgment and order passed by the High Court, as, as observed hereinabove, the High Court has exceeded in its jurisdiction, while allowing the second appeal under Section 100 of the CPC.
### Response:
1
### Explanation:
favour of original defendant Nos. 2 to 6, surrounded by suspicious circumstances and therefore did not believe the said Will.13.1. The suspicious circumstances which were considered by the learned Trial Court are narrated/stated hereinabove. On re-appreciation of evidence on record and after dealing with each alleged suspicious circumstances, which were dealt with by the learned Trial Court, the First Appellate Court by giving cogent reasons held the Will genuine and consequently did not agree with the findings recorded by the learned Trial Court. However, in Second Appeal under Section 100 of the CPC, the High Court, by impugned judgment and order has interfered with the Judgment and Decree passed by the First Appellate Court. While interfering with the judgment and order passed by the first Appellate Court, it appears that while upsetting the judgment and decree passed by the First Appellate Court, the High Court has again appreciated the entire evidence on record, which in exercise of powers under Section 100 CPC is not permissible. While passing the impugned judgment and order, it appears that High Court has not at all appreciated the fact that the High Court was deciding the Second Appeal under Section 100 of the CPC and not first appeal under Section 96 of the CPC. As per the law laid down by this Court in a catena of decisions, the jurisdiction of High Court to entertain second appeal under Section 100 CPC after the 1976 Amendment, is confined only when the second appeal involves a substantial question of law. The existence of ‘a substantial question of law? is a sine qua non for the exercise of the jurisdiction under Section 100 of the CPC. As observed and held by this Court in the case of Kondiba Dagadu Kadam (Supra), in a second appeal under Section 100 of the CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneousContrary to the mandatory provisions of the applicable law; OR(ii) Contrary to the law as pronounced by the Apex Court; OR(iii) Based on in-admissible evidence or nois further observed by this Court in the aforesaid decision that if First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in second appeal. It is further observed that the Trial Court could have decided differently is not a question of law justifying interference in second appeal.When a substantial question of law can be said to have arisen, has been dealt with and considered by this Court in the case of Ishwar Dass Jain (Supra). In the aforesaid decision, this Court has specifically observed and heldSection 100 CPC, after the 1976 amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In either of the above situations, a substantial question of law can arise.Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that the High Court has erred in re¬appreciating the evidence on record in the second appeal under Section 100 of the CPC. The High Court has materially erred in interfering with the findings recorded by the First Appellate Court, which were on re¬ appreciation of evidence, which was permissible by the First Appellate Court in exercise of powers under Section 96 of the CPC. Cogent reasons, on appreciation of the evidence, were given by the First Appellate Court. First Appellate Court dealt with, in detail, the so-called suspicious circumstance which weighed with the learned Trial Court and thereafter it came to the conclusion that the Will, which as such was a registered Will, was genuine and do not suffer from any suspicious circumstances. The findings recorded by the First Appellate Court are reproduced hereinabove. Therefore, while passing the impugned judgment and order, the High Court has exceeded in its jurisdiction while deciding the second appeal under Section 100 CPC.15.1 As observed hereinabove and as held by this Court in a catena of decisions and even as per Section 100 CPC, the jurisdiction of the High Court to entertain the second appeal under Section 100 CPC is confined only to such appeals which involve a substantial question of law. On going through the substantial questions of law framed by the High Court, we are of the opinion that the question of law framed by the High Court while deciding the second appeal, cannot be said to be substantial questions of law at all. The substantial questions of law framed by the High Court are as underWhether the Appellate Court can reverse the findings recorded by the learned trial court without adverting to the specific finding of the trial Court?(ii) Whether the judgment passed by the learned lower Appellate Court is perverse and outcome of misreading ofaforesaid cannot be said to be substantial questions of law at all. In the circumstances, the impugned judgment and order passed by the High Court cannot be sustained and the same deserves to be quashed and set aside.Therefore, we are of the opinion that this is a fit case to interfere with the impugned judgment and order passed by the High Court, as, as observed hereinabove, the High Court has exceeded in its jurisdiction, while allowing the second appeal under Section 100 of the CPC.
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HINDUSTAN CONSTRUCTION COMPANY LTD Vs. NHPC LTD. & ORS | R.F. Nariman, J. SPECIAL LEAVE PETITION (C) NO. 402/2020: 1. Leave granted. 2. We have heard learned counsel appearing for the parties. 3. By an order dated 14.11.2019 passed by the learned Additional District Judge-cum-Presiding Judge, Special Commercial Court at Gurugram in Arbitration Case No. 252 of 2018, the learned Judge on construing the arbitration clause in the agreement between the parties arrived at the finding that the seat of arbitration was at New Delhi. Yet, by virtue of Bharat Aluminium Company and Ors. vs. Kaiser Aluminium Technical Services, Inc. and Ors. (2012) 9 SCC 552 since both Delhi as well as the Faridabad Courts would have jurisdiction as the contract was executed between the parties at Faridabad, and part of the cause of action arose there, and since the Faridabad Court was invoked first on the facts of this case, Section 42 of the Arbitration Act would kick in as a result of which the Faridabad Court would have jurisdiction to decide all other applications. 4. This Court in Civil Appeal No. 9307 of 2019 entitled BGS SGS Soma JV vs. NHPC Ltd. delivered a judgment on 10.12.2019 i.e. after the impugned judgment was delivered, in which reference was made to Section 42 of the Act and a finding recorded thus: 61. Equally incorrect is the finding in Antrix Corporation Ltd. (supra) that Section 42 of the Arbitration Act, 1996 would be rendered ineffective and useless. Section 42 is meant to avoid conflicts in jurisdiction of Courts by placing the supervisory jurisdiction over all arbitral proceedings in connection with the arbitration in one Court exclusively. This is why the section begins with a non-obstante clause, and then goes on to state …where with respect to an arbitration agreement any application under this Part has been made in a Court… It is obvious that the application made under this part to a Court must be a Court which has jurisdiction to decide such application. The subsequent holdings of this Court, that where a seat is designated in an agreement, the Courts of the seat alone have jurisdiction, would require that all applications under Part I be made only in the Court where the seat is located, and that Court alone then has jurisdiction over the arbitral proceedings and all subsequent applications arising out of the arbitral agreement. So read, Section 42 is not rendered ineffective or useless. Also, where it is found on the facts of a particular case that either no seat is designated by agreement, or the so-called seat is only a convenient venue, then there may be several Courts where a part of the cause of action arises that may have jurisdiction. Again, an application under Section 9 of the Arbitration Act, 1996 may be preferred before a court in which part of the cause of action arises in a case where parties have not agreed on the seat of arbitration, and before such seat may have been determined, on the facts of a particular case, by the Arbitral Tribunal under Section 20(2) of the Arbitration Act, 1996. In both these situations, the earliest application having been made to a Court in which a part of the cause of action arises would then be the exclusive Court under Section 42, which would have control over the arbitral proceedings. For all these reasons, the law stated by the Bombay and Delhi High Courts in this regard is incorrect and is overruled. 5. This was made in the backdrop of explaining para 96 of the Balco (supra), which judgment read as a whole declares that once the seat of arbitration is designated, such clause then becomes an exclusive jurisdiction clause as a result of which only the courts where the seat is located would then have jurisdiction to the exclusion of all other courts. 6. Given the finding in this case that New Delhi was the chosen seat of the parties, even if an application was first made to the Faridabad Court, that application would be made to a court without jurisdiction. | 1[ds]This Court in Civil Appeal No. 9307 of 2019 entitled BGS SGS Soma JV vs. NHPC Ltd. delivered a judgment on 10.12.2019 i.e. after the impugned judgment was delivered, in which reference was made to Section 42 of the Act and a finding recorded thus:61. Equally incorrect is the finding in Antrix Corporation Ltd. (supra) that Section 42 of the Arbitration Act, 1996 would be rendered ineffective and useless. Section 42 is meant to avoid conflicts in jurisdiction of Courts by placing the supervisory jurisdiction over all arbitral proceedings in connection with the arbitration in one Court exclusively. This is why the section begins with a non-obstante clause, and then goes on to state …where with respect to an arbitration agreement any application under this Part has been made in a Court… It is obvious that the application made under this part to a Court must be a Court which has jurisdiction to decide such application. The subsequent holdings of this Court, that where a seat is designated in an agreement, the Courts of the seat alone have jurisdiction, would require that all applications under Part I be made only in the Court where the seat is located, and that Court alone then has jurisdiction over the arbitral proceedings and all subsequent applications arising out of the arbitral agreement. So read, Section 42 is not rendered ineffective or useless. Also, where it is found on the facts of a particular case that either no seat is designated by agreement, or the so-called seat is only a convenient venue, then there may be several Courts where a part of the cause of action arises that may have jurisdiction. Again, an application under Section 9 of the Arbitration Act, 1996 may be preferred before a court in which part of the cause of action arises in a case where parties have not agreed on the seat of arbitration, and before such seat may have been determined, on the facts of a particular case, by the Arbitral Tribunal under Section 20(2) of the Arbitration Act, 1996. In both these situations, the earliest application having been made to a Court in which a part of the cause of action arises would then be the exclusive Court under Section 42, which would have control over the arbitral proceedings. For all these reasons, the law stated by the Bombay and Delhi High Courts in this regard is incorrect and is overruledThis was made in the backdrop of explaining para 96 of the Balco (supra), which judgment read as a whole declares that once the seat of arbitration is designated, such clause then becomes an exclusive jurisdiction clause as a result of which only the courts where the seat is located would then have jurisdiction to the exclusion of all other courtsGiven the finding in this case that New Delhi was the chosen seat of the parties, even if an application was first made to the Faridabad Court, that application would be made to a court without jurisdiction. | 1 | 748 | 548 | ### 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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R.F. Nariman, J. SPECIAL LEAVE PETITION (C) NO. 402/2020: 1. Leave granted. 2. We have heard learned counsel appearing for the parties. 3. By an order dated 14.11.2019 passed by the learned Additional District Judge-cum-Presiding Judge, Special Commercial Court at Gurugram in Arbitration Case No. 252 of 2018, the learned Judge on construing the arbitration clause in the agreement between the parties arrived at the finding that the seat of arbitration was at New Delhi. Yet, by virtue of Bharat Aluminium Company and Ors. vs. Kaiser Aluminium Technical Services, Inc. and Ors. (2012) 9 SCC 552 since both Delhi as well as the Faridabad Courts would have jurisdiction as the contract was executed between the parties at Faridabad, and part of the cause of action arose there, and since the Faridabad Court was invoked first on the facts of this case, Section 42 of the Arbitration Act would kick in as a result of which the Faridabad Court would have jurisdiction to decide all other applications. 4. This Court in Civil Appeal No. 9307 of 2019 entitled BGS SGS Soma JV vs. NHPC Ltd. delivered a judgment on 10.12.2019 i.e. after the impugned judgment was delivered, in which reference was made to Section 42 of the Act and a finding recorded thus: 61. Equally incorrect is the finding in Antrix Corporation Ltd. (supra) that Section 42 of the Arbitration Act, 1996 would be rendered ineffective and useless. Section 42 is meant to avoid conflicts in jurisdiction of Courts by placing the supervisory jurisdiction over all arbitral proceedings in connection with the arbitration in one Court exclusively. This is why the section begins with a non-obstante clause, and then goes on to state …where with respect to an arbitration agreement any application under this Part has been made in a Court… It is obvious that the application made under this part to a Court must be a Court which has jurisdiction to decide such application. The subsequent holdings of this Court, that where a seat is designated in an agreement, the Courts of the seat alone have jurisdiction, would require that all applications under Part I be made only in the Court where the seat is located, and that Court alone then has jurisdiction over the arbitral proceedings and all subsequent applications arising out of the arbitral agreement. So read, Section 42 is not rendered ineffective or useless. Also, where it is found on the facts of a particular case that either no seat is designated by agreement, or the so-called seat is only a convenient venue, then there may be several Courts where a part of the cause of action arises that may have jurisdiction. Again, an application under Section 9 of the Arbitration Act, 1996 may be preferred before a court in which part of the cause of action arises in a case where parties have not agreed on the seat of arbitration, and before such seat may have been determined, on the facts of a particular case, by the Arbitral Tribunal under Section 20(2) of the Arbitration Act, 1996. In both these situations, the earliest application having been made to a Court in which a part of the cause of action arises would then be the exclusive Court under Section 42, which would have control over the arbitral proceedings. For all these reasons, the law stated by the Bombay and Delhi High Courts in this regard is incorrect and is overruled. 5. This was made in the backdrop of explaining para 96 of the Balco (supra), which judgment read as a whole declares that once the seat of arbitration is designated, such clause then becomes an exclusive jurisdiction clause as a result of which only the courts where the seat is located would then have jurisdiction to the exclusion of all other courts. 6. Given the finding in this case that New Delhi was the chosen seat of the parties, even if an application was first made to the Faridabad Court, that application would be made to a court without jurisdiction.
### Response:
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### Explanation:
This Court in Civil Appeal No. 9307 of 2019 entitled BGS SGS Soma JV vs. NHPC Ltd. delivered a judgment on 10.12.2019 i.e. after the impugned judgment was delivered, in which reference was made to Section 42 of the Act and a finding recorded thus:61. Equally incorrect is the finding in Antrix Corporation Ltd. (supra) that Section 42 of the Arbitration Act, 1996 would be rendered ineffective and useless. Section 42 is meant to avoid conflicts in jurisdiction of Courts by placing the supervisory jurisdiction over all arbitral proceedings in connection with the arbitration in one Court exclusively. This is why the section begins with a non-obstante clause, and then goes on to state …where with respect to an arbitration agreement any application under this Part has been made in a Court… It is obvious that the application made under this part to a Court must be a Court which has jurisdiction to decide such application. The subsequent holdings of this Court, that where a seat is designated in an agreement, the Courts of the seat alone have jurisdiction, would require that all applications under Part I be made only in the Court where the seat is located, and that Court alone then has jurisdiction over the arbitral proceedings and all subsequent applications arising out of the arbitral agreement. So read, Section 42 is not rendered ineffective or useless. Also, where it is found on the facts of a particular case that either no seat is designated by agreement, or the so-called seat is only a convenient venue, then there may be several Courts where a part of the cause of action arises that may have jurisdiction. Again, an application under Section 9 of the Arbitration Act, 1996 may be preferred before a court in which part of the cause of action arises in a case where parties have not agreed on the seat of arbitration, and before such seat may have been determined, on the facts of a particular case, by the Arbitral Tribunal under Section 20(2) of the Arbitration Act, 1996. In both these situations, the earliest application having been made to a Court in which a part of the cause of action arises would then be the exclusive Court under Section 42, which would have control over the arbitral proceedings. For all these reasons, the law stated by the Bombay and Delhi High Courts in this regard is incorrect and is overruledThis was made in the backdrop of explaining para 96 of the Balco (supra), which judgment read as a whole declares that once the seat of arbitration is designated, such clause then becomes an exclusive jurisdiction clause as a result of which only the courts where the seat is located would then have jurisdiction to the exclusion of all other courtsGiven the finding in this case that New Delhi was the chosen seat of the parties, even if an application was first made to the Faridabad Court, that application would be made to a court without jurisdiction.
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Budh Singh Vs. State Of M.P | tissues of some of the parts of the body had been eaten away by fish. Medical science has not achieved such perfection so as to enable a medical practitioner to categorically state in regard to the exact time of death. In a case of this nature, it was difficult to pinpoint the exact time of death. The autopsy surgeon told about the approximate time lag between the date of post mortem examination and the likely date of death. He did not explain the basis for arriving at his opinion. This Court on a number of occasions noticed that it may not be possible for a doctor to pinpoint the exact time of death." 18. In Baso Prasad and Ors. v State of Bihar [2006 (12) SCALE 354 ], this Court observed:- "We may deal with the question as regards presence of rigour mortis.In Modis Textbook of Medical Jurisprudence and Toxicology,21st Edn., at page 171, it is stated:Rigor mortis generally occurs, while the body is cooling. It is in no way connected with the nervous system, and it develops even in paralyzed limbs, provided the paralyzed muscle tissues have not suffered much in nutrition. It is retarded by perfusion with normal saline.Owing to the setting in of rigor mortis all the muscles of the body become stiff, hard, opaque and contracted, but they do not alter the position of body or limb. A joint rendered stiff and rigid after death, if flexed forcibly by mechanical violence, will remain supple and flaccid, but will not return to its original position after the force is withdrawn; whereas a joint contracted during life in cases of hysteria or catalepsy will return to the same condition after the force is taken away.*** *** *** ***The exact time of death, therefore, cannot be established scientifically and precisely, only because of presence of rigour mortis or in the absence of it." 19. Blackenning of the wound can be found only when the shot is fired from a short distance namely at about 3 to 4 feet and not beyond the same. Absence of any blackening of the wound has rightly been not found in the post mortem examination. 20. The purported improvement made by P.W. 1 is not of much significance. First Information Report, as noticed hereinbefore, was lodged at the quickest possible time. A First Information Report is not supposed to be an encyclopedia of the entire event. It cannot contain the minutest details of the events. 21. The essential material facts were disclosed in the First Information Report. Even presence of P.W. 2, Munnalal had also been stated. Statements of the other witnesses namely P.W. 3, P.W. 5 and P.W. 6 had also been recorded by the investigating officer on 31st July itself. It is, therefore, difficult to accept the contentions of the learned counsel. 22. The First Information Report was recorded by the Head Constable. Investigation was taken over from P.W. 11 by P.W. 12, R.S. Raghuvanshi and thereafter only the accused were arrested. Seizure of the gun belonging to the appellant is proved not only by P.W. 12 but also by Murat Singh P.W. 9. We may notice that even Kalyan Singh had surrendered in the Police Station on 20.8.1989. Indisputably the gun as also the empty cartridge found at the spot was sent to the Forensic Science Laboratory. Qualification of Shri J.P. Nigam as a ballistic expert has not been doubted. Although, there appears to be some confusion with regard to the marking of the parcel containing the empty cartridge, evidently the same had correctly been marked by Shri Nigam. He found it in a sealed condition. Only because P.W. 8 in his evidence did not state that the recovered empty cartridge was sealed at the spot, the same would not mean that it was planted later on, particularly when recovery of the gun and the report of the expert has not been disputed. 23. The question as to whether the First Information Report is an ante timed one or not must be considered having regard to the facts and circumstances of the case as has been opined by this Court in Meharaj Singh (L/Nk.) v State of U.P. [(1994) 5 SCC 188] , whereupon Mr. Singh placed strong reliance. Having perused the first information report, we are of the opinion that although the same was transcribed by P.W. 8 from the oral statement made by P.W. 1, it contained all the material particulars. The very fact that it was recorded almost immediately after taking place of the occurrence, the question of its being an ante timed one would not arise. 24. In Chandu v State of Maharashtra [(2002) 9 SCC 408] , whereupon again reliance has been placed by Mr. Singh, the High Court therein found the story of recovery of weapon of the offences as not believable. Even there was a serious discrepancy in regard to the alleged weapon of offence used, as according to the eye witnesses, a spear-blow had been given on the chest after the deceased struck against a cycle, whereas the medical evidence showed that the weapon must have entered the body from upward to downward laterally to right side, only on that basis the prosecution story was not believed. Such is not the case here. 25. Reliance has also been placed on Gorle S. Naidu v State of A.P. and Others [A.I.R. 2004 SC 1169] , wherein not only the eye witnesses who were said to have received injuries did not get themselves medically examined, the accused persons were also not specifically named during investigation. The said decisions, therefore, are not applicable to the facts of the present case. 26. A defective investigation by itself cannot be a ground for acquittal. Witnesses examined on behalf of the prosecution have been believed both by the learned Trial Judge as also by the High Court. So far as the appellant is concerned, we do not find any reason to differ therefrom. 27. For the reasons aforementioned, there | 0[ds]as to whether the First Information Report is an ante timed one or not must be considered having regard to the facts and circumstances of theof time between the actual death and the post mortem examination has been stated to be within 36is now well settled that the lapse of time of taking place of death cannot be accuratelyt contained all the material particularsit was recorded almost immediately after taking place of the occurrence, the question of its beingante timed one would not arise.investigation by itself cannot be a ground for | 0 | 3,526 | 98 | ### 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:
tissues of some of the parts of the body had been eaten away by fish. Medical science has not achieved such perfection so as to enable a medical practitioner to categorically state in regard to the exact time of death. In a case of this nature, it was difficult to pinpoint the exact time of death. The autopsy surgeon told about the approximate time lag between the date of post mortem examination and the likely date of death. He did not explain the basis for arriving at his opinion. This Court on a number of occasions noticed that it may not be possible for a doctor to pinpoint the exact time of death." 18. In Baso Prasad and Ors. v State of Bihar [2006 (12) SCALE 354 ], this Court observed:- "We may deal with the question as regards presence of rigour mortis.In Modis Textbook of Medical Jurisprudence and Toxicology,21st Edn., at page 171, it is stated:Rigor mortis generally occurs, while the body is cooling. It is in no way connected with the nervous system, and it develops even in paralyzed limbs, provided the paralyzed muscle tissues have not suffered much in nutrition. It is retarded by perfusion with normal saline.Owing to the setting in of rigor mortis all the muscles of the body become stiff, hard, opaque and contracted, but they do not alter the position of body or limb. A joint rendered stiff and rigid after death, if flexed forcibly by mechanical violence, will remain supple and flaccid, but will not return to its original position after the force is withdrawn; whereas a joint contracted during life in cases of hysteria or catalepsy will return to the same condition after the force is taken away.*** *** *** ***The exact time of death, therefore, cannot be established scientifically and precisely, only because of presence of rigour mortis or in the absence of it." 19. Blackenning of the wound can be found only when the shot is fired from a short distance namely at about 3 to 4 feet and not beyond the same. Absence of any blackening of the wound has rightly been not found in the post mortem examination. 20. The purported improvement made by P.W. 1 is not of much significance. First Information Report, as noticed hereinbefore, was lodged at the quickest possible time. A First Information Report is not supposed to be an encyclopedia of the entire event. It cannot contain the minutest details of the events. 21. The essential material facts were disclosed in the First Information Report. Even presence of P.W. 2, Munnalal had also been stated. Statements of the other witnesses namely P.W. 3, P.W. 5 and P.W. 6 had also been recorded by the investigating officer on 31st July itself. It is, therefore, difficult to accept the contentions of the learned counsel. 22. The First Information Report was recorded by the Head Constable. Investigation was taken over from P.W. 11 by P.W. 12, R.S. Raghuvanshi and thereafter only the accused were arrested. Seizure of the gun belonging to the appellant is proved not only by P.W. 12 but also by Murat Singh P.W. 9. We may notice that even Kalyan Singh had surrendered in the Police Station on 20.8.1989. Indisputably the gun as also the empty cartridge found at the spot was sent to the Forensic Science Laboratory. Qualification of Shri J.P. Nigam as a ballistic expert has not been doubted. Although, there appears to be some confusion with regard to the marking of the parcel containing the empty cartridge, evidently the same had correctly been marked by Shri Nigam. He found it in a sealed condition. Only because P.W. 8 in his evidence did not state that the recovered empty cartridge was sealed at the spot, the same would not mean that it was planted later on, particularly when recovery of the gun and the report of the expert has not been disputed. 23. The question as to whether the First Information Report is an ante timed one or not must be considered having regard to the facts and circumstances of the case as has been opined by this Court in Meharaj Singh (L/Nk.) v State of U.P. [(1994) 5 SCC 188] , whereupon Mr. Singh placed strong reliance. Having perused the first information report, we are of the opinion that although the same was transcribed by P.W. 8 from the oral statement made by P.W. 1, it contained all the material particulars. The very fact that it was recorded almost immediately after taking place of the occurrence, the question of its being an ante timed one would not arise. 24. In Chandu v State of Maharashtra [(2002) 9 SCC 408] , whereupon again reliance has been placed by Mr. Singh, the High Court therein found the story of recovery of weapon of the offences as not believable. Even there was a serious discrepancy in regard to the alleged weapon of offence used, as according to the eye witnesses, a spear-blow had been given on the chest after the deceased struck against a cycle, whereas the medical evidence showed that the weapon must have entered the body from upward to downward laterally to right side, only on that basis the prosecution story was not believed. Such is not the case here. 25. Reliance has also been placed on Gorle S. Naidu v State of A.P. and Others [A.I.R. 2004 SC 1169] , wherein not only the eye witnesses who were said to have received injuries did not get themselves medically examined, the accused persons were also not specifically named during investigation. The said decisions, therefore, are not applicable to the facts of the present case. 26. A defective investigation by itself cannot be a ground for acquittal. Witnesses examined on behalf of the prosecution have been believed both by the learned Trial Judge as also by the High Court. So far as the appellant is concerned, we do not find any reason to differ therefrom. 27. For the reasons aforementioned, there
### Response:
0
### Explanation:
as to whether the First Information Report is an ante timed one or not must be considered having regard to the facts and circumstances of theof time between the actual death and the post mortem examination has been stated to be within 36is now well settled that the lapse of time of taking place of death cannot be accuratelyt contained all the material particularsit was recorded almost immediately after taking place of the occurrence, the question of its beingante timed one would not arise.investigation by itself cannot be a ground for
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TATA CONSULTANCY SERVICES LIMITED Vs. CYRUS INVESTMENTS PVT. LTD. AND ORS | Act. Therefore, it is clear that Sub- section (4) ceased to exist on and from 13.12.2000 and hence the question of Tata Sons seeking the approval of the Central Government under Sub-section (4) during the period 2000-2013 did not arise. 20.38 The only provision that survived after 13.12.2000 was Sub-section (2A) of Section 43A. It survived till 30-01-2019 until the whole of the 1956 Act was repealed. There are two aspects to Sub- section (2A). The first is that the very concept of deemed to be public company was washed out under Act 53 of 2000. The second aspect is the prescription of certain formalities to remove the remnants of the past. What was omitted to be done by Tata Sons from 2000 to 2013 was only the second aspect of Sub-section (2A), for which Section 465 of the 2013 Act did not stand as an impediment. Section 43A(2A) continued to be in force till 30-01- 2019 and hence the procedure adopted by Tata Sons and the RoC in July/August 2018 when section 43A(2A) was still available, was perfectly in order. 20.39 As rightly held by this court in Darius Rutton Kavasmaneck vs. Gharda Chemicals Ltd ((2015) 14 SCC 277 [see the editors note in the SCC report regarding the conflict between sec.27(3) and sec.3(1)(iii)(d)]), Parliament always recognised the possibility of a deemed public company again reverting back to the status of a private company. Though this court took note of the conflict between section 27(3) and section 3(1)(iii) (d), after the amendment by Act 53 of 2000, this court nevertheless held in Gharda Chemicals that by incorporating the requirement of sub-clause (d) of section 3(1)(iii) in the Articles of Association, a deemed public company can revert back to its status as a private company, in view of sub-section (2A) of section 43A, by incorporating necessary provisions in the Articles. In simple terms, a company which becomes a deemed public company by operation of law, cannot be taken to have undergone a process of fermentation or coagulation like milk to become curd or yogurt, having an irreversible effect. 20.40 Therefore, NCLAT was completely wrong in holding as though Tata Sons, in connivance with the Registrar of companies did something clandestinely, contrary to the procedure established by law. The request made by Tata Sons and the action taken by the Registrar of Companies to amend the Certificate of Incorporation were perfectly in order. 20.41 It was argued on behalf of SP group (i) that in 1995 Tata Sons allowed renunciation of entitlement to rights issue, in favour of rank outsiders, throwing the restriction contained in section 3(1) (iii) to the wind (ii) that till September 2002, Tata Sons accepted deposits from public and hence sub-clause (d) of section 3(1)(iii) was not satisfied (iii) that as per the circular of the Department of Company Affairs, a company which does not approach the RoC for reconversion would be deemed to have chosen to remain as a public company (iv) that as per RBI circular dated 1-1-2002 private companies accepting deposits would become public companies (v) that till the year 2009, Tata Sons chose to describe itself only as a public company in the forms filed under Rule 10 of the Companies (Acceptance of Deposits) Rules, 1975 (vi) that the conversion adversely affected the ability of Tata Sons to raise funds increasing borrowing costs (vii) that Tata Sons will be required to refund the investments made by insurance companies on account of the conversion and (viii) that the act of conversion lacked probity and was also prejudicial to the interests of the minority shareholders and the company as well as independent directors. 20.42 But we are not impressed with the above contentions. Once the company had become a deemed public company with effect from 1-2-1975, the privileges of a private company stood withdrawn and the company was entitled in law to allow renunciation of shares under rights issue. In any case, the validity of what was done in 1995 was not in question. That they accepted deposits from public till September 2002, is the reason why they were not reconverted as a private company at that time. Once a new definition of the expression private company came into force with effect from 12-09-2013 under section 2(68) of the 2013 Act, the only test to be applied is to find out if the company fits into the scheme under the new Act or not. We need not go to the circulars issued by the department or the RBI when statutory provisions show the path with clarity. The description of the company in the forms filed under Rule 10, reflected the true position that prevailed then and they would not act as estoppel when the company was entitled to take advantage of the law. That the ability of the company to raise funds has now gone and that the company will have to repay the investments made by insurance companies, are all matters which the shareholders and the Directors are to take care. The question before the court is whether the reconversion is in accordance with law or not. The question is not whether it is good for the company or not. 20.43 The real reason why SP group and CPM are aggrieved by the conversion is, that most of their arguments are traceable to provisions which apply only to public and listed public companies. If re-conversion goes, they may perhaps stand on a better footing. But that would tantamount to putting the cart before the horse. One may be entitled to a collateral benefit arising out of a substantial argument. But one cannot seek to succeed on a collateral issue so as to make the substantial argument sustainable. 20.44 Therefore, question of law No. 5 is accordingly answered in favour of Tata Sons and as a consequence, all the observations made against the appellants and the Registrar of companies in Paragraphs 181, 186 and 187 (iv) of the impugned judgment are set aside. 21. Conclusion | 1[ds]8.1 As pointed out at the beginning of chapter 7, NCLT dealt with every one of the allegations of oppression and mismanagement and recorded reasoned findings. But NCLAT, despite being a final court of facts, did not deal with the allegations one by one nor did the NCLAT render any opinion on the correctness or otherwise of the findings recorded by NCLT. Instead, the NCLAT summarised in one paragraph, namely paragraph 183, its conclusion on some of the allegations, without any kind of reasoning. This Paragraph 183 reads as follows:The facts, as noticed above, including the affirmative voting power of the nominated Directors of the Tata Trusts over majority decision of the Board; actions taken by Mr. Ratan N. Tata (2nd Respondent), Mr. Nitin Nohria (7th Respondent) and Mr. N.A.Soonawala (14th Respondent) and others as discussed above; the fact that the Company (Tata Sons Limited) has suffered loss because of prejudicial decisions taken by Board of Directors; the fact that a number of Tata Companies have incurred loss; in spite of decision making power vested with the Board of Directors with affirmative power of nominated Directors of the Tata Trusts; the action in making change from Public Company to Private Company; the manner in which Mr. Cyrus Pallonji Mistry (11th Respondent) was suddenly and hastily removed without any reason and in absence of any discussion in the meeting shown in the Board of Directors held on 24th October, 2016 and his subsequent removal as Director(s) of different Tata Companies, coupled with global effect of such removal, as accepted by the Company in its Press Statement form a consecutive chain of events with cumulative effect justifying us to hold that the Appellants have made out a clear case of prejudicial and oppressive action by contesting Respondents, including Mr. Ratan N. Tata (2nd Respondent), Mr. Nitin Nohria (7th Respondent) and Mr. N.A.Soonawala (14th Respondent) and other, the nominee Directors.8.2 The allegations relating to (i) over priced and bleeding Corus acquisition (ii) doomed Nano car project (iii) undue favours to Siva and Sterling (iv) loan by Kalimati to Siva (v) sale of flat to Mehli Mistry (vi) the unjust enrichment of the companies controlled by Mehli Mistry (vii) the Aviation industry misadventures (viii) losses due to purchase of the shares of Tata Motors etc., were not individually dealt with by NCLAT, though NCLT had addressed each one of these issues and recorded findings in favour of Tata Sons. Therefore, there is no escape from the conclusion that NCLAT did not expressly overturn the findings of facts recorded by NCLT, on these allegations. We are constrained to take note of this, even at the outset, in view of a contention raised by Shri Shyam Divan, learned Senior Counsel for the SP group, that in an appeal under Section 423 of the Companies Act, 2013, this court will not normally interfere with a finding of fact reached by NCLAT, unless it is found to be wholly perverse.15.27 From the table given above, it could be seen that the changes brought about in India in course of time, were material. These changes can be summarised as follows:(i) While the conduct of the companys affairs in a manner that warrant interference, should be present and continuing, under the 1913 Act and 1956 Act, as seen from the usage of the words are being, the conduct could even be past or present and continuous under the 2013 Act as seen from the usage of the words have been or are being (But the conduct cannot be of a distant past);(ii) Prejudice to public interest and prejudice to the interests of any member or members were not among the parameters prescribed in the 1913 Act, but under the 1956 Act prejudice to public interest was included both under the provision relating to oppression and also under the provision relating to mismanagement. Prejudice to the interest of the company was included only in the provision relating to mismanagement. But under the 2013 Act conduct prejudicial to any member or prejudicial to public interest or prejudicial to the interest of the company are all added along with oppression;(iii) Under the 1913 Act, the Court should be satisfied that winding up under the just and equitable clause will not only unfairly prejudice but also materially prejudice the interests of the company or any part of its members. But in the 1956 Act and 2013 Act, the words and materially do not follow the word unfairly. Moreover, under the 1956 Act and 2013 Act all that is required to be seen is whether the winding up will unfairly prejudice such member or members indicating thereby that the focus was on complaining/affected members.15.28 Having thus seen the shift in the Indian legislative policy under Act 52 of 1951 (amending the 1913 Act) and then under the 1956 Act as amended by Act 53 of 1963 and thereafter under the 2013 Act, let us also see how the shift in the legislative policy happened in the United Kingdom. A table similar to the one given in para 15.26, is presented below insofar as the English Law is concerned:15.29 There are a few notable features of the shift that happened in England. They are (i) from a conduct oppressive to some part of the members the focus has shifted to conduct unfairly prejudicial to the interests of the members generally or of some part of its members: (ii) conduct prejudicial to public interest or prejudicial to the companys interest, does not form part of the scheme of English Law; (iii) any actual or proposed act or omission, can also be challenged under English Law on the ground that it would turn out to be prejudicial; (iv) the question of the Court forming an opinion that the facts would otherwise require an order for winding up on just and equitable ground but that the same will unfairly prejudice the complaining members, does not arise under the English Law any more. 15.30 But despite the huge shift in England, there appears to be a common thread running in all the enactments, both in India and England. In all the 3 Indian enactments, namely the 1913 Act, 1956 Act and the 2013 Act, the Court is ordained, generally to pass such orders with a view to bringing to an end the matters complained of. This sentence is found in Section 153C(4) of the 1913 Act. It is found in Section 397(2) as well as 398(2) of the 1956 Act and it is also found in Section 242 (1) of the 2013 Act. This is also the common thread that runs through the statutory prescriptions contained in the English Acts of 1948, 1985 and 2006. Therefore, at the stage of granting relief in an application under these provisions, the final question that the Court should ask itself is as to whether the order to be passed will bring to an end the matters complained of. Having thus seen the development of law, let us now take up the questions of law one after another.16.2 An analysis of the provisions of Section 241(1)(a) read with clauses (a) and (b) of Sub-section (1) of Section 242 shows that a relief under these provisions can be granted only if the Tribunal is of the opinion –(1) that the companys affairs have been or are being conducted in a manner –(a) Prejudicial to any member or members or(b) Prejudicial to public interest or(c) Prejudicial to the interests of the company or(d) Oppressive to any member or members and(2) that though the facts would justify the making of a winding up order on the basis of just and equitable clause, such a winding up would unfairly prejudice such member or members.16.3 Keeping in mind the above statutory prescription, if we go back to the pleadings, it will be seen that the complainant companies forming part of the S.P. Group pitched their claim in their original petition on the ground:(i) that the affairs of Tata Sons are being carried as though it was the proprietary concern of RNT; and(ii) that though the oppressive conduct of the respondents was such that it would be just and equitable to wind up Tata Sons under Section 241, but such winding up would unfairly prejudice the interests of the complainants.16.4 The specific allegations on which the complainant companies (of the S.P. Group) sought relief are as follows:-(i) The abuse of a few Articles of Association and the control exercised by the Tata Trust and its nominee Directors over the Board of Directors of Tata Sons;(ii) The removal of CPM as Executive Chairman;(iii) Transactions with Mr. C. Sivasankaran of Sterling Infotech and the transactions in which Tata Teleservices got entangled;Group Inc of U.K.;(v) Doomed Nano Car project;(vi) The grant of inter-corporate bridge loan to sterling computers;(vii) The dealings with NTT DoCoMo which eventually led to an arbitration award for a huge sum of money;(viii) The sale of a flat to Mehli Mistry and the grant of huge personal favours to the companies owned and controlled by Mehli Mistry.16.5 Each and every one of the allegations forming the basis of the complaint, was dealt with by NCLT and categorical findings based on evidence was recorded by NCLT. The findings recorded by NCLT allegation-wise, are indicated in paragraph 6.1 above.16.6 None of the above findings, except the one relating to the removal of CPM was specifically and individually overturned by NCLAT. In addition NCLAT focused on the conversion of Tata Sons from a public company to a private company.16.8 NCLAT, being an Appellate Tribunal, conferred with the power under sub-Section (4) of Section 421 to confirm, modify or set aside the order of NCLT, can be taken to be a final court of fact. An appeal from the Order of the NCLAT to this Court under Section 423 is only on a question of law. Considering the nature of the jurisdiction conferred upon NCLAT, it is clear that the findings of the NCLT, not specifically modified or set aside by NCLAT should be taken to have reached finality, unless the parties aggrieved by such non-interference by NCLAT have approached this Court, raising this as an issue. Though SP group has also filed an appeal in C.A. No. 1802 of 2020, the grievance aired therein, as seen from para 3 of the memorandum of appeal, is limited to the failure of NCLAT to grant certain reliefs. The failure of NCLAT to specifically overturn the findings of fact recorded by NCLT, is not assailed in the SP groups appeal. Therefore, we have no hesitation in holding that the allegations relating to(i) transactions with Siva and Sterling Group of Companies;(ii) Air Asia;(iii) Transactions with Mehli Mistry;(iv) the losses suffered by Tata Motors in Nano car project; and(v) the acquisition of Corus reached finality.16.9 The findings recorded by NCLAT for the grant of reliefs, revolved primarily around the removal of CPM, the affirmative voting rights, interference by nominee Directors and the conversion of Tata Sons into a private company. In other words, these are the 4 areas in which NCLAT can be taken to have undertaken a scrutiny and reversed the findings of NCLT. Therefore, for answering the first question of law, we need to focus mainly on these issues on which NCLAT expressly overruled NCLT.16.11 CPM was first removed only from the post of Executive Chairman of Tata Sons, but not from the Directorship, by the resolution of the Board dated 24.10.2016. This acted as the trigger point for CPM, to launch an offensive. On the very next day namely 25.10.2016, CPM wrote a mail alleging total lack of corporate governance and failure on the part of the directors to discharge their fiduciary duties. He also called all the Trust nominee directors as postmen. Though the mail was labelled as confidential, a copy of the mail landed up with the media creating a sensation. NCLT recorded a finding that CPM who owes a duty to explain this leakage of confidential mail, could not provide a satisfactory answer and that therefore, by virtue of section 106 of the Evidence Act, the leakage has to be traced to CPM. NCLAT did not overrule this finding.16.12 The mail compelled Tata sons to issue a Press Statement on 10.11.2016. This was followed by the removal of CPM from the Directorship of Tata Industries Limited, Tata Consultancy Services Limited and Tata Teleservices Limited, all of which happened during the period from December 12 to December 14, 2016. Seeing clearly the course of destiny (which was actually set in motion by none other than himself), CPM resigned from other operating companies of Tatas such as The Indian Hotels Company Limited, Tata Steel Limited, Tata Motors Limited, Tata Chemicals Limited and Tata Power Limited, on 19.12.2016, on the eve of the Extraordinary General Meetings of those companies, convened for considering resolutions for his removal. On the very next day namely, 20.12.2016 the complainant companies, of which CPM is the pivot, filed a petition C.P.No.82 of 2016 before NCLT, Mumbai, under Sections 241 and 242 read with Section 244 of the Companies Act, 2013.16.13 Around this time, as if by coincidence, the Principal Officer of Tata Sons received a letter dated 29.11.2016 from the Deputy Commissioner of Income Tax (Exemptions) seeking certain information under Section 133(6) of the Income Tax Act, 1961 in the case of Tata Education Trust. Tata Sons, through a reply dated 09.12.2016 furnished necessary information along with the requested documents. The Deputy Commissioner of Income Tax also called for some additional information by subsequent letters, and the information so called for, was also furnished.16.14 Claiming that a mail dated 20.12.2016 issued by the Deputy Commissioner of Income Tax seeking further information under Section 133(6) was copy-marked to him, CPM sent a reply to the Income Tax department confirming (i) that the Directors appointed by Tata Trust controlled the decision making processes by virtue of the affirmative voting rights; (ii) that RNT and Soonawala have on many occasions sought prior information and consultation; (iii) that the conduct of the Trustees posed several regulatory risks; and (iv) that the office of RNT, in his capacity as Chairman Emeritus was funded by Tata Sons, including the cost of his overseas travel by private jet. To this letter to the Deputy Commissioner of Income Tax was enclosed certain files purportedly containing the information sought.16.15 Upon coming to know of CPMs letter to the Deputy Commissioner of Income Tax, Tata Sons lodged a protest through a letter dated 26.12.2016. It was followed by a legal notice issued by Tata Sons to CPM on 27.12.2016 pointing out that he was guilty of breach of confidentiality and that he had passed on confidential and sensitive information contained in 4 box files, without any authority. CPM sent a legal reply dated 05.01.2017 claiming that he had a statutory obligation to cooperate with Income Tax authorities. As if to display his courage of conviction, CPM sent another letter dated 12.01.2017 to the Deputy Commissioner of Income Tax sending one more file and assuring the authorities that he would continue to check the records and submit any additional data/information as and when available.16.16 In the light of whatever transpired as narrated above, a Special Notice and Requisition was moved on 03.01.2017 convening an EGM of Tata Sons for considering the removal of CPM as Director of Tata sons. It must be remembered at this stage that by the Resolution of the Board of Tata Sons dated 24.10.2016, CPM was merely removed from the post of Executive Chairman, but he continued to be a member of the Board as a Non Executive Director even after 24.10.2016. It must also be remembered that it was during his continuance as the member of the Board that CPM exchanged correspondence/legal notice with Tata Sons and also passed on information along with certain files, to the Income Tax authorities claiming to be a very law abiding citizen.16.17 Since the EGM of Tata sons was scheduled to be held on 06.02.2017, for considering the resolution for CPMs removal from the Directorship, the Companies (S.P. Group) which filed the complaint before the NCLT moved an interim application before NCLT for a stay of the EGM. NCLT declined stay and the appeal against the refusal to grant stay was also dismissed by NCLAT. Therefore, the EGM proceeded as scheduled on 06.02.2017 and CPM was removed from the Directorship of Tata Sons. In his place Mr. N. Chandrasekharan, was appointed as Executive Chairman.16.18 In the Company Petition as it was originally filed on 20.12.2016, the complainant companies had sought a set of 21 reliefs, one of which was for a direction to the respondents (the company and its directors) not to remove CPM (who was cited as R- 11 in the original petition) from the directorship of Tata Sons. This was in prayer clause (F) of Paragraph 153 of the main company petition. This prayer was in direct contrast to the reliefs sought in prayer clauses (A) and (B). Prayer clause (A) was for superseding the existing Board of Directors and appointment of an Administrator. Prayer in clause (B) was for appointment of a retired Supreme Court Judge as Non Executive Chairman and for appointment of a new set of independent Directors.16.19 After the dismissal of the interim application moved for stalling the EGM scheduled to be held on 06.02.2017 and after the passing of the resolution for the removal of CPM in the EGM held on 06.02.2017, the complainant companies moved an application for amendment of the original petition so as to include two additional prayers namely (i) reinstatement of the representative of the complainant companies on the Board of Tata Sons; and (ii) amendment of the Articles of Association to provide for proportional representation.16.20. However, eventually the prayers made in clauses (A), (B) and (C) were not pressed. Prayers in clauses (F), (Q) & (R) were also not pressed on the ground that they had become infructuous. In Paragraph 3.4 above we have extracted the reliefs as originally sought in the main company petition and in the table in Paragraph 4.11 we have indicated the prayers additionally made and the reliefs either given up or sought to be modified.16.21 In fact the real reason why the complainant companies thought fit, quite tactfully, not to press for the reinstatement of CPM is that the mere termination of Directorship cannot be projected as something that would trigger the just and equitable clause for winding up or to grant relief under Sections 241 and 242. A useful reference can be made in this regard to the decision of this Court in Hanuman Prasad Bagri & Ors. vs. Bagress Cereals Pvt. Ltd. (2001) 4 SCC 420. 16.22 It must be remembered : (i) that a provision for inclusion of a representative of small shareholders in the Board of Directors, is of a recent origin under Section 151 of the Companies Act, 2013 and it is applicable only to a listed company; (ii) that Tata sons is not a listed Company; (iii) that the Articles of Association of Tata sons, to which the complainant companies, CPM and his father had subscribed, do not provide for any representation; (iv) that despite there being no statutory or contractual obligation, Tata Sons inducted CPMs father as a director on the board in the year 1980 and continued him for a period of almost 25 years; (v) that CPM himself was inducted, again without reference to any statutory or contractual obligation, as a Director on the Board in August, 2006; and (vi) that within 6 years of such induction, CPM was identified as a successor to RNT and was appointed as Executive Deputy Chairman and elevated to the position of Executive Chairman.16.23 It is an irony that the very same person who represents shareholders owning just 18.37% of the total paid up share capital and yet identified as the successor to the empire, has chosen to accuse the very same Board, of conduct, oppressive and unfairly prejudicial to the interests of the minorities. In support of such allegation, the complainant companies have pointed out certain business decisions taken during the period of more than 10 years immediately preceding the date of removal of CPM. That failed business decisions and the removal of a person from Directorship can never be projected as acts oppressive or prejudicial to the interests of the minorities, is too well settled. In fact it may be concede today by Tata sons that one important decision that the Board took on 16.03.2012 certainly turned out to be a wrong decision of a life time.16.24 Therefore, the fact that the removal of CPM was only from the Executive Chairmanship and not the Directorship of the company as on the date of filing of the petition and the fact that in law, even the removal from Directorship can never be held to be an oppressive or prejudicial conduct, was sufficient to throw the petition under section 241 out, especially since NCLAT chose not to interfere with the findings of fact on certain business decisions.16.25 The subsequent conduct on the part of CPM in leaking his mail dated 25-10-2016 to the Press and sending replies to the Income Tax Authorities enclosing 4 box files, even while continuing as a Director, justified his removal even from the Directorship of Tata Sons and other group companies. A person who tries to set his own house on fire for not getting what he perceives as legitimately due to him, does not deserve to continue as part of any decision making body (not just the Board of a company). It is perhaps this realisation that made the complainant companies give up their original prayer for restraining the company from removing CPM and singing a different tune seeking proportionate representation on the Board.16.27 First of all, the above contention is in direct conflict with the entire foundation on which the whole case of the complainant companies was erected. If CPM and the members of the Nomination and Remuneration Committee as well as the entire Board were on the same page till 29.6.2016 that the company was doing well under the stewardship of CPM, then there can be no allegation that the companys affairs were conducted in a manner oppressive or prejudicial to the interest of anyone, namely the company or the minority, at least until 29.6.2016. On the contrary if the companys affairs have been conducted in a manner oppressive or prejudicial, even before 29.6.2016, the other members of the Board and CPM could not have formed themselves into a mutual admiration society to laud CPMs performance and CPM acknowledging that the company was doing well when he was in the drivers seat.16.28 An important aspect to be noticed is that in a petition under Section 241, the Tribunal cannot ask the question whether the removal of a Director was legally valid and/or justified or not.16.29 There may be cases where the removal of a Director might have been carried out perfectly in accordance with law and yet may be part of a larger design to oppress or prejudice the interests of some members. It is only in such cases that the Tribunal can grant a relief under Section 242. The Company Tribunal is not a labour Court or an administrative Tribunal to focus entirely on the manner of removal of a person from Directorship. Therefore, the accolades received by CPM from the Nomination and Remuneration Committee or the Board of Directors on 29.6.2016, cannot advance his case.16.30 A contention was raised that CPMs removal was a pre- meditated act, carried out at the behest of Tata Trusts and RNT and that the removal was not only contrary to Article 118, but also contrary to Article 105(a) read with the second proviso to Section 179(1) and Article 122(b).16.31 As we have pointed out above, the validity of and justification for the removal of a person can never be the primary focus of a Tribunal under Section 242 unless the same is in furtherance of a conduct oppressive or prejudicial to some of the members. In fact the post of Executive Chairman is not statutorily recognised or regulated, though the post of a Director is. At the cost of repetition it should be pointed out that CPM was removed only from the post of (or designation as) Executive Chairman and not from the post of Director till the Company Petition was filed. But CPM himself invited trouble, by declaring an all out war, which led to his removal from Directorship.16.32 It is true that as per the evidence available on record he was requested before the Board meeting, to step down from the post of Executive Chairman. That does not tantamount to the act being pre-meditated. The induction of new members on 8.8.2016 into the Board and the Board securing a legal opinion prior to the Board meeting, cannot make the act a pre-meditated one. There is a thin line of demarcation between a well-conceived plan and a pre- meditated one and the line can many times be blurred.16.34 The sentence in Article 118 reading the same process shall be followed for the removal of incumbent Chairman actually goes along with the last limb of the portion immediately preceding this line. It deals with the appointment of a person as Chairman, pursuant to the recommendation of a Selection Committee, subject to Article 121 which requires the affirmative vote of the Directors appointed in terms of Article 104B.16.35 It is absurd to interpret Article 118 to mean that Selection Committee is to be constituted for the removal of an incumbent Chairman. The necessity for taking recourse to the affirmative voting right under Article 121 is what is meant by the expression the same process appearing in the second part of Article 118.16.36 The argument pitched upon Article 105(a) is also completely unfounded. Article 105(a) deals with the power of the Board to appoint a Managing Director, Joint/Deputy Managing Director or Whole Time Director. The provision relating to Executive Chairman is not to be found in Article 105(a) but in Article 105(b) which reads as follows:The Board shall have the power to designate the Chairman of the Board as the Executive Chairman and pay him such remuneration as, in their opinion, they deem fit.Therefore, the argument on the basis of Article 105(a) is ill-founded.16.37 The contention that the removal was in violation of the second proviso to Section 179(1) read with Article 122(b) is also ill- conceived. The second proviso to Section 179(1) prohibits the Board from exercising any power that could be exercised by the company only in a General Meeting. Article 122(a) is only a reiteration of the principle behind the second proviso to Section 179(1). Article 122(b) says that the Board may exercise all such powers as are not required to be exercised by the company in General Meeting. The designation of a person as Executive Chairman, is not one of the functions to be performed in a general meeting, either under the Act or under the Articles of association.16.38 It is also contended that no advance notice of his removal was given to CPM and no agenda item was placed in advance in terms of Article 121B, which reads as follows:121B. Any Director of the Company will be entitled to give at least fifteen days notice to the Company or to the Board that any matter or resolution be placed for deliberation by the Board and if such notice is received it shall be mandatory for the Board to take up such matter or resolution for consideration and vote, at the Board meeting next held after the period of such notice, before considering any other matter or resolution.16.39 We do not know how Article 121B is sought to be invoked. It deals with a situation where a Director wants to bring up any matter or resolution before the Board. It has no relevance to the agenda that the Board wants to take up. Even according to the complainant companies, the Directors of a Company have a fiduciary relationship. It is a relationship in which one party places special trust, confidence and reliance on another. It is claimed by the appellants (Tata Group) that the removal of CPM was as a result of lack of confidence and trust in him. By his own subsequent conduct, CPM unfortunately enhanced the firepower of the management of Tata Sons, with regard to their claim relating to lack of confidence and trust.16.41 The decision in M.I. Builders Pvt. Limited vs. Radhey Shyam Sahu & Others (1999) 6 SCC 464 , to the effect that an important issue cannot be decided under the residuary agenda item any other item, will not also go to the rescue of the complainant companies, since the matter in M.I. Builders concerned the permission granted by the Municipal Corporation to a builder to construct an underground shopping complex in a park. The Court found the decision taken by the Mahapalika to be in clear breach of Sections 91 and 119 of the U.P. Municipal Corporation Act, 1959. Therefore, the said decision has no application.16.42 In any event the removal of a person from the post of Executive Chairman cannot be termed as oppressive or prejudicial. The original cause of action for the complainant companies to approach NCLT was the removal of CPM from the post of Executive Chairman. Though the complainant companies padded up their actual grievance with various historical facts to make a deceptive appearance, the causa proxima for the complaint was the removal of CPM from the office of Executive Chairman. His removal from Directorship happened subsequent to the filing of the original complaint and that too for valid and justifiable reasons and hence NCLAT could not have laboured so much on the removal of CPM, for granting relief under Sections 241 and 242.16.43 Interestingly, NCLAT has recorded a finding, though not based upon any factual foundation, that the facts otherwise justify the making of a winding up order on just and equitable ground. But as held by the Privy Council in Loch v. John Blackwood [1924] AC 783, there must lie a justifiable lack of confidence in the conduct and management of the companys affairs, at the foundation of applications for winding up. More importantly, the lack of confidence must spring not from dissatisfaction at being out-voted on the business affairs or on what is called the domestic policy of the company. But, wherever the lack of confidence is rested on a lack of probity in the conduct of the companys affairs, then the former is justified by the latter.16.44 A passage from the opinion of Lord President of the Court of Session (Lord Clyde) in Baird v. Lees (1924) SC 83 Scottish Supreme Court, quoted in Loch (supra), reads as follows:-A shareholder puts his money into a company on certain conditions. The first of them is that the business in which he invests shall be limited to certain definite objects. The second is that it shall be carried on by certain persons elected in a specified way. And the third is that the business shall be conducted in accordance with certain principles of commercial administration defined in the statute, which provide some guarantee of commercial probity and efficiency. If shareholders find that these conditions or some of them are deliberately and consistently violated and set aside by the action of a member and official of the company who wields an overwhelming voting power, and if the result of that is that, for the extrication of their rights as shareholders, they are deprived of the ordinary facilities which compliance with the Companies Acts would provide them with, then there does arise, in my opinion, a situation in which it may be just and equitable for the Court to wind up the company.16.45 If the above tests are applied, the case on hand will not fall anywhere near the just and equitable standard, for the simple reason that it was the very same complaining minority whose representative was not merely given a berth on the Board but was also projected as the successor to the Office of Chairman.16.50 Therefore, for invoking the just and equitable standard, the underlying principle is that the Court should be satisfied either that the partners cannot carry on together or that one of them cannot certainly carry on with the other.16.51 In the case in hand there was never and there could never have been a relationship in the nature of quasi partnership between the Tata Group and S.P. Group. S.P. Group boarded the train half-way through the journey of Tata Sons. Functional dead lock is not even pleaded nor proved.16.52 Coming to the Indian cases, this court held in Rajahmundry Electric Supply Corpn. Ltd. v. Nageshwara Rao (1955) 2 SCR 1066 that for the invocation of just and equitable clause, there must be a justifiable lack of confidence on the conduct of the directors, as held. A mere lack of confidence between the majority shareholders and minority shareholders would not be sufficient, as pointed out in S.P. Jain v. Kalinga Tubes Ltd. AIR 1965 SC 1535 .16.54 But all these arguments lose sight of the nature of the company that Tata Sons is. As we have indicated elsewhere, Tata Sons is a principal investment holding Company, of which the majority shareholding is with philanthropic Trusts. The majority shareholders are not individuals or corporate entities having deep pockets into which the dividends find their way if the Company does well and declares dividends. The dividends that the Trusts get are to find their way eventually to the fulfilment of charitable purposes. Therefore, NCLAT should have raised the most fundamental question whether it would be equitable to wind up the Company and thereby starve to death those charitable Trusts, especially on the basis of un-charitable allegations of oppressive and prejudicial conduct. Therefore, the finding of NCLAT that the facts otherwise justify the winding up of the Company under the just and equitable clause, is completely flawed.17.2 As we have indicated in Para 3.4 above, the complainant companies originally sought a set of 21 reliefs listed in para 153 (A) to (U). Subsequently, the complainant companies sought the addition of two more prayers, through an application for amendment filed on 10.2.2017. The additional reliefs sought to be included were for: (i) reinstatement of a representative of the complainant companies on the Board of Tata Sons and (ii) Amendment of the Articles of Association so as to provide for proportional representation on the Board.17.3 Thereafter the complainant companies sought a few more prayers through an application for amendment dated 31.10.2017. However, by a Memo dated 12.01.2018 the complainant companies gave up certain prayers, sought a modification of some other prayers and recorded that they were not pressing certain reliefs. At the cost of repetition, we have to present in a tabular form, the reliefs originally sought and the metamorphosis that they underwent through applications for amendment or Memo.17.5 Out of the aforesaid reliefs that came to stay till the end, NCLAT granted only certain reliefs, which in simple terms, were as follows:-(i) Setting aside the removal of CPM and directing his reinstatement both as Executive Chairman of Tata Sons and as Director of other Tata Companies for the rest of the tenure.(ii) Restraining RNT and the nominees of Tata Trust from taking any advance decision.(iii) Restraining Tata Sons from exercising its power under Article 75 against the complainant companies and other minority members, except in exceptional circumstances and in the interest of the Company and that too after recording reasons and informing the affected parties.(iv) Setting aside the decision of the Registrar of Companies recognising Tata Sons conversion into a Private Company.17.6 Thus NCLAT granted to the complainant companies (and indirectly to CPM) four reliefs namely:(i) reinstatement of CPM;(ii) declaring Tata Sons as a Public Limited Company;(iii) restraining the nominee Directors and RNT from taking any decision in advance and(iv) restraining the invocation of Article 75 except in exceptional circumstances.17.8 As we have seen already, the original motive of the complainant companies, was to restrain Tata Sons from removing CPM as Director. Subsequently, there was a climb down and the complainant companies sought what they termed as reinstatement of a representative of the complainant companies. Thereafter, it was modulated into a cry for proportionate representation on the Board.17.9 In this background it was repeatedly argued both before the NCLAT and before this Court that the objective of the litigation was not to have CPM reinstated, but only to set things right in the State of Denmark (of which CPM himself was the Premier for 4 years). But interestingly, NCLAT understood what the complainant companies and CPM actually wanted, though they attempted to camouflage their intentions with legal niceties. Therefore, despite there being no prayer for reinstatement of CPM either as a Director or as an Executive Chairman of Tata Sons, NCLAT directed the restoration of CPM as Executive Chairman of Tata Sons and as Director of Tata Companies for the rest of the tenure.17.10 While granting much more than what the complainant companies and CPM themselves thought as legally feasible, NCLAT failed to notice one important thing. The appointment of CPM as Executive Deputy Chairman of Tata Sons, was to be for a period of 5 years from 01.04.2012 to 31.03.2017, subject to the approval of the shareholders. In the Meeting of the shareholders held on 01.08.2012, the appointment of CPM as Executive Deputy Chairman was approved and the General Body left it to the Board to re-designate CPM as Chairman. Accordingly, the Board re- designated CPM as Executive Chairman, with effect from 29.12.2012, by a resolution passed on 18.12.2012.17.11 The judgment of the NCLAT was passed on 18.12.2019, by which time, a period of nearly 7 years had passed from the date of CPMs appointment as Executive Chairman. Therefore, we fail to understand : (i) as to how NCLAT could have granted a relief not apparently sought for (though wished for); and (ii) what NCLAT meant by reinstatement for the rest of the tenure. That the question of reinstatement will not arise after the tenure of office had run its course, is a settled position. In this regard, we may refer to the decisions in Raj Kumar Dey vs. Tarapada Dey (1987) 4 SCC 398 and Mohd. Gazi vs. State of Madhya Pradesh (2000) 4 SCC 342. While so, it is incomprehensible that the NCLAT directed reinstatement, and that too, of a Director of a company, after the expiry of his term of office. Needless to say that such a remedy would not have been granted even by a labour court/service Tribunal in matters coming within their jurisdiction.17.12 In fact NCLAT has gone to the extent of reinstating CPM not only on the Board of Tata Sons, but also on the Board of Tata group companies, without they being parties, without there being any complaint against those companies under section 241 and without there being any prayer against them. These companies have followed the procedure prescribed by Statute and the Articles and they have validly passed resolutions for his removal. For instance, TCS granted an opportunity to CPM and held a general meeting in which 93.11% of the shareholders, including public institutions who hold 57.46% of shares supported the resolution. In any case CPMs tenure itself was to come to an end on 16.06.2017 but NCLAT passed the impugned order reinstating him for the rest of the tenure. In respect of other companies which had convened the EGM for considering the resolution for his removal, CPM submitted resignations. But now by virtue of the impugned order, CPM will have to be reinstated even on the Board of companies from which he has resigned. This is why even the complainant companies have found it extremely difficult to support the order.17.14 It is interesting to note that at the time of his appointment in December 2012, what CPM saw and acknowledged, was a great learning experience he had under the direct guidance of RNT, but at the time of departure in October 2016, what he saw was only a conduct for over 10 years, that was oppressive and prejudicial to the interests of the company and of the minority. NCLAT failed to take note of this, while granting reliefs neither sought for nor feasible in law.17.15 NCLAT appears to have granted the relief of reinstatement gratis without any foundation in pleadings, without any prayer and without any basis in law. By doing so, the NCLAT has forced upon the appellant an Executive Chairman, who now is unable to support his own reinstatement.17.16 The NCLAT has found the dismissal to be illegal and not a nullity. In law, a dismissal even if found to be wrongful and malafide is an effective dismissal and may give rise to a claim in damages. In Dr. S.B. Dutt vs. University of Delhi 1959 SCR 1236 this Court held: -The award held that the appellant had been dismissed wrongfully and malafide. Now, it is not consequential to such a finding that the dismissal was of no effect, for a wrongful and malafide dismissal is nonetheless an effective dismissal though it may give rise to a claim in damages. The award, no doubt, also said that the dismissal of the appellant was ultravires but as will be seen later, it did not thereby hold the act of dismissal to be a nullity and, therefore, of no effect.17.17 It is significant that Sections 241 and 242 of the Companies Act, 2013 do not specifically confer the power of reinstatement, nor we would add that there is any scope for holding that such a power to reinstate can be implied or inferred from any of the powers specifically conferred. | 1 | 54,000 | 7,784 | ### Instruction:
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Act. Therefore, it is clear that Sub- section (4) ceased to exist on and from 13.12.2000 and hence the question of Tata Sons seeking the approval of the Central Government under Sub-section (4) during the period 2000-2013 did not arise. 20.38 The only provision that survived after 13.12.2000 was Sub-section (2A) of Section 43A. It survived till 30-01-2019 until the whole of the 1956 Act was repealed. There are two aspects to Sub- section (2A). The first is that the very concept of deemed to be public company was washed out under Act 53 of 2000. The second aspect is the prescription of certain formalities to remove the remnants of the past. What was omitted to be done by Tata Sons from 2000 to 2013 was only the second aspect of Sub-section (2A), for which Section 465 of the 2013 Act did not stand as an impediment. Section 43A(2A) continued to be in force till 30-01- 2019 and hence the procedure adopted by Tata Sons and the RoC in July/August 2018 when section 43A(2A) was still available, was perfectly in order. 20.39 As rightly held by this court in Darius Rutton Kavasmaneck vs. Gharda Chemicals Ltd ((2015) 14 SCC 277 [see the editors note in the SCC report regarding the conflict between sec.27(3) and sec.3(1)(iii)(d)]), Parliament always recognised the possibility of a deemed public company again reverting back to the status of a private company. Though this court took note of the conflict between section 27(3) and section 3(1)(iii) (d), after the amendment by Act 53 of 2000, this court nevertheless held in Gharda Chemicals that by incorporating the requirement of sub-clause (d) of section 3(1)(iii) in the Articles of Association, a deemed public company can revert back to its status as a private company, in view of sub-section (2A) of section 43A, by incorporating necessary provisions in the Articles. In simple terms, a company which becomes a deemed public company by operation of law, cannot be taken to have undergone a process of fermentation or coagulation like milk to become curd or yogurt, having an irreversible effect. 20.40 Therefore, NCLAT was completely wrong in holding as though Tata Sons, in connivance with the Registrar of companies did something clandestinely, contrary to the procedure established by law. The request made by Tata Sons and the action taken by the Registrar of Companies to amend the Certificate of Incorporation were perfectly in order. 20.41 It was argued on behalf of SP group (i) that in 1995 Tata Sons allowed renunciation of entitlement to rights issue, in favour of rank outsiders, throwing the restriction contained in section 3(1) (iii) to the wind (ii) that till September 2002, Tata Sons accepted deposits from public and hence sub-clause (d) of section 3(1)(iii) was not satisfied (iii) that as per the circular of the Department of Company Affairs, a company which does not approach the RoC for reconversion would be deemed to have chosen to remain as a public company (iv) that as per RBI circular dated 1-1-2002 private companies accepting deposits would become public companies (v) that till the year 2009, Tata Sons chose to describe itself only as a public company in the forms filed under Rule 10 of the Companies (Acceptance of Deposits) Rules, 1975 (vi) that the conversion adversely affected the ability of Tata Sons to raise funds increasing borrowing costs (vii) that Tata Sons will be required to refund the investments made by insurance companies on account of the conversion and (viii) that the act of conversion lacked probity and was also prejudicial to the interests of the minority shareholders and the company as well as independent directors. 20.42 But we are not impressed with the above contentions. Once the company had become a deemed public company with effect from 1-2-1975, the privileges of a private company stood withdrawn and the company was entitled in law to allow renunciation of shares under rights issue. In any case, the validity of what was done in 1995 was not in question. That they accepted deposits from public till September 2002, is the reason why they were not reconverted as a private company at that time. Once a new definition of the expression private company came into force with effect from 12-09-2013 under section 2(68) of the 2013 Act, the only test to be applied is to find out if the company fits into the scheme under the new Act or not. We need not go to the circulars issued by the department or the RBI when statutory provisions show the path with clarity. The description of the company in the forms filed under Rule 10, reflected the true position that prevailed then and they would not act as estoppel when the company was entitled to take advantage of the law. That the ability of the company to raise funds has now gone and that the company will have to repay the investments made by insurance companies, are all matters which the shareholders and the Directors are to take care. The question before the court is whether the reconversion is in accordance with law or not. The question is not whether it is good for the company or not. 20.43 The real reason why SP group and CPM are aggrieved by the conversion is, that most of their arguments are traceable to provisions which apply only to public and listed public companies. If re-conversion goes, they may perhaps stand on a better footing. But that would tantamount to putting the cart before the horse. One may be entitled to a collateral benefit arising out of a substantial argument. But one cannot seek to succeed on a collateral issue so as to make the substantial argument sustainable. 20.44 Therefore, question of law No. 5 is accordingly answered in favour of Tata Sons and as a consequence, all the observations made against the appellants and the Registrar of companies in Paragraphs 181, 186 and 187 (iv) of the impugned judgment are set aside. 21. Conclusion
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CPM) four reliefs namely:(i) reinstatement of CPM;(ii) declaring Tata Sons as a Public Limited Company;(iii) restraining the nominee Directors and RNT from taking any decision in advance and(iv) restraining the invocation of Article 75 except in exceptional circumstances.17.8 As we have seen already, the original motive of the complainant companies, was to restrain Tata Sons from removing CPM as Director. Subsequently, there was a climb down and the complainant companies sought what they termed as reinstatement of a representative of the complainant companies. Thereafter, it was modulated into a cry for proportionate representation on the Board.17.9 In this background it was repeatedly argued both before the NCLAT and before this Court that the objective of the litigation was not to have CPM reinstated, but only to set things right in the State of Denmark (of which CPM himself was the Premier for 4 years). But interestingly, NCLAT understood what the complainant companies and CPM actually wanted, though they attempted to camouflage their intentions with legal niceties. Therefore, despite there being no prayer for reinstatement of CPM either as a Director or as an Executive Chairman of Tata Sons, NCLAT directed the restoration of CPM as Executive Chairman of Tata Sons and as Director of Tata Companies for the rest of the tenure.17.10 While granting much more than what the complainant companies and CPM themselves thought as legally feasible, NCLAT failed to notice one important thing. The appointment of CPM as Executive Deputy Chairman of Tata Sons, was to be for a period of 5 years from 01.04.2012 to 31.03.2017, subject to the approval of the shareholders. In the Meeting of the shareholders held on 01.08.2012, the appointment of CPM as Executive Deputy Chairman was approved and the General Body left it to the Board to re-designate CPM as Chairman. Accordingly, the Board re- designated CPM as Executive Chairman, with effect from 29.12.2012, by a resolution passed on 18.12.2012.17.11 The judgment of the NCLAT was passed on 18.12.2019, by which time, a period of nearly 7 years had passed from the date of CPMs appointment as Executive Chairman. Therefore, we fail to understand : (i) as to how NCLAT could have granted a relief not apparently sought for (though wished for); and (ii) what NCLAT meant by reinstatement for the rest of the tenure. That the question of reinstatement will not arise after the tenure of office had run its course, is a settled position. In this regard, we may refer to the decisions in Raj Kumar Dey vs. Tarapada Dey (1987) 4 SCC 398 and Mohd. Gazi vs. State of Madhya Pradesh (2000) 4 SCC 342. While so, it is incomprehensible that the NCLAT directed reinstatement, and that too, of a Director of a company, after the expiry of his term of office. Needless to say that such a remedy would not have been granted even by a labour court/service Tribunal in matters coming within their jurisdiction.17.12 In fact NCLAT has gone to the extent of reinstating CPM not only on the Board of Tata Sons, but also on the Board of Tata group companies, without they being parties, without there being any complaint against those companies under section 241 and without there being any prayer against them. These companies have followed the procedure prescribed by Statute and the Articles and they have validly passed resolutions for his removal. For instance, TCS granted an opportunity to CPM and held a general meeting in which 93.11% of the shareholders, including public institutions who hold 57.46% of shares supported the resolution. In any case CPMs tenure itself was to come to an end on 16.06.2017 but NCLAT passed the impugned order reinstating him for the rest of the tenure. In respect of other companies which had convened the EGM for considering the resolution for his removal, CPM submitted resignations. But now by virtue of the impugned order, CPM will have to be reinstated even on the Board of companies from which he has resigned. This is why even the complainant companies have found it extremely difficult to support the order.17.14 It is interesting to note that at the time of his appointment in December 2012, what CPM saw and acknowledged, was a great learning experience he had under the direct guidance of RNT, but at the time of departure in October 2016, what he saw was only a conduct for over 10 years, that was oppressive and prejudicial to the interests of the company and of the minority. NCLAT failed to take note of this, while granting reliefs neither sought for nor feasible in law.17.15 NCLAT appears to have granted the relief of reinstatement gratis without any foundation in pleadings, without any prayer and without any basis in law. By doing so, the NCLAT has forced upon the appellant an Executive Chairman, who now is unable to support his own reinstatement.17.16 The NCLAT has found the dismissal to be illegal and not a nullity. In law, a dismissal even if found to be wrongful and malafide is an effective dismissal and may give rise to a claim in damages. In Dr. S.B. Dutt vs. University of Delhi 1959 SCR 1236 this Court held: -The award held that the appellant had been dismissed wrongfully and malafide. Now, it is not consequential to such a finding that the dismissal was of no effect, for a wrongful and malafide dismissal is nonetheless an effective dismissal though it may give rise to a claim in damages. The award, no doubt, also said that the dismissal of the appellant was ultravires but as will be seen later, it did not thereby hold the act of dismissal to be a nullity and, therefore, of no effect.17.17 It is significant that Sections 241 and 242 of the Companies Act, 2013 do not specifically confer the power of reinstatement, nor we would add that there is any scope for holding that such a power to reinstate can be implied or inferred from any of the powers specifically conferred.
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State of Haryana and Others Vs. Lal Chand and Others | within a radius of three miles from the State border. Nor would this amount to a breach of the conditions on the part of the State Government of Haryana or furnish a ground absolving the respondents of their liability to pay the shortfall. The second contention that the respondents had withdrawn their bid and were therefore not liable for the loss of re-auction of liquor vend at Mandi Dabwali cannot be sustained. 13. In Har Shankers case, supra, this Court held that the writ jurisdiction of the High Courts under Art. 226 was not intended to facilitate avoidance of obligations voluntarily incurred. It was observed that one of the important purposes of selling the exclusive ar right to vend liquor in wholesale or retail is to raise revenue. The licence fee was a price for acquiring such privilege. One who makes a bid for the grant of such privilege with full knowledge. Of the terms and conditions attaching to the auction cannot be permitted to wriggle out of the contractual obligations arising out of the acceptance of his bid. In dealing with the question, Chandrachud, J. said: ."The powers of the Financial Commissioner to grant liquor licences by auction and to collect licence fees through the medium of auctions cannot by writ petitions be questioned by those who held their venture succeeded, would have relied upon those very power s to found a legal claim. Reciprocal rights and obligations arising out of contract do not depend for their enforceability upon whether a contracting party finds it prudent to abide by the terms of the contract. By such a test no contract could even have a binding force." 14. To the same effect are the decisions of this Court in State of Haryana &Ors. v. Jage Ram &Ors. and the State of Punjab v. M/s Dial Chand &Gian Chand &Co. laying down that person s who offer their bids at an auction to vend country liquor with full knowledge of the terms and conditions attaching thereto, cannot be permitted to wriggle out of the contractual obligations arising out of the acceptance of their bids by a petition under Art. 226 of the Constitution. 15. Civil Appeal No. 155 (N) of 1971 At an auction for the licence of retail vend for Butana in the Rohtak district for the financial year 1968-69 held by the Deputy Excise &Taxation Commissioner on March 11, 1968 at the Collectorate, Rohtak, the respondents Messrs Ram Kishan Pritiam Singh &Co. Offered the highest bid of Rs. 1, 40, 000. The Deputy Excise &Taxation Commissioner accepted their bid at the conclusion on the auction. On the same day, the respondents deposited Rs. 5, 811 equivalent to one- twentieth of the licence fee representing the security amount and started operating the said licence w.e.f. April 1 1968. It appears that they drew their supplies by making applications to the a Excise &Taxation Officer, Rohtak for the issuance of challans for deposits of still-held duty in the treasury, and after crediting into the treasury a sum equivalent to the excise duty payable on the strength of permits issued by him. Admittedly, the respondents worked the contract throughout the period without making any payment of Rs. 1, 40, 000 towards the licence fee which was payable in 23 fortnightly installments. The respondents on being served with a notice of demand for payment of Rs. 13, 000 representing the first of such fortnightly installments filed a writ petition in the High Court and the High Court following its decision in Kanhiya Lals case, supra, struck down the notice of demand. It is accepted at the bar that the respondents have not paid anything towards the licence fee of Rs. 1, 40, 000 due and payable by them.Upon these facts, the Excise &Taxation Commissioner would have been justified in cancelling the licence in terms of r.36(23)(2) of the Rules which is in these terms:"A person to whom a country spirit shop is sold shall pay the annual licence fee in 23 equal installments, each installment being payable on the 10th and 26th of each month starting from the month of April. In the event of failure to pay the installment by the due date, his licence may be cancelled." 16. There was a fundamental breach of an essential condition by the respondents. In a commercial contract of this nature, for the performance of which a definite time has been fixed and the contract specifies the mode of payment i.e. specifies the dates on which The installments of the licence fee are to be paid, time is of the essence of the contract. R.36(23)(1) of the Rules specifically makes time of the essence. It therefore follows that payment to the installments on the due dates was a condition pre-requisite to the performance of the contract, and that the failure of the respondents to make such payments relieved the State Government of their obligations. The Excise &Taxation Commissioner would therefore have been justified if he had cancelled the licence under r. 36(23) and put the liquor vend to reauction for the remaining period of the financial year. Instead of taking this drastic step of cancellation of contract, the Deputy Excise &Taxation Commissioner served the respondents with the impugned notice of demand for payment of the first fortnightly installment of Rs. 13, 000. The respondents were bound to pay the defaulted installment on the due date but without complying with the notice of demand moved the High Court under Art. 226 of the Constitution challenging the demand on the ground that the licence fee partakes of the nature on an excise duty. As already stated, the High Court following its decision in Kanhiya Lals case struck down the notice of demand. The result has been that the respondents enjoyed the privilege of retail vend of country liquor, Butana for the entire period without payments of any licence fee. On merits, learned counsel appearing for the respondents had nothing to urge against the impugned notice of demand. | 1[ds]There was a fundamental breach of an essential condition by the respondents. In a commercial contract of this nature, for the performance of which a definite time has been fixed and the contract specifies the mode of payment i.e. specifies the dates on which The installments of the licence fee are to be paid, time is of the essence of the contract. R.36(23)(1) of the Rules specifically makes time of the essence. It therefore follows that payment to the installments on the due dates was a condition pre-requisite to the performance of the contract, and that the failure of the respondents to make such payments relieved the State Government of their obligations. The Excise &Taxation Commissioner would therefore have been justified if he had cancelled the licence under r. 36(23) and put the liquor vend to reauction for the remaining period of the financial year. Instead of taking this drastic step of cancellation of contract, the Deputy Excise &Taxation Commissioner served the respondents with the impugned notice of demand for payment of the first fortnightly installment of Rs. 13, 000. The respondents were bound to pay the defaulted installment on the due date but without complying with the notice of demand moved the High Court under Art. 226 of the Constitution challenging the demand on the ground that the licence fee partakes of the nature on an excise duty. As already stated, the High Court following its decision in Kanhiya Lals case struck down the notice of demand. The result has been that the respondents enjoyed the privilege of retail vend of country liquor, Butana for the entire period without payments of any licence fee. | 1 | 6,800 | 309 | ### Instruction:
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within a radius of three miles from the State border. Nor would this amount to a breach of the conditions on the part of the State Government of Haryana or furnish a ground absolving the respondents of their liability to pay the shortfall. The second contention that the respondents had withdrawn their bid and were therefore not liable for the loss of re-auction of liquor vend at Mandi Dabwali cannot be sustained. 13. In Har Shankers case, supra, this Court held that the writ jurisdiction of the High Courts under Art. 226 was not intended to facilitate avoidance of obligations voluntarily incurred. It was observed that one of the important purposes of selling the exclusive ar right to vend liquor in wholesale or retail is to raise revenue. The licence fee was a price for acquiring such privilege. One who makes a bid for the grant of such privilege with full knowledge. Of the terms and conditions attaching to the auction cannot be permitted to wriggle out of the contractual obligations arising out of the acceptance of his bid. In dealing with the question, Chandrachud, J. said: ."The powers of the Financial Commissioner to grant liquor licences by auction and to collect licence fees through the medium of auctions cannot by writ petitions be questioned by those who held their venture succeeded, would have relied upon those very power s to found a legal claim. Reciprocal rights and obligations arising out of contract do not depend for their enforceability upon whether a contracting party finds it prudent to abide by the terms of the contract. By such a test no contract could even have a binding force." 14. To the same effect are the decisions of this Court in State of Haryana &Ors. v. Jage Ram &Ors. and the State of Punjab v. M/s Dial Chand &Gian Chand &Co. laying down that person s who offer their bids at an auction to vend country liquor with full knowledge of the terms and conditions attaching thereto, cannot be permitted to wriggle out of the contractual obligations arising out of the acceptance of their bids by a petition under Art. 226 of the Constitution. 15. Civil Appeal No. 155 (N) of 1971 At an auction for the licence of retail vend for Butana in the Rohtak district for the financial year 1968-69 held by the Deputy Excise &Taxation Commissioner on March 11, 1968 at the Collectorate, Rohtak, the respondents Messrs Ram Kishan Pritiam Singh &Co. Offered the highest bid of Rs. 1, 40, 000. The Deputy Excise &Taxation Commissioner accepted their bid at the conclusion on the auction. On the same day, the respondents deposited Rs. 5, 811 equivalent to one- twentieth of the licence fee representing the security amount and started operating the said licence w.e.f. April 1 1968. It appears that they drew their supplies by making applications to the a Excise &Taxation Officer, Rohtak for the issuance of challans for deposits of still-held duty in the treasury, and after crediting into the treasury a sum equivalent to the excise duty payable on the strength of permits issued by him. Admittedly, the respondents worked the contract throughout the period without making any payment of Rs. 1, 40, 000 towards the licence fee which was payable in 23 fortnightly installments. The respondents on being served with a notice of demand for payment of Rs. 13, 000 representing the first of such fortnightly installments filed a writ petition in the High Court and the High Court following its decision in Kanhiya Lals case, supra, struck down the notice of demand. It is accepted at the bar that the respondents have not paid anything towards the licence fee of Rs. 1, 40, 000 due and payable by them.Upon these facts, the Excise &Taxation Commissioner would have been justified in cancelling the licence in terms of r.36(23)(2) of the Rules which is in these terms:"A person to whom a country spirit shop is sold shall pay the annual licence fee in 23 equal installments, each installment being payable on the 10th and 26th of each month starting from the month of April. In the event of failure to pay the installment by the due date, his licence may be cancelled." 16. There was a fundamental breach of an essential condition by the respondents. In a commercial contract of this nature, for the performance of which a definite time has been fixed and the contract specifies the mode of payment i.e. specifies the dates on which The installments of the licence fee are to be paid, time is of the essence of the contract. R.36(23)(1) of the Rules specifically makes time of the essence. It therefore follows that payment to the installments on the due dates was a condition pre-requisite to the performance of the contract, and that the failure of the respondents to make such payments relieved the State Government of their obligations. The Excise &Taxation Commissioner would therefore have been justified if he had cancelled the licence under r. 36(23) and put the liquor vend to reauction for the remaining period of the financial year. Instead of taking this drastic step of cancellation of contract, the Deputy Excise &Taxation Commissioner served the respondents with the impugned notice of demand for payment of the first fortnightly installment of Rs. 13, 000. The respondents were bound to pay the defaulted installment on the due date but without complying with the notice of demand moved the High Court under Art. 226 of the Constitution challenging the demand on the ground that the licence fee partakes of the nature on an excise duty. As already stated, the High Court following its decision in Kanhiya Lals case struck down the notice of demand. The result has been that the respondents enjoyed the privilege of retail vend of country liquor, Butana for the entire period without payments of any licence fee. On merits, learned counsel appearing for the respondents had nothing to urge against the impugned notice of demand.
### Response:
1
### Explanation:
There was a fundamental breach of an essential condition by the respondents. In a commercial contract of this nature, for the performance of which a definite time has been fixed and the contract specifies the mode of payment i.e. specifies the dates on which The installments of the licence fee are to be paid, time is of the essence of the contract. R.36(23)(1) of the Rules specifically makes time of the essence. It therefore follows that payment to the installments on the due dates was a condition pre-requisite to the performance of the contract, and that the failure of the respondents to make such payments relieved the State Government of their obligations. The Excise &Taxation Commissioner would therefore have been justified if he had cancelled the licence under r. 36(23) and put the liquor vend to reauction for the remaining period of the financial year. Instead of taking this drastic step of cancellation of contract, the Deputy Excise &Taxation Commissioner served the respondents with the impugned notice of demand for payment of the first fortnightly installment of Rs. 13, 000. The respondents were bound to pay the defaulted installment on the due date but without complying with the notice of demand moved the High Court under Art. 226 of the Constitution challenging the demand on the ground that the licence fee partakes of the nature on an excise duty. As already stated, the High Court following its decision in Kanhiya Lals case struck down the notice of demand. The result has been that the respondents enjoyed the privilege of retail vend of country liquor, Butana for the entire period without payments of any licence fee.
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Company Law Board Vs. Upper Doab Sugar Mills Limited Etc | or exemption."6. After hearing learned counsel for the parties and giving the matter our earnest consideration, w e are of the opinion that the view taken by the High Court in quashing the condition imposed by the appellant Board about the fixation of the remuneration of the managing directors cannot be sustained. The High Court in arriving at its conclusion took: the view that section--198 and the proviso to sub-section (3) of Section 309 specially dealt with the question which arose for determination. In view of those provisions, the High Court inferred that sections 269 and 637A upon which reliance had been placed by the appellant Board could not be of much avail to the appellant. Mr. Puri on behalf of the respondents has adopted the same reasoning in this Court and has contended that section 198 and the proviso to sub section (3) of section 309 being special provisions relating to the remuneration of managing directors, they would exclude so far as that question is concerned, general provisions like those contained in sections 269 and 637A. The above reasoning, we find, is vitiated by an innate fallacy. Section 198 deals with the overall maximum managerial remuneration and managerial remuneration in the case of absence or adequacy of profits. The total managerial remuneration payable by a public company or a private company which is a subsidiary of a public company to its managerial staff, according to sub-section (1) of that section, cannot exceed 11 per cent of the net profits for a financial year. The total managerial remuneration covers the remuneration not merely of the managing directors but also of other managerial personnel like secretaries, treasurers and managers. Sub-section (3) of the section provides that Within the limits of the maximum remuneration, a company may pay a monthly remuneration to its managing director in accordance with section 309. Sub section (1) of section 309 prescribes the formalities which have to be complied with for fixing of the remuneration of a managing or full-time director of a company. We are not concerned with sub-section (2) of that section. Sub-section (3). which constitutes the main plank of the case of the respondents, provides that a director who is either in the whole-time employment of the company or a managing director may be paid remuneration either by way of monthly pay- ment or at a specified percentage of the net profits of the company or partly by one way or partly by the other. According to the proviso to that sub-section, except with the approval of the Central Government, such remuneration of the whole-time director or managing director shall not exceed 5 per cent of the net pro fits for one such director and if there is more than one such director 10 per cent for all of them together. Perusal of section 309 shows that it does not deal with the appointment of managing directors. It only perta ins to the remuneration of managing or whole-time directors who have already been appointed. The effect of the proviso to sub-section (3) of section 309 is that if the tenure of a managing director who has already been appointed continues after the coming into force of the Act, the remuneration to be paid to such a managing director shall not after the coming into force of the Act exceed 5 per cent of the net profits for one such director, and if there be more then one such director, 10 per cent for all of them together.The present, however, is not a case of managing direc- tors having been appointed earlier and continuing to act as such after the coming into force of the Act. Shri Rajinder Lal and Shri Narinder Lal have been appointed managing directors of the company for the first time after the coming into force of the Act. Their appointment as managing directors had to be approved in terms of section 269 of the Act. The company consequently applied to the Central Government for approving their appointment. The appellant Board, to whom the powers of the Central Government have been delegated for this purpose, while granting approval to the appointment of the aforesaid two persons as managing directors, inserted the condition that the total remuneration of each managing director by way of commission and salary shall not exceed rupees one lakh twenty thousand per annum. The above remuneration is in addition to the benefit of certain perquisites which would be available t o the managing directors. The Board, in our opinion, acted well within its power in imposing this condition. Section 637A of the Act makes it clear inter alia that where the Central Government is required or authorised by any provision of the Act to accord approval in relation to any matter, then, in the absence of anything to contrary contained in such or any other provision of the Act, the Central Government may accord such approval subject to such conditions, limitations or restrictions as it may think fit to impose. In view of the provisions of sections 269 and 637A of the Act, we find no infirmity in the condition imposed by appellant Board. The provisions of both sections 269 and 637A expressly deal with the question which arises directly in this ease.7. We may observe that according to the affidavit filed on behalf of the appellant Board , since 1959 the said Board has been imposing a maximum administrative ceiling on the total amounts payable to a managing director. The basic principle that has been kept in view by the Board is that no individual should be paid remuneration exceeding Rs. 1, 20, 000 per annum or Rs. 10, 000 per month. A large number of instances have also been given by the Board and it would appear therefrom that the maximum remuneration which has been allowed by the Board to the managing director of any company is Rs. 1, 20, 000.The High Court, in our opinion, was in error in quashing the order of the Board. | 1[ds]After hearing learned counsel for the parties and giving the matter our earnest consideration, w e are of the opinion that the view taken by the High Court in quashing the condition imposed by the appellant Board about the fixation of the remuneration of the managing directors cannot be sustained. The High Court in arriving at its conclusion took: the view that section--198 and the proviso to sub-section (3) of Section 309 specially dealt with the question which arose for determination. In view of those provisions, the High Court inferred that sections 269 and 637A upon which reliance had been placed by the appellant Board could not be of much avail to the appellant. Mr. Puri on behalf of the respondents has adopted the same reasoning in this Court and has contended that section 198 and the proviso to sub section (3) of section 309 being special provisions relating to the remuneration of managing directors, they would exclude so far as that question is concerned, general provisions like those contained in sections 269 and 637A. The above reasoning, we find, is vitiated by an innate fallacy. Section 198 deals with the overall maximum managerial remuneration and managerial remuneration in the case of absence or adequacy of profits. The total managerial remuneration payable by a public company or a private company which is a subsidiary of a public company to its managerial staff, according to sub-section (1) of that section, cannot exceed 11 per cent of the net profits for a financial year. The total managerial remuneration covers the remuneration not merely of the managing directors but also of other managerial personnel like secretaries, treasurers and managers. Sub-section (3) of the section provides that Within the limits of the maximum remuneration, a company may pay a monthly remuneration to its managing director in accordance with section 309. Sub section (1) of section 309 prescribes the formalities which have to be complied with for fixing of the remuneration of a managing or full-time director of a company. We are not concerned with sub-section (2) of that section. Sub-section (3). which constitutes the main plank of the case of the respondents, provides that a director who is either in the whole-time employment of the company or a managing director may be paid remuneration either by way of monthly pay- ment or at a specified percentage of the net profits of the company or partly by one way or partly by the other. According to the proviso to that sub-section, except with the approval of the Central Government, such remuneration of the whole-time director or managing director shall not exceed 5 per cent of the net pro fits for one such director and if there is more than one such director 10 per cent for all of them together. Perusal of section 309 shows that it does not deal with the appointment of managing directors. It only perta ins to the remuneration of managing or whole-time directors who have already been appointed. The effect of the proviso to sub-section (3) of section 309 is that if the tenure of a managing director who has already been appointed continues after the coming into force of the Act, the remuneration to be paid to such a managing director shall not after the coming into force of the Act exceed 5 per cent of the net profits for one such director, and if there be more then one such director, 10 per cent for all of them together.The present, however, is not a case of managing direc- tors having been appointed earlier and continuing to act as such after the coming into force of the Act. Shri Rajinder Lal and Shri Narinder Lal have been appointed managing directors of the company for the first time after the coming into force of the Act. Their appointment as managing directors had to be approved in terms of section 269 of the Act. The company consequently applied to the Central Government for approving their appointment. The appellant Board, to whom the powers of the Central Government have been delegated for this purpose, while granting approval to the appointment of the aforesaid two persons as managing directors, inserted the condition that the total remuneration of each managing director by way of commission and salary shall not exceed rupees one lakh twenty thousand per annum. The above remuneration is in addition to the benefit of certain perquisites which would be available t o the managing directors. The Board, in our opinion, acted well within its power in imposing this condition. Section 637A of the Act makes it clear inter alia that where the Central Government is required or authorised by any provision of the Act to accord approval in relation to any matter, then, in the absence of anything to contrary contained in such or any other provision of the Act, the Central Government may accord such approval subject to such conditions, limitations or restrictions as it may think fit to impose. In view of the provisions of sections 269 and 637A of the Act, we find no infirmity in the condition imposed by appellant Board. The provisions of both sections 269 and 637A expressly deal with the question which arises directly in thismay observe that according to the affidavit filed on behalf of the appellant Board , since 1959 the said Board has been imposing a maximum administrative ceiling on the total amounts payable to a managing director. The basic principle that has been kept in view by the Board is that no individual should be paid remuneration exceeding Rs. 1, 20, 000 per annum or Rs. 10, 000 per month. A large number of instances have also been given by the Board and it would appear therefrom that the maximum remuneration which has been allowed by the Board to the managing director of any company is Rs. 1, 20, 000.The High Court, in our opinion, was in error in quashing the order of the Board. | 1 | 3,276 | 1,086 | ### Instruction:
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or exemption."6. After hearing learned counsel for the parties and giving the matter our earnest consideration, w e are of the opinion that the view taken by the High Court in quashing the condition imposed by the appellant Board about the fixation of the remuneration of the managing directors cannot be sustained. The High Court in arriving at its conclusion took: the view that section--198 and the proviso to sub-section (3) of Section 309 specially dealt with the question which arose for determination. In view of those provisions, the High Court inferred that sections 269 and 637A upon which reliance had been placed by the appellant Board could not be of much avail to the appellant. Mr. Puri on behalf of the respondents has adopted the same reasoning in this Court and has contended that section 198 and the proviso to sub section (3) of section 309 being special provisions relating to the remuneration of managing directors, they would exclude so far as that question is concerned, general provisions like those contained in sections 269 and 637A. The above reasoning, we find, is vitiated by an innate fallacy. Section 198 deals with the overall maximum managerial remuneration and managerial remuneration in the case of absence or adequacy of profits. The total managerial remuneration payable by a public company or a private company which is a subsidiary of a public company to its managerial staff, according to sub-section (1) of that section, cannot exceed 11 per cent of the net profits for a financial year. The total managerial remuneration covers the remuneration not merely of the managing directors but also of other managerial personnel like secretaries, treasurers and managers. Sub-section (3) of the section provides that Within the limits of the maximum remuneration, a company may pay a monthly remuneration to its managing director in accordance with section 309. Sub section (1) of section 309 prescribes the formalities which have to be complied with for fixing of the remuneration of a managing or full-time director of a company. We are not concerned with sub-section (2) of that section. Sub-section (3). which constitutes the main plank of the case of the respondents, provides that a director who is either in the whole-time employment of the company or a managing director may be paid remuneration either by way of monthly pay- ment or at a specified percentage of the net profits of the company or partly by one way or partly by the other. According to the proviso to that sub-section, except with the approval of the Central Government, such remuneration of the whole-time director or managing director shall not exceed 5 per cent of the net pro fits for one such director and if there is more than one such director 10 per cent for all of them together. Perusal of section 309 shows that it does not deal with the appointment of managing directors. It only perta ins to the remuneration of managing or whole-time directors who have already been appointed. The effect of the proviso to sub-section (3) of section 309 is that if the tenure of a managing director who has already been appointed continues after the coming into force of the Act, the remuneration to be paid to such a managing director shall not after the coming into force of the Act exceed 5 per cent of the net profits for one such director, and if there be more then one such director, 10 per cent for all of them together.The present, however, is not a case of managing direc- tors having been appointed earlier and continuing to act as such after the coming into force of the Act. Shri Rajinder Lal and Shri Narinder Lal have been appointed managing directors of the company for the first time after the coming into force of the Act. Their appointment as managing directors had to be approved in terms of section 269 of the Act. The company consequently applied to the Central Government for approving their appointment. The appellant Board, to whom the powers of the Central Government have been delegated for this purpose, while granting approval to the appointment of the aforesaid two persons as managing directors, inserted the condition that the total remuneration of each managing director by way of commission and salary shall not exceed rupees one lakh twenty thousand per annum. The above remuneration is in addition to the benefit of certain perquisites which would be available t o the managing directors. The Board, in our opinion, acted well within its power in imposing this condition. Section 637A of the Act makes it clear inter alia that where the Central Government is required or authorised by any provision of the Act to accord approval in relation to any matter, then, in the absence of anything to contrary contained in such or any other provision of the Act, the Central Government may accord such approval subject to such conditions, limitations or restrictions as it may think fit to impose. In view of the provisions of sections 269 and 637A of the Act, we find no infirmity in the condition imposed by appellant Board. The provisions of both sections 269 and 637A expressly deal with the question which arises directly in this ease.7. We may observe that according to the affidavit filed on behalf of the appellant Board , since 1959 the said Board has been imposing a maximum administrative ceiling on the total amounts payable to a managing director. The basic principle that has been kept in view by the Board is that no individual should be paid remuneration exceeding Rs. 1, 20, 000 per annum or Rs. 10, 000 per month. A large number of instances have also been given by the Board and it would appear therefrom that the maximum remuneration which has been allowed by the Board to the managing director of any company is Rs. 1, 20, 000.The High Court, in our opinion, was in error in quashing the order of the Board.
### Response:
1
### Explanation:
After hearing learned counsel for the parties and giving the matter our earnest consideration, w e are of the opinion that the view taken by the High Court in quashing the condition imposed by the appellant Board about the fixation of the remuneration of the managing directors cannot be sustained. The High Court in arriving at its conclusion took: the view that section--198 and the proviso to sub-section (3) of Section 309 specially dealt with the question which arose for determination. In view of those provisions, the High Court inferred that sections 269 and 637A upon which reliance had been placed by the appellant Board could not be of much avail to the appellant. Mr. Puri on behalf of the respondents has adopted the same reasoning in this Court and has contended that section 198 and the proviso to sub section (3) of section 309 being special provisions relating to the remuneration of managing directors, they would exclude so far as that question is concerned, general provisions like those contained in sections 269 and 637A. The above reasoning, we find, is vitiated by an innate fallacy. Section 198 deals with the overall maximum managerial remuneration and managerial remuneration in the case of absence or adequacy of profits. The total managerial remuneration payable by a public company or a private company which is a subsidiary of a public company to its managerial staff, according to sub-section (1) of that section, cannot exceed 11 per cent of the net profits for a financial year. The total managerial remuneration covers the remuneration not merely of the managing directors but also of other managerial personnel like secretaries, treasurers and managers. Sub-section (3) of the section provides that Within the limits of the maximum remuneration, a company may pay a monthly remuneration to its managing director in accordance with section 309. Sub section (1) of section 309 prescribes the formalities which have to be complied with for fixing of the remuneration of a managing or full-time director of a company. We are not concerned with sub-section (2) of that section. Sub-section (3). which constitutes the main plank of the case of the respondents, provides that a director who is either in the whole-time employment of the company or a managing director may be paid remuneration either by way of monthly pay- ment or at a specified percentage of the net profits of the company or partly by one way or partly by the other. According to the proviso to that sub-section, except with the approval of the Central Government, such remuneration of the whole-time director or managing director shall not exceed 5 per cent of the net pro fits for one such director and if there is more than one such director 10 per cent for all of them together. Perusal of section 309 shows that it does not deal with the appointment of managing directors. It only perta ins to the remuneration of managing or whole-time directors who have already been appointed. The effect of the proviso to sub-section (3) of section 309 is that if the tenure of a managing director who has already been appointed continues after the coming into force of the Act, the remuneration to be paid to such a managing director shall not after the coming into force of the Act exceed 5 per cent of the net profits for one such director, and if there be more then one such director, 10 per cent for all of them together.The present, however, is not a case of managing direc- tors having been appointed earlier and continuing to act as such after the coming into force of the Act. Shri Rajinder Lal and Shri Narinder Lal have been appointed managing directors of the company for the first time after the coming into force of the Act. Their appointment as managing directors had to be approved in terms of section 269 of the Act. The company consequently applied to the Central Government for approving their appointment. The appellant Board, to whom the powers of the Central Government have been delegated for this purpose, while granting approval to the appointment of the aforesaid two persons as managing directors, inserted the condition that the total remuneration of each managing director by way of commission and salary shall not exceed rupees one lakh twenty thousand per annum. The above remuneration is in addition to the benefit of certain perquisites which would be available t o the managing directors. The Board, in our opinion, acted well within its power in imposing this condition. Section 637A of the Act makes it clear inter alia that where the Central Government is required or authorised by any provision of the Act to accord approval in relation to any matter, then, in the absence of anything to contrary contained in such or any other provision of the Act, the Central Government may accord such approval subject to such conditions, limitations or restrictions as it may think fit to impose. In view of the provisions of sections 269 and 637A of the Act, we find no infirmity in the condition imposed by appellant Board. The provisions of both sections 269 and 637A expressly deal with the question which arises directly in thismay observe that according to the affidavit filed on behalf of the appellant Board , since 1959 the said Board has been imposing a maximum administrative ceiling on the total amounts payable to a managing director. The basic principle that has been kept in view by the Board is that no individual should be paid remuneration exceeding Rs. 1, 20, 000 per annum or Rs. 10, 000 per month. A large number of instances have also been given by the Board and it would appear therefrom that the maximum remuneration which has been allowed by the Board to the managing director of any company is Rs. 1, 20, 000.The High Court, in our opinion, was in error in quashing the order of the Board.
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C. Krishna Prasad Vs. Commissioner of Income Tax Bangalore | above it cannot be denied that the appellant at present is the absolute owner of the property which fell to his share as a result of partition and that he can deal with it as he wishes. There is admittedly no female member in existence who is entitled to maintenance from the above mentioned property or who is capable of adopting a son to a deceased coparcener. Even if the assessee-appellant in future introduces a new member into the family by adoption or otherwise, his present kill ownership of the property cannot be affected. Such a new member on becoming a member of the coparcenary would be entitled to such share in the property as would remain undisposed of by the assessee. In order to determine the status of the assessee for the purpose of income-tax, we have to look to the realities as they exist at present and it would not be correct to project into the matter future possibilities which might or might not materialise. This would indeed amount to speculation and the same is not permissible. Excursions to the realm of speculation may be legitimate arid justified when one is engaged in the study of philosophy and metaphysics; they are wholly unwarranted when one is dealing with the mundane subject of the status of the assessee for the purpose of the income-tax assessment. For this purpose we have to look to facts as they exist and emerge from the record and not to what they may or may not be in future. As things are at present in the instant case, there can in our view be hardly any doubt that the assessee is an individual and not a family.9. Mr. Desai on behalf of the appellant has referred to the case of Anant Bhikappa Patil v. Shankar Ramchandra Patil, AIR 1943 PC 196 . As considerable reliance has been placed upon that case,, it may be necessary to deal with that case at some length. The dispute in that case was between parties governed by Hindu law and related to watan lands. The pedigree table of the parties was as under:Dhulappas sons Punnappa and Hanamantappa separated in 1857. The watan lands in dispute went to the share of Punnappa. Narayan one of the sons of Punnappa, separated from him in his lifetime. Thereafter Punnappa died in 1901. Bhikappa died in 1905, leaving his widow Gangabai and son Keshav. Narayan died issueless in 1908 leaving two plots of watan lands. On the remarriage of the widow of Narayan, those two plots devolved by inheritance on Keshav. Keshav died unmarried in l9l7. At that time his nearest heir was his collateral Shankar defendant. Shankar obtained possession in 1928 of the land in dispute, which had been left by Keshav after lounging a suit against Gangabai. In 1930 Gangabai adopted Anant plaintiff as a son to her deceased husband Bhikappa. In 1932 Gangabai as the next friend of Anant brought suit for possession of the land in dispute against Shankar. The trial court decreed the suit. On appeal the High Court dismissed the suit for possessing. On further appeal the Judicial Committee restored the decree of the trial court. It was held by the Judicial Committee that the power of a Hindu widow to adopt does not come to an end on the death of the sole surviving coparcener. Neither does it depend upon the vesting or divesting of the estate, nor can the right to adopt be defeated by partition between the coparceners. The Judicial Committee also held that on the death of a sole surviving coparcener a Hindu joint family cannot be finally brought to an end while it is possible in nature or law to add a male member to it. The family cannot be at an end while there is still a potential mother if that mother in the way of nature or in the way of law brings in a new male member. The Judicial Committee further held that an adopted son can claim as preferential heir the estate of any person other than his adoptive father if such estate has vested before the adoption in some heir other than the adopting mother.10. The above case, in our opinion, can hardly be of any assistance to the assessee-appellant. As would appear from the facts of that case, the question involved there related to the adoption by a widow after the death of the sole surviving coparcener. The question with which we are concerned, as to whether one individual can constitute a Hindu undivided family, was not before the Judicial Committee and it expressed no opinion on that question. According to Mr. Desai it is implicit in that judgment that from 1917 when Keshav died till l930 when Anant plaintiff was adopted, there was a joint Hindu family even though the joint family consisted of Gangabai alone. We find it difficult to agree with Mr. Desai in this respect. As would appear from the facts of that case, Anant was adopted by Gangabai as a son of Bhikappa. It is now firmly established that the rights of the adopted son relate back to the date of the adoptive fathers death and the adopted son must be deemed by a fiction of law to have been in existence as the son of the adoptive father at the time of latters death (see p. 543 of Mullas Principles of Hindu Law 14th Ed.). This principle of relation back is subject to certain exceptions but we are not concerned with them. As Bhikappa died in 1905, Anant should be deemed to have been in existence as the son of Bhikappa at the tune of latters death in 1905. A necessary corollary of the above legal fiction would be that Anant as the adopted son of Bhikappa would be taken to be in existence during the years 1917 to 1930. Gangabai consequently cannot be considered to be the sole member of the Hindu undivided family during the above period. | 0[ds]6. Section 4 of the Act provides for the charging of income-tax on the total income of every person subject to the conditions prescribed in that section. "Person" has been defined in Section 2 (31) of the Act and includes inter alia, an individual and a Hindu undivided family.The inherent fallacy of the case set up on behalf of the assessee-appellant, in our opinion, is that according to him a single individual can constitute a Hindu undivided family and be assessed as such. "Family" connotes a group of people related by blood or marriage. According to Shorter Oxford English Dictionary, 3rd Ed. the word "Family" means the group consisting of parents and their children, whether living together or not; in wider sense, all those who are nearly connected by blood or affinity; a persons children regarded collectively; those descended or claiming descent from a common ancestor; a house, kindred, lineage; a race; a people or group of peoples. According to Aristotle (Politics I), it is the characteristic of man that he alone has any sense of good and evil, or just and unjust, and the association of living beings who have this sense make a family and a State. It would follow from the above that the word "Family" always signifies a group. Plurality of persons AS an essential attribute of a family. A single person, male or female, does not constitute family. He or she would remain, what is inherent in the very nature of things, an individual a lonely wayfarer till perchance he or she finds a mate. A family consisting of a single individual is a contradiction in terms. Section 2 (31) of the Act treats a Hindu undivided family, as an entity distinct and different from an individual and it would, in our opinion, be wrong not to keep that difference in view.7. It is well settled that a Hindu joint family consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughters. A Hindu coparcenary is a much narrower body than the joint family: it includes only those persons who acquire by birth an interest in the joint or coparcenary property, these being the sons, grandsons, and great-grandsons of the holder of the joint property for the time being. The plea that there must be at least two male members to form a Hindu undivided family as a taxable entity has no force. Under Hindu law a joint family may consist of a single male member and widows of deceased male members. The expression "Hindu undivided family" in the Income-tax Act is used in the sense in which a Hindu joint family understood under the various schools of HinduThe share which a coparcener obtains on partition of ancestral property is ancestral propertyas regards his male issue. They take an interest in it by birth, whether they are in existence at the time of partition or are born subsequently. Such share, however, is ancestral property only as regards his male issue. As regards other relations, it is separate property, and, and if the coparcener dies without leaving male issue, it passes to his heirs by succession (see p. 272 of Mullas Principles of Hindu Law 14th Ed.). A person who for the time being is the sole surviving coparcener is entitled to dispose of the coparcenary property as if it were his separate property. He may sell or mortgage the property without legal necessity or he may make a gift of it. If a son is subsequently born to him or adopted by him, thealienationwhether it is by way of sale, mortgage or gift, will nevertheless stand, for a son cannot object to alienations made by his father before he was born or begotten (see p. 320 ibid.). In view of the above it cannot be denied that the appellant at present is the absolute owner of the property which fell to his share as a result of partition and that he can deal with it as he wishes. There is admittedly no female member in existence who is entitled to maintenance from the above mentioned property or who is capable of adopting a son to a deceased coparcener. Even if the assessee-appellant in future introduces a new member into the family by adoption or otherwise, his present kill ownership of the property cannot be affected. Such a new member on becoming a member of the coparcenary would be entitled to such share in the property as would remain undisposed of by the assessee. In order to determine the status of the assessee for the purpose of income-tax, we have to look to the realities as they exist at present and it would not be correct to project into the matter future possibilities which might or might not materialise. This would indeed amount to speculation and the same is not permissible. Excursions to the realm of speculation may be legitimate arid justified when one is engaged in the study of philosophy and metaphysics; they are wholly unwarranted when one is dealing with the mundane subject of the status of the assessee for the purpose of the income-tax assessment. For this purpose we have to look to facts as they exist and emerge from the record and not to what they may or may not be in future. As things are at present in the instant case, there can in our view be hardly any doubt that the assessee is an individual and not a family.The above case, in our opinion, can hardly be of any assistance to the assessee-appellant. As would appear from the facts of that case, the question involved there related to the adoption by a widow after the death of the sole surviving coparcener. The question with which we are concerned, as to whether one individual can constitute a Hindu undivided family, was not before the Judicial Committee and it expressed no opinion on that question. According to Mr. Desai it is implicit in that judgment that from 1917 when Keshav died till l930 when Anant plaintiff was adopted, there was a joint Hindu family even though the joint family consisted of Gangabai alone. We find it difficult to agree with Mr. Desai in this respect. As would appear from the facts of that case, Anant was adopted by Gangabai as a son of Bhikappa. It is now firmly established that the rights of the adopted son relate back to the date of the adoptive fathers death and the adopted son must be deemed by a fiction of law to have been in existence as the son of the adoptive father at the time of latters death (see p. 543 of Mullas Principles of Hindu Law 14th Ed.). This principle of relation back is subject to certain exceptions but we are not concerned with them. As Bhikappa died in 1905, Anant should be deemed to have been in existence as the son of Bhikappa at the tune of latters death in 1905. A necessary corollary of the above legal fiction would be that Anant as the adopted son of Bhikappa would be taken to be in existence during the years 1917 to 1930. Gangabai consequently cannot be considered to be the sole member of the Hindu undivided family during the aboveCourt in the case of Gowli Buddanna v. Commr. ofMysore (1966) 60 ITR 293 = (AIR 1966 SC 1523 ) refrained from expressing an opinion on the point "whether a Hindu undivided family may for the purposes of the IndianAct be treated as a taxable entity when it consists of a single membermale or female."5. After hearing the learned counsel for the parties, we are of the opinion that the question which arises for determination in this appeal should be answered against the assessee. | 0 | 2,477 | 1,430 | ### 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:
above it cannot be denied that the appellant at present is the absolute owner of the property which fell to his share as a result of partition and that he can deal with it as he wishes. There is admittedly no female member in existence who is entitled to maintenance from the above mentioned property or who is capable of adopting a son to a deceased coparcener. Even if the assessee-appellant in future introduces a new member into the family by adoption or otherwise, his present kill ownership of the property cannot be affected. Such a new member on becoming a member of the coparcenary would be entitled to such share in the property as would remain undisposed of by the assessee. In order to determine the status of the assessee for the purpose of income-tax, we have to look to the realities as they exist at present and it would not be correct to project into the matter future possibilities which might or might not materialise. This would indeed amount to speculation and the same is not permissible. Excursions to the realm of speculation may be legitimate arid justified when one is engaged in the study of philosophy and metaphysics; they are wholly unwarranted when one is dealing with the mundane subject of the status of the assessee for the purpose of the income-tax assessment. For this purpose we have to look to facts as they exist and emerge from the record and not to what they may or may not be in future. As things are at present in the instant case, there can in our view be hardly any doubt that the assessee is an individual and not a family.9. Mr. Desai on behalf of the appellant has referred to the case of Anant Bhikappa Patil v. Shankar Ramchandra Patil, AIR 1943 PC 196 . As considerable reliance has been placed upon that case,, it may be necessary to deal with that case at some length. The dispute in that case was between parties governed by Hindu law and related to watan lands. The pedigree table of the parties was as under:Dhulappas sons Punnappa and Hanamantappa separated in 1857. The watan lands in dispute went to the share of Punnappa. Narayan one of the sons of Punnappa, separated from him in his lifetime. Thereafter Punnappa died in 1901. Bhikappa died in 1905, leaving his widow Gangabai and son Keshav. Narayan died issueless in 1908 leaving two plots of watan lands. On the remarriage of the widow of Narayan, those two plots devolved by inheritance on Keshav. Keshav died unmarried in l9l7. At that time his nearest heir was his collateral Shankar defendant. Shankar obtained possession in 1928 of the land in dispute, which had been left by Keshav after lounging a suit against Gangabai. In 1930 Gangabai adopted Anant plaintiff as a son to her deceased husband Bhikappa. In 1932 Gangabai as the next friend of Anant brought suit for possession of the land in dispute against Shankar. The trial court decreed the suit. On appeal the High Court dismissed the suit for possessing. On further appeal the Judicial Committee restored the decree of the trial court. It was held by the Judicial Committee that the power of a Hindu widow to adopt does not come to an end on the death of the sole surviving coparcener. Neither does it depend upon the vesting or divesting of the estate, nor can the right to adopt be defeated by partition between the coparceners. The Judicial Committee also held that on the death of a sole surviving coparcener a Hindu joint family cannot be finally brought to an end while it is possible in nature or law to add a male member to it. The family cannot be at an end while there is still a potential mother if that mother in the way of nature or in the way of law brings in a new male member. The Judicial Committee further held that an adopted son can claim as preferential heir the estate of any person other than his adoptive father if such estate has vested before the adoption in some heir other than the adopting mother.10. The above case, in our opinion, can hardly be of any assistance to the assessee-appellant. As would appear from the facts of that case, the question involved there related to the adoption by a widow after the death of the sole surviving coparcener. The question with which we are concerned, as to whether one individual can constitute a Hindu undivided family, was not before the Judicial Committee and it expressed no opinion on that question. According to Mr. Desai it is implicit in that judgment that from 1917 when Keshav died till l930 when Anant plaintiff was adopted, there was a joint Hindu family even though the joint family consisted of Gangabai alone. We find it difficult to agree with Mr. Desai in this respect. As would appear from the facts of that case, Anant was adopted by Gangabai as a son of Bhikappa. It is now firmly established that the rights of the adopted son relate back to the date of the adoptive fathers death and the adopted son must be deemed by a fiction of law to have been in existence as the son of the adoptive father at the time of latters death (see p. 543 of Mullas Principles of Hindu Law 14th Ed.). This principle of relation back is subject to certain exceptions but we are not concerned with them. As Bhikappa died in 1905, Anant should be deemed to have been in existence as the son of Bhikappa at the tune of latters death in 1905. A necessary corollary of the above legal fiction would be that Anant as the adopted son of Bhikappa would be taken to be in existence during the years 1917 to 1930. Gangabai consequently cannot be considered to be the sole member of the Hindu undivided family during the above period.
### Response:
0
### Explanation:
not to keep that difference in view.7. It is well settled that a Hindu joint family consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughters. A Hindu coparcenary is a much narrower body than the joint family: it includes only those persons who acquire by birth an interest in the joint or coparcenary property, these being the sons, grandsons, and great-grandsons of the holder of the joint property for the time being. The plea that there must be at least two male members to form a Hindu undivided family as a taxable entity has no force. Under Hindu law a joint family may consist of a single male member and widows of deceased male members. The expression "Hindu undivided family" in the Income-tax Act is used in the sense in which a Hindu joint family understood under the various schools of HinduThe share which a coparcener obtains on partition of ancestral property is ancestral propertyas regards his male issue. They take an interest in it by birth, whether they are in existence at the time of partition or are born subsequently. Such share, however, is ancestral property only as regards his male issue. As regards other relations, it is separate property, and, and if the coparcener dies without leaving male issue, it passes to his heirs by succession (see p. 272 of Mullas Principles of Hindu Law 14th Ed.). A person who for the time being is the sole surviving coparcener is entitled to dispose of the coparcenary property as if it were his separate property. He may sell or mortgage the property without legal necessity or he may make a gift of it. If a son is subsequently born to him or adopted by him, thealienationwhether it is by way of sale, mortgage or gift, will nevertheless stand, for a son cannot object to alienations made by his father before he was born or begotten (see p. 320 ibid.). In view of the above it cannot be denied that the appellant at present is the absolute owner of the property which fell to his share as a result of partition and that he can deal with it as he wishes. There is admittedly no female member in existence who is entitled to maintenance from the above mentioned property or who is capable of adopting a son to a deceased coparcener. Even if the assessee-appellant in future introduces a new member into the family by adoption or otherwise, his present kill ownership of the property cannot be affected. Such a new member on becoming a member of the coparcenary would be entitled to such share in the property as would remain undisposed of by the assessee. In order to determine the status of the assessee for the purpose of income-tax, we have to look to the realities as they exist at present and it would not be correct to project into the matter future possibilities which might or might not materialise. This would indeed amount to speculation and the same is not permissible. Excursions to the realm of speculation may be legitimate arid justified when one is engaged in the study of philosophy and metaphysics; they are wholly unwarranted when one is dealing with the mundane subject of the status of the assessee for the purpose of the income-tax assessment. For this purpose we have to look to facts as they exist and emerge from the record and not to what they may or may not be in future. As things are at present in the instant case, there can in our view be hardly any doubt that the assessee is an individual and not a family.The above case, in our opinion, can hardly be of any assistance to the assessee-appellant. As would appear from the facts of that case, the question involved there related to the adoption by a widow after the death of the sole surviving coparcener. The question with which we are concerned, as to whether one individual can constitute a Hindu undivided family, was not before the Judicial Committee and it expressed no opinion on that question. According to Mr. Desai it is implicit in that judgment that from 1917 when Keshav died till l930 when Anant plaintiff was adopted, there was a joint Hindu family even though the joint family consisted of Gangabai alone. We find it difficult to agree with Mr. Desai in this respect. As would appear from the facts of that case, Anant was adopted by Gangabai as a son of Bhikappa. It is now firmly established that the rights of the adopted son relate back to the date of the adoptive fathers death and the adopted son must be deemed by a fiction of law to have been in existence as the son of the adoptive father at the time of latters death (see p. 543 of Mullas Principles of Hindu Law 14th Ed.). This principle of relation back is subject to certain exceptions but we are not concerned with them. As Bhikappa died in 1905, Anant should be deemed to have been in existence as the son of Bhikappa at the tune of latters death in 1905. A necessary corollary of the above legal fiction would be that Anant as the adopted son of Bhikappa would be taken to be in existence during the years 1917 to 1930. Gangabai consequently cannot be considered to be the sole member of the Hindu undivided family during the aboveCourt in the case of Gowli Buddanna v. Commr. ofMysore (1966) 60 ITR 293 = (AIR 1966 SC 1523 ) refrained from expressing an opinion on the point "whether a Hindu undivided family may for the purposes of the IndianAct be treated as a taxable entity when it consists of a single membermale or female."5. After hearing the learned counsel for the parties, we are of the opinion that the question which arises for determination in this appeal should be answered against the assessee.
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Union Of India & Ors Vs. North Telumer Colliery & Ors | satisfy their other liabilities. According to the High Court whole of the interest amount is to be exclusively given to the mine owners and the claims and liabilities are to be satisfied only out of the principal amount payable to the mine owners under the Coal Act. To support these conclusion the High Court has given three reasons which we may presently examine. 8. The High Courts conclusions are primarily based on the interpretation of Section 18(5) of the Coal Act. The High Court has quoted the meaning of words "enter" and "benefit" from various dictionaries. No dictionary or any outside assistance is needed to understand the meaning of these simple words in the context and scheme of the Coal Act. The interest has to enure to the benefit of the owners of the coal mines. The claims before the Commissioner under the Coal Act are from the creditors of the owners and the liabilities sought to be discharged are also of the owners of the coal mines. When the debts are paid the liabilities discharged, it is only the owners of coal mines who are benefited. Taking away the interest amount by the owners without discharging their debts and liabilities would be unreasonable. They have only to adopt delaying tactics to postpone the disbursement of claims and consequently earn more interest. Due to such delay the owner would get huge amount of interest though ultimately he may not get a penny out of principal amount on the final settlement of claims. It would amount to conferring unjust benefit on the owners which can never be the intention of the Parliament. We do not agree with the interpretation given by the High Court and hold that the interest accruing under the Coal Act is the money paid to the Commissioner in relation to the coal mine and the same has to be utilised by the Commissioner in meeting the claims of the creditors and discharging other liabilities in accordance with the provisions of the Coal Act. 9. The High Court noticed that apart from providing priorities for claims the Parliament has also indicated the accounts from which such claims are to be satisfied. According to the High Court since no mention has been made therein with regard to the recovery of any amount of claim out of the interest the same cannot be used for that purpose and has to be exclusively paid to the owners. We do not agree with the reasoning. Under Section 18(5) of the Coal Act the interest accruing on the amount standing to the credit of the deposit account shall also be payable to the Commissioner in addition to the sum referred to in sub-section (1) of Section 18. Section 26 further provides that out of the moneys paid to the Commissioner in relation to the coal mine if there is a balance left after meeting the liabilities of all the secured and unsecured creditors, such balance shall be disbursed to the owner of the coal mine. It cannot be disputed that the interest paid to the Commissioner under Section 18(5) is money paid to him in relation to a coal mine and as such it has to be utilised in meeting the claims of the creditors of the mine owners and their other liabilities. Even otherwise interest amount in the present context has no separate entity. As the lamb belongs to the owner of the sheep, the interest goes with the principal. The interest accrued under the Coal Act is, thus, part of the kitty out of which the claims and liabilities are to be met. 10. The High Court has further held that under Section 26 of the Coal Act moneys paid to the Commissioner in relation to a coal mine do not include the money accrued by way of interest. There is no basis for this interpretation. The plain reading of Section 26 read with Section 18(5) of the Coal Act makes it clear that moneys paid to the Commissioner in relation to a coal mine are to be used for satisfying the debts and liabilities. Interest amount accrued under the Coal Act is undoubtedly money in relation to coal mine and as such it squarely comes within the ambit of Section 26 of the Coal Act. 11. The amended Section 18(5) of the Coal Act which escaped the notice of the High Court provides that the amount of interest accruing on the amounts standing to the credit of the deposit account is also payable to the Commissioner. Section 22(3) of the Coal Act makes the assets, in the hands of Commissioner, available for satisfying the debts in order of priorities. The assets of the erstwhile owner lying in the hands of the Commissioner of Payments would include the interest which has been paid to the Commissioner under Section 18(5). Similarly Section 24 of the Coal Act says that unsecured creditors will be paid out of the money credited to the account of coal mine. Moneys credited to the account of coal mine also include interest. It is thus clear from the scheme and plain reading of various provisions of the clear from the scheme and plain reading of various provisions of the Coal Act that the interest amount has to be made available to the Commissioner to meet the debts and liabilities. 12. We may refer to Section 24-A of the Coal Act which fixes the maximum interest payable to the successful claimants. It is provided that interest shall be paid at such rate not exceeding the rate of interest accruing on any amount deposited by the Commissioner under Section 18. Had the Parliament intended to give interest to the owners, there would have been no necessity for fixing the maximum limit of interest payable to the claiming with reference to the rate of interest accruing to the scheduled amount. 13. The two Acts being identical whatever we have said about the Coal Act is equally applicable to the Coking Act. | 1[ds]6. The scheme of the Coal Act and the bare reading of its provisions make it clear that the Commissioner has to adjudicate the claims of creditors of the mine owners in accordance with the priorities. The claims, accepted by the Commissioner, are to be satisfied out of the amount payable to the mine owners and the balance left after meeting the claims of all the secured and unsecured creditors, is to be paid to the owners of the coal mines7. The High Court has accepted the contention of the mine owners and has held that the interest accrued under the Coal Act cannot be made available to the Commissioner for meeting the claims of the creditors of the mine owner or to satisfy their other liabilities. According to the High Court whole of the interest amount is to be exclusively given to the mine owners and the claims and liabilities are to be satisfied only out of the principal amount payable to the mine owners under the Coal Act. To support these conclusion the High Court has given three reasons which we may presently examine8. The High Courts conclusions are primarily based on the interpretation of Section 18(5) of the Coal Act. The High Court has quoted the meaning of words "enter" and "benefit" from various dictionaries. No dictionary or any outside assistance is needed to understand the meaning of these simple words in the context and scheme of the Coal Act. The interest has to enure to the benefit of the owners of the coal mines. The claims before the Commissioner under the Coal Act are from the creditors of the owners and the liabilities sought to be discharged are also of the owners of the coal mines. When the debts are paid the liabilities discharged, it is only the owners of coal mines who are benefited. Taking away the interest amount by the owners without discharging their debts and liabilities would be unreasonable. They have only to adopt delaying tactics to postpone the disbursement of claims and consequently earn more interest. Due to such delay the owner would get huge amount of interest though ultimately he may not get a penny out of principal amount on the final settlement of claims. It would amount to conferring unjust benefit on the owners which can never be the intention of the Parliament. We do not agree with the interpretation given by the High Court and hold that the interest accruing under the Coal Act is the money paid to the Commissioner in relation to the coal mine and the same has to be utilised by the Commissioner in meeting the claims of the creditors and discharging other liabilities in accordance with the provisions of the Coal Act9. The High Court noticed that apart from providing priorities for claims the Parliament has also indicated the accounts from which such claims are to be satisfied. According to the High Court since no mention has been made therein with regard to the recovery of any amount of claim out of the interest the same cannot be used for that purpose and has to be exclusively paid to the owners. We do not agree with the reasoning. Under Section 18(5) of the Coal Act the interest accruing on the amount standing to the credit of the deposit account shall also be payable to the Commissioner in addition to the sum referred to inn (1) of Section 18. Section 26 further provides that out of the moneys paid to the Commissioner in relation to the coal mine if there is a balance left after meeting the liabilities of all the secured and unsecured creditors, such balance shall be disbursed to the owner of the coal mine. It cannot be disputed that the interest paid to the Commissioner under Section 18(5) is money paid to him in relation to a coal mine and as such it has to be utilised in meeting the claims of the creditors of the mine owners and their other liabilities. Even otherwise interest amount in the present context has no separate entity. As the lamb belongs to the owner of the sheep, the interest goes with the principal. The interest accrued under the Coal Act is, thus, part of the kitty out of which the claims and liabilities are to be met10. The High Court has further held that under Section 26 of the Coal Act moneys paid to the Commissioner in relation to a coal mine do not include the money accrued by way of interest. There is no basis for this interpretation. The plain reading of Section 26 read with Section 18(5) of the Coal Act makes it clear that moneys paid to the Commissioner in relation to a coal mine are to be used for satisfying the debts and liabilities. Interest amount accrued under the Coal Act is undoubtedly money in relation to coal mine and as such it squarely comes within the ambit of Section 26 of the Coal Act11. The amended Section 18(5) of the Coal Act which escaped the notice of the High Court provides that the amount of interest accruing on the amounts standing to the credit of the deposit account is also payable to the Commissioner. Section 22(3) of the Coal Act makes the assets, in the hands of Commissioner, available for satisfying the debts in order of priorities. The assets of the erstwhile owner lying in the hands of the Commissioner of Payments would include the interest which has been paid to the Commissioner under Section 18(5). Similarly Section 24 of the Coal Act says that unsecured creditors will be paid out of the money credited to the account of coal mine. Moneys credited to the account of coal mine also include interest. It is thus clear from the scheme and plain reading of various provisions of the clear from the scheme and plain reading of various provisions of the Coal Act that the interest amount has to be made available to the Commissioner to meet the debts and liabilities12. We may refer to SectionA of the Coal Act which fixes the maximum interest payable to the successful claimants. It is provided that interest shall be paid at such rate not exceeding the rate of interest accruing on any amount deposited by the Commissioner under Section 18. Had the Parliament intended to give interest to the owners, there would have been no necessity for fixing the maximum limit of interest payable to the claiming with reference to the rate of interest accruing to the scheduled amount13. The two Acts being identical whatever we have said about the Coal Act is equally applicable to the Coking Act | 1 | 3,094 | 1,199 | ### 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:
satisfy their other liabilities. According to the High Court whole of the interest amount is to be exclusively given to the mine owners and the claims and liabilities are to be satisfied only out of the principal amount payable to the mine owners under the Coal Act. To support these conclusion the High Court has given three reasons which we may presently examine. 8. The High Courts conclusions are primarily based on the interpretation of Section 18(5) of the Coal Act. The High Court has quoted the meaning of words "enter" and "benefit" from various dictionaries. No dictionary or any outside assistance is needed to understand the meaning of these simple words in the context and scheme of the Coal Act. The interest has to enure to the benefit of the owners of the coal mines. The claims before the Commissioner under the Coal Act are from the creditors of the owners and the liabilities sought to be discharged are also of the owners of the coal mines. When the debts are paid the liabilities discharged, it is only the owners of coal mines who are benefited. Taking away the interest amount by the owners without discharging their debts and liabilities would be unreasonable. They have only to adopt delaying tactics to postpone the disbursement of claims and consequently earn more interest. Due to such delay the owner would get huge amount of interest though ultimately he may not get a penny out of principal amount on the final settlement of claims. It would amount to conferring unjust benefit on the owners which can never be the intention of the Parliament. We do not agree with the interpretation given by the High Court and hold that the interest accruing under the Coal Act is the money paid to the Commissioner in relation to the coal mine and the same has to be utilised by the Commissioner in meeting the claims of the creditors and discharging other liabilities in accordance with the provisions of the Coal Act. 9. The High Court noticed that apart from providing priorities for claims the Parliament has also indicated the accounts from which such claims are to be satisfied. According to the High Court since no mention has been made therein with regard to the recovery of any amount of claim out of the interest the same cannot be used for that purpose and has to be exclusively paid to the owners. We do not agree with the reasoning. Under Section 18(5) of the Coal Act the interest accruing on the amount standing to the credit of the deposit account shall also be payable to the Commissioner in addition to the sum referred to in sub-section (1) of Section 18. Section 26 further provides that out of the moneys paid to the Commissioner in relation to the coal mine if there is a balance left after meeting the liabilities of all the secured and unsecured creditors, such balance shall be disbursed to the owner of the coal mine. It cannot be disputed that the interest paid to the Commissioner under Section 18(5) is money paid to him in relation to a coal mine and as such it has to be utilised in meeting the claims of the creditors of the mine owners and their other liabilities. Even otherwise interest amount in the present context has no separate entity. As the lamb belongs to the owner of the sheep, the interest goes with the principal. The interest accrued under the Coal Act is, thus, part of the kitty out of which the claims and liabilities are to be met. 10. The High Court has further held that under Section 26 of the Coal Act moneys paid to the Commissioner in relation to a coal mine do not include the money accrued by way of interest. There is no basis for this interpretation. The plain reading of Section 26 read with Section 18(5) of the Coal Act makes it clear that moneys paid to the Commissioner in relation to a coal mine are to be used for satisfying the debts and liabilities. Interest amount accrued under the Coal Act is undoubtedly money in relation to coal mine and as such it squarely comes within the ambit of Section 26 of the Coal Act. 11. The amended Section 18(5) of the Coal Act which escaped the notice of the High Court provides that the amount of interest accruing on the amounts standing to the credit of the deposit account is also payable to the Commissioner. Section 22(3) of the Coal Act makes the assets, in the hands of Commissioner, available for satisfying the debts in order of priorities. The assets of the erstwhile owner lying in the hands of the Commissioner of Payments would include the interest which has been paid to the Commissioner under Section 18(5). Similarly Section 24 of the Coal Act says that unsecured creditors will be paid out of the money credited to the account of coal mine. Moneys credited to the account of coal mine also include interest. It is thus clear from the scheme and plain reading of various provisions of the clear from the scheme and plain reading of various provisions of the Coal Act that the interest amount has to be made available to the Commissioner to meet the debts and liabilities. 12. We may refer to Section 24-A of the Coal Act which fixes the maximum interest payable to the successful claimants. It is provided that interest shall be paid at such rate not exceeding the rate of interest accruing on any amount deposited by the Commissioner under Section 18. Had the Parliament intended to give interest to the owners, there would have been no necessity for fixing the maximum limit of interest payable to the claiming with reference to the rate of interest accruing to the scheduled amount. 13. The two Acts being identical whatever we have said about the Coal Act is equally applicable to the Coking Act.
### Response:
1
### Explanation:
the creditors of the mine owner or to satisfy their other liabilities. According to the High Court whole of the interest amount is to be exclusively given to the mine owners and the claims and liabilities are to be satisfied only out of the principal amount payable to the mine owners under the Coal Act. To support these conclusion the High Court has given three reasons which we may presently examine8. The High Courts conclusions are primarily based on the interpretation of Section 18(5) of the Coal Act. The High Court has quoted the meaning of words "enter" and "benefit" from various dictionaries. No dictionary or any outside assistance is needed to understand the meaning of these simple words in the context and scheme of the Coal Act. The interest has to enure to the benefit of the owners of the coal mines. The claims before the Commissioner under the Coal Act are from the creditors of the owners and the liabilities sought to be discharged are also of the owners of the coal mines. When the debts are paid the liabilities discharged, it is only the owners of coal mines who are benefited. Taking away the interest amount by the owners without discharging their debts and liabilities would be unreasonable. They have only to adopt delaying tactics to postpone the disbursement of claims and consequently earn more interest. Due to such delay the owner would get huge amount of interest though ultimately he may not get a penny out of principal amount on the final settlement of claims. It would amount to conferring unjust benefit on the owners which can never be the intention of the Parliament. We do not agree with the interpretation given by the High Court and hold that the interest accruing under the Coal Act is the money paid to the Commissioner in relation to the coal mine and the same has to be utilised by the Commissioner in meeting the claims of the creditors and discharging other liabilities in accordance with the provisions of the Coal Act9. The High Court noticed that apart from providing priorities for claims the Parliament has also indicated the accounts from which such claims are to be satisfied. According to the High Court since no mention has been made therein with regard to the recovery of any amount of claim out of the interest the same cannot be used for that purpose and has to be exclusively paid to the owners. We do not agree with the reasoning. Under Section 18(5) of the Coal Act the interest accruing on the amount standing to the credit of the deposit account shall also be payable to the Commissioner in addition to the sum referred to inn (1) of Section 18. Section 26 further provides that out of the moneys paid to the Commissioner in relation to the coal mine if there is a balance left after meeting the liabilities of all the secured and unsecured creditors, such balance shall be disbursed to the owner of the coal mine. It cannot be disputed that the interest paid to the Commissioner under Section 18(5) is money paid to him in relation to a coal mine and as such it has to be utilised in meeting the claims of the creditors of the mine owners and their other liabilities. Even otherwise interest amount in the present context has no separate entity. As the lamb belongs to the owner of the sheep, the interest goes with the principal. The interest accrued under the Coal Act is, thus, part of the kitty out of which the claims and liabilities are to be met10. The High Court has further held that under Section 26 of the Coal Act moneys paid to the Commissioner in relation to a coal mine do not include the money accrued by way of interest. There is no basis for this interpretation. The plain reading of Section 26 read with Section 18(5) of the Coal Act makes it clear that moneys paid to the Commissioner in relation to a coal mine are to be used for satisfying the debts and liabilities. Interest amount accrued under the Coal Act is undoubtedly money in relation to coal mine and as such it squarely comes within the ambit of Section 26 of the Coal Act11. The amended Section 18(5) of the Coal Act which escaped the notice of the High Court provides that the amount of interest accruing on the amounts standing to the credit of the deposit account is also payable to the Commissioner. Section 22(3) of the Coal Act makes the assets, in the hands of Commissioner, available for satisfying the debts in order of priorities. The assets of the erstwhile owner lying in the hands of the Commissioner of Payments would include the interest which has been paid to the Commissioner under Section 18(5). Similarly Section 24 of the Coal Act says that unsecured creditors will be paid out of the money credited to the account of coal mine. Moneys credited to the account of coal mine also include interest. It is thus clear from the scheme and plain reading of various provisions of the clear from the scheme and plain reading of various provisions of the Coal Act that the interest amount has to be made available to the Commissioner to meet the debts and liabilities12. We may refer to SectionA of the Coal Act which fixes the maximum interest payable to the successful claimants. It is provided that interest shall be paid at such rate not exceeding the rate of interest accruing on any amount deposited by the Commissioner under Section 18. Had the Parliament intended to give interest to the owners, there would have been no necessity for fixing the maximum limit of interest payable to the claiming with reference to the rate of interest accruing to the scheduled amount13. The two Acts being identical whatever we have said about the Coal Act is equally applicable to the Coking Act
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Vemireddy Satyanarayan Reddy & Others Vs. State of Hyderabad | death. His body was buried in a pit dug in he river bed. The rope which was found round the neck of the dead body when it was exhumed is said to be the rope with which P. Ws.3 to 6 and 9 were tied up and as the one that the members of the gang brought from the house of Silam Brahmareddi (P. W. 17) earlier that evening when the village was raided and the Congress workers were marched to the Congress flag.10. There is also evidence that the party of the accused when they first encountered the party of deceased asked who and where was Venkatakrishna Shastry. The assailants, who were armed to the teeth, indulged in threats to kill all of them. The deceased was a Congress leader and it is not surprising that he was singled out for terrific punishment, while the others were let off with a good thrashing and admonitions that they should given up their Congress affiliations.It is but natural in the circumstances that they should take away the deceased to a distant place to do away with him. That he was so led by the group of the accused is also corroborated by the evidence of Yesob (P. W. 12) who was watching his jawar crop on the night in question in a neighboring field.11. Let us now turn to the exhumation of the dead body, the inquest report, the postmortem certificate, and the evidence of the doctor (P. w. 7). The patwari of Sakrivedu ( P. w. 10) sent a report on 8-2-1949, that he had information that a dead body lay buried in the river-bed. The report has not been filed but its purport about the condition of the body is given inquest report as unidentifiable.Two police sub-inspectors and some constables reached the river-bed the same day and exhumed the body. Its then condition is described in these words in the inquest report: "It was noticed that a rope of Chinna and Ambara was wrapped from neck to the waist. Both hands were missing and out of the two legs one was attached to the body with little flesh. The bones of the other separated leg (the down part of the knee) and the bones of one hand were found in the pit. There were some hairs in the head. The flesh of the face was rotten and decayed. Teeth are safe and sound. There is rotten flesh from the neck to the buttocks. It appears that this dead body is of a Hindu Brahmin."12. The panchnama is signed by two persons one of whom HAS BEEN EXAMINED AS P.W.16. He, along with the witnesses who gave evidence as co-sufferers with the deceased in the communist raid of that evening, have identified the body as that of Venkatakrishna Shastry. The doctors post-mortem certificate is exhibit 2 and according to it the body was petrified and even the marks of strangulation could not be detected; both the plams had been cut out, the left hand was severed completely; there was only the left eye in a rotten condition; the right eye was not found, the right ear was not there, Exanmined as P. W. 7 the doctor has said that the face of corpse could not be identified, as the scalp was eaten away by mud, and the bony structure of the face was present.13. In the face of this evidence, the learned counsel for the appellants contended with much force that identification must have been impossible and that the witnesses who speak to the same should be disbelieved. Two factors are, however, overlooked in this argument. Though the body was in an advanced state of decomposition and many parts of the limbs were missing and even the flesh in the face was gone, it would not have been difficult for close associates of Venkatakrishna Shastry to say that it was his corpse, from the general features, form, outline, contour build of the body, and the appearance of such of the limbs as were available to see. His friend Madhusudhana Rao, P. W. 15, was working with the deceased for some years in the Congress office and knew him well indeed. There is his evidence about identification. More important still is the identification of the rope round the neck of the body, the dhoti with the violet border that was on its waist, and the janjam or the holy thread. The rope was brought from the house of Brahma Reedy (P. W. 17). It was the one which was tied in loops round each member of the congress group as they were led from the village to the redgram field; it was the rope that was used to lead Venkatakrishna Shastry to the booklet; and it was the rope that was found round the neck of the dead body when it was unearthed. The bordered dhoti which was on the corpse belonged to Venkatakrishna Shastry. From these external marks, and the general features, friends of the deceased like P. Ws.3 to 6 and 9 and P. W. 17 in whose house Shastry was living could say, we think, that the body buried in the waist-deep pit in the bed of the river was that of Venkatakrishna Shastry.14. Whether he is regarded as an accomplice or as the sole witness of the offence P. W. 14 has been corroborated in such a manner that his evidence about the step taken by the accused immediately prior to the perpetration of the murder carries conviction to our minds. The connection of the accused with the crime must be held to have been made out. We have also to accept that the dead body recovered was that of Venkatakrishna Shastry and no question of the absence of the body arises.15. For this gruesome and revolting murder the appellants have got only imprisonment for life for which they must be thankful to the difference of opinion that arose among the learned Judges of the High Court. | 0[ds]There is, however, no warrant for such an extreme proposition.Indeed, there can be no doubt that the evidence of a man like P. W. 14 should be scanned with much caution and we must be fully satisfied that he is a witness of truth, especially when no other person was present at the time to see the murder. Though he was not an accomplice, we would still want corroboration on material particulars in this particular case, as he is the only witness to the crime and as, it would be unsafe to hang four people on his sole testimony unless we feel convinced that he is speaking thecorroboration need not, however, be on the question of the actual commission of the offence; if this was the requirement, then we would have independent testimony on which to act and there would be no need to rely on the evidence of one whose position may, in this particular case, be said to be somewhat analogous to that of an accomplice, though not exactly the same. What the law requires is that there should be such corroboration of the material part of the story connecting the accused with the crime as will satisfy reasonable minds that the man can be regarded as a truthful witness.Judged by this test, we can say that the evidence given by P. W. 14 has been amply corroborated. It was not disputed for the appellants that there is abundant evidence consisting of the testimony of several witnesses in support of the truth of the narrative given by P. W. 14 regarding the abduction of thefactors are, however, overlooked in this argument. Though the body was in an advanced state of decomposition and many parts of the limbs were missing and even the flesh in the face was gone, it would not have been difficult for close associates of Venkatakrishna Shastry to say that it was his corpse, from the general features, form, outline, contour build of the body, and the appearance of such of the limbs as were available tofriend Madhusudhana Rao, P. W. 15, was working with the deceased for some years in the Congress office and knew him well indeed. There is his evidence about identification. More important still is the identification of the rope round the neck of the body, the dhoti with the violet border that was on its waist, and the janjam or the holy thread. The rope was brought from the house of Brahma Reedy (P. W. 17). It was the one which was tied in loops round each member of the congress group as they were led from the village to the redgram field; it was the rope that was used to lead Venkatakrishna Shastry to the booklet; and it was the rope that was found round the neck of the dead body when it wasbordered dhoti which was on the corpse belonged to Venkatakrishna Shastry. From these external marks, and the general features, friends of the deceased like P. Ws.3 to 6 and 9 and P. W. 17 in whose house Shastry was living could say, we think, that the body buried in the waist-deep pit in the bed of the river was that of Venkatakrishna Shastry.14. Whether he is regarded as an accomplice or as the sole witness of the offence P. W. 14 has been corroborated in such a manner that his evidence about the step taken by the accused immediately prior to the perpetration of the murder carries conviction to our minds. The connection of the accused with the crime must be held to have been made out. We have also to accept that the dead body recovered was that of Venkatakrishna Shastry and no question of the absence of the body arises.15. For this gruesome and revolting murder the appellants have got only imprisonment for life for which they must be thankful to the difference of opinion that arose among the learned Judges of the High Court. | 0 | 2,993 | 714 | ### 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:
death. His body was buried in a pit dug in he river bed. The rope which was found round the neck of the dead body when it was exhumed is said to be the rope with which P. Ws.3 to 6 and 9 were tied up and as the one that the members of the gang brought from the house of Silam Brahmareddi (P. W. 17) earlier that evening when the village was raided and the Congress workers were marched to the Congress flag.10. There is also evidence that the party of the accused when they first encountered the party of deceased asked who and where was Venkatakrishna Shastry. The assailants, who were armed to the teeth, indulged in threats to kill all of them. The deceased was a Congress leader and it is not surprising that he was singled out for terrific punishment, while the others were let off with a good thrashing and admonitions that they should given up their Congress affiliations.It is but natural in the circumstances that they should take away the deceased to a distant place to do away with him. That he was so led by the group of the accused is also corroborated by the evidence of Yesob (P. W. 12) who was watching his jawar crop on the night in question in a neighboring field.11. Let us now turn to the exhumation of the dead body, the inquest report, the postmortem certificate, and the evidence of the doctor (P. w. 7). The patwari of Sakrivedu ( P. w. 10) sent a report on 8-2-1949, that he had information that a dead body lay buried in the river-bed. The report has not been filed but its purport about the condition of the body is given inquest report as unidentifiable.Two police sub-inspectors and some constables reached the river-bed the same day and exhumed the body. Its then condition is described in these words in the inquest report: "It was noticed that a rope of Chinna and Ambara was wrapped from neck to the waist. Both hands were missing and out of the two legs one was attached to the body with little flesh. The bones of the other separated leg (the down part of the knee) and the bones of one hand were found in the pit. There were some hairs in the head. The flesh of the face was rotten and decayed. Teeth are safe and sound. There is rotten flesh from the neck to the buttocks. It appears that this dead body is of a Hindu Brahmin."12. The panchnama is signed by two persons one of whom HAS BEEN EXAMINED AS P.W.16. He, along with the witnesses who gave evidence as co-sufferers with the deceased in the communist raid of that evening, have identified the body as that of Venkatakrishna Shastry. The doctors post-mortem certificate is exhibit 2 and according to it the body was petrified and even the marks of strangulation could not be detected; both the plams had been cut out, the left hand was severed completely; there was only the left eye in a rotten condition; the right eye was not found, the right ear was not there, Exanmined as P. W. 7 the doctor has said that the face of corpse could not be identified, as the scalp was eaten away by mud, and the bony structure of the face was present.13. In the face of this evidence, the learned counsel for the appellants contended with much force that identification must have been impossible and that the witnesses who speak to the same should be disbelieved. Two factors are, however, overlooked in this argument. Though the body was in an advanced state of decomposition and many parts of the limbs were missing and even the flesh in the face was gone, it would not have been difficult for close associates of Venkatakrishna Shastry to say that it was his corpse, from the general features, form, outline, contour build of the body, and the appearance of such of the limbs as were available to see. His friend Madhusudhana Rao, P. W. 15, was working with the deceased for some years in the Congress office and knew him well indeed. There is his evidence about identification. More important still is the identification of the rope round the neck of the body, the dhoti with the violet border that was on its waist, and the janjam or the holy thread. The rope was brought from the house of Brahma Reedy (P. W. 17). It was the one which was tied in loops round each member of the congress group as they were led from the village to the redgram field; it was the rope that was used to lead Venkatakrishna Shastry to the booklet; and it was the rope that was found round the neck of the dead body when it was unearthed. The bordered dhoti which was on the corpse belonged to Venkatakrishna Shastry. From these external marks, and the general features, friends of the deceased like P. Ws.3 to 6 and 9 and P. W. 17 in whose house Shastry was living could say, we think, that the body buried in the waist-deep pit in the bed of the river was that of Venkatakrishna Shastry.14. Whether he is regarded as an accomplice or as the sole witness of the offence P. W. 14 has been corroborated in such a manner that his evidence about the step taken by the accused immediately prior to the perpetration of the murder carries conviction to our minds. The connection of the accused with the crime must be held to have been made out. We have also to accept that the dead body recovered was that of Venkatakrishna Shastry and no question of the absence of the body arises.15. For this gruesome and revolting murder the appellants have got only imprisonment for life for which they must be thankful to the difference of opinion that arose among the learned Judges of the High Court.
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There is, however, no warrant for such an extreme proposition.Indeed, there can be no doubt that the evidence of a man like P. W. 14 should be scanned with much caution and we must be fully satisfied that he is a witness of truth, especially when no other person was present at the time to see the murder. Though he was not an accomplice, we would still want corroboration on material particulars in this particular case, as he is the only witness to the crime and as, it would be unsafe to hang four people on his sole testimony unless we feel convinced that he is speaking thecorroboration need not, however, be on the question of the actual commission of the offence; if this was the requirement, then we would have independent testimony on which to act and there would be no need to rely on the evidence of one whose position may, in this particular case, be said to be somewhat analogous to that of an accomplice, though not exactly the same. What the law requires is that there should be such corroboration of the material part of the story connecting the accused with the crime as will satisfy reasonable minds that the man can be regarded as a truthful witness.Judged by this test, we can say that the evidence given by P. W. 14 has been amply corroborated. It was not disputed for the appellants that there is abundant evidence consisting of the testimony of several witnesses in support of the truth of the narrative given by P. W. 14 regarding the abduction of thefactors are, however, overlooked in this argument. Though the body was in an advanced state of decomposition and many parts of the limbs were missing and even the flesh in the face was gone, it would not have been difficult for close associates of Venkatakrishna Shastry to say that it was his corpse, from the general features, form, outline, contour build of the body, and the appearance of such of the limbs as were available tofriend Madhusudhana Rao, P. W. 15, was working with the deceased for some years in the Congress office and knew him well indeed. There is his evidence about identification. More important still is the identification of the rope round the neck of the body, the dhoti with the violet border that was on its waist, and the janjam or the holy thread. The rope was brought from the house of Brahma Reedy (P. W. 17). It was the one which was tied in loops round each member of the congress group as they were led from the village to the redgram field; it was the rope that was used to lead Venkatakrishna Shastry to the booklet; and it was the rope that was found round the neck of the dead body when it wasbordered dhoti which was on the corpse belonged to Venkatakrishna Shastry. From these external marks, and the general features, friends of the deceased like P. Ws.3 to 6 and 9 and P. W. 17 in whose house Shastry was living could say, we think, that the body buried in the waist-deep pit in the bed of the river was that of Venkatakrishna Shastry.14. Whether he is regarded as an accomplice or as the sole witness of the offence P. W. 14 has been corroborated in such a manner that his evidence about the step taken by the accused immediately prior to the perpetration of the murder carries conviction to our minds. The connection of the accused with the crime must be held to have been made out. We have also to accept that the dead body recovered was that of Venkatakrishna Shastry and no question of the absence of the body arises.15. For this gruesome and revolting murder the appellants have got only imprisonment for life for which they must be thankful to the difference of opinion that arose among the learned Judges of the High Court.
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ANAND YADAV & ORS. Vs. STATE OF UTTAR PRADESH & ORS. | contesting respondent to contend how and in what manner a degree should be obtained, which would make them eligible for appointment by respondent No. 2. 32. We hasten to add that it is not our view that an employer like respondent No. 2 can do as they please - they are guided and bound by the terms of the UGC Act and the regulations thereunder, but then here, there is no doubt about the M.Ed. degree being a post graduate degree, in view of not only what the UGC stated before us, but having promulgated the relevant Regulations as far back as 2010 as amended from time to time. The issue of equivalence has been rightly considered by the NCTE and while recognising some distinct aspects of two the degrees, it has clearly stated that for the job of Assistant Professors (Education), both are eligible. 33. We may notice that it is not as if a person with an M.Ed. degree is eligible for all the posts which were advertised for Science, Arts and others. Their eligibility has been found only for the post of Assistant Professor (Education), which is directly relatable to the subject to be taught. We do not think the fact that both M.Ed. and M.A. (Education) degree-holders have to take a common test for the purposes of NET is conclusive, but it is one of the factors to be considered, and once the expert body being the NCTE, inter alia, has taken that aspect into consideration apart from other factors to opine equivalence for the purpose of appointment to the post of Assistant Professor in Education, it would not be appropriate to take a contra view. 34. We say so in view of the fact that matters of education must be left to educationists, of course subject to being governed by the relevant statutes and regulations. It is not the function of this Court to sit as an expert body over the decision of the experts, especially when the experts are all eminent people as apparent from the names as set out. This aspect has received judicial imprimatur even earlier and it is not that we are saying something new. We may refer to the pronouncement in Zahoor Ahmad Rather & Ors. (supra) in this behalf which has dealt with the dual aspects: (a) it is for the employer to consider what functionality of qualification and content of course of studies would lead to the acquisition of an eligible qualification; and (b) such matters must be left to educationists. 35. We have also gone through the judgment in the Dr. Prit Singh (supra) case. The impugned order of the High Court has almost been predicated entirely on this judgment, as if there was no issue alive to be dealt with, even though the distinction was recognised in a subsequent judgment of the Dr. Ram Sevak Singh (supra) case. It is trite to say that often, a proposition of law as laid down in a case is as good as the facts of the case. The Dr. Prit Singh (supra) case was concerned with the dual requirements in the relevant advertisement, i.e., a post graduate degree in any subject and a degree in Education. There is no such dual qualification laid here. Not only that, the recruitment was for the post of a Principal and that too the case was concerned with a person with qualifications of not much eminence in terms of the marks obtained. There was an endeavour to help out the candidate by even amending the norms and, thus, the Court rightly came to the conclusion that the same was not appropriate. We are dealing with different norms for the concerned advertisement, a requirement of having a degree in the relevant subject, in this case being Education, and for eligible persons to have the requisite marks. We, thus, fail to understand how the judgment in the Dr. Prit Singh (supra) case can be considered a binding precedent in the factual contours of the present case, more so in view of the observations made in the Dr. Ram Sevak Singh (supra) case, clearly setting out as to what was the actual basis of the opinion in the Dr. Prit Singh (supra) case. 36. We may note that, sometimes, without looking into the real ratio decidendi, a judgment is followed as a precedent. This is what appears to have happened in the impugned order. There are even some other judgments of the High Courts, which in turn were then sought to be relied upon to canvas a proposition that there is a widespread acceptance of M.Ed. not being equivalent to M.A. (Education). That they are two different degrees is obvious; this is even recognised by the NCTE while emphasising the subtle distinction between the two degrees as one being a masters degree but not a professional degree, while the other being a professional degree. If the two degrees are identical, there is no question of equivalence. The issue of equivalence only arises when there are two different degrees and what is to be decided whether for certain purposes they can be treated as equivalent. This is exactly what has happened as a result of the respective expert committees set up by respondent Nos. 2 & 5. The employer, i.e., respondent No. 2, had accepted the recommendation of the expert committee. The UGC has also taken a stand that insofar as the two degrees are concerned, both are post graduate degrees, and the equivalence authority being respondent No.5 has also opined on the basis of an expert committee, that the two can be treated as equivalent for the post of Assistant Professor in Education. Thus, it is neither for the contesting party, i.e., respondent No.3, nor for this Court to sit as a court of appeal over the decision of the experts. We may also note that respondent No.3 has in fact been selected in the 2014 selection process as per the final list released on 22.5.2018. | 1[ds]26. We must, at the inception, express our reservation about the manner in which the writ petition was filed and a decision was taken in the impugned order of the High Court without even calling upon the relevant authorities, i.e., the UGC and the NCTE to put forth their stand. The first authority is undisputedly the one to determine and specify the nomenclature of degrees, while the second is the authority of teacher education. Whatever has been the earlier position, as is sought to be relied upon, of the Gujarat High Court, the same is no more in doubt. A decision based in the absence of concerned authorities is likely to and has caused confusion.27. We are also of the view that affected candidates, or at least some of them in a representative capacity, were bound to be heard and no decision could have been taken behind the back of these candidates.28. We are, thus, of the view that it is only before this Court that the complete contours of the controversy have emerged and the stand of all the relevant parties have been sought to be examined.29. The stand put forth before us by the UGC/respondent No. 4 is unequivocal in its terms that M.Ed. degree is indeed a masters degree in Education in terms of the notification issued by it under the UGC Act in terms of Section 22. In that sense, the matter is put to rest in terms of recognition of M.Ed. as a post-graduate degree by the competent authority.30. The question of equivalence, as submitted by respondent No.4/UGC was to be left to the NCTE. It is in view thereof that NCTE was added as a party (respondent No. 5) and has, once again, put forth its position quite unequivocally. The NCTE has drawn a distinction between the two degrees to the extent that while M.A. (Education) is a degree in the discipline of Education, the M.Ed. degree is a practitioners degree. Reference has also been made to a Committee constituted in pursuance of the impugned judgment, which is an expert committee. In view of the recognition of the M.Ed. programme of one-year duration, in order to acquire an M.Ed. degree, one has to spend two years after the first degree because for an M.Ed. degree, a B.Ed. degree is mandatory. It is in these circumstances a conclusion was reached that, from the point of view of duration and curricular inputs, M.Ed. qualifies itself as a masters programme in Education and is even recognised by the UGC and NCTE as such. In a sense this puts to rest one of the controversies raised by respondent No. 3, i.e., initially M.Ed. was a one-year programme, and only subsequently converted into a two-years programme in 2015, as this very issue has been examined by an expert committee of the NCTE, and the NCTE concluded in favour of the appellants. There is also a categorical statement in the last paragraph of the counter affidavit of the NCTE to the effect that the M.Ed. is a masters degree recognised by apex bodies like the UGC and NCTE for appointment as Assistant Professor in Education and they are also eligible for the NET/SLET/JRF.31. We may also notice another important aspect, i.e., the employer ultimately being the best judge of who should be appointed. The choice was of respondent No. 2. who sought the assistance of an expert committee in view of the representation of some of the appellants. The eminence of the expert committee is apparent from its composition. That committee, after examination, opined in favour of the stand taken by the appellants, and respondent No. 2 as employer decided to concur with the same and accepted the committees opinion. It is really not for the appellants or the contesting respondent to contend how and in what manner a degree should be obtained, which would make them eligible for appointment by respondent No. 2.32. We hasten to add that it is not our view that an employer like respondent No. 2 can do as they please - they are guided and bound by the terms of the UGC Act and the regulations thereunder, but then here, there is no doubt about the M.Ed. degree being a post graduate degree, in view of not only what the UGC stated before us, but having promulgated the relevant Regulations as far back as 2010 as amended from time to time. The issue of equivalence has been rightly considered by the NCTE and while recognising some distinct aspects of two the degrees, it has clearly stated that for the job of Assistant Professors (Education), both are eligible.33. We may notice that it is not as if a person with an M.Ed. degree is eligible for all the posts which were advertised for Science, Arts and others. Their eligibility has been found only for the post of Assistant Professor (Education), which is directly relatable to the subject to be taught. We do not think the fact that both M.Ed. and M.A. (Education) degree-holders have to take a common test for the purposes of NET is conclusive, but it is one of the factors to be considered, and once the expert body being the NCTE, inter alia, has taken that aspect into consideration apart from other factors to opine equivalence for the purpose of appointment to the post of Assistant Professor in Education, it would not be appropriate to take a contra view.34. We say so in view of the fact that matters of education must be left to educationists, of course subject to being governed by the relevant statutes and regulations. It is not the function of this Court to sit as an expert body over the decision of the experts, especially when the experts are all eminent people as apparent from the names as set out. This aspect has received judicial imprimatur even earlier and it is not that we are saying something new. We may refer to the pronouncement in Zahoor Ahmad Rather & Ors. (supra) in this behalf which has dealt with the dual aspects: (a) it is for the employer to consider what functionality of qualification and content of course of studies would lead to the acquisition of an eligible qualification; and (b) such matters must be left to educationists.35. We have also gone through the judgment in the Dr. Prit Singh (supra) case. The impugned order of the High Court has almost been predicated entirely on this judgment, as if there was no issue alive to be dealt with, even though the distinction was recognised in a subsequent judgment of the Dr. Ram Sevak Singh (supra) case. It is trite to say that often, a proposition of law as laid down in a case is as good as the facts of the case. The Dr. Prit Singh (supra) case was concerned with the dual requirements in the relevant advertisement, i.e., a post graduate degree in any subject and a degree in Education. There is no such dual qualification laid here. Not only that, the recruitment was for the post of a Principal and that too the case was concerned with a person with qualifications of not much eminence in terms of the marks obtained. There was an endeavour to help out the candidate by even amending the norms and, thus, the Court rightly came to the conclusion that the same was not appropriate. We are dealing with different norms for the concerned advertisement, a requirement of having a degree in the relevant subject, in this case being Education, and for eligible persons to have the requisite marks. We, thus, fail to understand how the judgment in the Dr. Prit Singh (supra) case can be considered a binding precedent in the factual contours of the present case, more so in view of the observations made in the Dr. Ram Sevak Singh (supra) case, clearly setting out as to what was the actual basis of the opinion in the Dr. Prit Singh (supra) case.36. We may note that, sometimes, without looking into the real ratio decidendi, a judgment is followed as a precedent. This is what appears to have happened in the impugned order. There are even some other judgments of the High Courts, which in turn were then sought to be relied upon to canvas a proposition that there is a widespread acceptance of M.Ed. not being equivalent to M.A. (Education). That they are two different degrees is obvious; this is even recognised by the NCTE while emphasising the subtle distinction between the two degrees as one being a masters degree but not a professional degree, while the other being a professional degree. If the two degrees are identical, there is no question of equivalence. The issue of equivalence only arises when there are two different degrees and what is to be decided whether for certain purposes they can be treated as equivalent. This is exactly what has happened as a result of the respective expert committees set up by respondent Nos. 2 &5. The employer, i.e., respondent No. 2, had accepted the recommendation of the expert committee. The UGC has also taken a stand that insofar as the two degrees are concerned, both are post graduate degrees, and the equivalence authority being respondent No.5 has also opined on the basis of an expert committee, that the two can be treated as equivalent for the post of Assistant Professor in Education. Thus, it is neither for the contesting party, i.e., respondent No.3, nor for this Court to sit as a court of appeal over the decision of the experts. We may also note that respondent No.3 has in fact been selected in the 2014 selection process as per the final list released on 22.5.2018.We are not inclined to open the whole selection process of 2014, which already stands completed and had a different advertisement. We have, thus, confined our judgment to the selection process of 2016. | 1 | 8,442 | 1,855 | ### 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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contesting respondent to contend how and in what manner a degree should be obtained, which would make them eligible for appointment by respondent No. 2. 32. We hasten to add that it is not our view that an employer like respondent No. 2 can do as they please - they are guided and bound by the terms of the UGC Act and the regulations thereunder, but then here, there is no doubt about the M.Ed. degree being a post graduate degree, in view of not only what the UGC stated before us, but having promulgated the relevant Regulations as far back as 2010 as amended from time to time. The issue of equivalence has been rightly considered by the NCTE and while recognising some distinct aspects of two the degrees, it has clearly stated that for the job of Assistant Professors (Education), both are eligible. 33. We may notice that it is not as if a person with an M.Ed. degree is eligible for all the posts which were advertised for Science, Arts and others. Their eligibility has been found only for the post of Assistant Professor (Education), which is directly relatable to the subject to be taught. We do not think the fact that both M.Ed. and M.A. (Education) degree-holders have to take a common test for the purposes of NET is conclusive, but it is one of the factors to be considered, and once the expert body being the NCTE, inter alia, has taken that aspect into consideration apart from other factors to opine equivalence for the purpose of appointment to the post of Assistant Professor in Education, it would not be appropriate to take a contra view. 34. We say so in view of the fact that matters of education must be left to educationists, of course subject to being governed by the relevant statutes and regulations. It is not the function of this Court to sit as an expert body over the decision of the experts, especially when the experts are all eminent people as apparent from the names as set out. This aspect has received judicial imprimatur even earlier and it is not that we are saying something new. We may refer to the pronouncement in Zahoor Ahmad Rather & Ors. (supra) in this behalf which has dealt with the dual aspects: (a) it is for the employer to consider what functionality of qualification and content of course of studies would lead to the acquisition of an eligible qualification; and (b) such matters must be left to educationists. 35. We have also gone through the judgment in the Dr. Prit Singh (supra) case. The impugned order of the High Court has almost been predicated entirely on this judgment, as if there was no issue alive to be dealt with, even though the distinction was recognised in a subsequent judgment of the Dr. Ram Sevak Singh (supra) case. It is trite to say that often, a proposition of law as laid down in a case is as good as the facts of the case. The Dr. Prit Singh (supra) case was concerned with the dual requirements in the relevant advertisement, i.e., a post graduate degree in any subject and a degree in Education. There is no such dual qualification laid here. Not only that, the recruitment was for the post of a Principal and that too the case was concerned with a person with qualifications of not much eminence in terms of the marks obtained. There was an endeavour to help out the candidate by even amending the norms and, thus, the Court rightly came to the conclusion that the same was not appropriate. We are dealing with different norms for the concerned advertisement, a requirement of having a degree in the relevant subject, in this case being Education, and for eligible persons to have the requisite marks. We, thus, fail to understand how the judgment in the Dr. Prit Singh (supra) case can be considered a binding precedent in the factual contours of the present case, more so in view of the observations made in the Dr. Ram Sevak Singh (supra) case, clearly setting out as to what was the actual basis of the opinion in the Dr. Prit Singh (supra) case. 36. We may note that, sometimes, without looking into the real ratio decidendi, a judgment is followed as a precedent. This is what appears to have happened in the impugned order. There are even some other judgments of the High Courts, which in turn were then sought to be relied upon to canvas a proposition that there is a widespread acceptance of M.Ed. not being equivalent to M.A. (Education). That they are two different degrees is obvious; this is even recognised by the NCTE while emphasising the subtle distinction between the two degrees as one being a masters degree but not a professional degree, while the other being a professional degree. If the two degrees are identical, there is no question of equivalence. The issue of equivalence only arises when there are two different degrees and what is to be decided whether for certain purposes they can be treated as equivalent. This is exactly what has happened as a result of the respective expert committees set up by respondent Nos. 2 & 5. The employer, i.e., respondent No. 2, had accepted the recommendation of the expert committee. The UGC has also taken a stand that insofar as the two degrees are concerned, both are post graduate degrees, and the equivalence authority being respondent No.5 has also opined on the basis of an expert committee, that the two can be treated as equivalent for the post of Assistant Professor in Education. Thus, it is neither for the contesting party, i.e., respondent No.3, nor for this Court to sit as a court of appeal over the decision of the experts. We may also note that respondent No.3 has in fact been selected in the 2014 selection process as per the final list released on 22.5.2018.
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hasten to add that it is not our view that an employer like respondent No. 2 can do as they please - they are guided and bound by the terms of the UGC Act and the regulations thereunder, but then here, there is no doubt about the M.Ed. degree being a post graduate degree, in view of not only what the UGC stated before us, but having promulgated the relevant Regulations as far back as 2010 as amended from time to time. The issue of equivalence has been rightly considered by the NCTE and while recognising some distinct aspects of two the degrees, it has clearly stated that for the job of Assistant Professors (Education), both are eligible.33. We may notice that it is not as if a person with an M.Ed. degree is eligible for all the posts which were advertised for Science, Arts and others. Their eligibility has been found only for the post of Assistant Professor (Education), which is directly relatable to the subject to be taught. We do not think the fact that both M.Ed. and M.A. (Education) degree-holders have to take a common test for the purposes of NET is conclusive, but it is one of the factors to be considered, and once the expert body being the NCTE, inter alia, has taken that aspect into consideration apart from other factors to opine equivalence for the purpose of appointment to the post of Assistant Professor in Education, it would not be appropriate to take a contra view.34. We say so in view of the fact that matters of education must be left to educationists, of course subject to being governed by the relevant statutes and regulations. It is not the function of this Court to sit as an expert body over the decision of the experts, especially when the experts are all eminent people as apparent from the names as set out. This aspect has received judicial imprimatur even earlier and it is not that we are saying something new. We may refer to the pronouncement in Zahoor Ahmad Rather & Ors. (supra) in this behalf which has dealt with the dual aspects: (a) it is for the employer to consider what functionality of qualification and content of course of studies would lead to the acquisition of an eligible qualification; and (b) such matters must be left to educationists.35. We have also gone through the judgment in the Dr. Prit Singh (supra) case. The impugned order of the High Court has almost been predicated entirely on this judgment, as if there was no issue alive to be dealt with, even though the distinction was recognised in a subsequent judgment of the Dr. Ram Sevak Singh (supra) case. It is trite to say that often, a proposition of law as laid down in a case is as good as the facts of the case. The Dr. Prit Singh (supra) case was concerned with the dual requirements in the relevant advertisement, i.e., a post graduate degree in any subject and a degree in Education. There is no such dual qualification laid here. Not only that, the recruitment was for the post of a Principal and that too the case was concerned with a person with qualifications of not much eminence in terms of the marks obtained. There was an endeavour to help out the candidate by even amending the norms and, thus, the Court rightly came to the conclusion that the same was not appropriate. We are dealing with different norms for the concerned advertisement, a requirement of having a degree in the relevant subject, in this case being Education, and for eligible persons to have the requisite marks. We, thus, fail to understand how the judgment in the Dr. Prit Singh (supra) case can be considered a binding precedent in the factual contours of the present case, more so in view of the observations made in the Dr. Ram Sevak Singh (supra) case, clearly setting out as to what was the actual basis of the opinion in the Dr. Prit Singh (supra) case.36. We may note that, sometimes, without looking into the real ratio decidendi, a judgment is followed as a precedent. This is what appears to have happened in the impugned order. There are even some other judgments of the High Courts, which in turn were then sought to be relied upon to canvas a proposition that there is a widespread acceptance of M.Ed. not being equivalent to M.A. (Education). That they are two different degrees is obvious; this is even recognised by the NCTE while emphasising the subtle distinction between the two degrees as one being a masters degree but not a professional degree, while the other being a professional degree. If the two degrees are identical, there is no question of equivalence. The issue of equivalence only arises when there are two different degrees and what is to be decided whether for certain purposes they can be treated as equivalent. This is exactly what has happened as a result of the respective expert committees set up by respondent Nos. 2 &5. The employer, i.e., respondent No. 2, had accepted the recommendation of the expert committee. The UGC has also taken a stand that insofar as the two degrees are concerned, both are post graduate degrees, and the equivalence authority being respondent No.5 has also opined on the basis of an expert committee, that the two can be treated as equivalent for the post of Assistant Professor in Education. Thus, it is neither for the contesting party, i.e., respondent No.3, nor for this Court to sit as a court of appeal over the decision of the experts. We may also note that respondent No.3 has in fact been selected in the 2014 selection process as per the final list released on 22.5.2018.We are not inclined to open the whole selection process of 2014, which already stands completed and had a different advertisement. We have, thus, confined our judgment to the selection process of 2016.
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M/s. Surendra Trading Company Vs. M/s. Juggilal Kamlapat Jute Mills Company Limited & Others | If it is complete, the same shall be posted for preliminary hearing before the adjudicating authority. If there are defects, the applicant would be notified about those defects so that these are removed. For this purpose, seven days time is given. Once the defects are removed then the application would be posted before the adjudicating authority.(ii) When the application is listed before the adjudicating authority, it has to take a decision to either admit or reject the application. For this purpose, fourteen days time is granted to the adjudicating authority. If the application is rejected, the matter is given a quietus at that level itself. However, if it is admitted, we enter the third stage.(iii) After admission of the application, insolvency resolution process commences. Relevant provisions thereof have been mentioned above. This resolution process is to be completed within 180 days, which is extendable, in certain cases, up to 90 days. Insofar as the first stage is concerned, it has no bearing on the insolvency resolution process at all, inasmuch as, unless the application is complete in every respect, the adjudicating authority is not supposed to deal with the same. It is at the second stage that the adjudicating authority is to apply its mind and decide as to whether the application should be admitted or rejected. Here adjudication process starts. However, in spite thereof, when this period of fourteen days given by the statute to the adjudicating authority to take a decision to admit or reject the application is directory, there is no reason to make it mandatory in respect of the first stage, which is pre-adjudication stage. 23. Further, we are of the view that the judgments cited by the NCLAT and the principle contained therein applied while deciding that period of fourteen days within which the adjudicating authority has to pass the order is not mandatory but directory in nature would equally apply while interpreting proviso to sub-section (5) of Section 7, Section 9 or sub-section (4) of Section 10 as well. After all, the applicant does not gain anything by not removing the objections inasmuch as till the objections are removed, such an application would not be entertained. Therefore, it is in the interest of the applicant to remove the defects as early as possible.24. Thus, we hold that the aforesaid provision of removing the defects within seven days is directory and not mandatory in nature. However, we would like to enter a caveat.25. We are also conscious of the fact that sometimes applicants or their counsel may show laxity by not removing the objections within the time given and make take it for granted that they would be given unlimited time for such a purpose. There may also be cases where such applications are frivolous in nature which would be filed for some oblique motives and the applicants may want those applications to remain pending and, therefore, would not remove the defects. In order to take care of such cases, a balanced approach is needed. Thus, while interpreting the provisions to be directory in nature, at the same time, it can be laid down that if the objections are not removed within seven days, the applicant while refilling the application after removing the objections, file an application in writing showing sufficient case as to why the applicant could not remove the objections within seven days. When such an application comes up for admission/order before the adjudicating authority, it would be for the adjudicating authority to decide as to whether sufficient cause is shown in not removing the defects beyond the period of seven days. Once the adjudicating authority is satisfied that such a case is shown, only then it would entertain the application on merits, otherwise it will have right to dismiss the application. The aforesaid process indicated by us can find support from the judgment of this Court in Kailash v. Nanhku & Ors., (2005) 4 SCC 480 , wherein the Court held as under: "46. (iv) The purpose of providing the time schedule for filing the written statement under Order 8 Rule 1 CPC is to expedite and not to scuttle the hearing. The provision spells out a disability on the defendant. It does not impose an embargo on the power of the court to extend the time. Though the language of the proviso to Rule 1 Order 8 CPC is couched in negative form, it does not specify any penal consequences flowing from the non-compliance. The provision being in the domain of the procedural law, it has to be held directory and not mandatory. The power of the court to extend time for filing the written statement beyond the time schedule provided by Order 8 Rule 1 CPC is not completely taken away.(v) Though Order 8 Rule 1 CPC is a part of procedural law and hence directory, keeping in view the need for expeditious trial of civil causes which persuaded Parliament to enact the provision in its present form, it is held that ordinarily the time schedule contained in the provision is to be followed as a rule and departure therefrom would be by way of exception. A prayer for extension of time made by the defendant shall not be granted just as a matter of routine and merely for the asking, more so when the period of 90 days has expired. Extension of time may be allowed by way of an exception, for reasons to be assigned by the defendant and also be placed on record in writing, howsoever briefly, by the court on its being satisfied. Extension of time may be allowed if it is needed to be given for circumstances which are exceptional, occasioned by reasons beyond the control of the defendant and grave injustice would be occasioned if the time was not extended. Costs may be imposed and affidavit or documents in support of the grounds pleaded by the defendant for extension of time may be demanded, depending on the facts and circumstances of a given case." | 1[ds]4. A reading of the aforesaid provision would reflect that time limits for taking certain actions by either the operational creditor or adjudicating authority are mentioned therein. As per(1) of Section 9, application can be filed after the expiry of period of ten days from the delivery of notice or invoice demanding payment, which is in tune with the provisions contained in Section 8 that gives ten days time to the corporate debtor to take any of the steps mentioned in(2) of Section 8. As per(2) of Section 9, the operational creditor is supposed to file an application in the prescribed form and manner which needs to be accompanied by requisite/prescribed fee as well.(3) puts an obligation on the part of the operational creditor to furnish the information stipulated therein.As mentioned above, insofar as prescription of fourteen days within which the adjudicating authority has to pass an order under(5) of Section 9 for admitting or rejecting the application is concerned, the NCLAT has held that the same cannot be treated as mandatory. Though this view is not under challenge (and rightly so), discussion in the impugned order on this aspect has definite bearing on the other question, with which this Court is concerned. Therefore, we deem it apposite to discuss the rationale which is provided by the NCLAT itself in arriving at the aforesaid conclusion insofar as first aspect isis a slight difference in these provisions insofar as criteria for admission or rejection of the applications filed under respective provisions is concerned. However, it is pertinent to note that after the admission of the insolvency resolution process, the procedure to deal with these applications, whether filed by the financial creditor or operational creditor or corporate applicant, is the same. It would be relevant to glance through this procedure.The aforesaid statutory scheme laying down time limits sends a clear message, as rightly held by the NCLAT also, that time is the essence of the Code. Notwithstanding this salutary theme and spirit behind the Code, the NCLAT has concluded that as far as fourteen days time provided to the adjudicating authority for admitting or rejecting the application for initiation of insolvency resolution process is concerned, this period is notthe Registry is required to find out whether the application is in proper form and accompanied with such fee as may be prescribed, it will take some time in examining the application and, therefore, fourteen days period granted to the adjudicating authority under the aforesaid provisions would be from the date when such an application is presented before the adjudicating authority, i.e. the date on which it is listed for admission/order.We are not able to decipher any valid reason given while coming to the conclusion that the period mentioned in proviso is mandatory. The order of the NCLAT, thereafter, proceeds to take note of the provisions of Section 12 of the Code and points out the time limit for completion of insolvency resolution process is 180 days, which period can be extended by another 90 days. However, that can hardly provide any justification to construe the provisions of proviso to(5) of Section 9 in the manner in which it is done. It is to be borne in mind that limit of 180 days mentioned in Section 12 also starts from the date of admission of thefact, till the objections are removed it is not to be treated as application validly filed inasmuch as only after the application is complete in every respect it is required to be entertained. In this scenario, making the period of seven days contained in the proviso as mandatory does not commend to us. No purpose is going to be served by treating this period as mandatory. In a given case there may be weighty, valid and justifiable reasons for not able to remove the defects within seven days. Notwithstanding the same, the effect would be to reject the application.Further, we are of the view that the judgments cited by the NCLAT and the principle contained therein applied while deciding that period of fourteen days within which the adjudicating authority has to pass the order is not mandatory but directory in nature would equally apply while interpreting proviso to(5) of Section 7, Section 9 or(4) of Section 10 as well. After all, the applicant does not gain anything by not removing the objections inasmuch as till the objections are removed, such an application would not be entertained. Therefore, it is in the interest of the applicant to remove the defects as early as possible.24. Thus, we hold that the aforesaid provision of removing the defects within seven days is directory and not mandatory in nature. However, we would like to enter a caveat.25. We are also conscious of the fact that sometimes applicants or their counsel may show laxity by not removing the objections within the time given and make take it for granted that they would be given unlimited time for such a purpose. There may also be cases where such applications are frivolous in nature which would be filed for some oblique motives and the applicants may want those applications to remain pending and, therefore, would not remove the defects. In order to take care of such cases, a balanced approach is needed. Thus, while interpreting the provisions to be directory in nature, at the same time, it can be laid down that if the objections are not removed within seven days, the applicant while refilling the application after removing the objections, file an application in writing showing sufficient case as to why the applicant could not remove the objections within seven days. When such an application comes up for admission/order before the adjudicating authority, it would be for the adjudicating authority to decide as to whether sufficient cause is shown in not removing the defects beyond the period of seven days. Once the adjudicating authority is satisfied that such a case is shown, only then it would entertain the application on merits, otherwise it will have right to dismiss the application. | 1 | 8,019 | 1,109 | ### Instruction:
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If it is complete, the same shall be posted for preliminary hearing before the adjudicating authority. If there are defects, the applicant would be notified about those defects so that these are removed. For this purpose, seven days time is given. Once the defects are removed then the application would be posted before the adjudicating authority.(ii) When the application is listed before the adjudicating authority, it has to take a decision to either admit or reject the application. For this purpose, fourteen days time is granted to the adjudicating authority. If the application is rejected, the matter is given a quietus at that level itself. However, if it is admitted, we enter the third stage.(iii) After admission of the application, insolvency resolution process commences. Relevant provisions thereof have been mentioned above. This resolution process is to be completed within 180 days, which is extendable, in certain cases, up to 90 days. Insofar as the first stage is concerned, it has no bearing on the insolvency resolution process at all, inasmuch as, unless the application is complete in every respect, the adjudicating authority is not supposed to deal with the same. It is at the second stage that the adjudicating authority is to apply its mind and decide as to whether the application should be admitted or rejected. Here adjudication process starts. However, in spite thereof, when this period of fourteen days given by the statute to the adjudicating authority to take a decision to admit or reject the application is directory, there is no reason to make it mandatory in respect of the first stage, which is pre-adjudication stage. 23. Further, we are of the view that the judgments cited by the NCLAT and the principle contained therein applied while deciding that period of fourteen days within which the adjudicating authority has to pass the order is not mandatory but directory in nature would equally apply while interpreting proviso to sub-section (5) of Section 7, Section 9 or sub-section (4) of Section 10 as well. After all, the applicant does not gain anything by not removing the objections inasmuch as till the objections are removed, such an application would not be entertained. Therefore, it is in the interest of the applicant to remove the defects as early as possible.24. Thus, we hold that the aforesaid provision of removing the defects within seven days is directory and not mandatory in nature. However, we would like to enter a caveat.25. We are also conscious of the fact that sometimes applicants or their counsel may show laxity by not removing the objections within the time given and make take it for granted that they would be given unlimited time for such a purpose. There may also be cases where such applications are frivolous in nature which would be filed for some oblique motives and the applicants may want those applications to remain pending and, therefore, would not remove the defects. In order to take care of such cases, a balanced approach is needed. Thus, while interpreting the provisions to be directory in nature, at the same time, it can be laid down that if the objections are not removed within seven days, the applicant while refilling the application after removing the objections, file an application in writing showing sufficient case as to why the applicant could not remove the objections within seven days. When such an application comes up for admission/order before the adjudicating authority, it would be for the adjudicating authority to decide as to whether sufficient cause is shown in not removing the defects beyond the period of seven days. Once the adjudicating authority is satisfied that such a case is shown, only then it would entertain the application on merits, otherwise it will have right to dismiss the application. The aforesaid process indicated by us can find support from the judgment of this Court in Kailash v. Nanhku & Ors., (2005) 4 SCC 480 , wherein the Court held as under: "46. (iv) The purpose of providing the time schedule for filing the written statement under Order 8 Rule 1 CPC is to expedite and not to scuttle the hearing. The provision spells out a disability on the defendant. It does not impose an embargo on the power of the court to extend the time. Though the language of the proviso to Rule 1 Order 8 CPC is couched in negative form, it does not specify any penal consequences flowing from the non-compliance. The provision being in the domain of the procedural law, it has to be held directory and not mandatory. The power of the court to extend time for filing the written statement beyond the time schedule provided by Order 8 Rule 1 CPC is not completely taken away.(v) Though Order 8 Rule 1 CPC is a part of procedural law and hence directory, keeping in view the need for expeditious trial of civil causes which persuaded Parliament to enact the provision in its present form, it is held that ordinarily the time schedule contained in the provision is to be followed as a rule and departure therefrom would be by way of exception. A prayer for extension of time made by the defendant shall not be granted just as a matter of routine and merely for the asking, more so when the period of 90 days has expired. Extension of time may be allowed by way of an exception, for reasons to be assigned by the defendant and also be placed on record in writing, howsoever briefly, by the court on its being satisfied. Extension of time may be allowed if it is needed to be given for circumstances which are exceptional, occasioned by reasons beyond the control of the defendant and grave injustice would be occasioned if the time was not extended. Costs may be imposed and affidavit or documents in support of the grounds pleaded by the defendant for extension of time may be demanded, depending on the facts and circumstances of a given case."
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the aforesaid provision would reflect that time limits for taking certain actions by either the operational creditor or adjudicating authority are mentioned therein. As per(1) of Section 9, application can be filed after the expiry of period of ten days from the delivery of notice or invoice demanding payment, which is in tune with the provisions contained in Section 8 that gives ten days time to the corporate debtor to take any of the steps mentioned in(2) of Section 8. As per(2) of Section 9, the operational creditor is supposed to file an application in the prescribed form and manner which needs to be accompanied by requisite/prescribed fee as well.(3) puts an obligation on the part of the operational creditor to furnish the information stipulated therein.As mentioned above, insofar as prescription of fourteen days within which the adjudicating authority has to pass an order under(5) of Section 9 for admitting or rejecting the application is concerned, the NCLAT has held that the same cannot be treated as mandatory. Though this view is not under challenge (and rightly so), discussion in the impugned order on this aspect has definite bearing on the other question, with which this Court is concerned. Therefore, we deem it apposite to discuss the rationale which is provided by the NCLAT itself in arriving at the aforesaid conclusion insofar as first aspect isis a slight difference in these provisions insofar as criteria for admission or rejection of the applications filed under respective provisions is concerned. However, it is pertinent to note that after the admission of the insolvency resolution process, the procedure to deal with these applications, whether filed by the financial creditor or operational creditor or corporate applicant, is the same. It would be relevant to glance through this procedure.The aforesaid statutory scheme laying down time limits sends a clear message, as rightly held by the NCLAT also, that time is the essence of the Code. Notwithstanding this salutary theme and spirit behind the Code, the NCLAT has concluded that as far as fourteen days time provided to the adjudicating authority for admitting or rejecting the application for initiation of insolvency resolution process is concerned, this period is notthe Registry is required to find out whether the application is in proper form and accompanied with such fee as may be prescribed, it will take some time in examining the application and, therefore, fourteen days period granted to the adjudicating authority under the aforesaid provisions would be from the date when such an application is presented before the adjudicating authority, i.e. the date on which it is listed for admission/order.We are not able to decipher any valid reason given while coming to the conclusion that the period mentioned in proviso is mandatory. The order of the NCLAT, thereafter, proceeds to take note of the provisions of Section 12 of the Code and points out the time limit for completion of insolvency resolution process is 180 days, which period can be extended by another 90 days. However, that can hardly provide any justification to construe the provisions of proviso to(5) of Section 9 in the manner in which it is done. It is to be borne in mind that limit of 180 days mentioned in Section 12 also starts from the date of admission of thefact, till the objections are removed it is not to be treated as application validly filed inasmuch as only after the application is complete in every respect it is required to be entertained. In this scenario, making the period of seven days contained in the proviso as mandatory does not commend to us. No purpose is going to be served by treating this period as mandatory. In a given case there may be weighty, valid and justifiable reasons for not able to remove the defects within seven days. Notwithstanding the same, the effect would be to reject the application.Further, we are of the view that the judgments cited by the NCLAT and the principle contained therein applied while deciding that period of fourteen days within which the adjudicating authority has to pass the order is not mandatory but directory in nature would equally apply while interpreting proviso to(5) of Section 7, Section 9 or(4) of Section 10 as well. After all, the applicant does not gain anything by not removing the objections inasmuch as till the objections are removed, such an application would not be entertained. Therefore, it is in the interest of the applicant to remove the defects as early as possible.24. Thus, we hold that the aforesaid provision of removing the defects within seven days is directory and not mandatory in nature. However, we would like to enter a caveat.25. We are also conscious of the fact that sometimes applicants or their counsel may show laxity by not removing the objections within the time given and make take it for granted that they would be given unlimited time for such a purpose. There may also be cases where such applications are frivolous in nature which would be filed for some oblique motives and the applicants may want those applications to remain pending and, therefore, would not remove the defects. In order to take care of such cases, a balanced approach is needed. Thus, while interpreting the provisions to be directory in nature, at the same time, it can be laid down that if the objections are not removed within seven days, the applicant while refilling the application after removing the objections, file an application in writing showing sufficient case as to why the applicant could not remove the objections within seven days. When such an application comes up for admission/order before the adjudicating authority, it would be for the adjudicating authority to decide as to whether sufficient cause is shown in not removing the defects beyond the period of seven days. Once the adjudicating authority is satisfied that such a case is shown, only then it would entertain the application on merits, otherwise it will have right to dismiss the application.
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Kollam Chandra Sekhar Vs. Kollam Padma Latha | after careful perusal of the contents of Exh.B-10. In our considered view, the contents of the report as stated by the team of doctors do not support the case of the appellant that the respondent is suffering from a serious case of schizophrenia, in order to grant the decree of divorce under Section 13(1) (iii) of the Act. The report states that the respondent, although suffering from illness of schizophrenic type, does not show symptoms of psychotic illness at present and has responded well to the treatment from the acute phases and her symptoms are fairly under control with the medication which had been administered to her. It was further stated that if there is good compliance with treatment coupled with good social and family support, a schizophrenic patient can continue their marital relationship. In view of the aforesaid findings and reasons recorded, we have to hold that the patient is not suffering from the symptoms of schizophrenia as detailed above. 20. We are of the view that the High Court in exercise of its appellate jurisdiction has rightly come to a different conclusion that the respondent is not suffering from the ailment of schizophrenia or incurable unsoundness of mind. Further, the High Court has rightly rejected the finding of the trial court which is based on exh.B-10 and other documentary and oral evidence by applying the ratio laid down by this Court in the case of Ram Narain Gupta vs. Rameshwari Gupta referred to supra. A pertinent point to be taken into consideration is that the respondent had not only completed MBBS but also did a post graduate diploma in Medicine and was continuously working as a Government Medical Officer and had she been suffering from any serious kind of mental disorder, particularly, acute type of schizophrenia, it would have been impossible for her to work in the said post. The appellant-husband cannot simply abandon his wife because she is suffering from sickness. Therefore, the High Court allowed both the CMAs and dismissed O.P. No. 203/2000 filed by the appellant for divorce and allowed O.P. No.1/99 filed by the respondent for restitution of conjugal rights wherein the High Court granted decree of restitution of conjugal rights in favour of the respondent. 21. It is thus clear that the respondent, even if she did suffer from schizophrenia, is in a much better health condition at present. Therefore, this Court cannot grant the dissolution of marriage on the basis of one spouses illness. The appellant has not proved the fact of mental disorder of the respondent with reference to the allegation made against her that she has been suffering from schizophrenia by producing positive and substantive evidence on record and on the other hand, it has been proved that the respondent is in much better health condition and does not show signs of schizophrenia as per the most recent medical report from NIMHANS, as deposed by PW-4 in his evidence before the trial court. 22. For the aforesaid reasons, we are of the firm view that the findings and reasons recorded in setting aside the judgment and decree of the trial court is neither erroneous nor does it suffer from error in law which warrants our interference and calls for setting aside the impugned judgment and decree of the first appellate court. Therefore, this Court cannot interfere with the impugned judgment of the High Court as the same is well-reasoned and based on cogent reasoning of facts and evidence on record and accordingly, we answer point no.4 in favour of the respondent. 23. Under Hindu law, marriage is an institution, a meeting of two hearts and minds and is something that cannot be taken lightly. In the Vedic period, the sacredness of the marriage tie was repeatedly declared; the family ideal was decidedly high and it was often realized [Vedic Index, I, 484,485; CHI,I,89 as in Ranganath Misra J. Revised., Maynes Treatise on Hindu Law and Usage, Fifteenth Edition, 2003, Bharat Law House at p.97]. In Vedic Index I it is stated that The high value placed on the marriage is shown by the long and striking hymn. In Rig Veda, X, 85; Be, thou, mother of heroic children, devoted to the Gods, Be, thou, Queen in thy father-in-laws household. May all the Gods unite the hearts of us two into one as stated in Justice Ranganath Misras Maynes Treatise on Hindu Law and Usage [Fifteenth Edition, 2003, Bharat Law House at p.97]. Marriage is highly revered in India and we are a Nation that prides itself on the strong foundation of our marriages, come hell or high water, rain or sunshine. Life is made up of good times and bad, and the bad times can bring with it terrible illnesses and extreme hardships. The partners in a marriage must weather these storms and embrace the sunshine with equanimity. Any person may have bad health, this is not their fault and most times, it is not within their control, as in the present case, the respondent was unwell and was taking treatment for the same. The illness had its fair share of problems. Can this be a reason for the appellant to abandon her and seek dissolution of marriage after the child is born out of their union? Since the child is now a grown up girl, her welfare must be the prime consideration for both the parties. In view of the foregoing reasons, we are of the opinion that the two parties in this case must reconcile and if the appellant so feels that the respondent is still suffering, then she must be given the right treatment. The respondent must stick to her treatment plan and make the best attempts to get better. It is not in the best interest of either the respondent or her daughter who is said to be of adolescent age for grant of a decree of dissolution of marriage as prayed for by the appellant. Hence, the appeal is liable to be dismissed. 24. Accordingly, | 0[ds]On careful scrutiny of the pleadings and evidence on record and the decision of this Court referred to above, the provision of Section 13(1) (iii) of the Act is interpreted and the meanings of unsound mind and mental disorder as occurring in the above provisions of the Act are examined and referred to in the impugned judgment. The High Court, while examining the correctness of the findings recorded in the common judgment of the trial court, has placed reliance on Ram Narain Gupta vs. Rameshwari Gupta [(1988) 5 SCC 247], wherein this Court has interpreted the provision of Section 13(1)(iii) of the Act and laid down the law regarding mental disorder or unsound mind as a ground available to a party to get dissolution of the marriage. The relevant portions with regard to unsoundness of mind and mental disorder from the case referred to supra are extracted hereunder:20.The context in which the ideas of unsoundness of mind and mental disorder occur in the Section as grounds for dissolution of a marriage, require the assessment of the degree of the mental disorder. Its degree must be such that the spouse seeking relief cannot reasonably be expected to live with the other. All mental abnormalities are not recognised as grounds for grant of decree. If the mere existence of any degree of mental abnormality could justify dissolution of a marriage few marriages would, indeed, survive in law21. The answer to the apparently simple — and perhaps misleading — question as to who is normal? runs inevitably into philosophical thickets of the concept of mental normalcy and as involved therein, of the mind itself. These concepts of mind, mental phenomena etc., are more known than understood and the theories of mind and mentation do not indicate any internal consistency, let alone validity, of their basic ideas. Theories of mind with cognate ideas of perception and consciousness encompass a wide range of thoughts, more ontolopical than enistemological. Theories of mental phenomena are diverse and include the dualist concept — shared by Descartes and Sigmund Freud — of the separateness of the existence of the physical or the material world as distinguished from the non-material mental world with its existence only spatially and not temporally. There is, again, the theory which stresses the neurological basis of the mental phenomenon by asserting the functional correlation of the neuronal arrangements of the brain with mental phenomena. The behaviourist tradition, on the other hand, interprets all reference to mind as constructs out of behaviour. Functionalism, however, seems to assert that mind is the logical or functional state of physical systems. But all theories seem to recognise, in varying degrees, that the psychometric control over the mind operates at a level not yet fully taught to science. When a person is oppressed by intense and seemingly insoluble moral dilemmas, or when grief of loss of dear ones etch away all the bright colours of life, or where a broken marriage brings with it the loss of emotional security, what standards of normalcy of behaviour could be formulated and applied? The arcane infallibility of science has not fully pervaded the study of the non-material dimensions of beingWe are of the opinion that the High Court has rightly examined the entire evidence on record and correctly found fault with the findings of fact recorded by the trial court with regard to the ailment attributed to the respondent for seeking dissolution of marriage under the ground of unsound mind which is a non-existent fact. In the case of Vinita Saxena v. Pankaj Pandit [(2006)3 SCC 778] , this Court has examined in detail the issue of schizophrenia wherein the facts are different and the facts and evidence on record are not similar to the case on hand. Therefore, the observations made in the judgment for grant of decree for dissolution of marriage under Section 13 (1) (ia) and Section 13(1) (iii) of the Act cannot be applied to the fact situation of the case on handThe High Court has thus rightly set aside the decree of dissolution of marriage granted in favour of the appellant and dismissed his petition and granted a decree of restitution of conjugal rights in favour of the respondent by allowing her petition. The High Court has recorded the finding of fact on re-appreciation of material evidence on record and has rightly held that the trial court has erroneously come to the conclusion that the respondent was suffering from schizophrenia by relying on the evidence of PW-1, who is the appellant herein and as per the opinion given by the Committee of Doctors in Ex.B-10. In the deposition by witness RW-2, Dr. K.Krishna Murthy, he has stated in his examination-in-chief that Schizophrenia has become eminently treatable with the advent of many new psychiatric drugs. He further stated that many patients with schizophrenia are able to lead a near normal life with medication. The trial court has erroneously relied on certain cases referred to and applied the principle laid down in those cases to the facts of this case even though they are not applicable to the case on hand either on facts or in law as the appellant has not proved the allegations made in the petition against the respondent by adducing positive and substantive evidence on record to substantiate the same and that the alleged ailment of the respondent would fall within the provision of Section 13(1)(iii) of the Act. Therefore, he has not made out a case for grant of decree for dissolution of marriage. We have carefully examined Ex. Nos. X-6 to X-11, which are the prescriptions of medicine prescribed to her by Dr. Mallikarjuna Rao, Dr. Pramod Kumar and Dr.M.Kumari Devi. The above prescriptions mention the symptoms of the ailment of the respondent, which were in the nature of delusions, suspicious apprehensions and fears, altered behaviours, suicidal tendency and past history of depression. Reliance is placed by PW 1 on the above documentary evidence to prove that the respondent was suffering from the mental disorder of schizophrenia and therefore it squarely falls within the provision of Section 13(1)(iii) of the Act for grant of decree of dissolution of marriage in his favour. The High Court has rightly held that the trial court has erroneously accepted the same and recorded its finding of fact on the contentious issues to pass decree of divorce in favour of the appellant, which is contrary to the decision of this Court in the case of Ram Narain Gupta vs. Rameshwari Gupta supra. The same decision has been relied upon by the respondent before the High Court, wherein the said decision was correctly accepted by it to set aside the erroneous finding of fact recorded by the trial court on the contentious issueWe are of the view that the High Court in exercise of its appellate jurisdiction has rightly come to a different conclusion that the respondent is not suffering from the ailment of schizophrenia or incurable unsoundness of mind. Further, the High Court has rightly rejected the finding of the trial court which is based on exh.B-10 and other documentary and oral evidence by applying the ratio laid down by this Court in the case of Ram Narain Gupta vs. Rameshwari Gupta referred to supra. A pertinent point to be taken into consideration is that the respondent had not only completed MBBS but also did a post graduate diploma in Medicine and was continuously working as a Government Medical Officer and had she been suffering from any serious kind of mental disorder, particularly, acute type of schizophrenia, it would have been impossible for her to work in the said post. The appellant-husband cannot simply abandon his wife because she is suffering from sickness. Therefore, the High Court allowed both the CMAs and dismissed O.P. No. 203/2000 filed by the appellant for divorce and allowed O.P. No.1/99 filed by the respondent for restitution of conjugal rights wherein the High Court granted decree of restitution of conjugal rights in favour of the respondent21. It is thus clear that the respondent, even if she did suffer from schizophrenia, is in a much better health condition at present. Therefore, this Court cannot grant the dissolution of marriage on the basis of one spouses illness. The appellant has not proved the fact of mental disorder of the respondent with reference to the allegation made against her that she has been suffering from schizophrenia by producing positive and substantive evidence on record and on the other hand, it has been proved that the respondent is in much better health condition and does not show signs of schizophrenia as per the most recent medical report from NIMHANS, as deposed by PW-4 in his evidence before the trial courtwe are of the firm view that the findings and reasons recorded in setting aside the judgment and decree of the trial court is neither erroneous nor does it suffer from error in law which warrants our interference and calls for setting aside the impugned judgment and decree of the first appellate court. Therefore, this Court cannot interfere with the impugned judgment of the High Court as the same is well-reasoned and based on cogent reasoning of facts and evidence on record and accordingly, we answer point no.4 in favour of the respondent | 0 | 6,971 | 1,684 | ### Instruction:
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after careful perusal of the contents of Exh.B-10. In our considered view, the contents of the report as stated by the team of doctors do not support the case of the appellant that the respondent is suffering from a serious case of schizophrenia, in order to grant the decree of divorce under Section 13(1) (iii) of the Act. The report states that the respondent, although suffering from illness of schizophrenic type, does not show symptoms of psychotic illness at present and has responded well to the treatment from the acute phases and her symptoms are fairly under control with the medication which had been administered to her. It was further stated that if there is good compliance with treatment coupled with good social and family support, a schizophrenic patient can continue their marital relationship. In view of the aforesaid findings and reasons recorded, we have to hold that the patient is not suffering from the symptoms of schizophrenia as detailed above. 20. We are of the view that the High Court in exercise of its appellate jurisdiction has rightly come to a different conclusion that the respondent is not suffering from the ailment of schizophrenia or incurable unsoundness of mind. Further, the High Court has rightly rejected the finding of the trial court which is based on exh.B-10 and other documentary and oral evidence by applying the ratio laid down by this Court in the case of Ram Narain Gupta vs. Rameshwari Gupta referred to supra. A pertinent point to be taken into consideration is that the respondent had not only completed MBBS but also did a post graduate diploma in Medicine and was continuously working as a Government Medical Officer and had she been suffering from any serious kind of mental disorder, particularly, acute type of schizophrenia, it would have been impossible for her to work in the said post. The appellant-husband cannot simply abandon his wife because she is suffering from sickness. Therefore, the High Court allowed both the CMAs and dismissed O.P. No. 203/2000 filed by the appellant for divorce and allowed O.P. No.1/99 filed by the respondent for restitution of conjugal rights wherein the High Court granted decree of restitution of conjugal rights in favour of the respondent. 21. It is thus clear that the respondent, even if she did suffer from schizophrenia, is in a much better health condition at present. Therefore, this Court cannot grant the dissolution of marriage on the basis of one spouses illness. The appellant has not proved the fact of mental disorder of the respondent with reference to the allegation made against her that she has been suffering from schizophrenia by producing positive and substantive evidence on record and on the other hand, it has been proved that the respondent is in much better health condition and does not show signs of schizophrenia as per the most recent medical report from NIMHANS, as deposed by PW-4 in his evidence before the trial court. 22. For the aforesaid reasons, we are of the firm view that the findings and reasons recorded in setting aside the judgment and decree of the trial court is neither erroneous nor does it suffer from error in law which warrants our interference and calls for setting aside the impugned judgment and decree of the first appellate court. Therefore, this Court cannot interfere with the impugned judgment of the High Court as the same is well-reasoned and based on cogent reasoning of facts and evidence on record and accordingly, we answer point no.4 in favour of the respondent. 23. Under Hindu law, marriage is an institution, a meeting of two hearts and minds and is something that cannot be taken lightly. In the Vedic period, the sacredness of the marriage tie was repeatedly declared; the family ideal was decidedly high and it was often realized [Vedic Index, I, 484,485; CHI,I,89 as in Ranganath Misra J. Revised., Maynes Treatise on Hindu Law and Usage, Fifteenth Edition, 2003, Bharat Law House at p.97]. In Vedic Index I it is stated that The high value placed on the marriage is shown by the long and striking hymn. In Rig Veda, X, 85; Be, thou, mother of heroic children, devoted to the Gods, Be, thou, Queen in thy father-in-laws household. May all the Gods unite the hearts of us two into one as stated in Justice Ranganath Misras Maynes Treatise on Hindu Law and Usage [Fifteenth Edition, 2003, Bharat Law House at p.97]. Marriage is highly revered in India and we are a Nation that prides itself on the strong foundation of our marriages, come hell or high water, rain or sunshine. Life is made up of good times and bad, and the bad times can bring with it terrible illnesses and extreme hardships. The partners in a marriage must weather these storms and embrace the sunshine with equanimity. Any person may have bad health, this is not their fault and most times, it is not within their control, as in the present case, the respondent was unwell and was taking treatment for the same. The illness had its fair share of problems. Can this be a reason for the appellant to abandon her and seek dissolution of marriage after the child is born out of their union? Since the child is now a grown up girl, her welfare must be the prime consideration for both the parties. In view of the foregoing reasons, we are of the opinion that the two parties in this case must reconcile and if the appellant so feels that the respondent is still suffering, then she must be given the right treatment. The respondent must stick to her treatment plan and make the best attempts to get better. It is not in the best interest of either the respondent or her daughter who is said to be of adolescent age for grant of a decree of dissolution of marriage as prayed for by the appellant. Hence, the appeal is liable to be dismissed. 24. Accordingly,
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correctly found fault with the findings of fact recorded by the trial court with regard to the ailment attributed to the respondent for seeking dissolution of marriage under the ground of unsound mind which is a non-existent fact. In the case of Vinita Saxena v. Pankaj Pandit [(2006)3 SCC 778] , this Court has examined in detail the issue of schizophrenia wherein the facts are different and the facts and evidence on record are not similar to the case on hand. Therefore, the observations made in the judgment for grant of decree for dissolution of marriage under Section 13 (1) (ia) and Section 13(1) (iii) of the Act cannot be applied to the fact situation of the case on handThe High Court has thus rightly set aside the decree of dissolution of marriage granted in favour of the appellant and dismissed his petition and granted a decree of restitution of conjugal rights in favour of the respondent by allowing her petition. The High Court has recorded the finding of fact on re-appreciation of material evidence on record and has rightly held that the trial court has erroneously come to the conclusion that the respondent was suffering from schizophrenia by relying on the evidence of PW-1, who is the appellant herein and as per the opinion given by the Committee of Doctors in Ex.B-10. In the deposition by witness RW-2, Dr. K.Krishna Murthy, he has stated in his examination-in-chief that Schizophrenia has become eminently treatable with the advent of many new psychiatric drugs. He further stated that many patients with schizophrenia are able to lead a near normal life with medication. The trial court has erroneously relied on certain cases referred to and applied the principle laid down in those cases to the facts of this case even though they are not applicable to the case on hand either on facts or in law as the appellant has not proved the allegations made in the petition against the respondent by adducing positive and substantive evidence on record to substantiate the same and that the alleged ailment of the respondent would fall within the provision of Section 13(1)(iii) of the Act. Therefore, he has not made out a case for grant of decree for dissolution of marriage. We have carefully examined Ex. Nos. X-6 to X-11, which are the prescriptions of medicine prescribed to her by Dr. Mallikarjuna Rao, Dr. Pramod Kumar and Dr.M.Kumari Devi. The above prescriptions mention the symptoms of the ailment of the respondent, which were in the nature of delusions, suspicious apprehensions and fears, altered behaviours, suicidal tendency and past history of depression. Reliance is placed by PW 1 on the above documentary evidence to prove that the respondent was suffering from the mental disorder of schizophrenia and therefore it squarely falls within the provision of Section 13(1)(iii) of the Act for grant of decree of dissolution of marriage in his favour. The High Court has rightly held that the trial court has erroneously accepted the same and recorded its finding of fact on the contentious issues to pass decree of divorce in favour of the appellant, which is contrary to the decision of this Court in the case of Ram Narain Gupta vs. Rameshwari Gupta supra. The same decision has been relied upon by the respondent before the High Court, wherein the said decision was correctly accepted by it to set aside the erroneous finding of fact recorded by the trial court on the contentious issueWe are of the view that the High Court in exercise of its appellate jurisdiction has rightly come to a different conclusion that the respondent is not suffering from the ailment of schizophrenia or incurable unsoundness of mind. Further, the High Court has rightly rejected the finding of the trial court which is based on exh.B-10 and other documentary and oral evidence by applying the ratio laid down by this Court in the case of Ram Narain Gupta vs. Rameshwari Gupta referred to supra. A pertinent point to be taken into consideration is that the respondent had not only completed MBBS but also did a post graduate diploma in Medicine and was continuously working as a Government Medical Officer and had she been suffering from any serious kind of mental disorder, particularly, acute type of schizophrenia, it would have been impossible for her to work in the said post. The appellant-husband cannot simply abandon his wife because she is suffering from sickness. Therefore, the High Court allowed both the CMAs and dismissed O.P. No. 203/2000 filed by the appellant for divorce and allowed O.P. No.1/99 filed by the respondent for restitution of conjugal rights wherein the High Court granted decree of restitution of conjugal rights in favour of the respondent21. It is thus clear that the respondent, even if she did suffer from schizophrenia, is in a much better health condition at present. Therefore, this Court cannot grant the dissolution of marriage on the basis of one spouses illness. The appellant has not proved the fact of mental disorder of the respondent with reference to the allegation made against her that she has been suffering from schizophrenia by producing positive and substantive evidence on record and on the other hand, it has been proved that the respondent is in much better health condition and does not show signs of schizophrenia as per the most recent medical report from NIMHANS, as deposed by PW-4 in his evidence before the trial courtwe are of the firm view that the findings and reasons recorded in setting aside the judgment and decree of the trial court is neither erroneous nor does it suffer from error in law which warrants our interference and calls for setting aside the impugned judgment and decree of the first appellate court. Therefore, this Court cannot interfere with the impugned judgment of the High Court as the same is well-reasoned and based on cogent reasoning of facts and evidence on record and accordingly, we answer point no.4 in favour of the respondent
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DR. MANOHAR GANAPATHI RAVANKAR Vs. H. GURUNANDA RAIKAR | hand over the actual physical possession. I request you to go through the accompanying draft sale deed which is sent for approval and request you to furnish upto date encumbrance certificate, taxes paid receipt, electricity and water consumption bill paid receipts so as to execute the sale deed within this week i.e. on or before 31.12.2006.”5. The Plaintiff later filed a suit OS No. 350/2007 on or about 10.12.2007 praying for the relief of specific performance of the agreement dated 21.07.2006. In the plaint, the Plaintiff pleaded that Defendant has demanded and received a further sum of Rs. 6,75,000/-. However, no date of such payment of said amount was disclosed in the plaint.6. The Plaintiff filed an affidavit of Chief Examination on 21.01.2010, but again there is no mention of payment of Rs. 6,75,000/-. However, on 18.12.2010 another affidavit was filed by way of an Additional Chief Examination to the effect that sum of Rs. 6,75,000/- was paid but without disclosing any date of payment. It may be noted at this stage that in the agreement, the parties have agreed to extend the time by mutual consent but there is no endorsement either on the agreement in question or by way of written note separately except, the assertion by the Plaintiff in the plaint that he has paid sum of Rs. 6,75,000/-7. The learned trial court on 17.09.2012 decreed the suit granting decree of the specific performance of agreement of sale dated 21.07.2006 for a consideration of Rs. 30,00,000/-, and to get Registered Sale Deed executed by paying the balance sale consideration amount of Rs. 29,74,000/-. It is the Defendant who preferred appeal against the decree granted in which, the High Court has passed an order of refund of Rs. 7,01,000/- while declining the relief of specific performance of the agreement.8. The High Court inter alia held that the Plaintiff has failed to prove that he was ready and willing to perform his part of the agreement. The High Court further held that there is nothing on record to show that as to when and how payment of Rs. 6,75,000/- was made out of balance sale consideration. The High Court then observed that it may be a loan transaction as the original title deeds were handed over to the Plaintiff. Thus, the Court granted a decree for recovery of Rs. 7,01,000/- for the reason that another sum of Rs. 6,75,000/- must have been paid at the time when the original title deed was handed over to the Plaintiff.9. We find that the High Court erred in law in granting a decree for payment of Rs. 7,01 000/- more so when the High Court has returned a finding that the Plaintiff was not ready and willing to execute the contract merely on the basis that original title deeds might have been handed over to the Plaintiff when sum of Rs. 6,75,000/- is said to have been paid by the Plaintiff.10. Though in the additional affidavit of Additional Chief Examination, the Plaintiff asserted that original title deeds were handed over when he paid a sum of Rs. 6,75,000/- but in the plaint, there is no such averment. In fact, the Plaintiff has filed earlier suit for injunction which was not pursued to file the suit for specific performance. The Plaintiff has averred to the following effect in the present suit for specific performance:“2. After the plaintiff having entered into the contract for the sale of the plaint ‘A Schedule property, the defendant used to demand and collect money from the plaintiff and the plaintiff having paid in good faith and the defendant had received in all Rs 6,75,000/- from the plaintiff out of the balance sale consideration of Rs. 29,74,000/- and had handed over the original title documents relating to the plaint ‘A’ Schedule property. The plaintiff was and is ready and willing to perform his part of contract, i.e. to pay the balance sale consideration and get the registration of the sale deed in his favour. By letter dtd. 25-12- 2006, the plaintiff had even conveyed his readiness and willingness to register the sale deed by paying the balance sale consideration and sent draft sale deed. The defendant received the said notice without demur. The defendant though showed his willingness to execute the sale deed expressed his in ability to settle the pending litigation with his brother. As such the plaintiff even approached the brother of the plaintiff so as to have a amicable settlement between them. In furtherance of the said contract for the sale of plaint ‘A Schedule property, the plaintiff had got measured the property and made arrangement for the repair of the building situated in the said property.”11. Still further, in the notice dated 25.12.2006, there is no assertion of handing over of the documents of the title or payment of Rs. 6,75,000/-. In fact, the categorical assertion in the notice served is that the Plaintiff is ready and willing to pay the balance sale consideration amount of Rs. 29,74,000/-. There is no document to prove payment of Rs. 6,75,000/-, except the bald statement of the Plaintiff. There is no any other evidence to prove that sum of Rs. 6,75,000/- was paid by the Plaintiff and on which date. If payment of earnest money of Rs.26,000/- could be made by cheque, then the payment of Rs.6,75,000/- in cash is beyond any comprehension.12. Therefore, the entire story of payment of Rs. 6,75,000/- at the time of handing over the title documents is wholly unbelievable. The Plaintiff has not asserted such fact in the plaint or in the notice served on 25.12.2006. The High Court erred in law in passing a decree for recovery of the said amount only on the basis of presumptions.13. In view of the above, we find that the Plaintiff is not entitled to decree for relief of specific performance, in view of the finding recorded by the High Court itself that he was not ready and willing to perform his part of the contract. | 0[ds]9. We find that the High Court erred in law in granting a decree for payment of Rs. 7,01 000/- more so when the High Court has returned a finding that the Plaintiff was not ready and willing to execute the contract merely on the basis that original title deeds might have been handed over to the Plaintiff when sum of Rs. 6,75,000/- is said to have been paid by the Plaintiff.10. Though in the additional affidavit of Additional Chief Examination, the Plaintiff asserted that original title deeds were handed over when he paid a sum of Rs. 6,75,000/- but in the plaint, there is no such averment. In fact, the Plaintiff has filed earlier suit for injunction which was not pursued to file the suit for specific performance. The Plaintiff has averred to the following effect in the present suit for specificAfter the plaintiff having entered into the contract for the sale of the plaint ‘A Schedule property, the defendant used to demand and collect money from the plaintiff and the plaintiff having paid in good faith and the defendant had received in all Rs 6,75,000/- from the plaintiff out of the balance sale consideration of Rs. 29,74,000/- and had handed over the original title documents relating to the plaintSchedule property. The plaintiff was and is ready and willing to perform his part of contract, i.e. to pay the balance sale consideration and get the registration of the sale deed in his favour. By letter dtd. 25-12- 2006, the plaintiff had even conveyed his readiness and willingness to register the sale deed by paying the balance sale consideration and sent draft sale deed. The defendant received the said notice without demur. The defendant though showed his willingness to execute the sale deed expressed his in ability to settle the pending litigation with his brother. As such the plaintiff even approached the brother of the plaintiff so as to have a amicable settlement between them. In furtherance of the said contract for the sale of plaint ‘A Schedule property, the plaintiff had got measured the property and made arrangement for the repair of the building situated in the said property.Still further, in the notice dated 25.12.2006, there is no assertion of handing over of the documents of the title or payment of Rs. 6,75,000/-. In fact, the categorical assertion in the notice served is that the Plaintiff is ready and willing to pay the balance sale consideration amount of Rs. 29,74,000/-. There is no document to prove payment of Rs. 6,75,000/-, except the bald statement of the Plaintiff. There is no any other evidence to prove that sum of Rs. 6,75,000/- was paid by the Plaintiff and on which date. If payment of earnest money of Rs.26,000/- could be made by cheque, then the payment of Rs.6,75,000/- in cash is beyond any comprehension.12. Therefore, the entire story of payment of Rs. 6,75,000/- at the time of handing over the title documents is wholly unbelievable. The Plaintiff has not asserted such fact in the plaint or in the notice served on 25.12.2006. The High Court erred in law in passing a decree for recovery of the said amount only on the basis of presumptions.13. In view of the above, we find that the Plaintiff is not entitled to decree for relief of specific performance, in view of the finding recorded by the High Court itself that he was not ready and willing to perform his part of the contract. | 0 | 1,890 | 629 | ### 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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hand over the actual physical possession. I request you to go through the accompanying draft sale deed which is sent for approval and request you to furnish upto date encumbrance certificate, taxes paid receipt, electricity and water consumption bill paid receipts so as to execute the sale deed within this week i.e. on or before 31.12.2006.”5. The Plaintiff later filed a suit OS No. 350/2007 on or about 10.12.2007 praying for the relief of specific performance of the agreement dated 21.07.2006. In the plaint, the Plaintiff pleaded that Defendant has demanded and received a further sum of Rs. 6,75,000/-. However, no date of such payment of said amount was disclosed in the plaint.6. The Plaintiff filed an affidavit of Chief Examination on 21.01.2010, but again there is no mention of payment of Rs. 6,75,000/-. However, on 18.12.2010 another affidavit was filed by way of an Additional Chief Examination to the effect that sum of Rs. 6,75,000/- was paid but without disclosing any date of payment. It may be noted at this stage that in the agreement, the parties have agreed to extend the time by mutual consent but there is no endorsement either on the agreement in question or by way of written note separately except, the assertion by the Plaintiff in the plaint that he has paid sum of Rs. 6,75,000/-7. The learned trial court on 17.09.2012 decreed the suit granting decree of the specific performance of agreement of sale dated 21.07.2006 for a consideration of Rs. 30,00,000/-, and to get Registered Sale Deed executed by paying the balance sale consideration amount of Rs. 29,74,000/-. It is the Defendant who preferred appeal against the decree granted in which, the High Court has passed an order of refund of Rs. 7,01,000/- while declining the relief of specific performance of the agreement.8. The High Court inter alia held that the Plaintiff has failed to prove that he was ready and willing to perform his part of the agreement. The High Court further held that there is nothing on record to show that as to when and how payment of Rs. 6,75,000/- was made out of balance sale consideration. The High Court then observed that it may be a loan transaction as the original title deeds were handed over to the Plaintiff. Thus, the Court granted a decree for recovery of Rs. 7,01,000/- for the reason that another sum of Rs. 6,75,000/- must have been paid at the time when the original title deed was handed over to the Plaintiff.9. We find that the High Court erred in law in granting a decree for payment of Rs. 7,01 000/- more so when the High Court has returned a finding that the Plaintiff was not ready and willing to execute the contract merely on the basis that original title deeds might have been handed over to the Plaintiff when sum of Rs. 6,75,000/- is said to have been paid by the Plaintiff.10. Though in the additional affidavit of Additional Chief Examination, the Plaintiff asserted that original title deeds were handed over when he paid a sum of Rs. 6,75,000/- but in the plaint, there is no such averment. In fact, the Plaintiff has filed earlier suit for injunction which was not pursued to file the suit for specific performance. The Plaintiff has averred to the following effect in the present suit for specific performance:“2. After the plaintiff having entered into the contract for the sale of the plaint ‘A Schedule property, the defendant used to demand and collect money from the plaintiff and the plaintiff having paid in good faith and the defendant had received in all Rs 6,75,000/- from the plaintiff out of the balance sale consideration of Rs. 29,74,000/- and had handed over the original title documents relating to the plaint ‘A’ Schedule property. The plaintiff was and is ready and willing to perform his part of contract, i.e. to pay the balance sale consideration and get the registration of the sale deed in his favour. By letter dtd. 25-12- 2006, the plaintiff had even conveyed his readiness and willingness to register the sale deed by paying the balance sale consideration and sent draft sale deed. The defendant received the said notice without demur. The defendant though showed his willingness to execute the sale deed expressed his in ability to settle the pending litigation with his brother. As such the plaintiff even approached the brother of the plaintiff so as to have a amicable settlement between them. In furtherance of the said contract for the sale of plaint ‘A Schedule property, the plaintiff had got measured the property and made arrangement for the repair of the building situated in the said property.”11. Still further, in the notice dated 25.12.2006, there is no assertion of handing over of the documents of the title or payment of Rs. 6,75,000/-. In fact, the categorical assertion in the notice served is that the Plaintiff is ready and willing to pay the balance sale consideration amount of Rs. 29,74,000/-. There is no document to prove payment of Rs. 6,75,000/-, except the bald statement of the Plaintiff. There is no any other evidence to prove that sum of Rs. 6,75,000/- was paid by the Plaintiff and on which date. If payment of earnest money of Rs.26,000/- could be made by cheque, then the payment of Rs.6,75,000/- in cash is beyond any comprehension.12. Therefore, the entire story of payment of Rs. 6,75,000/- at the time of handing over the title documents is wholly unbelievable. The Plaintiff has not asserted such fact in the plaint or in the notice served on 25.12.2006. The High Court erred in law in passing a decree for recovery of the said amount only on the basis of presumptions.13. In view of the above, we find that the Plaintiff is not entitled to decree for relief of specific performance, in view of the finding recorded by the High Court itself that he was not ready and willing to perform his part of the contract.
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0
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9. We find that the High Court erred in law in granting a decree for payment of Rs. 7,01 000/- more so when the High Court has returned a finding that the Plaintiff was not ready and willing to execute the contract merely on the basis that original title deeds might have been handed over to the Plaintiff when sum of Rs. 6,75,000/- is said to have been paid by the Plaintiff.10. Though in the additional affidavit of Additional Chief Examination, the Plaintiff asserted that original title deeds were handed over when he paid a sum of Rs. 6,75,000/- but in the plaint, there is no such averment. In fact, the Plaintiff has filed earlier suit for injunction which was not pursued to file the suit for specific performance. The Plaintiff has averred to the following effect in the present suit for specificAfter the plaintiff having entered into the contract for the sale of the plaint ‘A Schedule property, the defendant used to demand and collect money from the plaintiff and the plaintiff having paid in good faith and the defendant had received in all Rs 6,75,000/- from the plaintiff out of the balance sale consideration of Rs. 29,74,000/- and had handed over the original title documents relating to the plaintSchedule property. The plaintiff was and is ready and willing to perform his part of contract, i.e. to pay the balance sale consideration and get the registration of the sale deed in his favour. By letter dtd. 25-12- 2006, the plaintiff had even conveyed his readiness and willingness to register the sale deed by paying the balance sale consideration and sent draft sale deed. The defendant received the said notice without demur. The defendant though showed his willingness to execute the sale deed expressed his in ability to settle the pending litigation with his brother. As such the plaintiff even approached the brother of the plaintiff so as to have a amicable settlement between them. In furtherance of the said contract for the sale of plaint ‘A Schedule property, the plaintiff had got measured the property and made arrangement for the repair of the building situated in the said property.Still further, in the notice dated 25.12.2006, there is no assertion of handing over of the documents of the title or payment of Rs. 6,75,000/-. In fact, the categorical assertion in the notice served is that the Plaintiff is ready and willing to pay the balance sale consideration amount of Rs. 29,74,000/-. There is no document to prove payment of Rs. 6,75,000/-, except the bald statement of the Plaintiff. There is no any other evidence to prove that sum of Rs. 6,75,000/- was paid by the Plaintiff and on which date. If payment of earnest money of Rs.26,000/- could be made by cheque, then the payment of Rs.6,75,000/- in cash is beyond any comprehension.12. Therefore, the entire story of payment of Rs. 6,75,000/- at the time of handing over the title documents is wholly unbelievable. The Plaintiff has not asserted such fact in the plaint or in the notice served on 25.12.2006. The High Court erred in law in passing a decree for recovery of the said amount only on the basis of presumptions.13. In view of the above, we find that the Plaintiff is not entitled to decree for relief of specific performance, in view of the finding recorded by the High Court itself that he was not ready and willing to perform his part of the contract.
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MAHESH KUMAR Vs. STATE OF HARYANA | obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by the prosecution. Soon before is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression soon before her death used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression soon before is not defined. A reference to the expression soon before used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a court may presume that a man who is in the possession of goods soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for their possession . The determination of the period which can come within the term soon before is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression soon before would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence. 12. In Sakatar Singh & Ors. v. State of Haryana (2004) 11 SCC 291 , the Court was examining as to whether, letter written by the deceased discloses an offence under Section 304 B of the IPC. It was held that: 11. In the above background, we will now consider the evidence led by the prosecution to establish the charge levelled against the appellants. In this process, we will first examine the letter written by the deceased to her mother. Though this letter does not mention the date, there is no dispute that the same was posted on 20-5- 1986 which is evident from the postal seal found on the envelope which would be a date prior to the incident leading to the death of Devinder Kaur and the children. The contents of the letter indicate what transpired during her mothers visit to her in-laws house and does not anywhere even remotely indicate any demand made by her in-laws. It only reflects the attitude of the deceased towards her in-laws and that she entertained a feeling that her mother was not properly treated by her mother-in-law during her last visit….. 13. In Major Singh and Anr. v. State of Punjab (2015) 5 SCC 201 , the Court disbelieved the prosecutions story for the reason that no independent witnesses were examined, even though, the witnesses deposed that the Members of Panchayats were informed about the harassment. 14. In the present case, the prosecution relies upon the statement of PW3 Sohan Lal - father and PW4 Rajbir - brother of the deceased which has been made basis of conviction by courts below. However, we find that such statements are not sufficient to prove that the deceased was treated with cruelty relating to demand of dowry soon before her death in the absence of independent evidence though available but not examined. A memorandum Ex.PE/1 dt. 25.01.1992 was relied upon and said to be executed by the in-laws of the deceased in the presence of members of Panchayat. But none of the Panchayat Members have been examined to prove the settlement arrived at. Therefore, the oral statements cannot be relied upon in view of the letters produced by the prosecution. 15. The prosecution also relies upon letter Ex. PF/1 written by the deceased to her father. The letter is to the effect that her in-laws have started hating and suspecting the deceaseds father, therefore, he should not give them the gold chain but only cash. Such letter does not show that anything was demanded by the appellant. The date of sending such letter has not been proved by the prosecution, therefore, it cannot be said that such letter was written soon before her death. Similarly, another letter produced by the prosecution is Ex. PK/1 which is a letter of the deceased to her brother-in-law(sisters-husband) stating that she has no problem with her mother-in-law and sister-in-law but her husband beats her daily. The date of this letter has not been proved nor does such letter lead to any inference for the demand of dowry by the husband of the deceased. Further, an additional letter relied upon by the prosecution is Ex. PG/1 dated 25.05.1992, wherein the deceased has written that she is unhappy and harassed by her in-laws in as much as her mother-in-law does not like the food she cooks. Again, there is no inference of any demand of dowry in such letter as well. Therefore, the documentary evidence in the shape of letters does not support the story of the prosecution. 16. In view of the judgments referred to above, the prosecution has failed to prove either the demand of dowry or that any such demand was raised soon before her death. Therefore, the essential ingredients of offence under Section 304-B of IPC are not proved by the prosecution. The prosecution has even failed to prove the initial presumption under Section 113-B of the Evidence Act. 17. We find that the prosecution has failed to prove the allegations levelled against the appellant beyond reasonable doubt. | 1[ds]14. In the present case, the prosecution relies upon the statement of PW3 Sohan Lal - father and PW4 Rajbir - brother of the deceased which has been made basis of conviction by courts below. However, we find that such statements are not sufficient to provethat the deceased was treated with cruelty relating to demand of dowry soon before her death in the absence of independent evidence though available but not examined. A memorandum Ex.PE/1 dt. 25.01.1992 was relied upon and said to be executed by the in-laws of the deceased in the presence of members of Panchayat. But none of the Panchayat Members have been examined to prove the settlement arrived at. Therefore, the oral statements cannot be relied upon in view of the letters produced by the prosecution15. The prosecution also relies upon letter Ex. PF/1 written by the deceased to her father. The letter is to the effect that her in-laws have started hating and suspecting the deceaseds father, therefore, he should not give them the gold chain but only cash. Such letter does not show that anything was demanded by the appellant. The date of sending such letter has not been proved by the prosecution, therefore, it cannot be said that such letter was written soon before her death. Similarly, another letter produced by the prosecution is Ex. PK/1 which is a letter of the deceased to her brother-in-law(sisters-husband) stating that she has no problem with her mother-in-law and sister-in-law but her husband beats her daily. The date of this letter has not been proved nor does such letter lead to any inference for the demand of dowry by the husband of the deceased. Further, an additional letter relied upon by the prosecution is Ex. PG/1 dated 25.05.1992, wherein the deceased has written that she is unhappy and harassed by her in-laws in as much as her mother-in-law does not like the food she cooks. Again, there is no inference of any demand of dowry in such letter as well. Therefore, the documentary evidence in the shape of letters does not support the story of the prosecution16. In view of the judgments referred to above, the prosecution has failed to prove either the demand of dowry or that any such demand was raised soon before her death. Therefore, the essential ingredients of offence under Section 304-B of IPC are not proved by the prosecution. The prosecution has even failed to prove the initial presumption under Section 113-B of the Evidence Act17. We find that the prosecution has failed to prove the allegations levelled against the appellant beyond reasonable doubt. | 1 | 2,946 | 479 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by the prosecution. Soon before is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression soon before her death used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression soon before is not defined. A reference to the expression soon before used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a court may presume that a man who is in the possession of goods soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for their possession . The determination of the period which can come within the term soon before is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression soon before would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence. 12. In Sakatar Singh & Ors. v. State of Haryana (2004) 11 SCC 291 , the Court was examining as to whether, letter written by the deceased discloses an offence under Section 304 B of the IPC. It was held that: 11. In the above background, we will now consider the evidence led by the prosecution to establish the charge levelled against the appellants. In this process, we will first examine the letter written by the deceased to her mother. Though this letter does not mention the date, there is no dispute that the same was posted on 20-5- 1986 which is evident from the postal seal found on the envelope which would be a date prior to the incident leading to the death of Devinder Kaur and the children. The contents of the letter indicate what transpired during her mothers visit to her in-laws house and does not anywhere even remotely indicate any demand made by her in-laws. It only reflects the attitude of the deceased towards her in-laws and that she entertained a feeling that her mother was not properly treated by her mother-in-law during her last visit….. 13. In Major Singh and Anr. v. State of Punjab (2015) 5 SCC 201 , the Court disbelieved the prosecutions story for the reason that no independent witnesses were examined, even though, the witnesses deposed that the Members of Panchayats were informed about the harassment. 14. In the present case, the prosecution relies upon the statement of PW3 Sohan Lal - father and PW4 Rajbir - brother of the deceased which has been made basis of conviction by courts below. However, we find that such statements are not sufficient to prove that the deceased was treated with cruelty relating to demand of dowry soon before her death in the absence of independent evidence though available but not examined. A memorandum Ex.PE/1 dt. 25.01.1992 was relied upon and said to be executed by the in-laws of the deceased in the presence of members of Panchayat. But none of the Panchayat Members have been examined to prove the settlement arrived at. Therefore, the oral statements cannot be relied upon in view of the letters produced by the prosecution. 15. The prosecution also relies upon letter Ex. PF/1 written by the deceased to her father. The letter is to the effect that her in-laws have started hating and suspecting the deceaseds father, therefore, he should not give them the gold chain but only cash. Such letter does not show that anything was demanded by the appellant. The date of sending such letter has not been proved by the prosecution, therefore, it cannot be said that such letter was written soon before her death. Similarly, another letter produced by the prosecution is Ex. PK/1 which is a letter of the deceased to her brother-in-law(sisters-husband) stating that she has no problem with her mother-in-law and sister-in-law but her husband beats her daily. The date of this letter has not been proved nor does such letter lead to any inference for the demand of dowry by the husband of the deceased. Further, an additional letter relied upon by the prosecution is Ex. PG/1 dated 25.05.1992, wherein the deceased has written that she is unhappy and harassed by her in-laws in as much as her mother-in-law does not like the food she cooks. Again, there is no inference of any demand of dowry in such letter as well. Therefore, the documentary evidence in the shape of letters does not support the story of the prosecution. 16. In view of the judgments referred to above, the prosecution has failed to prove either the demand of dowry or that any such demand was raised soon before her death. Therefore, the essential ingredients of offence under Section 304-B of IPC are not proved by the prosecution. The prosecution has even failed to prove the initial presumption under Section 113-B of the Evidence Act. 17. We find that the prosecution has failed to prove the allegations levelled against the appellant beyond reasonable doubt.
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1
### Explanation:
14. In the present case, the prosecution relies upon the statement of PW3 Sohan Lal - father and PW4 Rajbir - brother of the deceased which has been made basis of conviction by courts below. However, we find that such statements are not sufficient to provethat the deceased was treated with cruelty relating to demand of dowry soon before her death in the absence of independent evidence though available but not examined. A memorandum Ex.PE/1 dt. 25.01.1992 was relied upon and said to be executed by the in-laws of the deceased in the presence of members of Panchayat. But none of the Panchayat Members have been examined to prove the settlement arrived at. Therefore, the oral statements cannot be relied upon in view of the letters produced by the prosecution15. The prosecution also relies upon letter Ex. PF/1 written by the deceased to her father. The letter is to the effect that her in-laws have started hating and suspecting the deceaseds father, therefore, he should not give them the gold chain but only cash. Such letter does not show that anything was demanded by the appellant. The date of sending such letter has not been proved by the prosecution, therefore, it cannot be said that such letter was written soon before her death. Similarly, another letter produced by the prosecution is Ex. PK/1 which is a letter of the deceased to her brother-in-law(sisters-husband) stating that she has no problem with her mother-in-law and sister-in-law but her husband beats her daily. The date of this letter has not been proved nor does such letter lead to any inference for the demand of dowry by the husband of the deceased. Further, an additional letter relied upon by the prosecution is Ex. PG/1 dated 25.05.1992, wherein the deceased has written that she is unhappy and harassed by her in-laws in as much as her mother-in-law does not like the food she cooks. Again, there is no inference of any demand of dowry in such letter as well. Therefore, the documentary evidence in the shape of letters does not support the story of the prosecution16. In view of the judgments referred to above, the prosecution has failed to prove either the demand of dowry or that any such demand was raised soon before her death. Therefore, the essential ingredients of offence under Section 304-B of IPC are not proved by the prosecution. The prosecution has even failed to prove the initial presumption under Section 113-B of the Evidence Act17. We find that the prosecution has failed to prove the allegations levelled against the appellant beyond reasonable doubt.
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P. Saraswathi Devi Vs. Andhra Pradesh State Consumer Redressal Commission & Others | The manner in which a complaint is to be filed is provided for under Section 12 and the steps to be taken thereon, are indicated in Section 13. Section 12 and clauses (a) and (b) of Section 13 of the Act read: 12. Manner in which complaint shall be made.— (1) A complaint in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided may be filed with a District Forum by – (a) the consumer to whom such goods are sold or delivered or agreed to be sold or delivered or such service provided or agreed to be provided; (b) any recognised consumer association whether the consumer to whom the goods sold or delivered or agreed to be sold or delivered or service provided or agreed to be provided is a member of such association or not; (c) one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of, or for the benefit of, all consumers so interested; or (d) the Central Government or the State Government, as the case may be, either in its individual capacity or as a representative of interests of the consumers in general.(2) Every complaint filed under sub-section (1) shall be accompanied with such amount of fee and payable in such manner as may be prescribed. (3) On receipt of a complaint made under sub-section (1), the District Forum may, by order, allow the complaint to be proceeded with or rejected: Provided that a complaint shall not be rejected under this section unless an opportunity of being heard has been given to the complainant: Provided further that the admissibility of the complaint shall ordinarily be decided within twenty-one days from the date on which the complaint was received. (4) Where a complaint is allowed to be proceeded with under sub-section (3), the District Forum may proceed with the complaint in the manner provided under this Act: Provided that where a complaint has been admitted by the District Forum, it shall not be transferred to any other court or tribunal or any authority set up by or under any other law for the time being in force. Explanation. - For the purpose of this section recognised consumer association means any voluntary consumer association registered under the Companies Act, 1956 or any other law for the time being in force. 13. Procedure on admission of complaint. — (1) The District Forum shall, on admission of a complaint, if it relates to any goods,— (a) refer a copy of the admitted complaint, within twenty-one days from the date of its admission to the opposite party mentioned in the complaint directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Forum; (b) where the opposite party on receipt of a complaint referred to him under clause (a) denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the District Forum, the District Forum shall proceed to settle the consumer dispute in the manner specified in clauses (c) to (g). (The remaining part of the Section is omitted since it is not relevant for the purpose of this case). 18. When such is the simplicity of the procedure stipulated under the Act, there cannot be any justification to place restrictions and burden upon the complainants through the circular. When a plaintiff in a suit is not placed under obligation to furnish the details as to the composition or registration of a firm or company that is shown as a defendant, it is just unimaginable as to how a complainant in a proceedings under the Act can be required to furnish such details in respect of a firm or company that is shown as a respondent in the complaint. The circular runs contrary to the letter and spirit of the Act which is reflected in Clause 4 of the Statement of Objects and Reasons that has been extracted in the preceding paragraphs. 19. In Writ Petition No. 2545 of 2011, this very circular was challenged. A Division Bench of this Court which heard the matter did not undertake any discussion with reference to the relevant provision of law. After taking note of the contentions advanced by the petitioner on the one hand and the learned Government Pleader on the other hand, the following observation was made: The State Commission issued the impugned circular for production of certain certificates specifying the names of the Partners and the Directors in order to ascertain the particulars of the persons to be sued or sued. Therefore, the State Commission in exercise of its administrative powers issued the same for effective functioning of the internal mechanism. With regard to the matters pertaining to the Partnership firm or Company, the names of Partners and the Directors are required for the purpose of adjudication. Therefore, we are not inclined to interfere with the impugned circular. Accordingly, the Writ Petition is dismissed. No order as to costs. 20. Attention was not focussed on to the relevant provisions of the Act and the comparative provisions of the CPC, much less to the Statement of Objects and Reasons of the Act. We have already pointed out that the circular would place a complainant before a forum, in a more disadvantageous and difficult situation, than a plaintiff in an ordinary suit, before a civil Court. When the intention of the Parliament was to provide a speedy and simple remedy in comparison to a suit, the step taken by the State Commission making the proceedings more stringent cannot be sustained. The view taken by the Bench which heard Writ Petition No. 2545 of 2011 cannot be treated as an authoritative pronouncement on the circular, nor a correct statement of law. 21. | 1[ds]From a perusal of this, it becomes manifest that one of the important objectives was to provide speedy and simple redressal to the consumer disputes. In categorical terms, the Parliament made it clear that the fora to be established for this purpose are going to bel in nature and even while requiring them to observe the principles of natural justice, they were relieved of the rigour of complicated procedureThe redressal mechanisms at the district, state and national level have been brought into existence and they are functioningThere is not even a residuary provision which confers in it, any power of superintendence upon the district fora. However, being the apex forum within the State, the administrative control over the district fora can be inferredThe manner in which a district forum has to function is dealt with under Sections 11 and 12 of the Act. Commensurate with the statement of objects and reasons, these provisions simply provide for submission of complaint by a consumer, issuance of a notice by the forum to the opposite party and adjudication thereof in a very informal mannerFrom this, it becomes clear that whenever any complaint is submitted against a partnership firm or a company, the complainant must not only furnish the required details thereof, but also must enclose certificate of registration of firms in case of a partnership firm and certificate of registration, memorandum of association and articles of association, in case, if the complaint is against a company. It is a matter of common knowledge that the relief in the proceedings under the Act are mostly against firms or companies as regards the deficiency in the service or defect in manufactureEven where an aggrieved person files a suit, it would be sufficient if he furnishes the particulars of the defendants against whom he claims relief. Order XXX of CPC deals with the suits that are filed against firms and other persons carrying on business. It is only under Rule 2 of Order XXX that a firm, which figures as a plaintiff, is placed under obligation to declare the names and places of residences of the persons comprised in the firm, when demanded by the defendants. Such a requirement is not provided when the firm or company is shown as a defendant. When this is the arrangement in a regular suit, the question of a more stringent or complicated procedure being prescribed in relation to a complaint submitted before a consumer forum, does not ariseWhile examining the legality of the impugned circular, first, the source of power under which it is issued needs to be verified. The second step is to examine whether it conforms to the relevant provisions of the Act or the letter and spirit thereofOn the first aspect, we have not come across any provision that confers power upon the State Commission to issue such a circular. In the preceding paragraphs, we have given an indication that being the superior forum at a state level, some regulatory power can be inferred in favour of the State Commission. However, when any step taken in that behalf is put to question, it can be sustained, if only a specific provision exists therefor. This is particularly so, when the aggrieved party contends that the circular is contrary to the ActComing to the second aspect, we find it difficult to sustain the provision. Sections 12 and 13 that regulate the proceedings before a District Forum do not speak of any such requirement. The rules framed by the Government of Andhra Pradesh are also silent on this. A perusal of Sections 12 and 13 of the Act discloses that a complainant has just to file, if not drop a complaint before the forum, ventilating his grievance. The manner in which a complaint is to be filed is provided for under Section 12 and the steps to be taken thereon, are indicated in Section 13. Section 12 and clauses (a) and (b) of Section 13 of the Act read:When such is the simplicity of the procedure stipulated under the Act, there cannot be any justification to place restrictions and burden upon the complainants through the circular. When a plaintiff in a suit is not placed under obligation to furnish the details as to the composition or registration of a firm or company that is shown as a defendant, it is just unimaginable as to how a complainant in a proceedings under the Act can be required to furnish such details in respect of a firm or company that is shown as a respondent in the complaint. The circular runs contrary to the letter and spirit of the Act which is reflected in Clause 4 of the Statement of Objects and Reasons that has been extracted in the preceding paragraphsAttention was not focussed on to the relevant provisions of the Act and the comparative provisions of the CPC, much less to the Statement of Objects and Reasons of the Act. We have already pointed out that the circular would place a complainant before a forum, in a more disadvantageous and difficult situation, than a plaintiff in an ordinary suit, before a civil Court. When the intention of the Parliament was to provide a speedy and simple remedy in comparison to a suit, the step taken by the State Commission making the proceedings more stringent cannot be sustained. The view taken by the Bench which heard Writ Petition No. 2545 of 2011 cannot be treated as an authoritative pronouncement on the circular, nor a correct statement of law. | 1 | 3,432 | 996 | ### Instruction:
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### Input:
The manner in which a complaint is to be filed is provided for under Section 12 and the steps to be taken thereon, are indicated in Section 13. Section 12 and clauses (a) and (b) of Section 13 of the Act read: 12. Manner in which complaint shall be made.— (1) A complaint in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided may be filed with a District Forum by – (a) the consumer to whom such goods are sold or delivered or agreed to be sold or delivered or such service provided or agreed to be provided; (b) any recognised consumer association whether the consumer to whom the goods sold or delivered or agreed to be sold or delivered or service provided or agreed to be provided is a member of such association or not; (c) one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of, or for the benefit of, all consumers so interested; or (d) the Central Government or the State Government, as the case may be, either in its individual capacity or as a representative of interests of the consumers in general.(2) Every complaint filed under sub-section (1) shall be accompanied with such amount of fee and payable in such manner as may be prescribed. (3) On receipt of a complaint made under sub-section (1), the District Forum may, by order, allow the complaint to be proceeded with or rejected: Provided that a complaint shall not be rejected under this section unless an opportunity of being heard has been given to the complainant: Provided further that the admissibility of the complaint shall ordinarily be decided within twenty-one days from the date on which the complaint was received. (4) Where a complaint is allowed to be proceeded with under sub-section (3), the District Forum may proceed with the complaint in the manner provided under this Act: Provided that where a complaint has been admitted by the District Forum, it shall not be transferred to any other court or tribunal or any authority set up by or under any other law for the time being in force. Explanation. - For the purpose of this section recognised consumer association means any voluntary consumer association registered under the Companies Act, 1956 or any other law for the time being in force. 13. Procedure on admission of complaint. — (1) The District Forum shall, on admission of a complaint, if it relates to any goods,— (a) refer a copy of the admitted complaint, within twenty-one days from the date of its admission to the opposite party mentioned in the complaint directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Forum; (b) where the opposite party on receipt of a complaint referred to him under clause (a) denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the District Forum, the District Forum shall proceed to settle the consumer dispute in the manner specified in clauses (c) to (g). (The remaining part of the Section is omitted since it is not relevant for the purpose of this case). 18. When such is the simplicity of the procedure stipulated under the Act, there cannot be any justification to place restrictions and burden upon the complainants through the circular. When a plaintiff in a suit is not placed under obligation to furnish the details as to the composition or registration of a firm or company that is shown as a defendant, it is just unimaginable as to how a complainant in a proceedings under the Act can be required to furnish such details in respect of a firm or company that is shown as a respondent in the complaint. The circular runs contrary to the letter and spirit of the Act which is reflected in Clause 4 of the Statement of Objects and Reasons that has been extracted in the preceding paragraphs. 19. In Writ Petition No. 2545 of 2011, this very circular was challenged. A Division Bench of this Court which heard the matter did not undertake any discussion with reference to the relevant provision of law. After taking note of the contentions advanced by the petitioner on the one hand and the learned Government Pleader on the other hand, the following observation was made: The State Commission issued the impugned circular for production of certain certificates specifying the names of the Partners and the Directors in order to ascertain the particulars of the persons to be sued or sued. Therefore, the State Commission in exercise of its administrative powers issued the same for effective functioning of the internal mechanism. With regard to the matters pertaining to the Partnership firm or Company, the names of Partners and the Directors are required for the purpose of adjudication. Therefore, we are not inclined to interfere with the impugned circular. Accordingly, the Writ Petition is dismissed. No order as to costs. 20. Attention was not focussed on to the relevant provisions of the Act and the comparative provisions of the CPC, much less to the Statement of Objects and Reasons of the Act. We have already pointed out that the circular would place a complainant before a forum, in a more disadvantageous and difficult situation, than a plaintiff in an ordinary suit, before a civil Court. When the intention of the Parliament was to provide a speedy and simple remedy in comparison to a suit, the step taken by the State Commission making the proceedings more stringent cannot be sustained. The view taken by the Bench which heard Writ Petition No. 2545 of 2011 cannot be treated as an authoritative pronouncement on the circular, nor a correct statement of law. 21.
### Response:
1
### Explanation:
From a perusal of this, it becomes manifest that one of the important objectives was to provide speedy and simple redressal to the consumer disputes. In categorical terms, the Parliament made it clear that the fora to be established for this purpose are going to bel in nature and even while requiring them to observe the principles of natural justice, they were relieved of the rigour of complicated procedureThe redressal mechanisms at the district, state and national level have been brought into existence and they are functioningThere is not even a residuary provision which confers in it, any power of superintendence upon the district fora. However, being the apex forum within the State, the administrative control over the district fora can be inferredThe manner in which a district forum has to function is dealt with under Sections 11 and 12 of the Act. Commensurate with the statement of objects and reasons, these provisions simply provide for submission of complaint by a consumer, issuance of a notice by the forum to the opposite party and adjudication thereof in a very informal mannerFrom this, it becomes clear that whenever any complaint is submitted against a partnership firm or a company, the complainant must not only furnish the required details thereof, but also must enclose certificate of registration of firms in case of a partnership firm and certificate of registration, memorandum of association and articles of association, in case, if the complaint is against a company. It is a matter of common knowledge that the relief in the proceedings under the Act are mostly against firms or companies as regards the deficiency in the service or defect in manufactureEven where an aggrieved person files a suit, it would be sufficient if he furnishes the particulars of the defendants against whom he claims relief. Order XXX of CPC deals with the suits that are filed against firms and other persons carrying on business. It is only under Rule 2 of Order XXX that a firm, which figures as a plaintiff, is placed under obligation to declare the names and places of residences of the persons comprised in the firm, when demanded by the defendants. Such a requirement is not provided when the firm or company is shown as a defendant. When this is the arrangement in a regular suit, the question of a more stringent or complicated procedure being prescribed in relation to a complaint submitted before a consumer forum, does not ariseWhile examining the legality of the impugned circular, first, the source of power under which it is issued needs to be verified. The second step is to examine whether it conforms to the relevant provisions of the Act or the letter and spirit thereofOn the first aspect, we have not come across any provision that confers power upon the State Commission to issue such a circular. In the preceding paragraphs, we have given an indication that being the superior forum at a state level, some regulatory power can be inferred in favour of the State Commission. However, when any step taken in that behalf is put to question, it can be sustained, if only a specific provision exists therefor. This is particularly so, when the aggrieved party contends that the circular is contrary to the ActComing to the second aspect, we find it difficult to sustain the provision. Sections 12 and 13 that regulate the proceedings before a District Forum do not speak of any such requirement. The rules framed by the Government of Andhra Pradesh are also silent on this. A perusal of Sections 12 and 13 of the Act discloses that a complainant has just to file, if not drop a complaint before the forum, ventilating his grievance. The manner in which a complaint is to be filed is provided for under Section 12 and the steps to be taken thereon, are indicated in Section 13. Section 12 and clauses (a) and (b) of Section 13 of the Act read:When such is the simplicity of the procedure stipulated under the Act, there cannot be any justification to place restrictions and burden upon the complainants through the circular. When a plaintiff in a suit is not placed under obligation to furnish the details as to the composition or registration of a firm or company that is shown as a defendant, it is just unimaginable as to how a complainant in a proceedings under the Act can be required to furnish such details in respect of a firm or company that is shown as a respondent in the complaint. The circular runs contrary to the letter and spirit of the Act which is reflected in Clause 4 of the Statement of Objects and Reasons that has been extracted in the preceding paragraphsAttention was not focussed on to the relevant provisions of the Act and the comparative provisions of the CPC, much less to the Statement of Objects and Reasons of the Act. We have already pointed out that the circular would place a complainant before a forum, in a more disadvantageous and difficult situation, than a plaintiff in an ordinary suit, before a civil Court. When the intention of the Parliament was to provide a speedy and simple remedy in comparison to a suit, the step taken by the State Commission making the proceedings more stringent cannot be sustained. The view taken by the Bench which heard Writ Petition No. 2545 of 2011 cannot be treated as an authoritative pronouncement on the circular, nor a correct statement of law.
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G. Gilda Textile Agency Vs. State Of Andhra Pradesh | a dealer under S. 14-A and thus liable to tax under that section.4. Section 14-A of the Act reads as follows:In the case of any person carrying on the business of buying and selling goods in the State but residing outside it (hereinafter in this section referred to as a non-resident), the provisions of this Act shall apply subject to the following modifications and additions, namely:(i) In respect of the business of the nonresident, his agent residing in the State shall be deemed to be the dealer.(ii) The agent of a non-resident shall be assessed to tax or taxes under this Act at the rate or rates leviable thereunder in respect of the business of such non-resident in which the agent in concerned, irrespective of the amount of the turnover of such business being less than the minimum specified in S. 3, sub-s. (3).(iii) Without prejudice to his other rights, any agent of a non-resident who is assessed under this Act in respect of the business of such non-resident may retain out of any moneys payable to the non-resident by the agent, a sum equal to the amount of the tax or taxes assessed on or paid by the agent.(iv) Where no tax would have been payable by the non-resident in respect of his business in the State by reason of the turnover thereof being less than the minimum specified in S. 3, sub-s. (3), he shall be entitled to have the amount of the tax or taxes paid by his agent refunded to him on application made to the assessing authority concerned, or where more than one such authority is concerned, to such one of the authorities as may be authorised in this behalf by the State Government by general or special order.(v) Such application shall be made within twelve months from the end of the year in which payment was made by or on behalf of the non-resident of the tax or taxes or any part thereof.5. The section makes the agent liable fictionally as a dealer in the circumstances laid down in the section, viz., that he is acting on behalf of a non-resident person doing business of buying or selling goods in the State. The agent is assessed to tax under the Act in respect of the business of such non-resident in which the agent is concerned, irrespective of whether the turnover of such business is more or less than the minimum prescribed in the Act. It is contended that the first thing to decide is whether the non-resident could be said to be carrying on the business of selling in Andhra Pradesh in the circumstances of this case, and reliance is placed upon a decision of this Court reported in Mahadayal Premchandra v. Commercial Tax Officer, Calcutta, (AIR 1958 SC 667 ). In that case, this Court was called upon to consider the Bengal Finance (Sales Tax). Act, 1941 (6 of 1941). There also, the agent was sought to be made liable in respect of the sale of goods belonging to a non-resident principal under a section which may be taken to be in pari materia with the section, we are considering. This Court held that the Kanpur Mills,. whose agent the appellant in the case was, were not carrying on any business of selling goods in West Bengal and were selling goods in Kanpur and despatching them to West Bengal for consumption. This part of the judgment is called in aid to show that the first condition of the liability of the agent in the present case under the Madras General Sales Tax Act is not fulfilled. Unfortunately for the appellant, in this case there is a clear finding by the High Court that the non-resident principals were carrying on the business of selling in Andhra Pradesh. The High Court has observed that if the non-resident principals took out railway receipts in their own names, thereby manifesting their intention to remain the owners and to retain the control over the goods, the sales must be taken to have been completed or to have taken place in the State of Andhra Pradesh. From this, the High Court came to the conclusion that the non-resident principals were doing business of selling in, Andhra Pradesh. The High Court pointed out that inasmuch as the appellant after securing the orders received the railway receipts from the sellers and handed them over to the buyers and sometimes collected the consideration and transmitted the same to the sellers, the sales thus resulting must be held to have taken place in the State either on behalf of the appellant or on behalf of the non-resident principals, and whichever view be correct, the appellant as agent was liable as a dealer within the Act. Either it was a dealer itself, or it became a dealer by the fiction created by S. 14-A, since the non-resident principals had done business in each case in the State of Andhra Pradesh. The case of this Court on which reliance has been placed, turned on its own facts, and a finding there cannot be used in the present case, because no finding on the facts of one case can be applied to the facts of another.6. Sub-section (2) of S. 14-A was said to be connected with the opening part, and it was argued that the tax was leviable on the turnover relating to the business of a non-resident, which was carried on by the non-resident in the taxable territory. In our opinion, once the finding is given that the non-resident principal carried on the business of selling in Andhra Pradesh and the appellant was the admitted agent through whom this business was carried on, the rest follows without any difficulty. The High Court, in our opinion, was, therefore, right in upholding the levy of the tax from the appellant, in view of our decision that the appellant came within the four corners of S. 14-A in relation to the transactions disclosed in the last category. | 0[ds]5. The section makes the agent liable fictionally as a dealer in the circumstances laid down in the section, viz., that he is acting on behalf of a non-resident person doing business of buying or selling goods in the State. The agent is assessed to tax under the Act in respect of the business of such non-resident in which the agent is concerned, irrespective of whether the turnover of such business is more or less than the minimum prescribed in the Act. It is contended that the first thing to decide is whether the non-resident could be said to be carrying on the business of selling in Andhra Pradesh in the circumstances of this case, and reliance is placed upon a decision of this Court reported in Mahadayal Premchandra v. Commercial Tax Officer, Calcutta, (AIR 1958 SC 667 ). In that case, this Court was called upon to consider the Bengal Finance (Sales Tax). Act, 1941 (6 of 1941). There also, the agent was sought to be made liable in respect of the sale of goods belonging to a non-resident principal under a section which may be taken to be in pari materia with the section, we are considering. This Court held that the Kanpur Mills,. whose agent the appellant in the case was, were not carrying on any business of selling goods in West Bengal and were selling goods in Kanpur and despatching them to West Bengal for consumption. This part of the judgment is called in aid to show that the first condition of the liability of the agent in the present case under the Madras General Sales Tax Act is not fulfilled. Unfortunately for the appellant, in this case there is a clear finding by the High Court that the non-resident principals were carrying on the business of selling in Andhra Pradesh. The High Court has observed that if the non-resident principals took out railway receipts in their own names, thereby manifesting their intention to remain the owners and to retain the control over the goods, the sales must be taken to have been completed or to have taken place in the State of Andhra Pradesh. From this, the High Court came to the conclusion that the non-resident principals were doing business of selling in, Andhra Pradesh. The High Court pointed out that inasmuch as the appellant after securing the orders received the railway receipts from the sellers and handed them over to the buyers and sometimes collected the consideration and transmitted the same to the sellers, the sales thus resulting must be held to have taken place in the State either on behalf of the appellant or on behalf of the non-resident principals, and whichever view be correct, the appellant as agent was liable as a dealer within the Act. Either it was a dealer itself, or it became a dealer by the fiction created by S. 14-A, since the non-resident principals had done business in each case in the State of Andhra Pradesh. The case of this Court on which reliance has been placed, turned on its own facts, and a finding there cannot be used in the present case, because no finding on the facts of one case can be applied to the facts of another.6. Sub-section (2) of S. 14-A was said to be connected with the opening part, and it was argued that the tax was leviable on the turnover relating to the business of a non-resident, which was carried on by the non-resident in the taxable territory. In our opinion, once the finding is given that the non-resident principal carried on the business of selling in Andhra Pradesh and the appellant was the admitted agent through whom this business was carried on, the rest follows without any difficulty. The High Court, in our opinion, was, therefore, right in upholding the levy of the tax from the appellant, in view of our decision that the appellant came within the four corners of S. 14-A in relation to the transactions disclosed in the last category. | 0 | 1,729 | 737 | ### Instruction:
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a dealer under S. 14-A and thus liable to tax under that section.4. Section 14-A of the Act reads as follows:In the case of any person carrying on the business of buying and selling goods in the State but residing outside it (hereinafter in this section referred to as a non-resident), the provisions of this Act shall apply subject to the following modifications and additions, namely:(i) In respect of the business of the nonresident, his agent residing in the State shall be deemed to be the dealer.(ii) The agent of a non-resident shall be assessed to tax or taxes under this Act at the rate or rates leviable thereunder in respect of the business of such non-resident in which the agent in concerned, irrespective of the amount of the turnover of such business being less than the minimum specified in S. 3, sub-s. (3).(iii) Without prejudice to his other rights, any agent of a non-resident who is assessed under this Act in respect of the business of such non-resident may retain out of any moneys payable to the non-resident by the agent, a sum equal to the amount of the tax or taxes assessed on or paid by the agent.(iv) Where no tax would have been payable by the non-resident in respect of his business in the State by reason of the turnover thereof being less than the minimum specified in S. 3, sub-s. (3), he shall be entitled to have the amount of the tax or taxes paid by his agent refunded to him on application made to the assessing authority concerned, or where more than one such authority is concerned, to such one of the authorities as may be authorised in this behalf by the State Government by general or special order.(v) Such application shall be made within twelve months from the end of the year in which payment was made by or on behalf of the non-resident of the tax or taxes or any part thereof.5. The section makes the agent liable fictionally as a dealer in the circumstances laid down in the section, viz., that he is acting on behalf of a non-resident person doing business of buying or selling goods in the State. The agent is assessed to tax under the Act in respect of the business of such non-resident in which the agent is concerned, irrespective of whether the turnover of such business is more or less than the minimum prescribed in the Act. It is contended that the first thing to decide is whether the non-resident could be said to be carrying on the business of selling in Andhra Pradesh in the circumstances of this case, and reliance is placed upon a decision of this Court reported in Mahadayal Premchandra v. Commercial Tax Officer, Calcutta, (AIR 1958 SC 667 ). In that case, this Court was called upon to consider the Bengal Finance (Sales Tax). Act, 1941 (6 of 1941). There also, the agent was sought to be made liable in respect of the sale of goods belonging to a non-resident principal under a section which may be taken to be in pari materia with the section, we are considering. This Court held that the Kanpur Mills,. whose agent the appellant in the case was, were not carrying on any business of selling goods in West Bengal and were selling goods in Kanpur and despatching them to West Bengal for consumption. This part of the judgment is called in aid to show that the first condition of the liability of the agent in the present case under the Madras General Sales Tax Act is not fulfilled. Unfortunately for the appellant, in this case there is a clear finding by the High Court that the non-resident principals were carrying on the business of selling in Andhra Pradesh. The High Court has observed that if the non-resident principals took out railway receipts in their own names, thereby manifesting their intention to remain the owners and to retain the control over the goods, the sales must be taken to have been completed or to have taken place in the State of Andhra Pradesh. From this, the High Court came to the conclusion that the non-resident principals were doing business of selling in, Andhra Pradesh. The High Court pointed out that inasmuch as the appellant after securing the orders received the railway receipts from the sellers and handed them over to the buyers and sometimes collected the consideration and transmitted the same to the sellers, the sales thus resulting must be held to have taken place in the State either on behalf of the appellant or on behalf of the non-resident principals, and whichever view be correct, the appellant as agent was liable as a dealer within the Act. Either it was a dealer itself, or it became a dealer by the fiction created by S. 14-A, since the non-resident principals had done business in each case in the State of Andhra Pradesh. The case of this Court on which reliance has been placed, turned on its own facts, and a finding there cannot be used in the present case, because no finding on the facts of one case can be applied to the facts of another.6. Sub-section (2) of S. 14-A was said to be connected with the opening part, and it was argued that the tax was leviable on the turnover relating to the business of a non-resident, which was carried on by the non-resident in the taxable territory. In our opinion, once the finding is given that the non-resident principal carried on the business of selling in Andhra Pradesh and the appellant was the admitted agent through whom this business was carried on, the rest follows without any difficulty. The High Court, in our opinion, was, therefore, right in upholding the levy of the tax from the appellant, in view of our decision that the appellant came within the four corners of S. 14-A in relation to the transactions disclosed in the last category.
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### Explanation:
5. The section makes the agent liable fictionally as a dealer in the circumstances laid down in the section, viz., that he is acting on behalf of a non-resident person doing business of buying or selling goods in the State. The agent is assessed to tax under the Act in respect of the business of such non-resident in which the agent is concerned, irrespective of whether the turnover of such business is more or less than the minimum prescribed in the Act. It is contended that the first thing to decide is whether the non-resident could be said to be carrying on the business of selling in Andhra Pradesh in the circumstances of this case, and reliance is placed upon a decision of this Court reported in Mahadayal Premchandra v. Commercial Tax Officer, Calcutta, (AIR 1958 SC 667 ). In that case, this Court was called upon to consider the Bengal Finance (Sales Tax). Act, 1941 (6 of 1941). There also, the agent was sought to be made liable in respect of the sale of goods belonging to a non-resident principal under a section which may be taken to be in pari materia with the section, we are considering. This Court held that the Kanpur Mills,. whose agent the appellant in the case was, were not carrying on any business of selling goods in West Bengal and were selling goods in Kanpur and despatching them to West Bengal for consumption. This part of the judgment is called in aid to show that the first condition of the liability of the agent in the present case under the Madras General Sales Tax Act is not fulfilled. Unfortunately for the appellant, in this case there is a clear finding by the High Court that the non-resident principals were carrying on the business of selling in Andhra Pradesh. The High Court has observed that if the non-resident principals took out railway receipts in their own names, thereby manifesting their intention to remain the owners and to retain the control over the goods, the sales must be taken to have been completed or to have taken place in the State of Andhra Pradesh. From this, the High Court came to the conclusion that the non-resident principals were doing business of selling in, Andhra Pradesh. The High Court pointed out that inasmuch as the appellant after securing the orders received the railway receipts from the sellers and handed them over to the buyers and sometimes collected the consideration and transmitted the same to the sellers, the sales thus resulting must be held to have taken place in the State either on behalf of the appellant or on behalf of the non-resident principals, and whichever view be correct, the appellant as agent was liable as a dealer within the Act. Either it was a dealer itself, or it became a dealer by the fiction created by S. 14-A, since the non-resident principals had done business in each case in the State of Andhra Pradesh. The case of this Court on which reliance has been placed, turned on its own facts, and a finding there cannot be used in the present case, because no finding on the facts of one case can be applied to the facts of another.6. Sub-section (2) of S. 14-A was said to be connected with the opening part, and it was argued that the tax was leviable on the turnover relating to the business of a non-resident, which was carried on by the non-resident in the taxable territory. In our opinion, once the finding is given that the non-resident principal carried on the business of selling in Andhra Pradesh and the appellant was the admitted agent through whom this business was carried on, the rest follows without any difficulty. The High Court, in our opinion, was, therefore, right in upholding the levy of the tax from the appellant, in view of our decision that the appellant came within the four corners of S. 14-A in relation to the transactions disclosed in the last category.
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